author: Lotjghban, Ch. J.

text:
    Isabelle C. de la Bouillerie, Appellant, v. Anne M. C. de Vienne et al., Respondents, et al., Defendants.
    Argued October 12, 1949;
    decided November 23, 1949.

      Barbara Estelle Barb for appellant.
    I. The dismissal of the complaint for lack of jurisdiction after submission of an affidavit before final adjudication setting forth newly discovered documentary evidence, which if credited, established jurisdiction in the court, deprived plaintiff-appellant of her day in court, and was an abuse of discretion as a matter of law. (Porter v. Russell, 271 App. Div. 542, 296 N. Y. 985; Charles v. Scheibel, 128 Misc. 275; Oka v. United States Fidelity & Guar. Co., 213 App. Div. 746; Mevius v. Tiffin Products, 198 App. Div. 812.) II. Special Term, in refusing to take jurisdiction of this action and dismissing the complaint, erred as a matter of law because there was no proof that both plaintiff and the defendants de Vienne were nonresidents of the State when the action was commenced. (Murnan v. Wabash Ry. Co., 246 N. Y. 244; Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152; Douglas v. New York, N. H. & H. R. R. Co., 248. N. Y. 580; Matter of Cornell, 267 N. Y. 456; Pietraroia v. New Jersey & H. R. R. & F. Co., 197 N. Y. 434.)

      Alfred C. Bennett for respondents.
    The order and judgment of Special Term as unanimously affirmed by the Appellate Division were in all respects proper. (Matter of Case, 214 N. Y. 199; Gregonis v. Philadelphia & Beading Coal & Iron Co., 235 N. Y. 152; Pietraroia v. New Jersey & H. R. R. & F. Co., 197 N. Y. 434; Hoes v. New York, N. H. & H. R. R. Co., 173 N. Y. 435; Rothstein v. Rothstein, 272 App. Div. 26, 297 N. Y. 705; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; De Sairigne v. Gould, 83 F. Supp. 270.)
   Lotjghban, Ch. J.

This action was brought in the Supreme Court, New York County. The complaint declares the defendants to be residents of this State and charges them (1) with having caused the plaintiff to be falsely imprisoned in France and (2) with there conspiring to defraud her of an interest in the estate of her parents, who died in that country.

After appearing generally, the defendants moved under rule 107 of the Buies of Civil Practice for an order dismissing the complaint upon the ground that the court “ in its discretion should not take jurisdiction of this action, but should remit the plaintiff to her proper forum ”. Through an opposing affidavit, the plaintiff claimed a temporary residence in New York City and asserted a determination to reside there permanently.

The question as to the plaintiff’s residence was assigned to an Official Beferee who rejected her declaration of an intent to reside in this State. The defendants then moved for confirmation of the Beferee’s report and for dismissal of the complaint. In opposition to that motion, the plaintiff submitted an affidavit of her attorney which made these allegations: The defendants were continually in the United States from June, 1946, to November, 1946; they now have their first citizenship papers; one of them holds a license from the Treasury of the United States whereby her funds in this country are decontrolled; the process herein was served upon them in this State. Notwithstanding that showing, Special Term confirmed the report of the referee and dismissed the complaint. The Appellate Division affirmed. We granted to the plaintiff leave to appeal to this court.

Our courts are bound to try an action for a foreign tort when either the plaintiff or the defendant is a resident of this State. (Crashley v. Press Pub. Co., 179 N. Y. 27, 32.) It is only when an action is brought by one nonresident against another for a tort committed outside the State that our courts may refuse to take cognizance of the controversy. (Wedemann v. United States Trust Co., 258 N. Y. 315, 317; Murnan v. Wabash Ry. Co., 246 N. Y. 244, 247; Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152,160.) Hence there was here error of law when Special Term dismissed the complaint without consideration of the question whether at the commencement of this action the defendants were residents of this State (Rules Civ. Prac., rule 108; N. Y. Const., art. I, § 2; Herzog v. Brown, 217 App. Div. 402, affd. 243 N. Y. 599; Hannes v. Kingdom of Roumania Monopolies Inst., 260 App. Div. 189, 191-192).

The judgments should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.

Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Judgments reversed, etc. [See 300 N. Y. 644.]


source: Caselaw Access Project

author: Bbomley, J.

license: Public Domain

text:
    1130 President St. Corp., Appellant, v. Bolton Realty Corporation, Respondent.
    Argued October 5, 1949;
    decided November 23, 1949.

      George J. Rudnick for appellant.
    I. The Appellate Division was not justified in reversing the facts found by Special Term that the option agreement contained all the essential terms of a valid lease and that no terms were to be included in the formal lease other than were contained in the option agreement. (Mercer v. Payne & Carnaby Co., 110 Neb. 28; Selmar Garage Corp v. Rink Realty Cory., 299 N. Y. 579; People v. St. Nicholas Bank, 3 App. Div. 544, 151 N. Y. 592; Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209; Bondy v. Harvey, 62 F. 2d 521, 289 U. S. 740; Liggett Co. v. Rose, 152 Md. 146.) II. The option agreement contained all the essential terms of a valid lease and no further terms were necessary to constitute it a valid lease. (1 McAdam on Landlord and Tenant [5th ed.], p. 186; Hirsch v. Lichtenstein, 79 Misc. 31; Bondy v. Harvey, 62 F. 2d 521, 289 U. S. 740; Liggett Co. v. Rose, 152 Md. 146; Emigrant Ind. Sav. Bank v. 108 W. 49th St. Corp., 255 App. Div. 570, 280 N. Y. 791; Witty v. Matthews, 52 N. Y. 512; Herald Square Realty Co. v. Saks & Co., 215 N. Y. 427; May v. Gillis, 169 N. Y. 330; 41st St. Bus Term. v. Klinger, 134 Misc. 467, 231 App. Div. 815; Newbufger v. American Sur. Co., 242 N. Y. 134.) III. The option agreement is not indefinite, vague, or uncertain in any respect. IV. The finding that the agreement fails to satisfy the Statute of Frauds is without support in the record. (Crane v. Powell, 139 N. Y. 379.) V. The option is not unenforcible because it lacked mutuality of obligation. (Cochran v. Taylor, 273 N. Y. 172; Trustees of Hamilton Coll. v. Roberts, 223 N. Y. 56; Heller v. Pope, 250 N. Y. 132; Benedict v. Pincus, 191 N. Y. 377.)

      C. Leo Calarco for respondent.
    I. The instrument when taken by itself is insufficient to satisfy section 259 of the Real Property Law. (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Weill Co. v. Creveling, 181 App. Div. 282; Bell v. Kavy, 43 N. Y. S. 2d 934.) II. The instrument is so vague, indefinite, uncertain and incomplete as to constitute no agreement at all, and is not such an agreement as will be specifically enforced in equity. (Antoville v. Bernard, 220 App. Div. 210; Textile Capitol Bldg. Corp. v. Wendel Foundation, 253 App. Div. 332, 279 N. Y. 769; United Press v. New York Press Co., 164 N. Y. 406; Racich Asbestos Mfg. Co. v. Brooks, 146 App. Div. 14; Law v. Pemberton, 10 Misc. 362; Arnold v. Rothschild’s Sons Co., 37 App. Div. 564; Bluemner v. Garvin, 120 App. Div. 29.) III. The alleged option is unenforcible since it lacks mutuality of obligation. (Savage v. Weigel, 128 Misc. 618.)
   Bbomley, J.

Plaintiff seeks specific performance of the following written agreement of option to lease certain premises of defendant in New York City:

“ In consideration of the sum of Two Hundred ($200.00) dollars, paid to the undersigned by 1130 President St. Corp., a New York corporation of 185 Montague Street, Brooklyn, New York, the receipt whereof is hereby acknowledged, the undersigned, being the owner of the premises known as 22-30 Little West 12th Street and 63-65 Gansevoort Street, New York City, does hereby give to the said 1130 President St. Corp., an option to rent the said premises 22-30 Little West 12th Street and 63-65 Gansevoort Street, New York City, from the undersigned as landlord, upon a lease for a term of twenty-one (21) years, to commence six (6) months from the date the option is exercised, and the rent for the said premises shall be Twelve Thousand ($12,000.00) dollars per year net, the tenant to pay taxes and public liability insurance premium only.

“ The premises are and will be subject at the time and [sic] lease is made to mortgage thereon not exceeding Fifty-Five Thousand ($55,000.00) Dollars and interest. This option may be exercised by the said 1130 President St. Corp., within three (3) months from the date hereof, upon the payment of Thirty Thousand ($30,000.00) Dollars, at which time a lease containing the above terms and in form satisfactory to the tenant sba.11 be entered into, and at which time possession of the entire building shall be given to the 1130 President St. Corp.”

On the trial plaintiff introduced the option, and evidence as to its timely acceptance, plaintiff’s readiness to perform and defendant’s refusal to execute a lease. Defendant rested on plaintiff’s proof, and moved for dismissal of the complaint upon the grounds asserted in its answer: that the written agreement does not contain a number of essential terms, which are customary in such long-term commercial leases and which the parties had left for future negotiation. Upon findings that the writing embodied the complete contract between the parties, that it contained all the essential elements of a valid lease without indication that any substantial terms had been left for further negotiation, and that the option had been duly accepted, the trial court granted specific performance.

The Appellate Division has reversed that judgment, and dismissed the complaint, holding the written agreement incomplete and insufficient to satisfy the Statute of Frauds. That decision clearly rested upon a finding that the writing does not contain three provisions “ usually found ” in long-term leases of commercial property in New York City: agreements relating to (1) the ultimate disposition of improvements made by the tenant during the term; (2) the tenant’s power to assign or sublet without the landlord’s consent; (3) necessary repairs during the term. Read in the light of their absence the provision for a lease containing the above terms and in form satisfactory to the tenant ” (emphasis supplied) indicated to the court that further substantial terms were to be subject to the tenant’s approval.

The option agreement is complete on its face and contains no indication that other provisions were to be negotiated. It signifies the parties, the premises, the term and the rent. It provides that the tenant is to pay ‘£ taxes and public liability insurance premium only ”, that the property may be mortgaged for not more than $55,000, and that $30,000 is to be paid by the tenant upon exercising the option. It could not be held that the writing omitted any term essential to the relationship of landlord and tenant, and none of the provisions suggested by respondent and the court below is essential to an effective lease. The absence of any provision for rent during the first six months of occupancy and the agreement to pay $30,000 might occasion surprise. Such terms are unusual, but the agreement is not unclear in that respect. It would strain the ordinary significance of the word to read in form satisfactory to the tenant as indicating further negotiation on matters of substance.

