author: Cardozo, J. Crane, J.

text:
    Anna Yome, Respondent, v. John B. Gorman, as Supervisor of Roman Catholic Cemeteries, Diocese of Brooklyn, et al., Appellants.
    Injunction — cemeteries — preliminary injunction should not be granted unless rights of parties are clear — action for injunction to restrain interference with removal of bodies from Catholic to non-Catholic cemetery — where on the record conflicting inferences of duty and propriety may be drawn, injunction should not be accorded as matter of right — wishes of wife and next of kin not always supreme — regard must be given to wishes of decedent and rights and feelings of those entitled to be heard by reason of relationship or association.
    1. A preliminary injunction restraining a defendant cemetery from interfering with the removal of bodies by the plaintiff, in effect determines the action and leaves nothing to be tried. Such an injunction, if ever permissible in advance of final judgment, is plainly inappropriate unless the undisputed facts are such that a trial is a futility. If there are motives to be probed and opposing equities to be weighed, there must be the searching scrutiny of a trial and the sanction of a judgment.
    2. In an action to restrain defendants from interfering with her removal of the bodies of her husband, children, mother and brother from a Roman Catholic cemetery, where they were buried, to a non-Catholie cemetery, resisted by defendants on the ground that disinterment for the purpose of removal to a cemetery of another faith would be an act of desecration, where plaintiff insists that her husband, mother and brother were without devotion to the tenets of the church and that the children were too young to have religious convictions, but defendants, on the other hand, point out that they were reared and died in the Catholic faith, conflicting inferences of duty and propriety may be drawn and a case is not made out where the privilege of removal should be accorded as a matter of right. .A preliminary injunction, therefore, should not be granted.
    3. The wishes of wife and next of kin are not always supreme and final though the body is yet unburied. Still less aire they supreme and final when the body has been laid at rest, and the aid of equity is invoked to disturb the quiet of the grave. There will then be due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association. A benevolent discretion, giving heed to (all those promptings and emotions that men and women hold for \ sacred in the disposition of their dead, must render judgment as it appraises the worth of the competing forces.

      Yome v. Gorman, 213 App. Div. 229, reversed.
    (Argued April 6, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from an order of the Appellate' 'Division of the Supreme Court in the second judicial 'department, entered June 5, 1925, which affirmed an order of Special Term granting a motion for a preliminary injunction.
    The Appellate Division certified the following questions:
    “ 1. The Roman Catholic Diocese of Brooklyn, a religious corporation, by written instrument on September 20, 1916, granted to John D. Yome and the plaintiff a-, qualified right of burial in the cemetery of the Holy Cross, a cemetery owned and operated by it under the rules of the Roman Catholic Church in the Borough of Brook-' lyn. Said grant is in the following form:
    “ This is to certify that * * * is the proprietor of the right of burial in that certain lot, * * * on a certain map entitled
    Cemetery of the Holy Cross
    * * * subject to the rules and regulations to be made by the Right Reverend Bishop of Brooklyn, relating to said cemetery.
    Provided that nothing herein contained shall be construed to grant any other right or privilege whatever than the right of burial therein; and provided further, that the said right shall not extend to the burial of any deceased person who shall have departed this fife not in communion with the Catholic Church.’
    " John D. Yome, and plaintiff were born Catholics John D. Yome died on February 8, 1925. On February 5, 1925, John D. Yome and plaintiff called to his sick-bed a Catholic priest and had the last rites and sacraments of the Catholic Church administered to him, and had said priest make two other visits to him before he died for the purpose of complying with the conditions of said «grant and enabling his body to be buried in the Holy Cross Cemetery. Plaintiff caused a public funeral Mass to be held for John D. Yome in a church, and caused his body to be buried in the Holy Cross Cemetery on February 11, 1925. '
    , “ Thirty years prior to the purchase of said lot by John D. Yome, he caused the deceased infant, seventeen months old of himself and plaintiff to be buried in said cemetery. Again twenty-seven years prior to the purchase of said lot, he caused another deceased infant of himself and plaintiff, two years and nine months old, to be buried in said cemetery. Each of said, infants were buried in single graves. About one year after the purchase of said lot, said John D, Yome caused the body of his deceased mother-in-law to be buried therein. About three years after the purchase of said lot, said John D. Yome caused the body of his wife’s brother Louis Xlaphanel to be buried therein. Besides the plaintiff, his widow, John D. Yome is survived by two adult daughters and one adult son. • • . o .
    “ There have been at all times mentioned herein, and still are, rules of the Bishop of Brooklyn, relating to the Holy Cross Cemetery providing that no deceased body which has been buried in said consecrated cemetery shall be disinterred for the purpose of reburial in a non-Catholic cemetery. The plaintiff wishes to disinter the body of John D. Yome and the said other bodies for the purpose of having them reburied in a non-Catholic Cemetery. Is the plaintiff entitled to an injunction restraining the defendants from interfering with the disinterment of said bodies for said purpose?
    “ 2. Where a husband and wife have purchased from a religious corporation a right of burial in a cemetery owned and operated by said religious corporation, and the instrument granting said right provides that it grants the right of burial only and no other right, and that the right of burial is subject to the rules and regulations referring to said cemetery made by the chief officer of, said church corporation; and where there have at all times existed rules made by said chief officer preventing the burial in said cemetery of the bodies of persons who have died not in communion with said church, and preventing the removal of bodies of persons who have been buried in said cemetery for the purpose of reburying them in any other cemetery not connected with said church and where said husband has caused to be buried in said lot and under said rules certain deceased members of his family, and where said husband shortly before his death with the consent and procurement of said wife receives the communion of said church for the purpose of enabling his body to be buried in said cemetery, and where said husband dies and said wife (now widow), causes his funeral to be held by the representatives of said church for the purpose of having his body buried in said cemetery, and where the widow causes his body to be buried in said cemetery under said rules and regulations, has said widow, with the consent of the surviving children of said husband the right thereafter to remove the body of said „ deceased husband for burial in another cemetery not connected with said church?

      “ 3. Where the body of a deceased husband has been buried by his widow in a cemetery under a contract by which it was not to be removed from said cemetery except under the rules of the chief officer of a religious, corporation which owned and operated said cemetery, has the widow of said deceased husband, with the consent of his surviving children, the right to remove the body of said deceased husband from said cemetery against the rules made by the chief officer of said religious corporation relating to removal of bodies from said cemetery?

      “4. Is the plaintiff herein entitled to a preliminary injunction, restraining the defendants from interfering with her removal of the body of John D. Yome and the other bodies involved with Holy Cross Cemetery? ”

      John J. Curtin and Wesley S. Sawyer for appellants.
    Disturbing the remains of the dead, considered abstractly, being a work of desecration, an application to disinter the body of a deceased person should not be granted by the court without the gravest reasons. (Matter of Berezoff, 166 App. Div. 903; Matter of Ackerman, 124 App. Div. 684; Schroeder v. Wanzor, 36 Hun, 423; Snyder v. Snyder, 60 How. Pr. 368; Matter of Donn, 14 N. Y. Supp. 189; Thompson v. Hickey, 8 Abb. N. C. 159; Secor v. Secor, 18 Abb. N. C. 78; Matter of Owen, 79 App. Div. 236; Matter of Bleistift, 193 App. Div. 477.) The bodies of John D. Yome and others were buried in Holy Cross Cemetery under a contract that such burial was subject to the rules and regulations of the Bishop of Brooklyn, including the rule and regulation that bodies buried in said cemetery should not be disinterred for the purpose of reburial in a non-Catholic cemetery. (Hodge v. Sloan, 107 N. Y. 250.) Where a deceased person is buried under a contract imposing conditions on the removal of the body, the contract is valid and enforcible. (Cohen v. Congregation Shearith Israel, 114 App. Div. 117.)

