author: Fuld, J. Desmond, J.

text:
    Riesa B. Glassman, Appellant, v. Jacob Glassman, Defendant, and New York State Employees’ Retirement System, Respondent.
    Submitted October 10, 1955;

    decided January 12, 1956.

      Joseph B. Franklin for appellant.
    I. The complaint states a cause of action against both defendants. II. The judgment of the Appellate Division and the order of Special Term deprived plaintiff-appellant of any adequate remedy. (Staten Is. Edison Corp. v. Maltbie, 296 N. Y. 374; New York Foreign Trade Zone Operators v. State Liq. Auth., 285 N. Y. 272.)

      Jacob K. Javits, Attorney-General (Abe Waginan, James O. Moore, Jr., and William Alpert of counsel), for respondent.
    I. The Retirement System is an agency through which the state performs an integral government function. Fundamental principles establish its immunity from this suit in the Supreme Court for affirmative and coercive relief and the rendition of a money judgment against it. (Samuel Adler, Inc., v. Noyes, 285 N. Y. 34; Breen v. Mortgage Comm., 285 N. Y. 425; Niagara Falls Power Co. v. White, 292 N. Y. 472; Psaty v. Duryea, 306 N. Y. 413; Matter of Mahon v. Board of Educ., 171 N. Y. 263; New York City Employees’ Retirement System v. Eliot, 267 N. Y. 193; General Mut. Ins. Co. v. Coyle, 207 Misc. 362; Matter of Hicka, 180 Misc. 173; Arkansas v. Texas, 346 U. S. 368; Kansas City Bridge Co. v. Alabama State Bridge Corp., 59 F. 2d 48, 287 U. S. 644; People ex rel. Buffalo & Fort Erie Public Bridge Auth. v. Davis, 277 N. Y. 292; Sunlit Gardens v. Moore, 183 Misc. 343.) II. The immunity of the state and its agencies is not in any way affected by the question of whether or not plaintiff has any other remedy. (Buckles v. State of New York, 221 N. Y. 418; Staten Is. Edison Corp. v. Maltbie, 296 N. Y. 374; Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362; Atlantic Coast Line R. Co. v. Public Service Comm., 77 F. Supp. 675; New York Foreign Trade Zone Operators v. State Liq. Auth., 285 N. Y. 272.)
   Fuld, J.

The complaint before us, predicated on section 273 of the Debtor and Creditor Law, charges that defendant Jacob Glassman transferred a sum of money to the New York State Employees’ Retirement System, also named as a defendant, with intent to defraud plaintiff, his wife, and to prevent her from collecting certain amounts due her on judgments which she had previously obtained against him. In this suit, brought in the Supreme Court, she seeks a judgment setting aside that transfer as fraudulent and void as to her so that she may receive from the fund transferred the amount of her judgments. Upon motion by the Retirement System, the court at Special Term dismissed the complaint as to that defendant, on the ground that the System, exercising a governmental function of the state, is immune from suit in the Supreme Court, and the Appellate Division unanimously affirmed.

The appeal is here by our leave to permit decision of a question, a very narrow and limited one, never before considered or passed upon by this court.

According to the complaint, plaintiff entered into a separation agreement with her husband in May of 1953, whereby he agreed to pay her $100 a month for her support and maintenance. He made two payments and then failed to make any others. Plaintiff thereupon brought several actions to recover the installments as they became due and recovered judgments against him for such installments totaling a trifle over $1,000. In the course of the supplementary proceedings that followed, it was discovered that Glassman, an employee of the State of New York and a member of the Retirement System, had recently received $2,627.22 from the sale of securities and had deposited that sum with the Retirement System “to be credited to his account.”

The complaint then goes on to allege, first, that the transfer was fraudulent and void as to plaintiff, that it was made by Glassman “ without any consideration and with the sole intent to hinder the plaintiff in collecting the judgments heretofore obtained against * * * Glassman ’ ’ and, second, that Glass-man was insolvent or on the brink of insolvency and that ‘ ‘ the transfer of the funds ”, constituting his only tangible assets, “ was made with the intent and for the sole purpose of making it impossible for this plaintiff to collect the amount due her and to prevent and delay * * * [her] from collecting the judgments ” previously obtained.

The relief prayed is that the transfer to the Retirement System be declared fraudulent and a nullity as to plaintiff; that the funds be declared the property of Glassman and that the Retirement System act as trustee; and that Glassman and the Retirement System ‘ ‘ be directed to turn over ’ ’ to plaintiff the sum of $1,000.50, the amount of the aforesaid judgments in favor of plaintiff against her husband.

Section 273 of the Debtor and Creditor Law provides that “ Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.” Apart from the problem as to the court’s jurisdiction, there is no doubt that the complaint states a good cause of action to set aside and annul the conveyance, at least to the extent necessary to satisfy plaintiff’s claim. (Debtor and Creditor Law, § 278; see Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Society Milion Athena v. National Bank of Greece, 281 N. Y. 282, 293.) The only question for decision, therefore, is whether the Supreme Court lacked jurisdiction over the Retirement System and the subject matter of the action, as the lower courts have held, because this is, in effect, a suit against the state.

The doctrine of sovereign immunity from suit, rooted in the ancient common law, was originally based on the monarchical, semireligious tenet that “ the King can do no wrong ”. (See Borchard, Government Liability in Tort, 34 Yale L. J. 1, 2; Borchard, Governmental Responsibility in Tort, 36 Yale L. J. 1,17-41.) In modern times, it is more often explained as a rule of social policy, which protects the state against burdensome interference with the performance of its governmental functions and preserves its control over state funds, property and instrumentalities. (See United States v. Lee, 106 U. S. 196, 206; see, also, Block, Suits against Public Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060, 1061.) The immunity extends as well to officers and agencies of the state engaged in carrying on its governmental functions, and a suit against such an officer or agency is regarded as one against the state itself. (See, e.g., Psaty v. Duryea, 306 N. Y. 413; Breen v. Mortgage Comm., 285 N. Y. 425, 429-430; Volk v. City of New York, 284 N. Y. 279, 285-287.) Most states today provide some remedy whereby individuals with claims against the government may seek redress (see Claims against the State in Minnesota: Report of the Subcommittee on Immunity of the State from Suit, 32 Minn. L. Rev. 539, 545-556) and, in New York, the method has taken the form of a legislative waiver of the state’s “ immunity from liability” in section 8 of the Court of Claims Act. The suits to which the state has thereby consented, however, must be brought in the Court of Claims and in accordance with the procedure outlined in the Act governing that court.

Little argument is required to demonstrate that the Retirement System is the kind of state instrumentality that is clothed with the sovereign immunity of the state. It is engaged in an important governmental function, and providing retirement pensions, annuities and other employment benefits for its personnel, comparable to those received by the employees of private industry, certainly assists and promotes the efficient operation of the affairs of the state itself. The close relationship between the Retirement System and the state government is apparent throughout the Civil Service Law provisions which create and govern the affairs of the System. Thus, the State Comptroller is made its administrative head and trustee of its several funds (§§ 52, 70, subd. b), the Attorney-General, its legal adviser (§ 53), and custody of its funds is placed in the charge of the Department of Taxation and Finance (§ 70, subd. d). The state, as an employer of members of the Retirement System, is obligated for the maintenance of various reserves and funds of the System, as well as for its expenses and the payment of all employee benefits (§ 67).

Indeed, plaintiff’s brief presents no direct challenge to the System’s status as a state agency. Instead, she urges that immunity should be denied the System because, first, she has no other remedy, since the Court of Claims would have no jurisdiction over either an equitable action of this kind (cf. Psaty v. Duryea, supra, 306 N. Y. 413, 416-417) or the person of the individual defendant and, second, the System enjoys the powers and privileges of a corporation and, therefore, must also accept the responsibilities of a corporation ” and be amenable to the jurisdiction of a court of equity. In our view, neither of these contentions can assist plaintiff; the immunity of a state agency is in no way affected by the lack of any other remedy (see Psaty v. Duryea, supra, 306 N. Y. 413, 419-420; Buckles v. State of New York, 221 N. Y. 418, 423-424) or by the fact that the agency is endowed with the powers and privileges of a corporation. (See, e.g., Breen v. Mortgage Comm., supra, 285 N. Y. 425, 430; Matter of Hicka, 180 Misc. 173, 175-176; Arkansas v. Texas, 346 U. S. 368, 370.)