The requirements which this agreement must meet — that it may be enforced as a contract and satisfy the Statute of Frauds — are clear in theory and not peculiar to a contract for the lease of real property. The parties must have reached final agreement upon all essential terms of a valid contract, without reservation of any such term for future negotiation, and those terms must be embodied in a writing (Real Property Law, § 259; Ansorge v. Kane, 244 N. Y. 395; St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310). If originally in the form of an option, the contract becomes complete and mutual upon acceptance by the optionee (Jones v. Barnes, 105 App. Div. 287). Provision for the execution of a more formal contract is immaterial if form alone is subject to future approval (Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209).

In previous decisions which have denied enforcement of similar contracts to lease real property we find either that the written agreement clearly indicated that additional terms were to be negotiated or that such a reservation was demonstrated upon trial (Weill Co. v. Creveling, 181 App. 282, affd. 223 N. Y. 672; Palombi v. Volpe, 222 App. Div. 119; Mercer v. Payne & Sons Co., 115 Neb. 420; Goldstine v. Tolman, 157 Wis. 141). And such contracts have been held enforcible although a number of customary provisions were omitted (Bondy v. Harvey, 62 F. 2d 521 [C. C. A. 2d]; Liggett Co. v. Rose, 152 Md. 146; Reck v. Daley, 72 Ohio App. 307). The absence of provisions “ usually found ” in commercial leases might have been of crucial significance here if defendant had attempted to prove that the written contract did not set forth a complete agreement. Absent such proof, judicial notice may provide us with the customary terms of such a lease, but it cannot furnish evidence as to the actual agreement between these parties. The findings and judgment of the Appellate Division are without support in the record, and must be reversed.

However, we agree that the judgment of the trial court should be modified. Plaintiff has neither alleged nor proved any substantial basis for the broad injunctive provisions in paragraphs 2 through 4 of the original decree, or for the award to plaintiff of any excess in rent, heyond the amount set forth in the contract, which has been collected by defendant. Injunctive relief should be addressed only to acts which are threatened and imminent ” (see People v. Canal Board, 55 N .Y. 390, 395). No threat of interference with plaintiff’s possession has been shown, and if any should develop plaintiff then may seek an appropriate remedy. Although plaintiff might have recovered damages in this action (Worrall v. Munn, 38 N. Y. 137), the appropriate measure would have been “ the amount of such loss, as it appeared he had suffered by the defendants’ breach ” (Bernstein v. Meech, 130 N. Y. 354, 359). Where plaintiff had expected to occupy the premises for its own business, the profit of defendant bears no conceivable relation to the injury to plaintiff. Moreover, the latter did not attempt to establish any damages.

The judgment of the Appellate Division should be reversed and that of Special Term modified by striking therefrom decretal paragraphs 2 through 5 and, as so modified, affirmed, with costs in this court and in the Appellate Division.

Loughban, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Judgment accordingly.


author: Dye, J.

text:
    The People of the State of New York, Appellant, v. Ronald James Sadness, Respondent.
    Argued October 4, 1949;
    decided November 23, 1949.

      Louis G. Bruhn, District Attorney (Vincent G, Connelly of counsel), for appellant.
    I. Defendant stood by while his counsel entered a plea of guilty and answered questions prior to sentence pursuant to section 485-a of the Code of Criminal Procedure, and thereby waived his statutory right personally to enter his plea of guilty, and was properly sentenced by the County Court which had full jurisdiction. (People v. La Barbera, 274 N. Y. 339; People ex rel. Walsh [Franco] v. Warden of Sing Sing, 176 Misc. 627, 262 App. Div. 859; People v. Cassidy, 213 N. Y. 388; People v. Sugarman, 248 N. Y. 255; Pierson v. People, 79 N. Y. 424; People v. Guidici, 100 N. Y. 503; People v. Gowasky, 244 N. Y. 451; People ex rel. Battista v. Christian, 249 N. Y. 314; People v. Schaefer, 179 Misc. 147.) II. The statutory right of defendant to enter his plea personally is a personal right completely unrelated to jurisdiction. (Johnson v. Zerbst, 304 U. S. 458; Matter of Bojinoff v. People, 299 N. Y. 145; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; People ex rel. Harrison v. Jackson, 298 N. Y. 219.) III. Even if there were a violation of section 335 of the Code of Criminal Procedure by defendant’s plea being entered by his counsel, defendant’s remedy would be a motion in arrest of judgment or an appeal, and an application in the nature of coram nobis is an inappropriate remedy in this case. (People ex rel. Harrison v. Jackson, 298 N. Y. 219; Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; Matter of Bojinoff v. People, 299 N. Y. 145; Matter of Hogan v. Court of General Sessions, 296 N. Y. 1; People v. Whitman, 185 Misc. 459; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Gersewitz, 294 N. Y. 163; Matter of Lyons v. Ward, 272 App. Div. 120, 297 N. Y. 617, 334 U. S. 314.)

      Harry Gold for respondent.
    I. There can be no waiver of the statutory requirement that defendant himself must put in a plea of guilty to a felony. The plea in this case having been made by counsel, the court was without jurisdiction to impose sentence. (People v. Schaefer, 179 Misc. 147; People v. Welsh, 88 App. Div. 65; Abrams v. Bromberger, 74 N. Y. S. 2d 302; People v. Thompson, 4 Cal. 238; People v. Manriguez, 188 Cal. 602; Caruth v. State, 77 Tex. Cr. Rep. 150.) II. The court having failed to comply with section 1943 of the Penal Law, defendant was wrongfully sentenced as a second offender. (People ex rel. Terwillerger v. Brophy, 146 Misc. 797.) III. An application in the nature of coram nobis is an appropriate remedy in this case. (People v. Gersewitz, 294 N. Y. 163.)
   Dye, J.

On March 18, 1940, the respondent, Eonald James Sadness, was arraigned in Supreme Court, Ulster County, upon an indictment for grand larceny first degree, and pleaded not guilty. On motion of the District Attorney the case was transferred to Ulster County Court and counsel assigned. Later and on April 11,1940, the defendant appeared in Ulster County Court accompanied by his assigned counsel and through him, in open court, withdrew his former plea of not guilty and put in a plea of guilty, at the same time waiving the two-day interval for sentencing. The District Attorney then presented an information against the defendant charging him with being a second offender based upon a prior conviction and sentence for rape in California. The defendant, upon being advised of his rights in the premises, personally waived trial of the issue of identity and admitted the prior felony conviction. He was thereupon sworn and, when asked by the court, answered personally the customary presentence questions including the one that he had no legal reason why judgment should not be pronounced. A sentence to an indeterminate term of ten to twenty years as a second offender was imposed. No motion was made in arrest of judgment and no appeal was taken. In due course defendant was received in Clinton State Prison at Dannemora and commenced the service of his sentence.

On September 30,1948, the defendant filed the within petition in the nature of a writ of error coram nobis to vacate and set aside his sentence and conviction in Ulster County Court for alleged lack of due process in that he was not accorded his rights respecting counsel and that his sentence as a second offender was improper in that his prior conviction was not established in the manner prescribed by section 1943 of the Penal Law. Since these allegations were wholly without support in either the clerk’s minutes or the stenographer’s minutes which were in evidence and which were not challenged, the petition was properly dismissed.

On appeal the Appellate Division, Third Department, was of the view that the record left open an issue as to whether the defendant had entered a valid plea of guilty and remitted the matter to Ulster County Court for additional proof. The records were incontrovertible and neither side introduced any additional proof. When advised of this the Appellate Division withdrew its remittitur and entered an order which set aside the judgment of conviction, vacated the sentence and granted a new trial. The reversal was on the ground that the trial court was divested of its jurisdiction when the defendant’s plea of guilty was put in by counsel instead of by defendant himself, as provided by section 335 of the Code of Criminal Procedure.

As we read the language of section 335, compliance with its mandate depends upon the putting in of the plea in open court, rather than upon the circumstance that the actual word of “ guilty ” must issue from the mouth of the defendant himself (Matter of Rudd v. Hazard, 266 N. Y. 302).

The proceedings here were conducted in open court. The defendant was present and heard his counsel request the court to change his former plea of not guilty to one of guilty. Such procedure is not without precedent and indeed in at least two prior cases where the record indicated a similar course had been followed, we assigned no error because of such fact and thereby recognized that a plea of guilty through counsel in open court is permissible (People ex rel. Kondrk v. Foster, 299 N. Y. 329; Matter of Rudd v. Hazard, supra).

Now that the question is squarely before us, we are satisfied that acceptance of defendant’s plea of guilty through his counsel, in open court, did not amount to such statutory noncompliance as to constitute grounds for reversal of the judgment of conviction had thereunder.

On the other hand, a word should be said as to the availability of the remedy of a writ of coram nobis in a situation of this sort. As we have recently pointed out, it is available whenever a plea of guilty has been induced by fraud or misrepresentation (Matter of Lyons v. Goldstein, 290 N. Y. 19), or where a conviction has been obtained by the use of testimony known by the prosecutor to be perjured (Matter of Morhous v. New York Supreme Court, 293 N. Y. 131), or where the court has failed to advise the prisoner of his right to counsel and to inquire if he desired counsel (Matter of Bojinoff v. People, 299 N. Y. 145; People v. Koch, 299 N. Y. 378; Matter'of Hogan v. Court of General Sessions, 296 N. Y. 1), all of which involve the abrogation — without adequate remedy — of fundamental precepts either going to the jurisdiction of the court or resulting in the perpetration of a fraud upon the court. We have also indicated that where an error of law appears on the face of the record coram nobis is not available (People v. Gersewitz, 294 N. Y. 163, 167), and that the proper procedure to be adopted by a petitioner for the correction of such an error must be limited to the normal appeal, motion in arrest of judgment, or motion to withdraw a plea (Paterno v. Lyons, 334 U. S. 314; People ex rel. Wachowicz v. Martin, 293 N. Y. 361).

The rule thus announced finds further illustration in another case which we also decide today (People v. Kendricks, 300 N. Y. 544). There we held that a defendant may not by coram nobis attack a judgment of conviction where the asserted error — refusal of the District Attorney to disclose the identity of an informer upon whom police officers relied in giving testimony •— appeared on the face of the record and accordingly, could have been reviewed by motion in arrest of judgment or by appeal.

The petitioner’s additional contention that he was improperly sentenced as a second offender pursuant to section 1943 of the Penal Law, is without support in the record as evidenced by the Ulster County Court’s minutes and stenographer’s minutes.

The order of the Appellate Division should be reversed and the order of the County Court dismissing the petition herein affirmed.

Loitghran, Ch. J., Lewis, Conway, Desmond, Fuld and Bromley, JJ., concur.