      Henry Waldman for respondent.
    While the form of this proceeding is for both temporary and permanent injunction, its real purpose is to obtain the possession of the bodies of the deceased persons. Such is the proper remedy. (Cohen v. Cong. Shearith Israel, 114 App. Div. 117; 189 N. Y. 528; Matter of Owens, 79 App. Div. 236; Finley v. Atlantic Transport Co., 220 N. Y. 249; Danahy v. Kellof, 70 Misc. Rep. 25; Maloney v. Katzenstein, 135 App. Div. 224; Bronk v. Riley, 50 Hun, 489; West Side El. Co. v. Consolidated Subway Co., 87 App. Div. 550.) All of the persons who have any rights with respect to the disposition of the deceased bodies in question have unqualifiedly consented to the disinterment of said bodies. (Hasselbach v. Mt. Sinai Hospital, 173 App. Div. 89; Matter of Richardson, 29 Misc. Rep. 367.) The fact that disinterment of a body is contrary to the rules or laws of a religious denomination is no reason for denying the right of removal. (Cohen v. Cong. Shearith Israel, 114 App. Div. 117; 189 N. Y. 528; Matter of Bauer, 68 App. Div. 212.)
   Cardozo, J.

The controversy has its origin in an attempted disinterment of the bodies of the dead.

John D. Yome and the plaintiff, Anna Yome, his wife, bought an eight-grave plot in Holy Cross Cemetery, Brooklyn. They had buried two infant children in the same cemetery many years before. The approach of old age seems to have warned them of the need of providing a resting place for themselves and for others who were close to them. There is a statement by the plaintiff that the plot was taken with the thought of supplying a place of merely temporary burial. Its size, however, the number of its graves, and the use thereafter made of it, suggest a purpose more enduring. Holy Cross Cemetery is maintained by the Roman Catholic Diocese of Brooklyn. Burial within the cemetery is a privilege reserved to those who have died in communion with the Roman Catholic Church. The certificate of ownership delivered to the purchasers of plots expressly so provides, and provides also that the right of burial shall be subject to the rules and regulations of the Bishop of the Diocese. In the faith of the Church, plaintiff’s mother and brother were buried in the plot so purchased. This was done some years ago while Mr. Yome was yet alive. The end came for him in February, 1925. On his deathbed he received the sacraments of his church, and he was laid in his grave in accordance with its rites. A rule of the Church forbids the removal of a body from consecrated ground to ground that is unconsecrated, or consecrated to another faith.

There was swiftly a change of heart. Plaintiff, though baptized a Roman Catholic, became the owner of a plot in a non-Catholic cemetery, where it is now her purpose to be buried. She made demand upon the defendants, the Roman Catholic Diocese and the Supervisor of Cemeteries, for permission to remove the bodies. They refused to yield to the demand on the ground that disinterment for the purpose of removal to a cemetery of another faith would be an act of desecration. Plaintiff, seeking to justify her position, insists that her husband was without devotion to the tenets of the Church, and did not care where he was buried if only he was close to her. Defendants remind us on the other hand that he was reared in the faith of the Church, and died in it, sending for a priest upon his deathbed to gain the privilege of burial in consecrated ground. What the plaintiff says of her husband, she says in substance also of her mother and her brother. The infant children, buried long before, were too young to have religious convictions or wishes of their own. The surviving next of kin support the plaintiff in her request that the bodies be removed.

This action is brought to restrain the defendants from preventing the removal. A temporary injunction to that effect was granted at Special Term. The Appellate Division, affirming the injunction order, has certified an appeal to us. The questions framed are not free from ambiguity. We interpret them as propounding the inquiry whether the privilege of removal is to be accorded as a matter of right (Matter of Davies, 168 N. Y. 89; Matter of People [City Equitable Fire Ins. Co.], 238 N. Y. 147, 155). If less than this was meant, an injunction so drastic would not have issued in advance of judgment. The order restrains the defendants from interfering with the removal of the bodies by the plaintiff during the pendency of the action. If it stands, there will be nothing left to try, for the bodies will be removed before the cause is brought to hearing. Such an injunction, if ever permissible in advance of final judgment, is plainly inappropriate unless the undisputed facts are such that a trial is a futility (Bachman v. Harrington, 184 N. Y. 458). If there are motives to be probed and opposing equities to be weighed, there must be the searching scrutiny of a trial and the sanction of a judgment.

Upon the record before us, one may draw conflicting inferences of duty and propriety. The. wishes of wife and next of kin are not always supreme and final though the body is yet unburied (Pettigrew v. Pettigrew, 207 Penn. St. 313, 319). Still less are they supreme and final when the body has been laid at rest, and the aid of equity is invoked to disturb the quiet of the grave (Matter of Ackermann, 124 App. Div. 684, 685; Weld v. Walker, 130 Mass. 422, 424; Pettigrew v. Pettigrew, supra; Wilson v. Read, 74 N. H. 322, 325; Toppin v. Moriarty, 59 N. J. Eq. 115, 118; Polish Nat. Church v. Soklowski, 159 Minn. 331; Pulsifer v. Douglass, 94 Me. 556). There will then be due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association ” (Pettigrew v. Pettigrew, supra). A benevolent discretion, giving heed to all those promptings and emotions that men and women hold for sacred in the disposition of their dead, must render judgment as it appraises the worth of the competing forces (Cohen v. Congregation Shearith Israel, 114 App. Div. 117; 189 N. Y. 528; Matter of Bauer, 68 App. Div. 212; Snyder v. Snyder, 60 How. Pr. 368).

To the making of that appraisal, many factors will contribute. One may not fix their values in advance, for in so doing one would overlook the varying force of circumstance. One can do little more than offer the suggestion of example. The wish of the deceased, even though legal compulsion may not attach to it (Williams v. Williams, L. R. 20 Ch. Div. 659), has at least a large significance (Pettigrew v. Pettigrew, supra, at p. 317; Pierce v. Swan Point Cemetery, 10 R. I. 227, 239, 242; Gardner v. Swan Point Cemetery, 20 R. I. 646, 649; Wilson v. Read, supra). Especially is this so when the wish has its origin in intense religious feeling (Matter of Bonn, 14 N. Y. Supp. 189; approved in Matter of Ackermann, supra). Only some rare emergency could move a court of equity to take a body from its grave in consecrated ground and put it in ground unhallowed if there was good reason to suppose that the conscience of the deceased, were he alive, would be outraged by the change. Subordinate in importance, and yet at times not wholly to be disregarded, are the sentiments and usages of the religious body which confers the right of burial. We do not interpret the terms of this certificate of purchase as importing a contract between the cemetery and the owners of the plot that there shall be no disinterment at any time if forbidden by the tenets of the Church or the orders of the Bishop. How far such a contract, if made, would call for enforcement by injunction, there is no occasion to determine (Cohen v. Congregation, etc., supra). Even without contract, sentiments and usages, devoutly held as sacred, may not be flouted for caprice. They must be weighed in the balance with the motives and feelings that sway the acts of the survivors. Removal at the instance of a wife or of kinsmen near in blood to satisfy a longing that those united during life shall not be divided after death, may seem praiseworthy and decorous when removal at the instance of distant relatives or strangers would be arbitrary or cruel. The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose (Matter of Ackermann, supra; Polish N. Church v. Soklowski, supra).

We have sought, not to declare a rule, but to exemplify a process. The considerations we have instanced and others of like order may move a court of equity to keep a grave inviolate against the will of the survivors. They are none of them so absolute, however, that they may not be neutralized by others. The wish expressed during life may have been declared casually or lightly. The bond of religion may have been weak, and the bond of marriage or of kinship may have been strong. Separation after death from the resting place of wife or child may have seemed an evil more poignant than separation after death from the faithful of the church. We are told by Mrs. Yome that so her husband would have felt. Her statement does not control us. To some extent, though not at all conclusively, it is contradicted by his acts. The trier of the facts must probe his state of mind. With this, when it is ascertained and the intensity of his feelings measured, must be compared the sentiments and wishes of wife and kin surviving. A like process must be followed before the other graves may be disturbed. Right must then be done as right would be conceived of by men of character and feeling.