Consequently, if the status of the Retirement System as an agency of the state, clothed with its sovereign immunity, were the only question in the case, an affirmance would necessarily follow. The conclusion that it is such an agency, however, only equates its position with that of the state, so that a suit against it would be deemed one against the state. The question still remains whether the present suit is one against the agency, and, by that token, against the state. The answer must be in the negative.

This is not the ordinary case of an individual who seeks recovery, out of the funds of the state or its agency, for a wrong it has done him. Plaintiff is here suing to have set aside a conveyance made by her husband to the Retirement System which is condemned by a positive statute of this state as fraudulent of her rights as a creditor (Debtor and Creditor Law, §§ 273, 278). The real controversy is between plaintiff and her husband. The transfer of his funds under the circumstances alleged is, the statute declares, of no effect insofar as the creditor is concerned; the nature of the creditor’s recovery in such an action, this court has said, is to levy upon property ‘ which he is entitled to treat as belonging to the debtor, albeit the title is ostensibly lodged elsewhere.” (Hearn 45 St. Corp. v. Jano, supra, 283 N. Y. 139, 142.) So, in this case, title to the transferred funds is only “ ostensibly lodged ” in the System, and plaintiff is entitled to treat those funds as belonging to her husband.

The Retirement System, then, is not in any sense the real or primary defendant; it is in the case solely because the procedure for setting aside the fraudulent transfer requires that it be joined as a necessary party. The real defendant, the only one against whom an obligation is asserted by reason of alleged wrongful acts or conduct, is plaintiff’s husband.

Moreover, the only parties who stand to lose or gain anything as a result of the litigation are plaintiff and defendant Classman. If she prevails, she will be able to satisfy her judgments out of the assets of her husband; if not, they will remain secure in his account with the Retirement System, to be returned to him some day in the form of retirement benefits. In a sense, the System is in a position not unlike that of an innocent stakeholder, with nothing to lose or gain. Although the purpose of the transfer does not appear from the complaint, such a lump sum deposit as the husband made may be used only to obtain additional credit for prior service in certain specified employments (§ 60) or to secure additional benefits under the 55-year-old retirement plan (§86). If the System retains the funds, it is obligated for their eventual return to defendant, or the return of an equivalent sum, in one or another of these forms; if it “ loses ” those funds in this action, it is relieved of that obligation.

The situation is the same as if Classman had fraudulently-deposited all his assets with a bank or insurance company. It is precisely such ‘1 efforts on the part of a debtor to elude payment ” of his creditors that the legislation condemns. (Hearn 45 St. Corp. v. Jano, supra, 283 N. Y. 139, 142.) It would be egregiously unfair to allow him to succeed and circumvent the statute merely because he chose the Retirement System as his depository. Certainly, no sound or valid reason, no rule of policy, requires such a result, and the principles of sovereign immunity should not, and fortunately do not, necessitate it.

Whether a suit is against the state is not determined solely by looking at the parties named, but depends also upon the nature of the litigation, the relief sought and the way in which it affects the state. “It is well settled”, it has been said (Ex Parte Fitzpatrick, 171 Ind. 557, 560), “ that not every suit against an officer of the State is a suit against the State. A suit against an officer in which the State has no pecuniary interest, or substantive right to protect, is not a suit against the State.” In order for the doctrine to apply and immunity to attach, ‘ ‘ ‘ the relief asked must involve some direct or substantial interest of the state ’ ”. (Lefebvre v. Somersworth Shoe Co., 93 N. H. 354, 357; see Morrill v. American Reserve Bond Co., 151 F. 305, 308-310; Ex Parte State, 245 Ala. 193; Fidelity & Deposit Co. v. Shaid, 103 W. Va. 432; cf. Commercial Union Ins. Co. v. Connolly, 183 Minn. 1.) Thus, even though the doctrine of sovereign immunity bars suits against the state and its agencies alike, that doctrine will not be applied where the state or governmental unit, although named as a defendant, is not an actual or interested adverse party.

In Fidelity & Deposit Co. v. Shaid (supra, 103 W. Va. 432), for instance, one Shaid wrongfully converted certain construction materials and equipment which the State Road Commission had previously appropriated under the terms of a contractor’s bond. According to those provisions, the appropriated property was to be used by the Commission to reduce the liability of the surety on the bond, the Fidelity & Deposit Co. The latter instituted suit against both the State Commission and Shaid, requesting that the suit threatened by the Commission be stayed until plaintiff’s equities be ascertained, that Shaid be required to account for the material taken by him and that the value thereof be treated as a fund applicable to the claim of the Commission against plaintiff. The court upheld the complaint, despite explicit provision of the Constitution of West Virginia that the State shall never be made defendant in any court of law or equity ” (p. 438). In reaching its conclusion and in declining to apply the doctrine of immunity, the Supreme Court of Appeals declared that “ The real defendant is Shaid, for he will be the only person who will be required to pay, if the averments of fact be true. No money judgment is sought against the Commission. Its relation to the property involved is in the nature of that of a trustee, holding the property or its value for the benefit of the surety ” (p. 439).

And in Morrill v. American Reserve Bond Co. (supra, 151 F. 305), the defendant corporation had deposited various bonds and mortgages with the state treasurer of Missouri pursuant to a statute requiring such a deposit as security for repayment of the bondholders of the corporation. Upon the corporation’s insolvency, some of its bondholders brought an action to have these securities turned over to the receiver of the corporation, to be applied to the satisfaction of their claims. The state treasurer, joined as a defendant, opposed the proceeding on the ground that it was a suit against the state, prohibited by the Eleventh Amendment to the Federal Constitution. The court held that the suit was not against the state and directed that the securities be delivered to the receiver. “ Neither the state nor the State Treasurer ”, wrote the court, “ has any interest in the trust property or in the event of this proceeding. No disposition of it can entail either loss or gain upon the state or upon any of its officers. The only parties to it who have any right to or interest in the suit itself, or in the trust property which is its subject, are the defendant corporations and their creditors. * * * It is not, therefore, a suit against the state, and it falls far without the ban of article 11 of the amendments to the Constitution ” (p. 310).

So, in the case before us, “ no disposition of it can entail either loss or gain upon ’ ’ the state agency, since the only parties who have any interest in the suit, or in the property involved, are plaintiff and defendant Classman. The Retirement System holds the funds in a quasi-trust capacity, for section 273 of the Debtor and Creditor Law stamps them funds of the debtor husband upon which plaintiff may levy in satisfaction of her judgments. It is Glassman whose wrongful acts form the basis of the action and who will be required to pay if plaintiff prevails. The fact that a money judgment is sought against the state agency is of no consequence; it is merely a shorthand way of describing the total relief to which plaintiff is entitled. The actual effect of this suit is to set aside the fraudulent conveyance, thereby returning the ownership of the funds to the individual defendant, and plaintiff’s recovery will, for all intents and purposes, be against him. The simple fact is that the state has no real or direct interest in the outcome of this case, and it is not, therefore, a “ suit against the state.”

The judgment of the Appellate Division and the order of Special Term dismissing the complaint should be reversed and the motion to dismiss the complaint denied, with costs in all courts.

Desmond, J.

(dissenting). This is a judgment creditor’s action brought in Supreme Court, County of Kings, to set aside as in fraud of plaintiff’s rights, a transfer of money by defendant Glassman to defendant New York State Employees’ Retirement System. The complaint demands that the nullity of that transfer be adjudged and that the Retirement System be ordered to pay plaintiff from the amount so transferred, the amount due on her unsatisfied judgments against defendant Glassman. The courts below have granted the Retirement System’s motion to dismiss the complaint as to it for lack of jurisdiction. That dismissal was correct, since the Retirement System is an agency or instrumentality of the State of New York and the State has not given its consent to be sued in the Supreme Court.