Ordered accordingly.


author: Per Curiam.

text:
    The People of the State of New York ex rel. New York, Ontario and Western Railway Company, Respondent, against Sam Rosenshein et al., as Assessors of the Town of Fallsburgh, Sullivan County, et al., Appellants.
    Argued October 12, 1949;
    decided December 1, 1949.

      Lazarus I. Levine and Leo Salon for appellants.
    I. This appeal presents only questions of law for review by the Court of Appeals. The Appellate Division committed error in attempting to pass on facts deemed immaterial and not considered by the trial court. (Rubin v. Prudence Bonds Corp., 297 N. Y. 250; Matter of Totten, 179 N. Y. 112; Griggs v. Day, 158 N. Y. 1; Otten v. Manhattan Ry. Co., 150 N. Y. 395; Hirshfeld v. Fitzgerald, 157 N. Y. 166; Westerfield v. Rogers, 174 N. Y. 230; Buffalo & Lancaster Land Co. v. Bellevue Land & Improvement Co., 165 N. Y. 247; Allen v. Corn Exch. Bank, 181 N. Y. 278; Benedict v. Arnoux, 154 N. Y. 715; Fox Film Corp. v. Hirschman, 234 N. Y. 55; Mawhinney v. Millbrook Woolen Mills, 231 N. Y. 290.) II. It was incumbent upon relator to show that the railroad’s financial distress resulted despite proper management. The Appellate Division committed error in holding that the burden was upon defendants to prove mismanagement .and inefficiency. (People ex rel. Osgood v. Commissioners, 99 N. Y. 154; People ex rel. Jamaica Water Supply Co. v. Tax Comrs., 196 N. Y. 39; People ex rel. Amer. Contr. & Dredging Co. v. Wemple, 129 N. Y. 558; People ex rel. Panama R. R. Co. v. Commissioners of Taxes, 104 N. Y. 240; People ex rel. Rome, W. & O. R. R. Co. v. Haupt, 104 N. Y. 377; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574; People ex rel. Hudson & Manhattan R. R. Co. v. State Bd. of Tax Comrs., 143 App. Div. 26.) III. Cost of reproduction new, less physical depreciation, is the normal basis of railroad valuation. Belator must conclusively prove its lack of ‘ ‘ earning capacity under proper management ’ ’ as distinguished from merely lack of “ actual earnings ” before an economic depreciation factor can affect the normal rule of real property assessments. (People ex rel. Delaware, L. & W. R. R. Co. v. Clapp, 152 N. Y. 490; People ex rel. New York, O. & W. Ry Co. v. Shaw, 143 App. Div. 811, 202 N. Y. 556; People ex rel. New York Central R. R. Co. v. Thompson, 156 Misc. 536; People ex rel. Rome, W. & O. R. R. Co. v. Hicks, 40 Hun 598, 105 N. Y. 198; People ex rel. Lehigh Valley Ry. Co. v. Harris, 281 N. Y. 786; Harris Trust & Sav. Bank v. Earl, 26 F. 2d 617.) IV. The record is replete with evidence of mismanagement and inefficiency on the part of the railroad, and the same was amply proven. The holding of the Appellate Division that the record is barren of proof that in this case actual earnings and earning capacity are not synonymous is unjustified by the facts and unfair to appellants. V. Value should be determined by considering all factors in proper perspective. (People ex rel. Lehigh Valley Ry. Co. v. Harris, 168 Misc. 685; People ex rel. New York Central R. R. Co. v. Thompson, 156 Misc. 536; Rowley v. Chicago & N. W. Ry. Co., 293 U. S. 102; Great Northern Ry. Co. v. Weeks, 297 U. S. 135.)

      Elbert N. Oakes for respondent.
    I. The final orders appealed from should be affirmed except as modified to sustain the referee’s average rate of economic depreciation corrected to 36.3%. (Matter of Flood [Fed. Land Bank of Springfield], 253 App. Div. 864; Hansen v. Brooklyn Trust Co., 246 App. Div. 843; Matter of Berardini, 238 App. Div. 433, 263 N. Y. 627; Smith v. Smith, 273 N. Y. 380; Boyd v. Boyd, 252 N. Y. 422; Matter of Burdak, 173 Misc. 839; Matter of Kramer, 172 Misc. 598; Major v. Leary, 241 App. Div. 606; Nottingham v. Nottingham, 209 App. Div. 459.) II. No presumption exists that the assessments are correct. (People ex rel. Hotel St. George Corp. v. Lilly, 45 N. Y. S. 2d 599, 293 N. Y. 898; People ex rel. Home Owners’ Loan Corp. v. Hascy, 265 App. Div. 834.) III. The assessing officers ignored their legal duty by arbitrarily imposing upon this railroad property a series of grossly unreasonable assessments far beyond its cost new, less physical depreciation. IV. The drastic shrinkages in net earning power of the property of relator produced a depreciation in value greater even than the court allowed. V. The record is barren of any proof of mismanagement of the property of relator. VI. The referee’s average method of reductions of assessments upon economic grounds does not present error. (Southern Ry. Co. v. Kentucky, 274 U. S. 76; Smyth v. Ames, 169 U. S. 466; Consolidated Rock Products Co. v. Du Bois, 312 U. S. 510; Rowley v. Chicago & N. W. Ry. Co., 293 U. S. 102; Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U. S. 439; City of Detroit v. Detroit & Canada Tunnel Co., 92 F. 2d 833; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126; Matter of Melcroft Corp. v. Weise, 256 App. Div. 291.) VII. The referee made a mathematical error in determining that the assessable value of the property was 27%% of reproduction cost, This figure should have been 36.3%.
   Per Curiam.

In determining the value for assessment of the railroad’s property within the town of Fallsburgh for the years 1936 through 1942, the trial court properly took into account the fact that the company’s net operating income ” had been insufficient to meet fixed expenses during those years (see People ex rel. Delaware, L. & W. R. R. Co. v. Clapp, 152 N. Y. 490, 494; and People ex rel. Lehigh Valley Ry. Co. v. Harris, 168 Misc. 685, 693-694, affd. 257 App. Div. 912, affd. 281 N. Y. 786). Reduction of the value employed for assessment by a factor derived from the average annual deficit was not arbitrary (see People ex rel. Rome, W. & O. R. R. Co. v. Hicks, 105 N. Y. 198, 202).

Obviously, operation at a loss is unrelated to the value of the property unless the railroad’s income fairly reflects the earning capacity of its property. As appellants contend, the prudence of the management thus may be drawn in issue. However, the railroad’s burden on that issue was met here by proof which sustains the findings that the drop in revenue was due to economic factors beyond the control of management. None of the facts upon which appellants rely indicates that a prudent management would have acted differently in 1936 through 1942, or in the years immediately prior. Absent such proof, the earnings of this railroad must be accepted as fair indication of its earning capacity.

The seven proceedings were joined for trial by agreement, and any evidence which is relevant to each year may be employed in the determination for that year. Operating losses during 1936 through 1941 manifestly are pertinent to the value of the property in 1942. Although the extent of loss during 1942 would not have been available to the assessors in July, 1936 — when the assessment for that year was made — the employment of satisfactory evidence as to losses during subsequent years can occasion no prejudice in these proceedings. Under these circumstances it was proper to employ the average annual net income in constructing the factor for ‘ economic depreciation ’ ’.

Respondent’s property in the town of Fallsburgh — excluding Brown’s Pond, not employed for railroad purposes — should be valued for assessment during the years 1936 through 1942 at 8/22, or 36%%, of land value plus depreciated reproduction cost of improvements. Those orders of Special Term for the years 1937 through 1942 must be modified, since the proper equalized assessment for each year will be greater than the amounts asserted in the protests of the railroad. However, the order for 1936 will remain unaffected. Section 606 of the Civil Practice Act compels remission of these proceedings to the Appellate Division since that court has not specified those findings of the trial court which were modified (Civ. Prac. Act, § 602, subd. 2; Tax Law, § 293).

The orders of the Appellate Division should be reversed, and the matters remitted to the Appellate Division for further proceedings not inconsistent with this opinion, without costs.

Loughean, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Bbomley, JJ., concur.

Orders reversed, etc. [See 300 N. Y. 752.]


author: Ftjld, J.

text:
    Cherne Abrams, Appellant, v. Maryland Casualty Company, Respondent.
    Argued October 6, 1949;
    decided December 1, 1949.

      Ralph Stout, Louis Rothbard and Joseph Rothbard for appellant.
    I. The Appellate Division erred in dismissing the amended complaint upon the ground that the cause of action therein set forth did not accrue within the period of limitation prescribed in the policy. (Friederichsen v. Renard, 247 U. S. 207; Tiller v. Atlantic Coast Line R. R. Co., 323 U. S. 574; Harriss v. Tams, 258 N. Y. 229; Myers v. Warren, 275 Mass. 531; Geiger v. Merle, 360 Ill. 497; Branch v. Riverside Mills, 147 Ya. 552; Finzer v.
      Peter, 120 Neb. 389; Case v. Blood, 71 Iowa 632; Bellinger v. German Ins. Co., 51 Misc. 463, 113 App. Div. 917,189 N. Y. 533.) II. The Appellate Division erred in holding that the coverage of the policy did not apply to the accident. (Piccininni v. Ætna Life Ins. Co., 250 App. Div. 498; Pauli v. St. Paul Mercury Ind. Co., 167 Misc. 417, 255 App. Div. 935, 280 N. Y. 853; Matter of Haskell v. Hitchcock, 262 App. Div. 309; Matter of Lipshitz v. Hotel Charles, 226 App. Div. 839, 252 N. Y. 518; Hunt v. Century Ind. Co., 192 A. 799; Western Cas. & Sur. Co. v. Independent Ice Co., 80 S. W. 2d 626; Ocean Accident & Guar. Corp. v. Bear, 220 Ala. 491; Davis v. California Highway Ind. Exch., 118 Cal. App. 403; Howe v. Howe, 87 N. H. 338; Taylor v. United States Cas. Co., 269 N. Y. 360; Gerka v. Fidelity & Cas. Co., 251 N. Y. 51; Northam v. International Ins. Co., 45 App. Div. 177, 165 N. Y. 666.) III. The Appellate Division properly held that the question of waiver herein was one of fact which should not be disposed of upon affidavits. (Matter of Metropolitan Life Ins. Co. v. Conway, 252 N. Y. 449; Draper v. Oswego County Fire Relief Assn., 190 N. Y. 12; Gerka v. Fidelity & Cas. Co., 251 N. Y. 51; Benninghoff v. Agricultural Ins. Co., 93 N. Y. 495; Whipple v. Prudential Ins. Co., 222 N. Y. 39.)