The order of the Appellate Division and that of the Special Term should be reversed without costs; the first, second and third questions are not answered since they contain recitals that are inappropriate and to some extent erroneous; and the fourth question, which is construed as an inquiry whether a case for an injunction has been made out as a matter of right upon uncontroverted facts, is answered in the negative.

Crane, J.

I concur. I see no reason why interment may not be a matter of contract. If so, I am of the opinion that a contract was made here which prevents removal contrary to the rules of the Church.

Hiscock, Ch. J., Pound, McLaughlin and Lehman, JJ., concur; Crane, J., concurs for reasons stated in opinion and also on ground stated in separate memorandum; Andrews, J., not voting.

Orders reversed, etc.


source: Caselaw Access Project

author: ■ Crane, J.

license: Public Domain

text:
    Kings County Trust Company, as Executor of Henry Hyams, Deceased, Respondent, v. Sophie Hyams, Appellant.
    Evidence — trial — personal transaction between witness and decedent — ■ purpose of section 347 of Civil Practice Act — opening door for testimony explaining transaction with decedent — erroneous exclusion, on redirect, of testimony as to circumstances under which witness received check, where her acts in relation thereto had been brought out on cross-examination — error to exclude testimony as to circumstances under which she received paper proved to be in defendant’s handwriting and offered in evidence on behalf of executor —• erroneous exclusion, on redirect, of testimony as to mental condition of deceased where, on cross-examination, witness had been questioned at length as to his physical condition.
    1. The purpose of section 347 of the Civil Practice Act is not only to exclude direct testimony of conversations and transactions, but all such facts and circumstances as have such a relation to, or bear so closely upon personal transactions, that a reasonable inference of such transactions can be drawn from them, but where counsel for an executor has sought to draw from testimony of an interested witness inferences or corroboration of his theory as to a personal transaction of the witness with deceased, the door is opened for her explanation and testimony in regard thereto.
    2. Where, in an action by an executor to recover from the widow of testator the amount of a check which it is alleged she forged and wrongfully cashed, she is called as a witness on her own behalf and, on cross-examination, counsel for plaintiff made the witness his own upon new matter with the result that he proved by her, acts which, it was claimed, fitted in completely with plaintiff’s case that testator did not give her the check on the day she claimed to have received it but had authorized her to make one to pay a small bill about one month before, it was error, on redirect, to exclude her answer to a question by her counsel as to the circumstances under which she received the check.
    3. It was also error to exclude her testimony as to the circumstances under which she received a paper stating a personal communication and transaction between the witness and deceased, where the plaintiff had proved that it was in the defendant’s handwriting and had offered it in evidence. She should also have been permitted, on redirect, to testify as to the mental condition of deceased, where his health was a matter of importance in the case, and, on cross-examination, she had been questioned about his physical condition during three months or more prior to his death.

      Kings County Trust Co. v. Hyams, 214 App. Div. 730, reversed.
    (Argued April 7, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division ' of the Supreme Court in the second judicial department, entered May 21, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

      Theodore Kiendl and Otis T. Bradley for appellant.
    The court’s refusal to permit defendant to testify as to the condition of the deceased is substantial error demanding a new trial and a reversal of the judgment in favor of plaintiff herein. (Hackstaff v. Hackstaff, 82 Hun, 16; Griswold v. Hart, 205 N. Y. 384; Matter of Kelly, 238 N. Y. 71; Rouse v. Whited, 25 N. Y. 170; Nay v. Curley, 113 N. Y. 575; Matter of Cozine, 104 App. Div. 182; Blankman v. McQueen, 13 N. Y. Supp. 663; Riegle v. Bratt, 78 Hun, 532; Patnode v. Foote, 153 App. Div. 494.) The disqualification of defendant from testifying as to what was said by the deceased at the time of the receipt by defendant of check No. 1067, the check in suit, is substantial error demanding a new trial and a reversal of the judgment in favor of plaintiff herein. (Merritt v. Campbell, 79 N. Y. 625; Nay v. Curley, 113 N. Y. 575; Koehler v. Adler, 91 N. Y. 657; Hopkins v. Clark, 90 Hun, 4; Mills v. Davis, 113 N. Y. 243; Boyd v. Boyd, 164 N. Y. 234; Faurie v. Lazelle, 205 N. Y. 526.)

      Allan S. Wrenn and George E. Brower for respondent.
    The trial court properly excluded testimony by defendant as to whether decedent’s mind was or was not clear. (People v. Buchanan, 145 N. Y. 1; Martin v. Hillen, 142 N. Y. 140; Rogers v. Rogers, 153 N. Y. 343; People v.
      Pekarz, 185 N. Y. 470.) The cross-examination of defendant did not open the door for redirect as to alleged conversations between defendant and decedent regarding check No. 1067, and the ruling of the trial court was correct. (Burdick v. Burdick, 180 N. Y. 261; Nay v. Curley, 113 N. Y. 575; Martin v. Hillen, 142 N. Y. 140; Rogers v. Rogers, 153 N. Y. 343; Lawyer v. White, 198 N. Y. 318; McCarthy v. Woolston, 210 App. Div. 152; Matter of Knibbs, 108 App. Div. 134; Matter of Woodward, 69 App. Div. 286; Ahrens v. Moadinger, 41 App. Div. 355; Savercool v. Wilsey, 5 App. Div. 562; Dana v. Wright, 23 Hun, 29.)
   ■ Crane, J.

Henry Hyams died in the borough of Brooklyn on the 28th day of November, 1921, leaving, a last will and testament, wherein the plaintiff in this case was appointed his executor. The testator left him surviving his widow, Sophie Hyams, and three sons by a former marriage, Henry Hyams, Jr., Benjamin Hyams. and Samuel Hyams, as his only heirs at law. The will, made and executed the 15th day of January, 1919, bequeathed to his wife the sum of $25,000 to be held in trust to pay the net income thereof to her during her natural life; the income of $10,000 was payable to his son Benjamin Hyams; $20,000 was bequeathed to Samuel Hyams, and all the residue was given to his son Henry Hyams.

This action has been brought to recover the sum of $10,000, the amount of a check which it is alleged the defendant forged and wrongfully cashed. The complaint alleges that on the 20th day of November, 1921, the defendant had in her possession a check signed by the deceased, Henry Hyams, in blank, drawn on the Kings County Trust Company; that the defendant inserted her name as payee and the amount $10,000 without the knowledge or authority of the said Henry Hyams, and fraudulently converted the same to her own use.

Under a general denial, the case came on for trial, and resulted in a closely contested issue, with much evidence bearing upon the defendant’s fraud, or else her authority to have and keep the money. That the deceased signed the check was conceded; his signature was genuine. It was dated November 20, 1921, and Hyams died November 28, 1921. There is no question that the defendant filled in the rest of the check, dated it, and deposited it in her own account. It was the defendant’s contention- that this check and money were given to her by her husband to erect or to complete the construction of a house upon property which she owned at Manhattan Beach. On August 31, 1921, or about three months before the death of her husband, Mrs. Hyams had purchased some property at Manhattan Beach, title to which was taken in her own name. At the time she bought the property her husband was with her. For this property she paid $3,375. As to these facts there is also no dispute. There was much evidence given by disinterested witnesses, and by friends of Mr. Hyams, that he had given to his wife, the defendant; $10,000, or a check for $10,000, to enable her to build a house, or for the purpose of completing a house on this property which she had purchased. There is evidence that he had consulted a builder or architect as to the cost of construction.