That the State of New York is not suable (except by another State, U. S. Const., art. III, § 2, and 11th Amendt.) without its own express consent is settled (Kursted v. People, 1 Abb. Prac. 385; Lewis v. State of New York, 96 N. Y. 71; Quayle v. State of New York, 192 N. Y. 47; People ex rel. Swift v. Luce, 204 N. Y. 478; Chisholm v. Georgia, 2 Dallas [U. S.] 419). “ It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent ” (The Federalist, No. 81; see Davison, Claims against the State of New York, § 1.06). Till the State so consents, no suit at all can be brought against it and questions as to liability, or as to the nature or sufficiency of an alleged cause of action are not reached (Quayle v. State of New York, 192 N. Y. 47, 50, 51, supra; Breen v. Mortgage Comm., 285 N. Y. 425, 432). Therefore, in this as in every similar attempt to bring the State before the bar in its own courts, “ The essential question is whether the State has consented to a determination of its liability in the manner chosen by plaintiffs ” (Breen v. Mortgage Comm., supra, p. 432). Since the attempt here was to bring suit in the Supreme Court and since the State of New York has never authorized suits against itself to be brought in any court except the Court of Claims (Court of Claims Act, §§ 8, 9), the only conceivable question of law arising on this dismissal is as to whether this is a suit against the State. “ If the real defendant is the State, then, of course, it may be sued only as it has consented to be sued, to wit, in the Court of Claims ” (Breen v. Mortgage Comm., supra, p. 429, citing Samuel Adler, Inc., v. Noyes, 285 N. Y. 34). That the Retirement System is an arm or agency of the State performing the public function of providing and regulating pensions for public employees cannot be doubted (N. Y. Const., art. V, § 7; art. IX, § 12; art. XVI, § 5; Matter of Giannettino v. McGoldrick, 295 N. Y. 208, 212; Sunlit Garden v. Moore, 183 Misc. 343; Civil Service Law, art. 4, “New York State Employees’ Retirement System ”). Suability was not provided as to it by the language of section 51 of the Civil Service Law which gave the Retirement System the “ powers and privileges of a corporation”. In the Breen case (supra), the Mortgage Commission was held to be exempt from suit in the Supreme Court, although the statute made the commission a “ body corporate ’ ’ and empowered it “to sue and be sued ’ ’ (L. 1935, ch. 19, §§ 2, 4, subd. 1).

Nor can there arise in the present suit any problem as to “ whether the action is against an agency of the State, or whether it is against a public official in his personal capacity ” (Breen v. Mortgage Comm., 285 N. Y. 425, 429, supra; see Erie R. R. Co. v. Sells, 298 N. Y. 58, 62, and cases cited). No persons are here sued, individually or otherwise. The Retirement System is not a board or commission or other body of people. And the charge of this complaint is not of any trespass or usurpation or other wrongdoing on the part of the system or its officials or employees (see Ex Parte La Prade, 289 U. S. 444, 455). The system, so far as appears, simply performed its statutory duties in receiving the money from one of its “ members ” (presumably pursuant to Civil Service Law, § 63). By statute, those moneys were commingled with others from various sources into the “ funds of the retirement system ” in the custody and under the management of the State Comptroller, to be held, invested and paid out pursuant to statutory provisions only (see Civil Service Law, §§ 70, 71, 72, 75, 76, 91). A lawsuit which demands judgment that such a transfer to the Comptroller is fraudulent and that part of the transferred moneys be paid to the plaintiff could not possibly be anything but a suit against the State itself (Samuel Adler, Inc., v. Noyes, 285 N. Y. 34, supra; Niagara Falls Power Co. v. White, 292 N. Y. 472, 478). As such, “ it may be maintained only in accordance with the consent of the State, i.e., in the Court of Claims ” (Breen v. Mortgage Comm., 285 N. Y. 425, 429, supra). Even if this means that plaintiff will in the end be without a remedy, the courts have no power to legislate in her favor (Psaty v. Duryea, 306 N. Y. 413, 419).

It is suggested that there is or should be an exception to all this settled law, in favor of a suit like the present one wherein, it is said, the State is a “ mere stakeholder ” without any pecuniary interest ” of its own. It should be a sufficient answer that nowhere in the statutory or case law of New York is such an exception provided. Since the State’s nonsuability is absolute until waived, and since such a waiver requires either constitutional or statutory sanction (Davison, Claims against the State, § 1.07) and since appellant can point to no such constitutional or statutory provision in New York law, her claim of exception cannot be accepted by our courts. We are referred to decisions in other jurisdictions but those cannot be binding or even applicable on the question of whether New York has consented to defend such a suit as this in our Supreme Court. And, indeed, those decisions from other jurisdictions, even if controlling here, would not govern this present situation. The rule they announce is this: 11 A suit against an officer in which the State of New York does have “ a substantive right to protect, is not a suit against the State ’ ’ (Ex Parte Fitzpatrick, 171 Ind. 557, 560, and cases cited thereat). Such a rule (and we do not intimate that it is part of the law of New York) would not help this plaintiff, since, on the allegations of her complaint, the State of New York does have “ a substantive right to protect ” here. The State is sued here because, as alleged, a transfer was made as part of an attempt by the transferor to defraud his creditor. The transferee is not a nominal, but a necessary party defendant in any such suit (Hammond v. Hudson Riv. Iron & Mach. Co., 20 Barb. 378; Sage v. Mosher, 28 Barb. 287; 13 Carmody-Wait on New York Practice, pp. 726-727). And the reason for that necessity is because the transferee has an interest in the subject matter of the suit ” (24 A. L. R. 2d 422, and cases cited). The title to and custody of Retirement System moneys is in the State of New York. The State’s rights and obligations as to such funds are precisely stated in the statutes. The State cannot possibly be considered a “ stakeholder ” since a stakeholder is one who is a mere depositary of property in which he has no interest and to which he makes no claim, which he admits belongs to one or the other of rival claimants, and as to which he has the naked authority to deliver to one or the other on the happening or nonhappening of a certain contingency (State v. Dudley, 127 N. J. L. 127; Oriental Bank v. Tremont Ins. Co., 45 Mass. 1, 10). The Retirement Fund’s status bears no resemblance to that.

The judgment should be affirmed, with costs.

Conway, Oh. J., Froessel and Van Voorhis, JJ., concur with Fuld, J.; Desmond, J., dissents in an opinion in which Burke, J., concurs; Dye, J., taking no part.

Judgment of Appellate Division and order of Special Term reversed and matter remitted to Special Term for further proceedings in accordance with the opinion herein, with costs in all courts.


source: Caselaw Access Project

author: Desmond, J. Fuld, J.

license: Public Domain

text:
    In the Matter of Edith E. Owens, Appellant, against J. Raymond McGovern, as Comptroller of the State of New York, Respondent.
    Argued October 10, 1955;
    decided January 12, 1956.

      John T. DeGraff and John J. Kelly, Jr., for appellant.
    I. Decedent’s death resulted from an accident within the meaning of section 81 of the Civil Service Law. (Matter of Odell v. McGovern, 283 App. Div. 585, 308 N. Y. 678.) II. There is no justification for holding that the social philosophy and evidentiary requirements are different under the Retirement Law than they are under the Workmen’s Compensation Law. (Matter of Slattery v. Board of Estimate & Apportionment, 271 N. Y. 346; Rankin v. New York State Employees’ Retirement System, 274 App. Div. 160; Matter of Miller v. McGovern, 283 App. Div. 575.) III. The undisputed facts establish an accident within the meaning of section 81 of the Civil Service Law as well as under the Workmen’s Compensation Law. (Rankin v. New York State Employees’ Retirement System, 274 App. Div. 160; Matter of McCadden v. Moore, 276 App. Div. 490, 301 N. Y. 760; Matter of Becker v. McGovern, 281 App. Div. 1056; Matter of Godsman v. Grumman Aircraft Engineering Corp., 268 App. Div. 945, 295 N. Y. 708; Matter of Aldor v. Atlas Commissary Co., 266 App. Div. 928; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Ruby v. Lustig, 299 N. Y. 759; Matter of Shaw v. Browers Garage, 295 N. Y. 709; Matter of Brooks v. Elliott Bates, Inc., 295 N. Y. 710.) IV. The law relating to the State Employees’ Retirement System should be “ liberally ” construed for the benefit of its members. (Matter of O’Brien v. Tremaine, 285 N. Y. 233; Matter of Fischer v. Tremaine, 164 Misc. 576.)

      Jacob K. Javits, Attorney-General (George R. Rothlauf and James O. Moore, Jr., of counsel), for respondent.
    I. It cannot be said as a matter of law that decedent’s death was the natural and proximate result of an accident sustained in the performance of duty. (Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Odell v. McGovern, 308 N. Y. 678; Matter of McCadden v. Moore, 301 N. Y. 760.) II. Whether or not the events of March 12, 1951, constituted an accident was a question of fact and, therefore, within the exclusive province of the Comptroller for determination. It matters not that the Workmen’s Compensation Board determined such question otherwise. (Matter of McCadden v. Moore, 301 N. Y. 760; Elder v. New York & Pennsylvania Motor Express, 284 N. Y. 350; Neenan v. Woodside Astoria Transp. Co., 261 N. Y. 159; St. John v. Fowler, 229 N. Y. 270; Matter of Odell v. McGovern, 308 N. Y. 678; Matter of Trowbridge, 266 N. Y. 283.) III. No competent proof was excluded by the hearing officer.
   Desmond, J.