      Reid A. Curtis and Julius S. Christensen for respondent.
    I. The amended complaint served November 15, 1946, pleads a new and different cause of action. This new cause of action is barred by the time limitation contained in the policy of insurance and the Appellate Division properly dismissed the complaint. (Moses v. Benjamin, 185 Misc. 50; Harriss v. Tams, 258 N. Y. 229; McConnell v. Caribbean Petroleum Co., 278 N. Y. 189; Guntzer v. County of Westchester, 273 App. Div. 966, 298 N. Y. 755; Grier Bros. v. Northern Assur. Co., 183 Pa. 334; International Photo Recording Machines v. Microstat Corp., 269 App. Div. 485; Brandyce v. Globe & Rutgers Fire Ins. Co., 252 N. Y. 69; Automatic Sprinkler Co. v. Employers’ Liability Assur. Corp., 163 App. Div. 671; Williams v. Fire Assn, of Philadelphia, 119 App. Div. 573; Devitt v. Continental Cas. Co., 269 N. Y. 474; Roth v. National Automobile Mut. Cas. Co., 202 App. Div. 667.) II. The Appellate Division was correct in holding that the coverage of the policy did not apply to the accident. (Kucker v. Gates Container Corp., 263 App. Div. 1006, 289 N. Y. 664; Jorgenson
      v. City of Sparta, 224 Wis. 260; Kean v. National Sur. Co., 241 N. Y. 252; Gaines v. Fidelity & Cas. Co., 188 N. Y. 411; Auerbach v. Maryland Cas. Co., 236 N. Y. 247; Royster Guano Co. v. Globe & Rutgers Fire Ins. Co., 252 N. Y. 75; Houlihan v. Preferred Accident Ins. Co., 196 N. Y. 337.)
   Ftjld, J.

Injured when struck by a truck being operated by its owner, Abraham Cohen, while he was delivering the products of his employer, Linden Farms Milk & Cream Co., Inc., plaintiff recovered judgment against both Cohen and Linden. Failing to collect on that judgment, plaintiff brought suit against the defendant insurance company upon the theory that a policy of insurance which it had issued covered the accident in question.

Defendant, by motions directed to the complaint, contested liability upon two grounds; first, that the policy did not cover the accident, and, second, that the action had not been brought in time. The court at Special Term denied both motions, but the Appellate Division, while affirming the denial of the first motion, granted the second and directed dismissal of the complaint upon the ground that the action had not been commenced within the period prescribed in the policy.

Cohen was a truck driver employed by Linden. Following what was evidently the usual practice among driver-employees, Cohen purchased a truck and had it registered in his name. Since, however, Linden had apparently advanced the money for the purchase price, the registered ownership was in 1938 transferred to Linden as collateral security for the indebtedness.

In December, 1938, when ownership was registered in its name, Linden took from defendant insurance company a $5,000 liability policy on the truck for one year. It required defendant to pay any sum — up to $5,000 for each person injured — which the insured shall become obligated to pay by’ reason of the liability imposed upon him by law for damages * * * sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.” When the amount of the insured’s obligation to pay was finally determined by judgment against the insured, the judgment creditor could “ recover under the terms of this policy in the same manner and to the same extent as the insured.” However, the policy provided, no action would lie against the insurance company unless “ suit ” was “ instituted within two years and one day * * * of such judgment ”.

Not long after the policy was issued, Cohen paid off his indebtedness to Linden, and the registered ownership was transferred back to him. The insurance company was not apprised of this action. After the transfer, Cohen continued in Linden’s employ, using the truck to deliver Linden’s milk products precisely as he had done when Linden was registered owner.

On November 6,1939, plaintiff, as noted above, was injured by the truck as it was being used in Linden’s business, and defendant was notified of the accident. Plaintiff brought suit against both Linden and Cohen for damages based upon their negligence and recovered judgment against them in November of 1941. In April, 1943, after executions had been returned unsatisfied, plaintiff instituted action against defendant based upon its liability under the policy. In her complaint, plaintiff alleged that the policy failed to name Cohen as an insured party although it was intended and agreed that both Linden and Cohen be insured ‘ ‘ following the said transfer of ownership. ’ ’ Accordingly, she prayed for a “judgment correcting and reforming” the policy so as to name Cohen as well as Linden “and for judgment against the defendant” for $5,000. A judgment directing reformation as well as payment of $5,000 plus interest was rendered after trial. On appeal, the Appellate Division, reversing the judgment, held that no case had been made out for reformation. In so ruling, however, the court granted plaintiff leave to amend the complaint. (See Abrams v. Maryland Cas. Co., 270 App, Div. 901.)

Pursuant to such permission, plaintiff served an amended complaint in November, 1946, and it is this amended pleading that is before us. It alleges, as did the original complaint, that Linden -continued to be insured by defendant after the truck had been transferred to Cohen. Unlike the original complaint, it does not recite that it was intended or agreed that Cohen be insured and therefore it seeks no reformation. All that is now demanded is a money judgment, the very relief sought by plaintiff since the service of the original complaint.

We consider first whether the complaint states a cause of action, and that turns upon whether the policy covered Linden at the time of the accident.

The policy, one of its provisions recited, did not apply to an accident which occurred “ after the transfer * * * of the interest of the named insured ” without defendant’s written consent. If Linden’s interest ” — i.e., the interest of the * * * insured ’ ’— was restricted to ownership, then, of course, its transfer of the truck’s registered ownership prior to the accident left it without any insurable interest. But we do not believe that Linden had so limited an interest or that this was the only interest insured. In so many words, the policy provided insurance against liability caused by accidents arising not only out of “ ownership ” of the automobile, but also out of its “ maintenance or use ”. Quite clearly, the interest insured was more than ownership; quite clearly, the policy covered any accident in which the vehicle was used or operated in such a way as to render the insured responsible. (See, e.g., Ocean Accident & Guar. Corp. v. Bear, 220 Ala. 491, 494; Howe v. Howe, 87 N. H. 338; see, also, 6 Blashfield, Cyclopedia of Automobile Law and practice [Perm, ed.], § 3873, p. 538; Harnett and Thornton, Insurable Interest in Property: A Socio-Economic Reevaluation of a Legal Concept, 48 Col. L. Rev. 1162, 1171.) Since, then, Linden continued to have the truck used in its business, it retained an interest that was insured by the policy, and the transfer of ownership did not relieve defendant of its obligation.

Linden, therefore, was protected against a judgment such as the one which plaintiff obtained and, by the terms of the policy, plaintiff was entitled to proceed against defendant if she instituted ” “ suit ” within two years and one day ” after she obtained a judgment against Linden. While plaintiff’s original complaint was served within two years after the rendition of such a judgment, the amended pleading was not served until well after the expiration of that period. The original complaint sought a judgment for reformation as well as for money damages while the amended pleading asks only money damages. Therefore, contends defendant, the original complaint pleaded an equitable cause of action and the amended one, a legal cause, with the consequence that the modified complaint stated a new cause of action and thereby initiated a new suit.

The term “ cause of action ” is not susceptible of a definition which is either unchanging or all-inclusive. It “ may mean one thing for one purpose and something different for another ” (United States v. Memphis Cotton Oil Co., 288 U. S. 62, 68); its meaning depends, in large measure, upon the context in which it is employed. (See, e.g., Harriss v. Tams, 258 N. Y. 229, 242-243; Zenith Bathing Pavilion v. Fair Oaks S. S. Corp., 240 N. Y. 307, 312; United States v. Memphis Cotton Oil Co., supra, pp. 67-69.) In a case involving a provision of statute or of contract limiting the time within which suit must be commenced, the cause of action will be deemed the same if the amended and original complaints both seek to enforce the same obligation or liability. (See Harriss v. Tams, supra, 258 N. Y. 229, 242; see, also, Goldstein v. Tri-Continental Corp., 282 N. Y. 21, 29; McConnell v. Caribbean Petroleum Co., 278 N. Y. 189, 193.) Thus, this court wrote in the Tams case (p. 242); “ The amendment may constitute for some purposes more than an amplification or extension of the cause of action already asserted, and may introduce what might, if technical considerations or ancient formulas apply, constitute a new and different cause of action. The question here is whether the action from its commencement was upon the same obligation or liability, though the cause of action to enforce that obligation or liability has been changed, or a new remedy has been asserted. So the Supreme Court of the United States has said: ‘ Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the Statute of Limitations do not exist, and we are of opinion that a liberal rule should be applied.’ (N. Y. C. & H. R. R. R. Co. v. Kinney, 260 U. S. 340, 346.) ”

It is manifest that the amended complaint before us does not spell out a cause of action different from that in the original complaint. In both original and amended pleading, the only obligation relied upon was one of contract based upon the insurance policy; in both, the facts alleged — indeed, their very method of presentation — were practically identical; and, in both, a judgment for money damages was requested. The amended complaint’s omission of Cohen as a named insured simply indicates that plaintiff abandoned her belief that Cohen was covered by the policy; that omission did not add a new theory or a new canse of action. Nor does the circumstance that plaintiff omitted her prayer for reformation from the second complaint mean that she abandoned her original cause of action or substituted a new one for it. What is significant and vital is that, in the amended complaint as well as in the initial one, defendant’s liability was predicated upon the claim that Linden was covered by the policy and that defendant was at all times fully apprised of the nature of plaintiff’s claim. Reason and fairness point the conclusion that the cause of action contained in the amended complaint was the same as that alleged in the original.

Consequently, since the complaint alleges a cause of action and since the suit was brought within the two-year period specified in the policy, the judgment of the Appellate Division should be reversed, and the order of Special Term affirmed, with costs in this court and in the Appellate Division.

Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye and Bromley, JJ., concur.

Judgment reversed, etc. [See 300 N. Y. 679.]


author: Bromley, J.

text:
    General Phoenix Corporation, Appellant, v. John B. Cabot, Respondent.
    Argued October 10, 1949;
    decided December 2, 1949,

      John JR. Bartels and Marvin F. Hartung for appellant. I. Bespondent’s agreement presents no issue of fact and is an absolute guaranty of payment.