The plaintiff’s claim was that this check had been procured not at the time of its date, November 20, but in the middle or latter part of October; that the defendant had obtained it from her husband with the avowed .purpose of paying a doctor’s bill — Dr. MacGilligan’s — for $125;'that having obtained possession of a signed blank check for this avowed purpose, she did not pay Dr. MacGilligan, but filled the check in later on the date of November 20 for $10,000, payable to herself, without the knowledge or consent of her husband.

Now this was the issue. Did the defendant make this check payable to herself at her husband’s direction, or did she do it without his consent, by means of the subterfuge of procuring a check for Dr. MacGilligan?

A jury found for the plaintiff, and the judgment in its favor has been affirmed by a divided court.

The defendant has appealed to us to review exceptions taken to the exclusion of evidence, which she claims were prejudicial errors affecting her case with the jury. Being an interested witness prohibited from testifying under section 347 of the Civil Practice Act, as to the transaction in question, she was, however, cross-examined by the plaintiff’s lawyer to such an extent that her counsel insists that the door was opened for her explanations and testimony. The plaintiff, it is claimed, has sought to draw from her testimony brought out on cross-examination, certain inferences or corroboration which she has been prevented from rebutting. As we are inclined to take this view of the case, let me state the reasons.

Check No. 1067 is the one in dispute. The date is November 20, 1921. Check No. 1066 is dated October 10, 1921. Check No. 1068 is dated October 28, 1921. As Henry Hyams signed these three checks, it is reasonable to suppose that he signed No. 1067 between October 10 and October 28. As No. 1067 has the date November 20, 1921, it must have been dated after October 28. The stub of check No. 1067 is blank; all the other stubs apparently are filled in to correspond with the checks. .. The check, therefore, No. 1067 to the plaintiff’s order for $10,000 has no corresponding stub entry; it is a blank. There is also no check or stub of a check drawn to the order of Dr. MacGilligan for $125. So far as the stub of the check book shows, check No. 1067 could have been drawn to either Dr. MacGilligan or the plaintiff. Upon the face of the check book there is this rather strange or unusual circumstance. If it be true, as testified by witnesses for the plaintiff, that in the latter part of October Sophie Hyams asked her husband to sign a blank check to pay Dr. MacGilligan, the check which she got must have been No. 1067, if it were taken from the Kings County Trust Company check book. Here then would be a strong probability that the defendant wrongfully filled in the check to her own order.

She was called as a witness in her own behalf to deny the testimony of the stepson, Sam Hyams, that she had told him that the check had been drawn to pay Dr. MacGilligan $125. On cross-examination, counsel for the plaintiff pushed the matter much further, making the witnesses his own upon new matter, with the apparent purpose of drawing from her testimony to corroborate the plaintiff’s theory and evidence that check No. 1067 was in fact drawn for this purpose, and not to give herself $10,000 for the purpose of building a house. The cross-examination is too long to quote in full, but that it calls for transactions with the deceased regarding this $10,000 check, or the presence or absence of' some element of a personal nature in the transaction, which would help the plaintiff, may be gathered from the following. The witness is questioned regarding the date which she wrote on the check.

Q. Where were you when you wrote the ‘ 20 ’? A. 402 State Street.” (This was the home of Mr. and Mrs. Hyams.)

“ Q. When did this check come first into your possession? When? A. Some time in the latter part of October.

“ Q. Did you tear this check from its stub? A. No.

“ Q. When did this check come into your personal custody? The date is what I want. A. I can’t just tell you exactly to the date. I know it was some time in the latter part of October.

“ Q. Now, he wants to know if you had possession of it right along, until you wrote ‘ 20 ’ in it? A. Yes, sir.

“ Q. Where did you keep it? A. In the check book.

“ Q. In its place, attached to the stub? A. No, not attached to the stub.

“ Q. After this check came into your custody, did you fold it? A. No; I laid it in the book. My husband gave it to me, and I put it in the book.

Q. When did you write the date now on this check,

‘ Sophie Hyams, ten thousand? ’ A. On the 20th.

“ Q. I mean — now, understand — just before you wrote ‘ Sophie Hyams, 10,000, ten thousand,’ you took the check out of the check book, where it had been all the time since the middle of October; is that right? Since the latter part of October; is that right? A. Yes, sir.

“ Q. Well, was it the 20th of November that you detached the check from the stub? A. I told you I never detached the check.”

The witness was then questioned regarding the writing, who did the writing on checks 1070 and 1071, and other moneys that she received from her husband on the 15th' of September, 1921. The plaintiff, therefore, proved by the widow that this check came into her possession in her home in October; that she did not detach it from the check book; that she wrote the words “ Sophie Hyams, ten thousand ” in the check on the 20th day of November, 1921; from all of which it can be claimed, and was, that such acts fitted in completely with the plaintiff’s case; that Hyams did not give her the check to build a house, but authorized her in October to make the check for Dr. MacGilhgan’s bill of $125.

When, therefore, on redirect, the witness was asked by her counsel the circumstances under which she received the check, we think it was error to exclude her answer. If Sophie Hyams has been called to testify regarding all these facts in her own behalf in an action on the check, we think that the testimony would have been incompetent under section 347 of the Civil Practice Act. The purpose of this section not only excludes direct testimony of conversations and transactions, but all such facts and circumstances as have such a relation to, or bears so closely upon personal transactions, that a reasonable inference of such transactions can be drawn from them.

“ If, in substance, the fact sought to be elicited respects a personal transaction and tends directly to disclose a personal transaction, or the presence or absence of some element in a personal transaction, then the fact is not, '"‘we think, an independent one, and the survivor is precluded from testifying to it, unless the way is opened by vhis examination by the other party.” (Nay v. Curley, 113 N. Y. 575, 582; Hoag v. Wright, 174 N. Y. 36; Koehler v. Adler, 91 N. Y. 657; Richardson v. Emmett, 170 N. Y. 412; Rouse v. Whited, 25 N. Y. 170, 174.)

There are two other rulings which may also be considered. The plaintiff offered in evidence a paper marked Exhibit 11,” written by Sophie Hyams, and apparently signed by Henry Hyams. It is dated November 16, 1921, 'and reads in part: “ My husband * * * authorized me to write his last will and testament tailing 50 per cent of his intire request for love and affaction as his true and loving wife,” etc. On cross-examination Sophie Hyams was questioned about this paper which the plaintiff had offered in evidence. On redirect, the defendant was asked the circumstances under which she received that paper, and this was excluded. We think this was also error. The plaintiff had proved that it was in the defendant’s handwriting, and had offered it in evidence. This paper stated a personal communication and transaction by the witness with the deceased, and there is no reason why she should not have given all of it.

And, lastly, Henry Hyams’ health was brought out upon cross-examination of Mrs. Hyams. She was questioned about his physical condition right down to the day of his death, from the summer of 1921 to November 28 of the same year. His health was a matter of importance in this case, for it is the claim of the plaintiff that the deceased was in a state of coma from the 20th until the 28th, while the defendant’s witnesses state that he was conscious and able to transact his affairs up to within two days of his death. When, therefore, on redirect, Mrs. Hyams was questioned as to the mental condition of Mr. Hyams, we think the testimony should have been admitted. The question asked by the defendant’s counsel was improper in form, and if this were the only error in the case, we would hot consider it substantial. We think, howéver, that the objection went more to the competency of the witness than to the form of the question. If the question had been properly framed to comply with our somewhat technical rules of evidence, the subject-matter asked about would have been competent and relevant.

For the reasons herein stated, the judgments should be reversed and a new trial granted, costs to abide the event.

Hiscocic, Ch. J., Cardozo, Pound, McLaughlin and Lehman, JJ., concur; Andrews, J., not voting.