The question of law is this: on the hearing of an application for accidental death benefits from the State Employees’ Retirement System under section 81 of the Civil Service Law based on an allegation that death was caused by a heart attack due to strain and exertion in State employment, and where there is proof of such strain and exertion and of a fatal heart attack, may the State Comptroller deny the application without permitting the applicant to introduce medical evidence of causation? Our answer is “ no ”.

Summarized, petitioner’s proof before the hearing officer was that her husband, forty-five years old, while working as a junior civil engineer for the New York State Department of Public Works, was required as a member of a survey party staking out a proposed right of way to climb up and down a steep slope at the time when the ground was icy and covered with snow, that during that work decedent complained of a chest pain and shortness of breath whereupon he was relieved of those particular duties, but that the next morning he suddenly died of an acute coronary thrombosis. The Comptroller rejected the widow’s claim, holding that her husband’s death was not caused by an “ accident ” within the meaning of section 81 of the Civil Service Law. The Appellate Division affirmed, stating that its reasons therefor were the same as stated by that court in Matter of Odell v. McGovern (283 App. Div. 585, affd. 308 N. Y. 678). The Comptroller, so the Appellate Division wrote,11 acted within the permissible range of his power in rejecting the claim”. In the Odell case (supra), the widow of a State-employed attorney who suffered a heart attack sought this same kind of death benefit from the State Employees’ Retirement System on the theory that the fatal attack was brought on by emotional stress and anxiety caused by his courtroom work in the employ of the State. In the Odell case, the applicant urged that the Comptroller had erred in applying a stricter meaning to the word “ accident ” in the State Eetirement System Law than is applied by the courts in this same word in the Workmen’s Compensation Law. The Appellate Division in the Odell case, however, pointed out that the Employees’ Eetirement System statute itself (Civil Service Law, § 85, subd. b) says that a Workmen’s Compensation Board determination on the same facts is not binding on the Comptroller in passing on a claim such as this. In that Odell opinion the Appellate Division referred to Matter of McCadden v. Moore (276 App. Div. 490, affd. 301 N. Y. 760) as being a supposed authority for the application by the Comptroller in these cases of a more restricted meaning of the word “ accident ” than the meaning commonly applied in workmen’s compensation cases. The substance of the Appellate Division’s decision in the present case was, following the same court’s Odell decision (which we later affirmed without passing on the particular point), that the Comptroller was within his rights in holding as fact that the death of this petitioner’s husband was not “ the natural and proximate result of an accident sustained in the performance of duty ’ ’ in the State service (Civil Service Law, § 81, subd. a). The Appellate Division granted leave to appeal to this court, presumably to tender us the question of law as to applicable standards of proof in these Eetirement System accidental death claims where a heart failure is involved.

But it is impossible for us on this appeal to give a complete answer to the question of law discussed in the briefs since, for some reason not completely clear, there is no medical testimony whatever in this record. In the workmen’s compensation heart cases, of which we have had so many, there is usually no question but that the deceased workman underwent strain and exertion in the course of his duties. Ordinarily, too, in such workmen’s compensation cases there is no dispute but that claimant suffered a heart attack while at work or soon after-wards. The question in those cases is usually as to whether the exertion and strain of the work caused the heart attack so as to permit a finding of industrial accident. It is obviously impossible, given the other facts, to make such a causality finding, or to refuse it, without medical opinion proof. As Larson says in his “ Workmen’s Compensation Law ” the basic problem is medical causality (Vol. 1, § 38.83). The nexus between the work strain and the heart failure cannot be assumed, any more than the trier of the facts can assume that there was no such connection. Consequently, in every workmen’s compensation heart case we have ever seen there was opinion testimony of causation. Whether or not that opinion testimony was directly controverted, it was for the trier of the facts to say whether or not he adopted the conclusion of the expert who testified for claimant. And there is, as we shall show, no essential difference between the proof requirements of workmen’s compensation fatal heart claims and similar claims against the Retirement Fund. But this present record can be read — and in fairness should be read — as containing a ruling by the deputy comptroller that he would not take and did not need medical testimony but would decide the question of accident or no solely on the description already in the record of what decedent had been doing at the time he suffered the alleged strain. Colloquy at the end of the hearing contains a statement by counsel for claimant that he was resting on the testimony already taken, but the rest of what he said at that point makes it plain that he was putting before the deputy comptroller, perhaps not very scientifically, his contention that he was entitled to offer, also, medical testimony of causation. The Comptroller, nevertheless, rejected the testimony and denied the claim.

While a claim of an “ accident ” consisting of heart injury from work strain cannot be sustained without medical testimony it is, of course, possible, theoretically at least, that a finding of “no accident ” could be made without such testimony. If the only testimony as to the work done showed that there was no particular strain or exertion, then, regardless of medical testimony and with or without it, the trier of the facts could, we suppose, say that ordinary, uneventful, placid routine work could not result in an “ accidental ” injury to a worker’s heart within any of the statutes or cases (see 1 Larson on Workmen’s Compensation, §§ 38.64, 38.83). But there had been put into this record testimony of unusually strenuous working conditions and so there should have been an opportunity for claimant to demonstrate by opinion testimony, if she could, that this strain and exertion caused the heart injury.

Clearly there was adequate proof here of strenuous outdoor physical work by this forty-five-year-old engineer. In March, 1951, a contractor for a new road in the Bear Mountain area notified the State Engineer that the contractor was moving into a certain area where the State’s survey work had not yet been done and where it was necessary that this survey be made before the contractor’s work should disturb the terrain. Thus it became important that the surveying be done immediately and a survey team was assigned, made up of three junior civil engineers, including this decedent, and three other persons. The operation consisted of driving stakes by the use of sledge hammers and then taking and recording measurements, etc. Decedent was not taking notes but was, with the others, driving the stakes. The ground was icy in places with snow and, in other places, mud on top of ice, and the slope was very, very steep ” in both directions from the road center so workers had to climb steeply up and make their way steeply down. Those slopes were at a forty-five-degree angle and were covered with boulders, stumps and brush. The work had been postponed in the hope of better weather conditions and had been put off as long as possible but finally had to be done on that particular day. One of the witnesses said that conditions were the most rugged that he had ever seen for such work. Claimant offered before the deputy comptroller to show that earlier staking work done by these people had been on flat ground, but the hearing officer refused to accept this testimony. At 11:00 a.m. decedent came down the slope and complained to the person in charge of the party that he (decedent) could not work any more on the slope because he had pains in his chest, tightness and shortness of breath, saying, probably facetiously, that he was getting too fat for such work. The man in charge then changed places with decedent, letting the latter take notes while the man in charge did decedent’s work for the rest of the day. At 2:00 o’clock the next morning decedent complained of pains in his chest and shoulder and a doctor was summoned but when the doctor arrived at 2:30 a.m. decedent had died from an acute coronary thrombosis.

Petitioner tells us that this is a test case brought to examine into the statement or remark of the Appellate Division in Matter of Odell v. McGovern (283 App. Div. 585, 587, supra) that “ a different social philosophy ” from that of the Workmen’s Compensation Law has been expressed by the Legislature in the State Employees’ Retirement System statutes. In our Per Curiam opinion in the Odell case (308 N. Y. 678, 680, supra), we said that we found it unnecessary to decide whether there was such a difference between the two statutory systems or to decide whether the Comptroller may require more convincing evidence of an accident than is required under the Workmen’s Compensation Law. In Matter of Slattery v. Board of Estimate & Apportionment (271 N. Y. 346) decided in 1936, and in Matter of Nash v. Brooks (276 N. Y. 75) decided in 1937, this court had held, at least in effect, that Workmen’s Compensation Board determinations of accidental injury were binding on the medical board of the State Retirement System. Soon thereafter, however, the Legislature amended what was then section 67 of the Civil Service Law to provide that workmen’s compensation decisions should not be binding on the Comptroller or the medical board in proceedings concerning accidental benefits under the Retirement System. A possibly stronger declaration to the same effect is now found in subdivision b of section 85 of the Civil Service Law. Thus, we see that while this court at one time indicated that the Comptroller should follow the workmen’s compensation finding of accidental injury, the Legislature thereafter made it plain that the Comptroller, in determining that factual question, may do so independently of any prior decision of the Workmen’s Compensation Board. Of course, it is unfortunate and anomalous that on the same evidence two different State administrative bodies should make contrary determinations of fact, but the statutes, by denying conclusive effect in Retirement System cases to Compensation Board findings of accidental causation, permit such discordant results. The Comptroller is free to make his own independent factual determination on the proof as he sees it. But no statute authorizes him to reject competent proof or to make rules of law, as distinguished from case-by-case findings of fact. How much and what kind of evidence is needed to support a fact finding that a death is ‘ the natural and proximate result of an accident sustained in the performance of duty ” (Civil Service Law, § 81) is a question of law. When the proof has been taken, the Comptroller, if questions of credibility appear or if conflicting inferences are available, may perform the traditional duties of a trier of fact. He cannot change the law as to the meaning of the word “ accident ”.