      (Brainard v. New York Central R. R. Co., 242 N. Y. 125; Morris v. Wadsworth, 11 Wend. 100; Vetter v. Welz & Zerweck, 143 App. Div. 121; Dolgoff v. Schnitzer, 209 App. Div. 511; Kramer v. Relgov Realty Co., 243 App. Div. 98, 268 N. Y. 592; First Nat. Bank v. Jones, 219 N. Y. 312; Matter of Redding, 177 Misc. 987.) II. The public sale of collateral securities was lawfully held and presents no issue of fact. (Toplitz v. Bauer, 161 N. Y. 325; Cole v. Manufacturers Trust Co., 164 Misc. 741; Montgomery Bank & Trust Co. v. Jones, 182 App. Div. 252; Matter of Kiamie, 191 Misc. 179; Franklin Nat. Bank v. Newcombe, 1 App. Div. 294; Hiscock v. Varick Bank of N. Y., 206 U. S. 28; Farmers Nat. Bank of Annapolis v. Venner, 192 Mass. 531; Jones v. Costlow, 349 Pa. 136; Bush v. Adams, 165 F. 802; Southern Exch. Bank v. Langston, 33 Ga. App. 477; Central Nat. Bank of Oakland v. Peck, 15 Cal. App. 2d 512.) III. No issue of fact is raised concerning the proper amount credited respondent. Even were such an issue raised it could be determined by an assessment of damages under subdivision 4 of rule 113. (Lewis v. Chase Nat. Bank, 189 Misc. 190; Dolgoff v. Schnitzer, 209 App. Div. 511; Dodwell & Co. v. Silverman, 234 App. Div. 362; Waxman v. Williamson, 256 N, Y. 117; 379 Madison Ave., Inc., v. Stuyvesant Co., 242 App. Div. 567, 268 N. Y. 576; Livingston v. Blumenthal, 248 App. Div. 138.) ant’s collateral at the alleged “ sale ” cannot he disposed of on the motion for summary judgment. (Gillet v. Bank of America, 160 N. Y. 549; Toplitz v. Bauer, 161 N. Y. 325; Morris v. Windsor Trust Co., 213 N. Y. 27; State Trust & Sav. Bank v. Dunn, 24 F. 2d 477, 278 U. S. 582; Dibert v. Wernicke, 214 F. 673; Montague v. Dawes, 96 Mass. 369; Dibert v. D’Arcy, 248 Mo. 617; Clapp v. Associated Depositors, 33 F. Supp. 686; Manning v. Heidelbach, 153 App. Div. 790; Coleman v. Solomon, 225 Ala. 407; Winchester Rock & Brick Co. v. Murdough, 233 Mass. 50; Cole v. Manufacturers Trust Co., 164 Misc. 741.) II. The instrument sued upon does not permit the present action against defendant. (Gillet v. Bank of America, 160 N. Y. 549; Continental Bank & Trust Co. v. Chemical Bank & Trust Co., 51 N. Y. S. 2d 903; Dyner v. Collins, 41 N. Y. S. 2d 88; Assets Realization Co. v. Roth, 226 N. Y. 370; Brown v. Mechanics & Traders’ Bank, 43 App. Div. 173; Westville Land Co. v. Handle, 112 N. J. L. 447; National Bank of Newburgh v. Bigler, 83 N. Y. 51.) I'll. Since the instrument purports to impose an independent obligation upon defendant, he may avail himself of the defense of usury. (Schwarts v. Fifty Greenwich St. Realty Corp., 265 N. Y. 443; Astra Pictures v. Schapiro, 182 Misc. 19.) IV. The present motion should not be decided in plaintiff’s favor since there are at issue questions of fact which can be decided only upon a trial of the action. (Matter of Campbell, 176 Misc. 543.)

      Henry A. Stickney for respondent. I. The issues raised by defendant with respect to the acquisition by plaintiff of defend-
   Bromley, J.

Summary judgment was denied plaintiff on its claim under a contract of guaranty because it was thought that questions of fact were present relating to the effect of the guaranty agreement and the sale of collateral pledged thereunder. The Appellate Division affirmed the denial (two Justices dissenting) but allowed an appeal on certified questions which present for our review the claimed issues of fact. We hold the denial of summary judgment to be improper.

In March, 1947, defendant Cabot, the president, director and sole stockholder of a corporation known as Pluto Corporation, executed an instrument guaranteeing the payment of certain loans to be made to the corporation by plaintiff, General Phoenix Corporation. Collateral, consisting of stock in Pluto and another corporation also controlled by defendant, was pledged as security for the guaranty agreement. The loans, aggregating over $150,000 and represented by three promissory notes and an open account, were not paid at maturity. General Phoenix sought recovery under the guaranty agreement executed by Cabot, first by sale of the collateral security and then by this action on the agreement.', 'Cabot claimed the action was premature since all remedies had not been exhausted against the debtor; he also counterclaimed for return of the collateral on the ground that the securities had been deposited pursuant to a usurious agreement and that the sale was void because the securities had been purchased by the pledgee. General Phoenix filed a motion for an order striking the amended answer and dismissing the counterclaims and affirmative defenses, which was denied.

Whether summary judgment should have been granted depends on (1) whether the surety agreement on its face may be interpreted as a guaranty of payment so that defendant’s liability accrued immediately upon default of the principal obligor; (2) whether the sale of the pledged stock was properly held, and (3) whether defendant may plead the defense of usury.

1. The interpretation of a contract of suretyship is governed by the standards which govern the interpretation of contracts in general (Restatement, Security, § 88). Whether a surety is a guarantor of payment or a guarantor of collection depends upon the intention of the parties as expressed in the surety contract. If he binds himself to pay immediately upon default of the debtor, he becomes a guarantor of payment; if he binds himself to pay only after all attempts to obtain payment from the debtor have failed, he becomes a guarantor of collection (1 Brandt, The Law of Suretyship and Guaranty, pp. 241-249). Where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law, and paroi evidence is not admissible as an aid in interpretation; no trial is necessary to determine the legal effect of the contract (Hartigan v. Casualty Co. of America, 227 N. Y. 175, 178; Brainard v. New York Central R. R. Co., 242 N. Y. 125, 133). A contract of suretyship does not depend upon the use of technical words but upon a clear intent that one party as surety binds himself to the second party as creditor to pay a debt contracted by a third party, either immediately upon default of the third party or after attempts to effect collection from the third party have failed.

An examination of the surety agreement involved herein compels the conclusion that defendant obligated himself thereunder as a guarantor of payment. The ambiguities which defendant claims inhere in the instrument stem mainly from the use of the word ‘ ‘ indemnity ’ ’ in certain portions of the instrument. Upon a reading of the instrument as a whole, however, the ambiguity claimed by defendant becomes nonexistent. The contract is explicit: John B. Cabot guarantees and warrants “ the full and prompt payment at maturity of any part of the principal ’ ’; ‘ ‘ in case default is made at any time in payment of any of the # * * obligations ” he agrees to pay the same to General, its successors and assigns, upon demand ”; he agrees that the undersigned will upon demand pay and perform the undersigned’s obligation under this guaranty and indemnity without requiring any proceeding or action to be taken against the Borrower.” As opposed to this clear language there appears in the body of the instrument a reference to the contract as an indemnity ” and the instrument is entitled “ BOND OP INDEMNITY ”. In view of the clear and unmistakable language indicating that defendant guarantees payment at maturity, the use of the word indemnity ” cannot obscure the intention of the surety or give a different meaning to the instrument. Moreover, a contract of indemnity runs not to the creditor but to a third person who is or will become a debtor upon the imposition of a contingent liability (Jones v. Bacon, 145 N. Y. 446; Dolgoff v. Schnitzer, 209 App. Div. 511; 1 Brandt, The Law of Suretyship and Guaranty, pp. 19-20). Cabot’s liability under the surety contract attached as soon as there was default by Pluto in the payment of its obligations. An action against such a surety brought before all efforts to collect from the principal obligor have failed is not premature.

2. The guaranty contract authorized sale of the collateral, either at public or private sale, and further permitted the pledgee, General Phoenix, to purchase the stock at a public sale. Upon default by the principal obligor, demand was made upon the surety and notice was given to him that a sale would be held of the collateral pledged under the surety agreement. Notices of the proposed sale were duly published. Upon request of the surety, in writing, the sale was twice adjourned. In the request for adjournment he waived “ any and all objections to your right to hold and conduct such sale in accordance with your Notice * * * provided however that such waiver shall he without prejudice. to any rights of the undersigned to question the amounts of the specific items of indebtedness ” and agreed to “ indemnify and hold you harmless with respect to any and all damages, expenses, fees, costs and liabilities of whatsoever description which you may incur by reason of any and all adjournments of the above mentioned sale.”

Where consent is given under the contract, a pledgee may purchase at a public sale of pledged goods (Restatement, Security, § 51; Toplitz v. Bauer, 161 N. Y. 325). Technically, the notice of sale could no longer effectively constitute public notice after adjournment, and a further notice by publication should have been given before the actual date of sale. However, defendant specifically waived any right to object to the sale on this ground and he cannot now contend the sale was improper because of any irregularity as to publication. Nor may he seek to set aside the sale because of a claim that the price obtained for the securities was grossly inadequate. The sale was regularly conducted by an established auctioneer, at a place where such sales are usually held, and the bid of General Phoenix was the only bona fide bid received. Cabot was represented at the sale and had actual notice of the bid made by the pledgee; he made no objection to the sale, or the sale price, until his answer in the present action. He has not shown sufficient grounds for setting aside the sale. Where the terms of the contract authorize the pledgee to sell and to purchase upon sale, and due notice of the sale is given to the pledgor so that he has an opportunity to protect his interests, a low or inadequate price is not sufficient to establish that lack of good faith or diligence on the párt of the pledgee which would warrant setting aside the sale (Montgomery Bank & Trust Co. v. Jones, 182 App. Div. 252, affd. 230 N. Y. 580; Jenkins v. Smith, 21 Misc, 750; Matter of Kiamie, 191 Misc. 179). Defendant claims that the pledgee’s duty of good faith in enforcing his power of sale requires him to bid a fair approximation of the market price where there is no real competition, and that where the pledgee buys pledged chattels for only a nominal amount the sale is subject to attack. (See Restatement, Security, § 49, comment b.) That rule, however, is not the law in this State. The lack of “ any real competition ” or the purchase for a nominal amount ” is not alone sufficient evidence to establish bad faith, and defendant points to no other conduct of the pledgee from which it might be inferred that it acted in bad faith or with that lack of good faith sufficient to nullify the sale.

3. Cabot’s liability is secondary, accruing only after default on the part of Pluto, the principal obligor. Since the principal obligor may not plead usury (General Business Law, § 374; Jenkins v. Moyse, 254 N. Y. 319), the surety is unable to do so; as far as the underlying debt is concerned, he stands in the shoes of .his principal and can avail himself of only those defenses available to it (Salvin v. Myles Realty Co., 227 N. Y. 51).