Judgments reversed, etc.


author: Hiscock, Ch. J.

text:
    National Surety Company, Respondent, v. Benjamin A. Ruffin, Appellant.
    Limitation of actions — practice — cause of action in favor of resident of this State accruing in and against resident of foreign State — limitation in foreign State of five years in which to commence suit —r action brought in this State eleven years after accrual of cause of action not barred — section 390 of Code of Civil Procedure (Civ. Pr. Act, § 55) must be read with section 401 (Civ. Pr. Act, § 19) —• word “ return ” in section 401 applicable to case of non-resident who entered State for first time when he was served.
    1. An action brought to recover upon a cause of action which accrued in the State of Virginia more than eleven years before the commencement of the action, in favor of the plaintiff, a resident of this State, against the defendant who then was and ever since has been a resident of the State of Virginia, in which State the limitation upon the right to bring such an action is five years, is not barred» by our Statute of Limitations. Section 390 of the Code of Civil Procedure (Civ. Pr. Act, § 55) providing that an action against a non-resident must be brought within the time limited by the laws of his residence unless that is shorter than the limitation fixed by our statutes in which case the latter govern is not affected by section 390-a (Civ. Pr. Act, § 13), but is modified by section 401 (Civ. Pr. Act, § 19) which provides, “ If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State.”
    2. A contention that this provision does not apply to the present case because the defendant was never a resident of the State and, therefore, it cannot be said that when he came within the State and was served it was a “ return into the State,” cannot be sustained. A Statute of Limitations is to be liberally construed in favor of the claimant, and such a word as “ return ” is not to be strictly interpreted but should be held to be applicable to the case of a non-resident who entered the State for the first time when he was served. (Olcott v. Tioga R. R. Co., 20 N. Y. 210, followed.)

      National Surety Co. v. Ruffin, 213 App. Div. 816, affirmed.
    (Argued March 30, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1925, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Arthur W. Clement and Edward J. Keane for appellant.
    The undisputed facts of this case show that plaintiff’s claim accrued more than eleven years prior to the commencement of this action and that it is barred both by the New York and the Virginia Statutes of Limitation. (Ross v. Graham, 122 Misc. Rep. 574; Whiting v. Miller, 188 App. Div. 825; Smith v. Western Pacific Ry., 154 App. Div. 130.)

      Abraham Benedict, Adam K. Strieker and Saul S. Myers for respondent.
    This action is not barred by any Statute of Limitations. Section 390-a of the Code of Civil Procedure, now section 13 of the Civil Practice Act, is controlling. (Olcott v. Tioga R. Co., 20 N. Y. 210; Smith v. Western Pacific Ry. Co., 154 App. Div. 130; Ruggles v. Keeler, 3 Johns. 264; Whiting v. Miller, 188 App. Div. 825; Comey v. United Surety Co., 217 N. Y. 268; Wiedenfeld v. Pacific Improvement Co., 267 Fed. Rep. 699; Plummer v. Lowenthal, 165 N. Y. Supp. 220; Conn. Trust & S. D. Co. v. Wead, 172 N. Y. 479; Bassett v. Bassett, 55 Barb. 505.)
   Hiscock, Ch. J.

This action is brought to recover upon a cause of action which accrued in the State of Virginia more than eleven years before the commencement of the action in favor of the plaintiff, a resident of this State, against the defendant who then was and ever since has been a resident of the said State of Virginia. The only proposition argued on the appeal is the one that said cause of action had become barred by the Statute of Limitations and this question involves the consideration of three sections of the former Code of Civil Procedure and which now, in identical language, have been carried into the Civil Practice Act. As a matter of convenience we shall refer to the Code provisions. Prior to 1902 section 390 provided: Where a cause of action, which does not involve the title to or possession of. real property within the State, accrues against a person, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time, limited, by the laws of his residence, for bringing a like action, except by a resident of the State, and in one of the following cases:

1. Where the cause of action originally accrued in favor of a resident of the State.”

In 1902 section 390-a was adopted providing: Where a cause of action arises outside’ of this State, an action cannot be brought, in a court of this State, to enforce said cause of action, after the expiration of the time limited by the laws of the State or country where the cause of action arose, for bringing an "action upon said cause of action, except where the cause of action originally accrued in favor of a resident of this State.”

In 1916 section 390 was amended so as to provide that in the case of a non-resident debtor an action must be brought within the time limited by the laws of his residence unless that is shorter than the limitation fixed by bhe laws of this State and in which case such latter laws should govern, and also by striking out the exception to such limitation in favor of a resident of this State where the cause of action had originally accrued in favor of such resident.

The limitation upon the right to bring such an action as this in the State of Virginia where it accrued is five years and defendant urges that because of his non-residence, under the provisions of section 390 this action must have been brought within six years after the cause of action accrued and that the lapse of eleven years between accrual and commencement of action necessarily barred it. I think that if this question was to be settled by the two sections to which reference has been made defendant’s contention would be sustained. These two sections on their face purport to cover two different situations. The decisive feature of the limitation imposed by section 390 is that the defendant is a non-resident. That is all that is required by that section to bring into effect the limitation imposed by it. The decisive feature of section 390-a is that the cause of action accrued outside of the State and upon the face of the section that is all that is necessary to bring into effect the limitation and exception provided by that section. It is true that in a given case as in this one there might be present the decisive fact of each section, the cause of action accruing outside of the State and against a non-resident thereof, but we see no reason for holding that section 390-a was intended to engraft an exception upon section 390 and that the Legislature intended to provide that a non-resident defendant who was entitled by reason of that fact to the benefits of section 390 was to be deprived thereof because the cause of action also accrued without the State. There does not seem to me to be any connection between the sections as there written which sustains any such intention or conclusion as that. The protection of one section is predicated solely on the fact of non-residence and we see no reason why this protection should be lost because, to the fact of non-residence of the debtor there is also added the fact that the cause of action accrued at the place of his residence. The other section considers simply the place of accrual of the cause of action and, so far as we can see, entirely ignores consideration of the place of residence of the proposed defendant. The obvious purpose of the provision as a whole is to prevent a nonresident claimant from coming into this State and prosecuting a claim whether against resident or non-resident under our Statutes of Limitations if they are more favorable to him than the statutes prevailing in the State where the cause of action arose. This view is reinforced by the amendment of section 390 in 1916 long after section 390-a had been passed. By that amendment, as has been remarked, the Legislature struck out of section 390 the exception theretofore prevailing in favor of residents of the State and it seems to me intended to emphasize the proposition that the feature of non-residence of a defendant was decisive under that section and was not affected by the provisions of section 390-a.

But we think that section 390 is subject to the provisions of section 401. The pursuit of legislative intent in preserving and presenting a combination of such sections as 390 and 390-a is rather difficult and illusory. We think, however, that it is safe to assume that the Legislature by section 390 as amended and now existing never intended to drive residents of this State into other States for the purpose of preserving and enforcing their claims as against a Statute of Limitations. It probably has been the general understanding of the profession that extended absence from the State stopped the running of the Statute of Limitations as against a defendant while such absence continued and we think it is reasonably safe to assume that when the Legislature amended section 390 by striking out the exception in favor of a resident as it did in 1916 it was on the theory that the provisions of section 401 would apply for the benefit of such resident having a claim against a non-resident, and we think that the provisions of section 401 do qualify the provisions of section 390 and preserve the present claim against the Statute of Limitations. Section 401 is found in the title containing “General Provisions” governing the commencement of actions. It provides: “If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State.” I suppose there can be no doubt that if the defendant, being a resident of the State had been without the State at the time this cause of action accrued, this provision would have preserved the right to bring an action upon it after the lapse of the ordinary Statute of Limitations. It is urged, however, that this provision does not apply to the present case because the defendant was never a resident of the State and, therefore, it cannot be said that when he came within the State and was served it was a “ return into the State; ” that there could not be a “ return ” by one who had never been there before. This argument, however, was overruled in Olcott v. Tioga R. R. Co. (20 N. Y. 210). The interpretation of this particular word was considered by Judge Denio and, with the support of various cases both in this State and in England, he reached the conclusion that because a Statute of Limitations is to be liberally construed in favor of the claimant, such a word as return ” is not to be strictly interpreted but should be held to be applicable to the case of a non-resident who entered the State for the first time when he was served.