This court held in Matter of Slattery v. Board of Estimate & Apportionment (271 N. Y. 346, 350, supra) that there is “no substantial difference ” between “ accidental injuries ” (Workmen’s Compensation Law, § 2) and injuries which are “ the natural and proximate result of an accident ” (Civil Service Law, § 81). True, the Legislature afterwards decreed that the Compensation Board’s holding of accident causation should not bind the Comptroller, but that statutory denial of res judicata left intact the holding that there is “ substantial identity of subject-matter ” (Slattery opinion, supra, p. 351) and that the issue as to accidental causation is the same under both statutes. Now, there can no longer be any doubt as to the applicable law of accidental causation in heart cases under the Workmen’s Compensation Law. Such fatal heart failures may be held “ accidental, if the employee, by a miscalculation of his own strength, inadvertently hastened his own death by exertion that caused the final breakdown ” (1 Larson on Workmen’s Compensation, § 38.83, p. 566). Whether exertion in employment followed by heart failure adds up to an accident under these rules is ordinarily a question of ultimate fact. To set up such a question we need proof of the work done and of the physical aftermath, but we then must look for another element: medical causation. When we have direct testimony of the first two observable facts, we seek causation in the opinion evidence of medical witnesses. When all that proof has been assembled, then ‘ ‘ Whether a particular event was an industrial accident is to be determined, not by any legal definition, but by the commonsense viewpoint of the average man ” (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37). In applying those ideas to the present case, we are not forcing this claim into a workmen’s compensation mold, or stretching the coverage of a so-called “ Masse rule ”. That the word “ accident ” is incapable of complete definition but is to be tested as to meaning by common speech and common understanding has been recognized in our courts and other courts for a long time (Mutual Accident Assn. v. Barry, 131 U. S. 100, 121; Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47, 51; Lewis v. Ocean Accident & Guar. Corp., 224 N. Y. 18, 21). The Masse decision (supra) restated and reapplied that test as to accidental heart injuries in industry. Nor did the Masse opinion say anything new when it stated (p. 37) that “ A heart injury such as coronary occlusion or thrombosis when brought on by overexertion or strain in the course of daily work ” is an accidental injury. Similar holdings abound in accident insurance cases (see Kleinman v. Metropolitan Life Ins. Co., 298 N. Y. 759; Burr v. Commercial Travelers Mut. Accident Assn., 295 N. Y. 294; see 166 A. L. R. 469 et seq.).

I should make it clear that I disagree with nothing in Judge Fuld’s concurring opinion.

The order appealed from should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to the State Comptroller for further proceedings not inconsistent with this opinion.

Fuld, J.

(concurring). In the disposition of the appeal, on the exceedingly narrow ground that the assertedly proffered medical evidence should have been received by the Comptroller for its possible bearing on causality, I concur.

In so doing, however, I would not have my vote construed as agreement with the contention advanced by petitioner that the Workmen’s Compensation Board’s finding of accident is in any way binding or conclusive on the Comptroller in determining whether accidental death benefits should be paid to petitioner under the Civil Service Law. (See, e.g., Matter of McCadden v. Moore, 301 N. Y. 760.) In other words, the court’s remission of the present matter to the Comptroller does not mean that that official must find that petitioner’s husband sustained an ‘1 accident ’ ’ within the sense of section 81 of the Civil Service Law or that his death was the natural or proximate result of such an accident. If different inferences may reasonably be drawn from the evidence adduced before him, the Comptroller may find, for whatever bearing it may have on the ultimate issue, that there was or was not unusual extra exertion and strain sufficient to have caused the coronary thrombosis; that there was or was not an accident; and, if there was an accident, that it was or was not the cause of death.

The Comptroller may not, of course, make a finding or render a determination completely unsupported by evidence, but, on the other hand, if his findings and conclusions do find support in the record, the courts have no alternative but to accept them, and that is so even though such a course might, as in the case now before us — just as in Matter of McCadden v. Moore (supra, 301 N. Y. 760) —lead to a result at odds with that reached by the Workmen’s Compensation Board. While that may be unfortunate, the fact is, as everyone recognizes, it was plainly contemplated by, and is the necessary consequence of, the amendment passed by the legislature to overcome the effect of our decisions in Matter of Slattery v. Board of Estimate & Apportionment (271 N. Y. 346) and Matter of Nash v. Brooks (276 N. Y. 75).

Conway, Ch. J., concurs with Desmond, J.; Fuld, J., concurs for reversal in a separate opinion in which Fboessel, Van Voobhis and Bubke, JJ., concur; Dye, J., taking no part.

Order reversed, with costs in this court and in the Appellate Division, and matter remitted to the State Comptroller for further proceedings.


author: Van Voorhis, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Isaac Namer, Also Known as David Grossman, Appellant.
    Argued November 16, 1955;
    decided January 12, 1956.

      Solomon A. Klein for appellant.
    I. Appellant was swamped by a mass of incompetent and highly prejudicial evidence showing that he was an escaped parole violator who thwarted apprehension for four years by concealing his identity under assumed names; who refused, when arrested, to reveal where he had been, what he had been doing, and whether he had committed any other crimes, and who owned a pile of tools and other equipment physically exhibited to the jury. All this was admitted, over repeated objection, as part of the People’s case. (People v. Tumminaro, 242 App. Div. 501; People v. De Santis, 305 N. Y. 44; People v. Wolf, 183 N. Y. 464; People v. Sickles, 156 N. Y. 541; People v. Abel, 298 N. Y. 333; People v. Pignataro,
      263 N. Y. 229; People v. Rutigliano, 261 N. Y. 103; People v. Zackowitz, 254 N. Y. 192.) II. The evidence was insufficient as a matter of law to warrant submission of the case to the jury. (People v. Persce, 204 N. Y. 397; People v. Leavitt, 301 N. Y. 113; Union Trust Co. v. Wilson, 198 U. S. 530; People v. Brenneauer, 101 Misc. 156; People v. Tumminaro, 242 App. Div. 501.)

      Frank A. Oulotta, District Attorney (Henry P. De Vine of counsel), for respondent.
    I. The guilt of defendant was established beyond a reasonable doubt. (People v. Persce, 204 N. Y. 397; People v. Russo, 303 N. Y. 673; People v. Leavitt, 301 N. Y. 113; People v. Wolosky, 296 N. Y. 236; People v. Fitzgerald, 156 N. Y. 253; People v. Ferraro, 161 N. Y. 365; People v. Conroy, 97 N. Y. 62; People v. Daghita, 299 N. Y. 194.) II. Evidence of defendant’s escape and concealment from a parole officer was admissible as proof of defendant’s motive for possessing the weapon. (People v. Molineux, 168 N. Y. 264; People v. Zackowitz, 254 N. Y. 192; People v. Scott, 153 N. Y. 40; People v. Fitzgerald, 156 N. Y. 253.) III. Evidence of ownership of the tools was relevant. (People v. Nitzberg, 287 N. Y. 183; People v. Richardson, 222 N. Y. 103; People v. Wilson, 7 App. Div. 326, 151 N. Y. 403; People v. Leavitt, 301 N. Y. 113; People v. Buchalter, 289 N. Y. 181.) IV. Evidence of defendant’s conduct while in custody was not prejudicial. (People v. Abel, 298 N. Y. 333; People v. Fernandez, 35 N. Y. 49; People v. Becker, 215 N. Y. 126, 215 N. Y. 721; People v. Green, 201 N. Y. 172; People v. Monat, 200 N. Y. 308; People v. Morse, 196 N. Y. 306.)
   Van Voorhis, J.