Defendant sought to raise an issue of fact as to whether the proceeds of the sale of the collateral security were actually credited on the note. Since the affidavit of plaintiff’s treasurer, who was thoroughly qualified to state whether a credit was given on the indebtedness, established that prior to trial credit had been given, no issue of fact remains in connection with crediting the proceeds of the sale except as to the reasonableness of the amounts deducted from the proceeds for expenses of sale and attorney’s fees in connection therewith. Under the terms of the contract General Phoenix was entitled to deduct all expenses attendant upon the sale of the stock held as collateral. Whether or not the deductions were reasonable can be determined upon an assessment of damages under subdivision 4 of rule 113 of the Buies of Civil Practice (International & Ind. Securities Corp. v. Jamaica Jewish Center, 237 App. Div. 738; 379 Madison Ave., Inc., v. Stuyvesant Co., 242 App. Div. 567). A full trial of the issue is therefore unnecessary and summary judgment should have been granted.

The orders should be reversed and the case remitted to Special Term with directions to grant plaintiff’s motion and to assess damages, with costs to appellant in this court and in the Appellate Division. The certified questions 1(a), 2(a), 3(a), 4, 6 and 7 are answered in the negative and 1(b), 2(b), 3(b), 5(a) and 5(b) answered in the affirmative.

Lottghran, Ch. J., Lewis, Conway, Desmond, Dye and Ftjld, JJ., concur.

Orders reversed, etc.


author:
Fuld, J.
      Conway, J.

text:
    The People of the State of New York, Respondent, v. Frank Olah, Appellant.
    Argued October 20, 1949;
    decided December 2, 1949.

      Samuel Silverman, Samuel Bonom and Bernice E. Silverman for appellant.
    Defendant’s prior conviction in New Jersey did not necessarily establish facts indicating a felony crime under the laws of our State. The judgment at bar, insofar as it imposed sentence on him as a second felony offender, and the order denying the motion to resentence defendant as a first felony offender were erroneous. (Matter of Cedar, 240 App. Div. 182, 265 N. Y. 620; People ex rel. Newman v. Foster, 297 N. Y. 27.)

      Frank S. Hogan, District Attorney {Whitman Knapp and Edwin C. Hoyt, Jr., of counsel), for respondent.
    In determining whether acts committed in a foreign State would have been felonious if committed in this State reference may be had only to the “ operative and material facts ” set forth in the foreign indictment. The taking of two $100 bills was not among the facts necessary to the New" Jersey conviction. (People ex rel. Newman v. Foster, 297 N. Y. 27.)

      Nathaniel L. Goldstein, Attorney-General {Herman N. Harcourt and Wendell P. Brown of counsel), amicus curiae, for aErmance.
    Appellant’s previous conviction in New Jersey required that he be sentenced as a second offender upon his conviction of a felony in New York. (People ex rel. Newman v. Foster, 297 N. Y. 27.)
   Fuld, J.

Treated by the Court of General Sessions of New York County as a second felony offender, the defendant Olah challenges the validity of the sentence imposed upon him. The Appellate Division, two justices dissenting, upheld it. In this court, the District Attorney, with commendable candor, has expressed agreement with the position taken by the defendant, while the Attorney-General — appearing at the District Attorney’s suggestion — has advanced the contrary view.

Section 1941 of the Penal Law provides that a defendant, convicted of a felony in New York, is to be punished as a second felony offender if he was previously “ convicted * * * under the laws of any other state * * * of a crime which, if committed within this state, would be a felony ”. (Emphasis supplied.) The language is plain beyond cavil: defendant is a second offender only if the crime ” of which he was “ convicted ” in the other jurisdiction would have amounted to a felony here.

In the present case, Olah was convicted in New Jersey foEowing his plea of guilty to an indictment accusing him of having stolen a watch and a wallet containing $200, “ all of the value of over Twenty Dollars ”. He was given a suspended sentence and placed on probation.

Our problem is to determine the “ crime ” of which he was convicted.

Since an indictment not infrequently contains immaterial and nonessential recitals, we cannot determine the “ crime ” with 'which a defendant is charged — and, of course, of which he is convicted — by mere examination of the indictment’s allegations. To ascertain that crime ”, we must of necessity consider the .statute which created and defined it and upon which the indictment was based.

The indictment was founded upon a New Jersey statute which, creating the “ crime ” of larceny as a high misdemeanor ”, defined it as the theft of “ Money, or personal goods ” having a “ value * * * of or above twenty dollars ” (N. J. Stat. Ann., § 2:145-2). Since section 1941 of the Penal Law renders vital the crime ” of which a defendant was convicted and since the “ crime ” in New Jersey was that of stealing $20 or more, it follows that such a crime would not have been a felony in this State — for it is the theft of more than $100 that is here denominated a felony (Penal Law, §§ 1296,1299).

The circumstance that Olah pleaded guilty to an indictment which recited that the items stolen were worth over $200 is entirely immaterial insofar as section 1941 is concerned. It is '/the statute upon which the indictment was drawn that necessarily defines and measures the crime. There is a difference between the “ crime ” of which a defendant was convicted and the evidence ” relied upon to establish that crime. And, by the same token, there is a difference between the “ crime ” of which he was convicted and the act ” which he may have committed. In other words, the crime, i.e., the operative facts which constitute the criminal offense as defined by the statute, cannot be extended or enlarged by allegations in the indictment or hy evidence at the trial. Expressed somewhat differently, facts not specified in the statute upon which the indictment is based may not be rendered material or operative by merely stating them in the indictment — and that is forcefully borne out hy the rationale and implications of our holding in People ex rel. Newman v. Foster, 297 N. Y. 27.

In the Newman case, the defendant had committed acts which were a matter of public record, acts which would undoubtedly have been sufficient to subject him to conviction of a felony had he been tried in New York. He was convicted in New Jersey of the crime of carrying a concealed weapon — a felony in this State if he had ‘ ‘ been previously convicted of any crime ” (Penal Law, § 1897, subd. 5). Since he had been previously convicted at the time he was adjudged guilty of carrying a concealed weapon, his act ”, if prosecuted in New York, would have constituted a felony. We held, nevertheless, that the defendant had not been convicted of the crime ” of carrying a concealed weapon after prior conviction because that was not the crime ” charged against him in New Jersey. Accordingly, we concluded, that conviction was not to he counted in considering defendant Newman’s status under section 1942 of the Penal Law. The difference between the Newman case and the present one is exceedingly slight. If the New Jersey indictment had alleged — what was indisputable — that Newman had been previously convicted of a crime, that case would have been indistinguishable from the one before us. Yet it is clear from what we wrote in the Newman case that the addition of such a recital in the New Jersey indictment would not have changed the result. The principle implicit in the Newman case is that a crime ” is to be measured and limited by the statute which defines it, and, indeed, that thought was expressed in our opinion. Thus, we not only declared that “ the court is restricted to consideration of the operative and material facts ” set forth in the indictment (297 N. Y., at p. 30), but, adverting to the possibility of an allegation of some fact or item which was not required by the operative statute, we said (p. 30): The information, to which relator pleaded guilty in the New Jersey court, alleged only the carrying of a concealed revolver and, indeed, any further recital would have been immaterial, surplusage under the statute.” (Emphasis supplied.)

It is self-evident that, under a statute such as the one upon which the indictment against Olah was based, the amount stolen, the value of property taken, is of no consequence whatsoever once a defendant admits that he misappropriated $20. We can test this by supposing that Olah, instead of pleading guilty, had been convicted after trial, his plea of guilty replaced by its equivalent, a jury’s verdict. What would that verdict have signified? The prosecution would not have had to prove that Olah had stolen a watch and a wallet containing $200; Olah would not have been entitled to an acquittal if he had stolen less than $200 or even less than $100. (See, e.g., People v. McCallam, 103 N. Y. 587; see, also, 2 Bishop, New Criminal Procedure, § 488b, subd. 2.) As the trial court would in such a case instruct, the jury would be warranted in adjudging Olah guilty of the crime charged if it found that he had stolen $20 or more. (See, e.g., People v. McCallam, supra.) Obviously, then, had there been a trial, the verdict — and the ensuing judgment — would have signified only (1) that Olah had stolen money or property and (2) that the amount involved was at least $20. (See Karameros v. Luther, 279 N. Y. 87, 91; Donahue v. New York Life Ins. Co., 259 N. Y. 98,102; The Evergreens v. Nunan; 141 F. 2d 927, 929.) As this court declared in the Donahue case (259 N. Y., at p. 102): although a decision, in express terms, professes to affirm a particular fact, yet, if that fact was immaterial to the issue and the controversy did not turn upon it, the decision will not conclude the parties in reference to such fact.”

The crime ” of which a defendant is convicted remains the same whether a trial was had or a plea of guilty was entered. A plea simply avoids the necessity and expense of a trial, and a defendant is not to be prejudiced, is not to be placed in a different or worse position, by entering a guilty plea. Once having admitted a theft of at least $20, Olah had no interest in attempting to show that what he stole was valued at less than $200 — for nothing would or could turn on such an evaluation. He did not have in mind the thought or the possibility that section 1941 of the Penal Law of New York State might later be invoked against him or that it might be important to know whether he stole more or less than $100. When prosecuted in New Jersey, he was concerned only with the crime then and there charged against him, and it impresses us as unfair now to construe his plea as an admission that he was guilty of a “ crime ” more broad than that defined in the statute under which he was convicted.

The indictment against Olah would have been valid and sufficient had it merely charged him with ‘ ‘ the theft of a watch, a wallet and United States currency, all of an aggregate value of $20 or more. ’ ’ Concededly, had the indictment been phrased in that way, there would now be no question that defendant could not be considered a second felony offender in this State. The application of section 1941 cannot be made to turn upon the expansiveness of the prosecutor who prepared and drafted the indictment in the other State.. One prosecutor may content himself with pleading only essential allegations, while another may choose to include immaterial and surplus recitals. Liberty — even of habitual malefactors — is too important to depend upon . the drafting technique or the pleading preference of a particular official.

While there is language in some opinions that it is only the foreign judgment of conviction and the indictment upon which it was predicated that must be considered in applying section 1941, such language must be read in context and in the light of the issues presented. So we have announced on innumerable occasions; typical is this statement from Dougherty v. Equitable Life Assur. Soc. (266 N. Y. 71, 88): “No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association.”

No purpose is to be served by treating the several cases which have been called to our attention. It is sufficient to say that this is the first time that the question here posed has ever been raised or considered. In not a single case did this court or — so far as we have been able to ascertain — any other court give thought to the problem. And, certainly, the Court of Appeals never said that a defendant was to be stamped a second or fourth offender on the basis of allegations in an indictment which were uncalled for and immaterial under a foreign statute.