Holding, therefore, that section 401 is applicable to the case of a defendant who was a non-resident and without the State at the time the cause of action accrued and always after that, we reach the conclusion that section 390 is modified by section 401 and that plaintiff’s cause of action is not barred and that the judgment entered thereon should be affirmed, with costs.

Cardozo, Pound, Crane, Andrews and Lehman, JJ., concur; McLaughlin, J., not voting.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Chin Sing, Appellant.
    Crimes —■ murder in first degree — trial — evidence — sufficiency of evidence to sustain verdict of conviction • — ■ circumstance that conviction was upon doubtful circumstantial evidence to be considered in deciding whether error was of sufficient importance to require new trial — testimony of third parties as to what interpreters said defendant answered in reply to questions of police, the interpreters not having been called to testify, is hearsay and inadmissible — error may not be disregarded by this court where incompetent evidence was so material that district attorney in summation and in brief on appeal referred to it as evidence of guilt.
    1. Though the evidence upon the trial of an indictment, charging the defendant with the crime of murder in the first degree, warrants the conclusion that it is sufficient to sustain the verdict of conviction and that, therefore, the latter should not be set aside as against the weight of evidence, nevertheless, where the evidence is circumstantial and there has been enough doubt about its cogency so that on the first trial of defendant the jury disagreed and on the present trial reached a verdict of conviction only after several hours of consideration, these circumstances are not to be overlooked in deciding whether an undoubted error in the conduct of the trial is of sufficient importance to require a new trial.

      2. Where subsequent to the arrest of defendant, a Chinaman coneededly unable to speak the English language, the police called in two other Chinamen, with the selection of whom defendant had nothing to do, and through them as interpreters proceeded to interrogate him concerning his former whereabouts and the reasons for his presence in the city where arrested, and on the trial the interpreters were not called to testify to the correctness of their interpretation, but third parties were permitted to testify that they said that defendant gave various answers to their questions, the evidence was hearsay and inadmissible.
    3. Nor is this court justified in disregarding this infringement of the rules of evidence, on the theory that it could have done no substantial harm, where the incompetent evidence tended to show that defendant had guilty knowledge of the crime and was attempting to escape from its scene and one of his reported statements was strikingly in line with the People’s theory that he had been employed as an agent to commit the murder with which he was charged, and this is especially so where the district attorney in his summation and again in his brief on this appeal referred, as evidence of guilt, to this incompetent, hearsay evidence.
    (Argued April 1, 1926;

    decided May 4, 1926.)
    Appeal from a judgment of the Queens County Court, rendered June 22, 1925, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Harry Kopp and Samuel Null for appellant.
    The court erred in denying the defendant’s motion to dismiss the indictment and direct a verdict of acquittal. (People v. Razezicz, 206 N. Y. 249; People v. Giordano, 213 N. Y. 575.) The court erred in allowing hearsay testimony in evidence. (People v. Lewis, 238 N. Y. 1; People v. Van Aken, 217 N. Y. 532.)

      Richard S. Newcombe, District Attorney (Thomas F. Thornton of counsel), for respondent.
    No error was committed in allowing the police officers to testify to statements made by the defendant through interpreters. (Grocz v. Delaware & Hudson Co., 174 App. Div. 505; Wright v. Maseras, 56 Barb. 521; Wigmore on Ev. 1076, § 668; Camerlin v. Palmer Co., 92 Mass. [10 Allen] 539;
      Kelly v. Ning Yung Benev. Assn., 2 Cal. App. 460; Nadau v. White River Lumber Co., 76 Wis. 120.)
   Hiscock, Ch. J.

The defendant, a Chinaman, has been convicted of murder in the first degree because, as found by the jury, he killed his employer, another China-man, at the village of Corona, Long Island, early in the morning of October 14, 1924. It has been the theory of the People that he was hired to commit this murder by a Chinese Tong which was then engaged in warfare with another Tong to which the deceased belonged.

We do not deem it necessary to give a general summary of the People’s evidence. We have reached the conclusion that it was sufficient to sustain the verdict of the jury and that, therefore, the latter should not be set aside as against the weight of evidence. Nevertheless, as an introduction to the consideration of the error which in our opinion requires a reversal of the judgment, it is to be borne in mind that the evidence against defendant is circumstantial and that there has been enough doubt about its cogency so that on the first trial of defendant the jury disagreed and on the present trial reached a verdict of conviction only after several hours of consideration. These circumstances are not to* be overlooked in deciding whether an undoubted error in the conduct of the trial is of sufficient importance to require a new trial. We shall simply summarize so much of the evidence as presents the error to which we have referred.

At a comparatively early hour in the morning after the night when the murder is claimed to have been committed the defendant appeared on the streets of Yonkers, which was a distance of two or three horns of travel from the place where the murder was committed. There was something about his appearance which attracted the attention of a police officer and he was placed under observation and interrogation. Concededly he is not able to speak the English language but the officer understood him to say something about having been employed in a laundry not far away and investigation of this supposed information disclosed that it was false. Subsequently the police called in two Chinamen and through them as interpreters proceeded to interrogate defendant concerning his former whereabouts and the reasons for his presence in Yonkers. Defendant had nothing to do with the selection of these men nor did he even know, so far as the record shows, that what he had said to them was to be communicated'to the police or to others. On the trial, witnesses were allowed to testify that the interpreters said that the defendant gave various answers to their questions relative to his former residence or employment and accounting for his presence in Yonkers which were false and amongst the latter answers was one to the effect that he had come to Yonkers to escape from a Chinese Tong war. The Chinamen who made this purported interpretation of their questions and defendant’s answers were not called to testify to the correctness of their interpretation and the evidence of third parties, without such authentication, was admitted over proper objections and exceptions that the evidence was hearsay and inadmissible.

We think that it was so clearly so as not to permit any serious discussion of the question. The People have cited various authorities which are claimed to sustain the admission of this evidence but they entirely fail so to do. Of course the evidence was hearsay (People v. Lewis, 238 N. Y. 1) and with two possible exceptions the only cases cited by the People to sustain the admission of such evidence are cases where the interpreter had been selected by common consent of the parties endeavoring to converse or by the party against whom the statements of the interpreter were offered in evidence and in such cases it was naturally held that the party against whom the statements were offered in evidence had made the interpreter his agent and, therefore, within the ordinary rules of principal and agent was bound by bis statements which could be proved by a third party. As has been pointed out that is not at all this case. (Commonwealth v. Vose, 157 Mass. 393; Meacham v. State, 45 Fla. 71; Nadau v. White River Lumber Co., 76 Wis. 120; McCormicks v. Fuller & Williams, 56 Iowa, 43.) In the other cases cited by respondent the interpreter had verified the correctness of his interpretation and the discussion turned on the question whether even under these circumstances the evidence was so far hearsay that it could not be allowed, and the decisions in overruling this contention did not uphold the other one that a third party could give evidence of the statements of the interpreter without any verification of the correctness of his interpretation. (People v. Randazzio, 194 N. Y. 147; Guan Lee v. U. S., 198 Fed. Rep. 596; Matter of Coburn, 207 Mich. 350; Commonwealth v. Storti, 177 Mass. 339; State v. Noyes, 36 Conn. 80; Wigmore on Evidence, vol. 1, section 668; vol. 2, section 812; vol. 3, sections 1669 and 1810.) If the cases of Grocz v. D. & H. Company (174 App. Div. 505) and Blazinski v. Perkins (77 Wis. 9) are to be interpreted as taking a different view we are unable to accept it.