Defendant has been convicted of possessing a pistol of a size which might be concealed on his person, without a written license therefor, in violation of subdivision 4 of section 1897 of the Penal Law. This crime is a felony in view of the circumstance that the indictment charged, and the jury found, that in 1940 defendant had been convicted of robbery in the first degree and of criminally possessing a dangerous weapon after a prior conviction.

A certificate of the 1940 conviction was received in evidence in order to establish the felonious nature of the possession of this weapon, in view of the language of the penal statute that if he has been previously convicted of any crime he shall be guilty of a felony.”

This did not render admissible evidence that the defendant had violated his parole under the previous sentences by going for four years under an assumed name without reporting to the parole officer. Such evidence was received over defendant’s objection in this case, and emphasized by the prosecuting officer in his opening and summation to the jury. The respondent does not argue that introduction of evidence that defendant was a parole violator would be harmless error if the ruling admitting it were erroneous, but argues instead that it was admissible to show that defendant had a motive for having a pistol in his possession. Respondent’s brief states that “ he possessed a weapon £ in expectation ’ [People v. Zackowitz (1930), 254 N. Y. 192, 198] of the day when his true identity would be uncovered.” This simply means that a man who is liable to arrest on an important criminal charge would be likely to possess a revolver in order to try to shoot his way out if he were to be apprehended by the police. The Zackowitz case (supra) tends to support the position of defendant-appellant. There a judgment was reversed convicting a defendant of murder in the first degree on account of error in admitting evidence that three pistols and a tear gas gun had been found in his apartment. ££ The end” says the opinion (pp. 196-197, per Cabdozo, Ch. J.), ££ was to bring persuasion that here was a man of vicious and dangerous propensities, who because of these propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners. Indeed, this is the very ground on which the introduction of the evidence is now explained and defended. * * * Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime (Wigmore, Evidence, vol. 1, §§ 57, 192; People v. Molineux, 168 N. Y. 264). The endeavor has been often made, but always it has failed.” The caveat (p. 198) is not in point in this case, that£ £ A different question would be here if the pistols had been bought in expectation of this particular encounter. They would then have been admissible as evidence of preparation and design (Wigmore, Evidence, vol. 1, § 238; People v. Scott, 153 N. Y. 40).” In the Scott case (supra), the defendant had pawned Ms revolver and redeemed it just before the homicide. TMs evidence was held to have been admitted properly, for the reason that1 ‘ The purchase of a weapon with which a homicide is committed shortly before the fact, is always received to show that the accused had provided himself with the means of Mlling.” (P. 49.) That is different from the present situation where the revolver that was discovered in the attic of defendant’s garage was not used at all.

While there may be considerable doubt that motive is at all relevant in proving the crime here under consideration, a violation of subdivision 4 of section 1897 of the Penal Law, there can be no question that the proof here relied upon by the prosecution to supply evidence of motive bears no logical relationship to commission of the criminal act with which defendant was charged.

Whenever “ motive is to be established it must be the motive which underlies the crime charged ” and not some other crime (People v. Molineux, 168 N. Y. 264, 295). To be valid evidence of the commission of a crime, the motive attributed to the accused must have had a logical connection with the crime charged (People v. Fitzgerald, 156 N. Y. 253). In the latter case the theory was explained on which evidence of motive is relevant, as follows (p. 258): “it [motive] is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but for the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers it has any concern. It is in cases of proof by circumstantial evidence that the motive often becomes not only material but controlling, and in such cases the facts from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case. (People v. Bennett, 49 N. Y. 137; People v. Owens, 148 N. Y. 648; 1 Greenl. Ev. § 13.) ”

In order to be admissible, evidence of motive must possess a “ relation to the criminal act according to known rules and principles of human conduct ” (People v. Fitzgerald, supra, pp. 258-259). “If it has not such relation, or if it points in one direction as well as in the other, it cannot be considered a legitimate part of the proof” (People v. Fitzgerald, supra, p. 259; People v. Weiss, 290 N. Y. 160, 164-165).

No cases have been cited, nor have any been discovered, holding that being a parole violator, or being otherwise subject to arrest for a previous offense, by itself constitutes or could be regarded by a jury as a motive to eke out circumstantial evidence that a particular defendant was, in fact, in possession of a revolver.

There was no dispute about defendant’s identity as the man who was convicted under the 1940 indictment. Identity was not only admitted to the police officers, but had been proved by a pedigree statement, signed by appellant at the time of his arrest under the parole warrant which the prosecutor read to the jury. A criminal record was conceded in the opening by defendant’s counsel.

The real purpose of the prosecution can hardly have been to establish either identity or motive, but was to convince the jury that defendant was a confirmed criminal living in opposition to duly constituted authority, having escaped from the supervision and control of the State Parole Board, and evaded arrest for a period of four years by concealing his identity under assumed names, The forbidden object of this proof was to establish that he had a propensity to commit the crime with which he was charged (People v. Zackowitz, supra).

Another error has been argued in the admission of evidence. The prosecution was permitted to prove over objection by defendant that he remained silent, when he was interrogated at the police station concerning whether he had been involved in other crimes in the area in which he had lived. Parole Officer Skobell testified that at the station “ Parole Officer Davis as well as Lieutenant Gloss questioned him as to what he had been doing during the past several years since he had absconded from supervision ”, the answer to which, it is true, was excluded upon an objection after il absconded ” had been interjected by the witness in the presence of the jury, yet when Police Lieutenant Gloss was called to the stand, the court reversed itself and allowed the following incompetent and prejudicial testimony to be introduced over objection by defendant, which remained in the record:

Q. What was your conversation with him at that time? A. I asked him where he had been and what he had * * * been doing, what he had been working at. I asked him was he involved in any other crimes in the area in which he lived.
Q. What were his replies to those things? A. Very vague. No answers at all. * * *
“ Q. Did you question him with reference to the use of the name David Grossman? A. I did not.
“ Q. What were the replies to the other questions that you told us? * * # A. No answers at all.” (Italics supplied.)

This has been held to constitute reversible error (People v. Travato, 309 N. Y. 382; People v. Abel, 298 N. Y. 333; People v. Pignatoro, 263 N. Y. 229; People v. Rutigliano, 261 N. Y. 103).

We consider that the evidence was sufficient to warrant submission to the jury. The circumstance that this revolver was wrapped in the folds of a tarpaulin belonging to defendant, on which were piled numerous other articles also belonging to him, was enough to establish a prima facie case against him, coupled with his admission to Police Lieutenant Gloss: Well, if the detectives say they found the gun there, I must have put it there.” It was material to receive evidence concerning where this pistol was discovered, and evidence of the circumstances became not less relevant for the reason that the jury may have inferred that some of the articles with which the pistol was kept were susceptible of use for criminal purposes. Their ownership by defendant (whatever their nature may have been) was part of the chain of circumstantial evidence tending to establish that he likewise owned the revolver which the indictment charges bim with possessing.

Defendant’s conviction is reversed on account of errors in the admission of evidence and a new trial is ordered.

Desmond, J.

(concurring). I vote for reversal, but on a ground which is broader than, but not necessarily inconsistent with, the ground stated in this court’s majority opinion. To prove a “ motive ” for defendant’s alleged violation of subdivision 4 of section 1897 of the Penal Law, the prosecutor was allowed to show that defendant was a parole violator at the time. But the statute makes it a crime merely to possess, without a license, certain kinds of firearms. A violation thereof does not involve or include any specific intent. Mere possession, otherwise licit, becomes a crime if the possessor does not have a license. “ Motive ” has no more to do with such a violation than with the unlicensed driving of an automobile, or the unlicensed possession of narcotics or explosives. True, there are New York cases, such as People v. Connolly (253 N. Y. 330, 341), which say that evidence tending to show the motive for a crime is “ always admissible”. Bnt the crime itself must still be one to which a specific motive is reasonably assignable. If it be the law, as says the opinion in People v. Fitzgerald (156 N. Y. 253, 259), that evidence of motive, to be admissible, must have a “ relation to the criminal act according to known rules and principles of human conduct ’ ’, then any alleged motives are entirely outside the scope of investigation in cases like the one here under review. The dispute on this trial was as to the identity of the possessor of the unlicensed revolver. The coincidental circumstance that defendant was delinquent in reporting to his parole officer was twisted into proof that he, and not someone else, was the possessor.