On the contrary, as noted above, our most recent decision — People ex rel. Newman v. Foster (297 N. Y. 27, supra) — strongly suggests just the opposite. In that case, the indictment itself revealed that the “ acts ” charged against Newman in New Jersey could not have been a felony in this State. Consequently, there was no need or reason to go behind the indictment to perceive that the defendant had not been convicted of a crime that would have here been a felony, and we were not called upon to examine the New Jersey statute. But we were careful to say, first, that ‘ ‘ the court is restricted to consideration of the operative and material facts ” set forth in the indictment and, second, that any recital in the indictment beyond what was provided in the foreign statute would be “ immaterial [and] surplusage ” (p. 30). Here was the clearest kind of indication that only allegations of operative and material fact were significant in evaluating the “ crime ” of which the defendant had been convicted.

A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written. (See Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634, 639.) As it now reads, section 1941 of the Penal Law does not provide that a defendant should be treated as a second felony offender if he did something in another State which might furnish the basis for a felony prosecution in New York or — relating the problem to larceny cases — if he stole an amount which might justify a prosecution for grand larceny in this State. The Legislature, if it is so minded, may amend the statute and make a defendant’s second or fourth offender status depend upon some other criterion than the crime ” of which he was convicted, but, until the Legislature does so, the prosecutors and the courts in this State must consider and look only to that “ crime.”

The orders should be reversed and the matter remitted to the Court of General Sessions, with directions to vacate and set aside the judgment of conviction and to take such further proceedings as may be necessary, not inconsistent with this opinion.

Conway, J.

(dissenting). There is presented a matter of statutory construction. Section 1941 of the Penal Law provides for additional punishment, to a degree therein stated, for a person who commits any felony within this State “ after having been once or twice convicted within this state, of a felony, of an attempt to commit a felony, or, under the laws of any other state, government, or country, of a crime which, if committed within this state, would be a felony

The statute has remained substantially the same since the adoption of our Penal Code in 1881 (L. 1881, ch. 676) nearly seventy years ago. That in turn was a re-enactment of the original statute in this State making similar provision (L. 1823, ch. CLX, § VI) more than 125 years ago, as follows: “And be it further enacted, That a former conviction in any of the United States, for any offence punishable by the laws of this state, by imprisonment in the state prisons, shall he considered as a former conviction within the meaning of this act, and of all former acts imposing an increase of punishment for the commission of a second offence.”

We now turn to the facts of our case to which the statute is to he applied. Last year the defendant pleaded guilty to a felony in the Court of General Sessions. Although accused of stealing various sums ranging from $2,000 to $8,600 from one who had obtained settlement of a personal injury action for the loss of his leg, it appeared that the larceny was approximately $6,000. The District Attorney of New York County thereupon filed an appropriate information alleging that the defendant Olah had been convicted in New Jersey in 1933, of the crime of grand larceny which said crime would then he felonious if and as committed within this State ”. We have quoted from the information of the District Attorney since he quite evidently construed section 1941 in accordance with the decisions of this court. The defendant admitted that he was the one convicted in New Jersey and was sentenced thereupon to a term of imprisonment of not less than five nor more than seven years. Thereafter he moved to vacate the judgment upon the ground that the crime of which he was convicted in New Jersey would not be a felony if committed in this State.

The charge against the defendant in New Jersey was that he there stole, took and carried away, contrary to statute: “ One (1) Wallet, containing Two (2) One Hundred Dollar Bills, One (1) Elgin Open-face Gold Watch, with broken chain attached — 17 Jewel, all of the value of over Twenty Dollars of the goods and chattels of Edward Stahl * * *.” To that accusation the defendant Olah pleaded guilty.

The contention of the defendant is that all the allegations just quoted are surplusage save only the conclusory one: “ all of the value of over Twenty Dollars ”. The basis for this curious construction is that the line of demarcation between petit larceny (a misdemeanor) and grand larceny (a felony) in New York State is fixed at $100 (Penal Law, § 1296) while in New Jersey it is fixed at $20. (N. J. Stat. Ann., § 2:145-2.) We have already quoted our statute (§ 1941) which provides that a man shall be sentenced as a second offender if he has previously committed a crime under the laws of another State, which, if committed here, would be a felony. Olah committed a felony under the New Jersey statute. That is conceded. He pleaded guilty to stealing a wallet and two $100 bills. That was the larceny of more than $100. By the proposed construction it is not. It is the larceny only of property of more than $20 — all else in the indictment is surplusage. It is conceded that, under that construction, no one may ever be convicted in this State as a second offender for a felony larceny committed in New Jersey. It is conceded that that is true although in New Jersey the larceny alleged might be of $1,000,000 in cash and the accused admitted it. That, it is said, is because in New Jersey the line of demarcation between felony and misdemeanor has been set by the Legislature there at a lower figure than $100. It is clear that the law in New Jersey is more severe than in our State. In New' Jersey the larceny of $21 is a felony. Yet it is contended that because the law is more severe in New Jersey, the defendant must be dealt with more lightly in New York. Thus, a prior foreign State conviction of the theft of goods or money of any value, however great, may never be used under sections 1941-1943 of the Penal Law when the statute of the foreign State has adopted a value of less than $100 as the dividing line between felony and misdemeanor. This is serious as far as our residents are concerned since there are forty-five out of forty-eight of our States which set the dividing line at less than $100. A thief may commit one or many larcenies of thousands of dollars in any one or several or in each of those forty-five States, he convicted there any number of times of larceny as a felony and yet still have Mew York State to which he may come where he will be a first offender no matter what felony he may here commit. A construction which reaches a result so unfortunate should be avoided if possible for it is clearly the opposite of the intent of our Legislature and is contrary to our practice for the last 125 years. In the construction of statutes, where the intention and purpose of the legislation is known and it is for the protection of the public, a construction should be adopted which accords with the legislative purpose rather than one Avhieh thwarts it. It should be one which accords Avith reason and justice. That is because it will be presumed that a construction leading to unreasonable or startling results is contrary to the intention of the legislators who participated in its enactment.

What our Legislature intended was simple: If a person were convicted of doing an act in another State which if done here would be a felony and then committed a felony here, he was to receive additional punishment because he would be considered a second offender. Our citizens require, for their protection, that there be deterring punishment provided for those persons of our OAvn or sister States who commit a second felony here. We have approved that legislative action through the years. (People v. Powers, 6 M. Y. 50; People v. Sickles, 156 N. Y. 541; People v. Gowashy, 244 M. Y. 451.) In the latter case we said (p. 457): ‘ ‘ Mo one has ever doubted the wisdom or justice of punishing a second or third offender more severely than a first offender.”

That we clearly understood this simple legislative intent is evidenced by a long line of cases in our court, in the Appellate Divisions and in courts of original jurisdiction, in which it has been held that in determining whether a defendant was guilty in another State of acts which, if committed here, would constitute a felony, our courts must look only to the foreign judgment of conviction and the indictment or information upon which it was predicated. Mowhere were the holdings in those cases more clearly summed up than in People ex rel. Newman v. Foster (297 N. Y. 27, 30 [1947], Fuld, J.) as follows: “ Whether the acts committed in the foreign jurisdiction would be felonious if committed Avithin this State, depends, of course, upon Mew York law. What those acts were, however, is to be determined by reference only to the foreign judgment of conviction and the indictment or information upon which it was predicated, and the court is restricted to consideration of the operative and material facts therein set forth. (See People v. Voelker, 222 App. Div. 717; see, also, People v. Wicklem, 183 Misc. 639, 642; People v. Dacey, 166 Misc. 827, 836-837.) To permit proof of facts different from those alleged would lead only to abuse and. to impossibility of administration. (See Matter of Emert v. Thorn, 249 App. Div. 301; People v. Wichlem, supra; People v. Dacey, supra.) ” (Emphasis supplied.) We need not examine the cases cited for it has not been claimed that they do not with exactitude demonstrate the accuracy of each and every factor in the quoted portion of the opinion nor indeed is it claimed that those statements of law are incorrect or the result of error. To the cases thus cited should be added (1) People v. Cohen (270 N. Y. 528) where the sole test we applied was that the defendant had pleaded guilty in Illinois to obtaining $7,200 by the crime of confidence game, (2) People v. Daiboch (265 N. Y. 125), where we noted (p. 128) that the defendant “ was found to be the person previously adjudged in New Jersey to be guilty of the crime of defrauding the Mutual Bank of Roseville, N. J., by a false check of one thousand dollars, a felony in this State * * *.” It was a misdemeanor in New Jersey. (N. J. Compiled Stat. of 1910, p. 1800, § 186.) We quoted section 1941 in part and then said (p. 129): “ The defendant came within this section and was properly sentenced as a second offender.” (3) People ex rel. Cox v. Wilson (281 N. Y. 712) where defendant had been sentenced as a second felony offender because he had pleaded guilty in Pennsylvania to forging an indorsement on a check. That act constituted a felony in New York but a. misdemeanor in Pennsylvania. (4) Matter of Cedar v. Judges of Court of General Sessions (240 App. Div. 182, affd. 265 N. Y. 620) where a prisoner had been sentenced as a fourth offender. One of the felonies proved had been one in Pennsylvania for obtaining $400 by false pretenses. That was a misdemeanor in Pennsylvania. After his sentence as a fourth offender, the Pennsylvania court amended the indictment to make the accusation one of obtaining $35 only, which was a misdemeanor in New York. We refused to go back of the acts alleged in the original indictment.

We have construed the legislative intent in enacting section 1941 and its predecessor statutes for 125 years. Courts and public officers have followed that construction. There are other statutes which have been similarly construed (Penal Law, § 1942; Correction Law, §§ 219,242). We should not now suddenly alter our construction which has been approved by the Legislature over the years, for it has amended the applicable statutes many times without questioning our construction. The amendments during the last thirty years have been by Laws of 1920, chapter 571; Laws of 1926, chapter 457; Laws of 1936, chapters 70 and 328, and Laws of 1942, chapter’700. The majority asserts that this is the first time the question posed has ever been raised or considered in 125 years. We think that is clearly incorrect. We have pointed to the authorities in this and other courts up to and including People ex rel. Newman v. Foster (supra), wherein a long line of distinguished judges considered the question and determined that the only test for us was the acts of the accused in the foreign State. We have thus considered and answered the question posed many times and the Legislature has many times approved our answer.

The orders should be affirmed.

Loughran, Gh. J., Desmond and Bromley, JJ., concur with Puld, J.; Conway, J., dissents in opinion in which Lewis and Dye, JJ., concur.

Orders reversed, etc.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Basil McCullough, Appellant.
    Submitted October 20, 1949;
    decided December 2, 1949.