The question then survives whether we would be justified in disregarding this conspicuous infringement of the rules of evidence on the theory that it could have done no substantial harm. We do not feel willing to adopt that conclusion.

There is no lack of other evidence that defendant was on the streets of Yonkers on the morning after the night during which, on the People’s theory, the murder was committed and if the evidence which we are considering did nothing more than tend to establish that fact it would not be of substantial, consequence. But it did much more than that. The important query in connection with defendant’s presence in Yonkers is the one whether he was there innocently or not. If he came to this place somewhat distant from the scene of the murder under circumstances which indicated flight from the scene of a crime in which he had engaged, the fact was one of importance in estabhshing bis guilt and the hearsay evidence that he gave explanations of his presence which were false tended to establish that he did have guilty knowledge of the crime and was attempting to escape from its scene with concealment of his real purpose. In addition to the other answers his reported statement that he had come to escape from a Tong war was quite strikingly in line with the People’s theory that he had been employed as an agent in such a war to commit the murder with which he was charged. We can readily picture how such an alleged statement indicating entanglement in such a war would catch the minds of a jury who were being told by the prosecution that it was out of just that situation that his murder of the decedent came. Nor is our view of the importance of this evidence at all exceptional. All that we have said on that subject is confirmed by the attitude of the district attorney. In bis summation he referred, as evidence of guilt, to this incompetent, hearsay evidence of defendant’s false statements and reference to the Tong war, and again in his brief on this appeal does the same thing. When a district attorney so urgently relies upon incompetent evidence for the conviction of a defendant we feel quite confirmed in our opinion that it was important and not at all negligible.

• For these reasons we think that the judgment of conviction should be reversed and a new trial ordered.

Cardozo, Pound, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., not voting.

Judgment reversed, etc.


author: Lehman, J.

text:
    Van Iderstine Co., Inc., Respondent, v. Barnet Leather Co., Inc., Appellant.
    Contract — sale — evidence —■ Statute of Frauds — waiver — charge —■ time specified in written contract for delivery cannot be changed orally — testimony of oral agreement to extend time for delivery of portion of merchandise admissible on question of waiver of right to regard contract as no longer in force — stipulation in contract for approval of goods by designated broker waived where buyer refused to accept goods tendered even if approved by expert — erroneous charge that if approval by expert was unreasonably withheld plaintiff could recover, whether or not defendant had anything to do with it — no recovery for goods rejected by expert unless approval was withheld dishonestly and in bad faith and defendant was party thereto.
    1. While, under the Statute of Frauds, an alleged conversation could not result in the substitution of a different time for delivery of merchandise than that which had been agreed upon in writing, nevertheless, in an action to recover because of the purchaser’s refusal to accept merchandise which the seller offered to deliver, testimony that at or about the time of a partial delivery, it was mutually agreed, in conversation, that time for delivery of the remainder should be extended, is admissible. While the buyer had the right to refuse to accept merchandise tendered in violation of the terms of the contract he was not bound to do so. He might choose to keep the contract alive and waive the right to regard it as no longer in force.
    2. A stipulation in the contract that the merchandise was to be delivered and received subject to the approval of a designated broker, acting as expert, constitutes a condition which unless waived or excused must be fulfilled before the buyer can be compelled to accept merchandise tendered, but such condition was as matter of law waived by the buyer in regard to merchandise tendered, which it refused to accept even if approved by the expert.
    3. A charge by the trial judge that if approval by the expert was unreasonably withheld, whether defendant had anything to do with it or not, the plaintiff could recover, was erroneous. Defendant stipulated not merely for goods of a certain quality but for goods of that quality approved by a particular expert and unless approval has been withheld dishonestly and in bad faith, and the defendant is a party to that bad faith through control of the expert or collusion with him, there may be no recovery for goods tendered and rejected by the expert. (Bowery Nat. Bank v. Mayor, etc., 63 N. Y. 336; Mac Knight Flintic Stone Co. v. Mayor, etc., 160 N. Y. 72, distinguished.)
    4. Proof of fraud may sometimes be made by circumstantial evidence and circumstances insignificant in themselves may acquire probative force as links in the chain of circumstantial proof.

      Van Iderstine Co. v. Barnet Leather Co., 213 App. Div. 876, reversed.
    (Argued February 25, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      Louis Marshall, Monroe J. Cohn and Edward B. Levy for appellant.
    It was error for the trial court to rule that the alleged oral agreement of extension of the time of delivery under the original contract was not void under the Statute of Frauds. (Norrington v. Wright, 115 U. S. 188; Clark v. Fey, 121 N. Y. 470; Hill v. Blake, 97 N. Y. 216; Imperator Realty Co. v. Tull, 228 N. Y. 454; Davison Coal Co. v. Weston, Dodson & Co., 209 App. Div. 517; Morris v. Baron & Co., 1918 A. C. 1; Maddeloni Olive Oil Co., Inc., v. Aquino, 191 App. Div. 51; Albert v. Newtown Creek Realty Corp., 211 App. Div. 4.) The respondent’s contention that the provision of the contract of August 12, 1920, which provided for “ delivery beginning week of August 16th,” authorized a tender of delivery thereunder of 3,500 sldns two months later, either on the theory that such tender was made within a reasonable time or because of an alleged custom in the trade, is unsound. (Vedder v. Fellows, 20 N. Y. 126; Avery v. N. Y. C. & H. R. R. R. Co., 121 N. Y. 44; Walls v. Bailey, 49 N. Y. 464; Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307; Cassin v. Stillman-Delehantf-Ferris Co., 185 App. Div. 63; McDonald v. Acker, M. & C. Co.; 192 App. Div. 123; Ford v. Snook, 205 App. Div. 194; Kane v. Jaretzki, 119 Misc. Rep. 419.) The court erred in charging the jury, in substance, that if Jules Star & Co. unreasonably withheld their approval of the 6,000 skins which were the subject of the second contract, whether the defendant had anything to do with such disapproval or not, the plaintiff could nevertheless recover. (2 Williston on Contracts, 1525; Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392; Matter of Wilkins, 169 N. Y. 494; Wilhelm v. Wood, 151 App. Div. 42; Goff & Sons v. Rheinauer, 199 App. Div. 617; Kihlberg v. United States, 97 U. S. 398; Chicago, S. F. & C. R. R. Co. v. Price, 138 U. S. 185; Cope v. Beaumont, 181 Fed. Rep. 756; Sullivan Co. v. Wingerath, 203 Fed. Rep. 460; Robinson v. United States, 251 Fed. Rep. 461.) The trial court erred in admitting in evidence the bid by defendant on the 3,500 skins tendered under the alleged oral extension agreement of the first contract, and the telegram from Jules Star & Co. to Severin, for the purpose of establishing a conspiracy between defendant and Star for the rejection of the sldns tendered under the second contract. (Ross v. Ackerman, 46 N. Y. 210; Booth v. Powers, 56 N. Y. 22; Dorwin v. Westbrook, 86 Hun, 363; McLoghlin v. National Mohawk Valley Bank, 139 N. Y. 514; People v. Sharp, 107 N. Y. 427; People v. Molineux, 168 N. Y. 264; Mance v. Hossington, 205 N. Y. 33; Matter of Jones & Co., 117 App. Div. 775; People v. McLaughlin, 150 N. Y. 385.)