Conway, Ch. J., Fuld, Feoessel and Burke, JJ., concur with Van Voorhis, J.; Desmond, J., concurs in a separate opinion; Dye, J., taking no part.

Judgments reversed and a new trial ordered.


author: Conway, Ch. J.

text:
    Elizabeth O’Connor, Appellant, v. Olive Papertsian et al., Respondents.
    Argued October 19, 1955;
    decided January 12, 1956.

      Maurice J. McCarthy, Jr., for appellant.
    I. The action of the Appellate Division was an unwarranted interference with the trial court’s discretion and in effect a reversal. (Clark v. Delaware & Hudson R. R. Corp., 245 App. Div. 447; Byrd v. Keith Corp., 186 Misc. 19; O’Keeffe v. O’Keeffe, 208 App. Div. 750; Zukas v. Lehigh Valley Coal Co., 187 App. Div, 315.) II. Plaintiff is being denied a jury trial in violation of section 2 of article I of the New York State Constitution. (McGurty v. Delaware L. & W. R. R. Co., 172 App. Div. 46; Hollwedel v. Duffy-Mott Co., 263 N. Y. 95; Russell v. Rhinehart, 137 App. Div. 843; Burns v. New York & Long Is. Traction Co.,
      139 App. Div. 145; York Mtge. Co. v. Clotar Constr. Corp., 254 N. Y. 128; Schenck v. Prudential Ins. Co. of America, 167 Misc. 282; Duke v. Fargo, 172 App. Div. 746; Howard v. Bank of Metropolis, 115 App. Div. 326; Lawrence v. Wilson, 86 App. Div. 472.)

      Bernard Meyerson and Richards W. Hannah for Olive Papertsian, respondent.
    I. The Appellate Division had the authority to reinstate and increase the verdict set aside by the trial court. (Schroeder v. Krohnberg, 244 App. Div. 826; Laidhold v. Suburban Laundry Co., 239 App. Div. 847; Hartford v. Greenwich Bank of City of N. Y., 157 App. Div. 448, 215 N. Y. 726; Helgers v. Staten Is. Midland R. R. Co., 69 App. Div. 570; McGrath v. Third Ave. R. R. Co., 9 App. Div. 141; De Camp v. Thomson, 159 N. Y. 444; Matter of Baldwin, 158 N. Y. 713; People ex rel. Coler v. Lord, 157 N. Y. 408.) II. There are no constitutional questions involved herein and this court does not have the jurisdiction to review a discretionary order. (Miozzi v. Armstrong Coal Co., 283 N. Y. 567; Merriam v. Wood & Parker Lithographing Co., 155 N. Y. 136.)

      Olin S. Nye and Matthew E. Lawless for Anthony De Vito, respondent.
    I. The Appellate Division has power to modify a trial court’s decision ordering a new trial. (Steinleger v. Frankel, 117 Misc. 693.) II. The action of the Appellate Division is constitutional. (Holmes v. Jones, 121 N. Y. 461; Torsiello v. Drohan, 254 App. Div. 803; Hyman v. City of New York, 263 App. Div. 896; Iannotta v. Integrity Holding Corp., 269 App. Div. 1044; Ullman v. Tubbs, 279 App. Div. 1120; Dugan v. Murphy, 281 App. Div. 1044; Kligman v. City of New York, 281 App. Div. 93; Laidhold v. Suburban Laundry Co., 239 App. Div. 847.)
   Conway, Ch. J.

In the Supreme Court the jury brought in a verdict in favor of the plaintiff in the amount of $1,000. A motion made by the plaintiff to set aside the verdict on the ground of inadequacy was granted and a new trial ordered. Defendants appealed from that order to the Appellate Division, which “modified” the order of the Trial Term by ordering “ a new trial on the ground of the inadequacy of the verdict unless defendants stipulate to increase the verdict to the sum of $2,500, in which event the judgment is to be entered accordingly, with costs to plaintiff-respondent.” The defendants so stipulated. The plaintiff, thereupon, took this appeal, as of right.

Plaintiff, a passenger in one of defendants’ automobiles, was injured when they collided. The principal claim of damages was for a rash which plaintiff claimed resulted from the treatment of the injuries sustained. The main issue at the trial was whether there was a connection between the accident and the rash. The jury’s verdict in plaintiff’s favor of $1,000 indicated its finding that the rash was not attributable to the accident. On the motion to set aside the verdict, plaintiff contended that the verdict was inadequate even for the admitted injuries, without consideration of the rash.

In its opinion the Appellate Division said :

“We are satisfied that the verdict was inadequate for the conceded injuries and are also satisfied that the jury was fully justified in finding that the rash was unconnected with the accident or injuries resulting from the accident. The question therefore is whether we must require a new trial, including the issue which the jury has properly adjudicated against plaintiff, merely because the jury made an inadequate award on the part of the case which they found in plaintiff’s favor, or whether we may not properly place a value on the connected injuries as high as any jury would be warranted in going and give the defendants the opportunity of stipulating to pay such an increased verdict in lieu of suffering a new trial.
“It would seem clear in reason and principle that the last alternative should be available to the court in order that the litigation may be brought to a just determination without involving the time and expense of another trial.”

In the words of the plaintiff herself: 1 ‘ The sole question for determination concerns the right of the Appellate Division to affirm the trial court in setting aside a verdict of $1,000 as inadequate and granting a new trial, yet denying the new trial if the verdict is voluntarily increased to $2,500.” That is, we have before us solely a question of law as to the power of the Appellate Division to modify the order of the trial court granting a new trial as it did in this case.

The plaintiff contends that: 1. “ The action of the Appellate Division was an unwarranted interference with the trial court’s discretion and in effect a reversal”, and 2. “ The plaintiff is being denied a jury trial in violation of Article I, Section 2 of the New York State Constitution.”

The first point of the plaintiff inferentially concedes that the Appellate Division has the power to act as it did, but that in our present case such action was an unwarranted interference ”. Since this appeal was heard, on plaintiff’s request, on an abridged record, the trial minutes are not before us and we are limited to considering the Appellate Division opinion, a portion of which the plaintiff relies upon heavily. It appears that the plaintiff’s contention is that since the granting of the new trial, on the grounds of inadequacy, rests in the trial court’s discretion, and since the Appellate Division agreed with the trial court in stating that “ [w]e are satisfied that the verdict was inadequate * * * ”, that therefore the Appellate Division did not have the power to modify, or in effect reverse, the determination with which it agreed, and that such action on its part would be a clear case of an abuse of discretion as a matter of law, with the conclusion being that the Appellate Division neither had the right nor the power to so act.

Statutory authority for the action of the Appellate Division is to be found in section 584 of the Civil Practice Act. That section reads: Upon an appeal from a judgment or an order, any appellate court to which the appeal is taken, which is authorized to review such judgment or order, may reverse or affirm, wholly or in part, or may modify the judgment or order appealed from, and each interlocutory judgment or intermediate or other order which it is authorized to review, and as to any or all of the parties. It shall thereupon render judgment of affirmance, judgment of reversal and final judgment upon the right of any or all of the parties, or judgment of modification thereon, according to law, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing. * *

In construing the predecessor of section 584 (Code Civ. Pro., § 1317), our court pointed out in Herrman v. United States Trust Co. (221 N. Y. 143, 145-147):

* The amendment to section 1317 provides that the Appellate Division may affirm, reverse or modify the judgment or order appealed from and render ‘ final judgment upon the right of any or all of the parties.’ [Emphasis supplied.] * * *
The trial court, in the case before us for decision, had power, instead of setting aside the verdict and ordering a new trial, to reduce the verdict, with the consent of the plaintiff, and direct judgment for the amount to which it was reduced [case cited]. The power to thus reduce verdicts at Trial Term is too well settled and has been followed too long to be questioned now. It is said to be a power inherent in the court. * * * Such judgment is just what the Appellate Division said the trial court should have rendered in this case.” (See, also, Lamport v. Smedley, 213 N. Y. 82, 85; Middleton v. Whitridge, 213 N. Y. 499, 506-507.)