      Basil McCullough, appellant in person.
    I. Defendant’s conviction in 1921, in a United States District Court of Ohio, cannot be used because it was prior to the New York State Baumes Law which went into effect in July, 1926. Appellant was not advised of his rights and was not represented by counsel in that case. The case was based upon a certificate of deposit in the Postal Savings System of the United States of America, which certificate had printed upon the back “ non-transferable and non-negotiable ”. II. Defendant’s conviction in 1928 in Lucas County Court, Toledo, Ohio, should not be used because appellant was never arraigned for a preliminary hearing, neither was he represented by counsel during the entire proceedings.

      Julian B. Erway, District Attorney, for respondent.
    I. The crimes for which appellant was previously convicted are such as would be felonies if committed within the State of New York. II. The prior convictions are not subject to collateral attack and are conclusive. (People ex rel. Prisament v. Brophy, 287 N. Y. 132; People v. Dacey, 166 Misc. 827; People v. Voelker, 222 App. Div. 717.) III. The order of the Albany County Court should be affirmed.
   Fuld, J.

In this coram nobis proceeding', defendant attacks the sentence imposed upon him pursuant to section 1941 of the Penal Law, upon the ground that he is not a second felony offender.

Following a conviction for burglary in the County Court of Albany County in 1938, defendant was punished as a fourth felony offender — the basis therefor being three convictions of crimes committed in other jurisdictions. In 1942, he succeeded in establishing that one of the prior crimes would not have been a felony in this State and, accordingly, he was resentenced as a third offender. (See Penal Law, § 1941.)

Some time later, the present application was made. Defendant now claims that neither of the two remaining convictions — one in a County Court in Ohio and the other in a Federal District Court in that State — can be counted against him and that, for that reason, he is entitled to be resentenced as a, first offender. His argument is two-pronged: neither of the crimes would have been a felony in this State, but, even if they could be so considered, the convictions were void because of the manner in which the trials were conducted. The case comes to us following the Appellate Division’s unanimous affirmance of the County Court’s denial of the application.

While the “ crime ” of which defendant was convicted in the Ohio State court — the ‘c crime ’ ’ of stealing property or money having a value of thirty-five dollars or more ” (Ohio Crim. Code; Page’s Ohio Gen. Code, § 12447) — would not have been a felony if committed in New York (see People v. Olah, 300 N. Y. 96, also decided today), the conviction of forgery (U. S. Crim. Code, § 218; U. S. Code, tit. 18, § 347; now § 500), recorded against him in the Federal District Court would unquestionably have been a felony in this State. (Penal Law, § 884, subds. 3, 4; see, e.g., People v. Fury, 279 N. Y. 433, 436.) Consequently, defendant was properly treated as a second felony offender on the basis of the Federal conviction, unless the courts of this State may set’ that conviction aside as illegal and disregard it. Defendant would have us consider the Federal judgment void because the court failed to advise him of his right to counsel.

A motion in the nature of a writ of error coram nobis is the proper remedy in this State to set aside a judgment obtained in violation of such a constitutional right. (See People ex rel. Sedlak v. Foster, 299 N. Y. 291, 294; Matter of Bojinoff v. People, 299 N. Y. 145, 152; Matter of Hogan v. Court of General Sessions, 296 N. Y. 1, 9.) That does not, however, mean that it may be availed of in a court other than the one in which the judgment was rendered. On the contrary, as its ancient common-law title — quae coram nobis resident (3 Blackstone’s Commentaries [Chitty ed.], p. 407, n. 3) —plainly signifies, its function was and is simply to call certain matters to the attention of the court in which the case was tried. (See People v. Gersewitz, 294 N. Y. 163, 168; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 140; see, also, Fitzherbert, Natura Brevium [1553], fols. 20 D. et seq.; fol. 21 I; 1 Rolle’s Abridgement [1668], pp. 746-747; Tidd’s Practice [4th ed., 1808], p. 1032.) It follows, therefore, that a defendant may not in this State challenge the validity of a judgment of a court of another jurisdiction by coram nobis. (See People v. Comparetto, 299 N. Y. 648.)

Moreover, since defendant does not here assert that the Federal court lacked jurisdiction of his person or of the offense charged against Mm, he may not in tMs State question its judgment by writ of habeas corpus (see People ex rel: Sedlak v. Foster, 299 N. Y. 291, 293, supra; People ex rel. Harrison v. Jackson, 298 N. Y. 219, 224, also concurring opinion, pp. 226-227; Matter of Morhous v. New York Supreme Court, 293 N. Y. 13, supra) — at least where, as here, there is no showing that defendant may not seek redress for the alleged violation of constitutional right in the court wherein the judgment was rendered. (Cf. Mooney v. Holohan, 294 U. S. 103, 113; New York ex rel. Whitman v. Wilson, 318 U. S. 688.) If then defendant would attack the Federal judgment, he must do so in the Federal court. Until he has succeeded in vacating it, the courts of this State have no alternative hut to treat the conviction as an effective predicate for multiple offender punishment under section 1941 or section 1942 of the Penal Law. (Cf. People ex rel. Harrison v. Jackson, 298 N. Y. 219, 227-228, supra.)

In short, then, since the Federal crime of forgery would have been a felony in this State, and since that conviction may not be challenged except in the Federal courts, defendant was properly sentenced in the Albany County Court as a prior felony offender under section 1941 of the Penal Law.

The order should be affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Bromley, JJ., concur.

Order affirmed.


text:
    In the Matter of Joseph Brandfon, Respondent, against Beacon Theatre Corporation et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued December 1, 1949;
    decided December 29, 1949.

      Urban S. Mulvehill for appellants.
    I. The evidence does not support a finding of total disability. (Bello v. General Elec. Co., 204 App. Div. 613; Becker v. General Elec. Co., 210 App. Div. 495.) II. The award for partial disability was improperly computed as it was not determined by the actual earnings. (Workmen’s Compensation Law, § 15, subd. 5-a; Matter of Matise v. Munro Waterproofing Co., 293 N. Y. 496; Matter of Dalberth v. Iuppa & Battle Co., 262 N. Y. 537.)

      Nathaniel L. Goldstein, Attorney-General (Theodore M. Schwartz, Wendell P. Brown and Roy Wiederswm of counsel), for Workmen’s Compensation Board, respondent.
    Claimant’s earnings as a projectionist were not considered in fixing his wage rate and accordingly should not be considered in determining his reduced earnings. Claimant was partially disabled as a result of his accidental injury. His wage-earning capacity and his actual earnings were reduced as a result of his accidental injury. (Matter of Birch v. Budd, 256 App. Div. 53, 280 N. Y. 850; Matter of Whitney v. Gersitz, 264 App. Div. 968.)
   Fuld, J.

This case, here by our permission, poses for consideration the method of computing the compensation to be awarded an employee who was injured while working in one of two dissimilar occupations and was, as a result, disabled from performing Ms duties in that employment.

In 1944, the claimant worked at two jobs: part time as an electrician for the Beacon Theatre and full time and regularly as a moving picture projectionist for another theatre. While changing lights at the Beacon Theatre, he was hurt. The resulting disability, though it did not interfere with his regular employment or his earnings as a projectionist, prevented him from working as an electrician. The Workmen’s Compensation Board, finding that claimant had suffered a total disability ” for some six weeks and a “ partial disability ” for various periods thereafter, concluded that the employments- were dissimilar and, in computing the amount of compensation to be charged against the part-time employer, Beacon Theatre, left out of account claimant’s earnings from his employment as a projectionist both before and after the accident. The Appellate Division affirmed the determination. •

A disability which completely prevents an employee from working in the employment in which he was injured is probably total ”, but decision as to that need not now detain us. Even if claimant’s disability for the six-week period immediately following Ms injury be deemed partial rather than total, neither employer nor carrier has ground for complaint. The Board would have been privileged to allow for partial disability in this case an amount just as large as that awarded for total disability, since claimant had no “ actual earnings ” from his electrical employment. (Workmen’s Compensation Law, § 15, subd. 5-a; see, also, § 14, subds. 2, 3.)

We turn, then, to the question that prompted our granting leave to appeal.

In order to arrive at claimant’s reduced earnings, it was of course essential to consider both his average weekly wage at the time of the accident and his earnings thereafter. As noted, the Board fixed the average wage solely on the basis of his employment as electrician, without regard to his earnings as projectionist. That was correct since the employments were dissimilar. (Workmen’s Compensation Law, § 14; see, also, Matter of Birch v. Budd, 256 App. Div. 53, leave to appeal denied 280 N. Y. 850; Matter of McDowell v. Flatbush Cong. Church, 277 N. Y. 536; Matter of Moochler v. Herrick & Son, 272 N. Y. 545.)

In computing claimant’s earnings after the accident, the Board again excluded his earnings as projectionist, and that, too, was proper. Obviously, if claimant’s average wage before the accident is determined on the basis only of earnings from the employment in which he suffered the injury, reason and fairness demand that the “ earnings ” after the accident should likewise be limited to wages from that same employment — or, if forced into another occupation because of his injury, wages realized from that substitute employment.

Nor does the statute require a different result. Subdivision 5 of section. 15 of the Workmen’s Compensation Law, which deals with compensation in partial disability cases, provides that it shall be two thirds of the difference between the employee’s average weekly wage before the accident and his ‘ ‘ wage earning capacity ” thereafter in the same or another employment ”, and subdivision 5-a specifies that such wage earning capacity is to be measured by actual earnings ”. While superficially it might appear that the employee’s earnings from any and all sources must be taken into account, more careful study, as well as a regard for the context and design of the statute, makes' it evident that it does not apply or relate to a case in which an employee was engaged, prior to the accident, in dual and dissimilar employments. Bather, it was the legislative purpose that there be measurement in terms of “ another employment ” only where a worker takes another position because his injury disabled him from continuing in the original one. In other words, the wages to be considered after the accident are those earned from the “ same ” employment in which he was hurt or from “ another ” employment which he undertook in its place. (See, e.g., Matter of Mullins v. Atlantic Basin Iron Works, 297 N. Y. 550; Matter of Matise v. Munro Waterproofing Co., 293 N. Y. 496.)

However, in the present case, where the claimant held two concurrent jobs, he is entitled to be compensated for the earnings lost to him by virtue of his disability as an electrician, without regard to his salary as a projectionist. His wages in such other unrelated employment, it is true, were not affected by his injury, but he possessed a certain earning ability as an electrician, and that ability the accident impaired. To the extent of that impairment he is entitled to compensation, and consideration of his wages as projectionist — which would partially or entirely deprive him of such compensation — would contravene the spirit and purpose of the statute.

The order of the Appellate Division should be affirmed, with costs.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Bromley, JJ., concur.

Order affirmed.