It is true that the Herrman case (supra) dealt with a contract action rather than a tort action, but the difference which had existed between the Appellate Division’s power in contract and tort actions (see Whitehead v. Kennedy, 69 N. Y. 462) was eliminated by the amendment of section 1317 of the Code of Civil Procedure (Lamport v. Smedley, 213 N. Y. 82, supra; Middleton v. Whitridge, 213 N. Y. 499, supra), and in both types of case the Appellate Division was given the power to render the final judgment which the trial court could or should have rendered.

It is likewise true that the portion of section 584 which provided that: “ When a trial has been before a jury, the judgment of the appellate court must be rendered either upon special findings of the jury or the general verdict, or upon a motion to dismiss the complaint or to direct a verdict ”, was deleted by the Legislature in 1926, and is presently absent from section 584 of the Civil Practice Act. However, the omission of that sentence may not be considered as a limitation upon the power of the appellate court for, if any construction be placed upon it, it would be one of extension rather than restriction of the powers of the Appellate Division. In any event, subsequent to the 1926 amendment deleting that sentence from section 584, United Paperboard Co. v. Iroquois Pulp & Paper Co. (217 App. Div. 253, affd. without opinion 249 N. Y. 588) was decided. In that case the Appellate Division said in its opinion: ‘1 We construe the words ‘ final judgment upon the right of any or all of the parties ’ in section 584 of the Civil Practice Act, broadly to include all such final determinations of a party’s right as could have been made by the trial court [eases cited].” (Emphasis supplied.) Our court, in affirming without opinion, adopted this construction, insofar as holding that the Appellate Division had the same power to act as did the trial court. It is clear, therefore, that the rationale and principles enunciated in the earlier cases mentioned above which predate section 584 of the Civil Practice Act, still obtain today.

As a result, the Herrman case (supra) would be controlling as to the situation now before us, for the facts are identical (the distinction between contract and tort no longer prevailing) except that, in the Herrman case, the Appellate Division reduced the recovery and the plaintiff stipulated to take the reduced sum, while in the case now before us the Appellate Division increased the recovery and the defendant stipulated to pay the increased sum. Both actions were tried before a jury, and in both the trial court set aside the verdict and granted a new trial.

The power of the trial court to grant a new trial on the ground that the verdict is inadequate or excessive, is undisputed. Similarly the trial court may deny a motion for a new trial on condition that the party, other than the movant, stipulate to pay a greater amount or accept a lower amount, as the case may be (7 Carmody-Wait on New York Practice, §§ 21, 22, pp. 120-122). As we have said earlier, the Appellate Division is enabled to render the judgment ivhich the trial court could or should have rendered “ upon the right of any or all of the parties * * * ” and therefore can act as it did in the present case.

The Appellate Division believed the trial court should have disposed of the action by allowing the defendant to stipulate to. pay a larger sum and, upon that condition, denied the motion for a new trial and therefore the Appellate Division acted in the manner in which the trial court could or, in the opinion of the Appellate Division, should have acted. It matters not that the granting of such conditional order would lie within the discretion of the trial court, for “ [m] alters of discretion are reviewable by the Appellate Division. Since that court is a branch of the Supreme Court, whenever discretion is vested in ‘ the supreme court ’ it may be exercised by the Appellate Division by way of a review of the action of Trial or Special Term, even though there has been no abuse of discretion by the lower branch of the court.” (9 Carmody-Wait on New York.Practice, § 137, p. 573, cases footnoted; Hogan v. Franken, 221 App. Div. 164.)

The plaintiff’s second contention, viz., that she is being denied a jury trial in violation of section 2 of article I of the New York State Constitution is likewise without merit. The same issue was raised in Herrman v. United States Trust Co. (221 N. Y. 143, 147-148, supra) and there we stated: “As was said in Middleton v. Whitridge (supra) [213 N. Y. 499, 507], that practice does not lead to any encroachment upon the functions of the jury. The defendants had their case tried by the jury once, and they have no constitutional right to two jury trials. The jury rendered its verdict, and the defendants, not satisfied therewith, moved to set the verdict aside. The trial court granted the motion but the Appellate Division reversed that decision. As some measure of relief, however, the Appellate Division cut down the recovery against the defendants, with the consent of the plaintiff.” (Emphasis supplied.) The same situation exists in our present case except that the plaintiff here is in the position that the defendant was in the Herrman case (supra). This reversal of positions in no way adversely affects either the power vested in the Appellate Division, or the rationale of the Herrman case, indicating that the exercise of such power was constitutional. The nature of the power which resides in the trial court and the Appellate Division to raise an inadequate verdict, or to reduce an excessive one, is exactly the same.

At the end of a jury trial, when the defendant moves to set aside the verdict as excessive and requests a new trial, the court may grant such a motion. Upon appeal the appellate court may reverse the trial court upon condition that the plaintiff agree to take a lesser sum. It could be maintained that the defendant has been thereby deprived of a jury trial by the stipulation of the plaintiff, but such contention was raised before us in the Herrman case (supra), and we held that it did not deprive the defendant of a trial by jury.

Exactly the same problem is presented when the plaintiff, at the end of a jury trial, moves to set the verdict aside on the ground of inadequacy and requests a new trial. The trial court may grant such a motion. Upon appeal the appellate court has it within its power, by analogy, to reverse the trial court’s order granting a new trial, and it may do so on the condition that the defendant stipulate to pay an increased amount to the plaintiff.

This exercise of power by the appellate court is exactly the same in both examples except that it applies to different parties. In both cases it is the party who moves for the new trial who invokes the constitutional argument of deprivation of trial by jury, when the opponent stipulates either to increase or decrease the amount involved. (It must be remembered that both plaintiff and defendant are entitled to demand a jury trial [Civ. Prac. Act, § 426]). Conversely, it is the person who initially opposes his opponent’s motion for a new trial, over whose objection the motion is granted, who then stipulates to increase or decrease the amount involved.

In essence what transpired in the present case is as follows: The plaintiff received a verdict in the amount of $1,000 and the trial court set it aside as inadequate. The Appellate Division said it agreed with the trial court that it was inadequate and that the plaintiff was entitled to a new trial. However, the Appellate Division then offered the defendant the alternative of paying the plaintiff the maximum amount which the jury could have found as a matter of law. The Appellate Division thus “ properly place [s] a value on the connected injuries as high as any jury would be warranted in going and give[s] the defendants the opportunity of stipulating to pay such an increased verdict in lieu of suffering a new trial.” The plaintiff cannot claim that she is. being deprived of her trial by jury because of the Appellate Division’s action in giving her the maximum amount she would be allowed to recover by a jury verdict as a matter of law. Had she received a verdict in excess of that sum, the Appellate Division could have set it aside as excessive.

In the present case the Appellate Division is not reversing a factual finding by the jury “ upon the right of the parties ”, but is affirming their finding of liability; determining that the damages awarded thereon were inadequate as a matter of law and announcing the limit of the damages awardable as a matter of law.

One of the defendants raises the issue that plaintiff does not have an appeal as of right, citing Miozzi v. Armstrong Coal Co. (283 N. Y. 567), where we dismissed an appeal from a judgment of the Appellate Division unanimously reversing an order of the Trial Judge for a new trial and reinstating the verdict. By the settled practice of this court, such a judgment was considered, prior to 1942, to be tantamount to an affirmance (see, e.g., Markiewicz v. Thompson, 246 N. Y. 235; Garrison v. Sun Print. & Pub. Assn., 222 N. Y. 691). That result was reached because former section 588 of the Civil Practice Act permitted an appeal as of right from a final judgment or order ‘ ‘ of reversal or modification ’ ’ rendered by the Appellate Division without specifying what was to be reversed or modified. Thereafter, section 588 was amended so that subdivision 1 (par. [b], cl. [ii]) now reads that an appeal as of right is available when: ‘ ‘ the appellate division direct a reversal or modification of the judgment or order appealed from ” (emphasis supplied).

As the Judicial Council Report reveals (Eighth Annual Report of N. Y. Judicial Council, 1942, pp. 422,423), the italicized words were added to make clear the legislative intent that a determination of the Appellate Division reversing an order of the Trial Judge for a new trial and reinstating the verdict, is to be treated as a reversal for the purpose of an appeal to this court. (See, also, Matter of Active Fabrics Corp [Rosedale Fabrics], 299 N. Y. 678; Baillargeon v. Jacques, 299 N. Y. 792.)

The judgment should be affirmed, with costs.

Desmond, Fuld, Frobssel, Van Voorhis and Burke, JJ., concur ; Dye, J., taking no part.

Judgment affirmed.