      Eugene W. Leake for respondent.
    Proof of the oral agreement with regard to the time for delivery of the balance, of the skins due under the first contract was properly admitted. (Imperator Realty Co. v. Tull, 228 N. Y. 447; Seaside Home v. Atlantic Beach Associates, 241 N. Y. 48; Gumbinsky Bros. Co. v. Smalley, 203 App. Div. 661; 235 N. Y. 619; Portfolio v. Rubin, 196 App. Div. 316; 233 N. Y. 439; Lowinson v. Newman, 201 App. Div. 266; Beakes v. DeCunha, 126 N. Y. 293; Eppens, Smith & Wiemann Co. v. Littlejohn, 164 N. Y. 187.) Plaintiff having relied and acted upon the oral agreement, defendant was estopped from asserting that the tender was not made within the time fixed' by the contract. (Thompson v. Poor, 147 N. Y. 402; Arnot v. Union Salt Co., 186 N. Y. 501; Imperator Realty Co. v. Tull, 228 N. Y. 447; Holden v. Efficient Craftsman Carp., 234 N. Y. 437; Lieberman v. Templar Motor Co., 236 N. Y. 139.) Appellant’s futile attempt to establish a custom, which it improperly charges to respondent, and the conflicting inferences from the undisputed facts, required the submission to the jury of the question whether the 3,500 skins under the first contract were tendered within a reasonable time. (Eppens, Smith & Wiemann Co. v. Littlejohn, 164 N. Y. 187, 191; Pierson v. Crooks, 115 N. Y. 539; Schnitzer v. Lang, 239 N. Y. 1; Gracien v. Pohlman, 191 N. Y. 493; McCarthy v. Natural Carbonic Gas Co., 189 N. Y. 40.) The jury were properly instructed as to the legal effect of the contract provision requiring the approval of Jules Star & Co. (Bowery Nat. Bank v. Mayor, etc., 63 N. Y. 336; McKnight v. Mayor, etc., 160 N. Y. 72; Vought v. Williams, 120 N. Y. 253; Thomas v. Stewart, 132 N. Y. 580; MacKnight Flintic Stone Co. v. Mayor, etc., 160 N. Y. 72; Nolan v. Whitney, 88 N. Y. 648; Smith v. Wetmore, 41 App. Div. 290; Crane Elevator v. Clark, 88 Fed. Rep. 705; Bush v. Jones, 144 Fed. Rep. 942.) There was no error in the reception of evidence. (Baird v. Daly, 68 N. Y. 547; Mayer v. People, 80 N. Y. 364; Spaulding v. Keyes, 125 N. Y. 113; People v. Peckens, 153 N. Y. 576; People v. Dolan, 186 N. Y. 4; Castle v. Bullard, 23 How. [U. S.] 172; Holmes v. Goldsmith, 147 U. S. 150; White v. Benjamin, 150 N. Y. 258.)
   Lehman, J.

On or about August 12th, 1920, the plaintiff and the defendant entered into a contract for the sale of 15,000 vealskins, delivery thereof to be made beginning week oí August 16th.” The contract was made upon condition that the skins were “to be received by Jules Star & Co.’s representative subject to their approval.” On September 10th, 1920, the parties entered into another contract for the sale of 6,000 vealskins, delivery to be made in September, “to be received by Jules Star & Co. subject to their approval.” On or about August 16th a representative of Jules Star & Co. examined 15,000 vealskins tendered by the plaintiff in performance of its contract of sale of August 12th, and rejected 3,500 of such skins. It is not disputed that such rejection was justified. In October the plaintiff notified the defendant that it was ready to deliver 3,500 skins in substitution for those previously rejected. The defendant refused to accept or even examine the same on the ground that the time for delivery had expired. About the same time, Jules Star & Co. rejected the entire quantity of 6,000 skins which the plaintiff tendered in attempted performance of its contract of September 10th, 1920, and defendant refused to accept them.

The plaintiff has brought this action to recover damages suffered because of the defendant’s refusal to accept the skins which plaintiff offered to deliver. In the first cause of action for failure to accept the 3,500 skins under the contract of August 12th, 1920, the plaintiff alleges that at or about the time of the delivery to defendant of 11,500 skins in August “ it was mutually agreed between the plaintiff and defendant that the time for delivery of the remaining 3,500 vealskins called for by said Exhibit A should be extended until such time as plaintiff, in the usual course of its business, should have collected that number of its skins.” In the second cause of action as amended at the trial the plaintiff alleged that any condition for approval by a representative of Jules Star & Co. of the skins to be delivered under the contract of September 10th was waived and excused because the approval was unreasonably withheld, and because defendant prevented Jules Star & Co. from giving such approval and “because defendant and said Jules Star & Co. wrongfully and knowingly colluded to withhold that approval, with intent to avoid defendant’s having to accept the said skins.” The issues raised by the denial to these allegations were submitted to the jury and decided in favor of the plaintiff.

The alleged agreement set forth in the first cause of action to extend the time for the delivery of 3,500 skins in substitution for those rejected under the first cause of action was not in writing, and it is urged that consequently it was unenforcible under the Statute of Frauds. The alleged conversation could not result in the substitution of a different time for delivery of the vealskins from that which had been agreed upon in writing. The Statute of Frauds would render an oral agreement changing any term of the written contract ineffectual. (Imperator Realty Co. v. Tull, 228 N. Y. 447; Davison Coal Co. v. Weston, Dodson & Co., 209 App. Div. 514, 517; affd., 240 N. Y. 705.) Nevertheless such conversation may not be entirely disregarded. The written contract provided for deliveries “ beginning week of August 16th.” The conversation at least evidences that the parties understood that under the provision of the contract that deliveries should be made “ beginning week of August 16th,” the plaintiff should have a reasonable time to complete delivery of sldns which Jules Star & Co. would accept, though approval had been withheld from some sldns previously tendered. In that aspect the conversation might have the effect of placing a Emit upon what would constitute reasonable time as understood by the parties. (Eppens, Smith & Wiemann Co. v. Littlejohn, 164 N. Y. 187.)

The intention of the parties as set forth in the written contract as to whether or not the seller should have reasonable time to substitute other sldns for those rejected seems under the circumstances of the case to present a question of fact. Even if that question is resolved against the seller, it does not follow that the buyer could not waive, or elect not to take advantage of a partial breach resulting from failure to tender the full quantity of satisfactory skins or that the conversation could not be proven to show such election. If the seller under the contract was obligated to deliver 15,000 skins subject to the approval of Jules Star & Co. without right of substitution for rejected skins, the buyer, of course, had the right to refuse to accept skins tendered after the original tender of 15,000 skins. He was not bound to do so. He might still choose to keep the contract alive in order to enable the seller to make delivery of the full stipulated number of approved skins. If the conversation was had as alleged, it shows that the buyer did elect to keep the contract alive in spite of known excuse justifying refusal to proceed further. The seller concurred in that election, and thereafter the buyer could not assert that excuse as reason for rejection. (Williston on Contracts, sections 687 and 688.) We have recently pointed out that sometimes distinction between a waiver of default, or an extension of the time for performance, and acts which enlarge definition of a ‘ reasonable time ’ as contemplated by the parties beyond the limits which might otherwise be set, is tenuous.” (Murray Co. v. Lidgerwood Mfg. Co., 241 N. Y. 455.) Here the conversation may not result in .extension of time for delivery; it may result in waiver of right to regard the contract as no longer in force after partial failure to perform by the seller, and thereafter the seller could not be again placed in default until reasonable opportunity is afforded for performance.

Even though evidence was properly admitted as to the alleged conversation in regard to the delivery of the 3,500 skins which constitute* the subject-matter of the first cause of action, there must be a new trial because in other respects error has crept into the record. We have pointed out that under both contracts sued upon, the seller agreed to make delivery subject to the approval of Jules Star & Co. The parties chose to stipulate that such approval must be given. It constitutes a condition which unless waived or excused must be fulfilled before the buyer can be compelled to accept skins that are tendered. Concededly approval of Jules Star & Co. has not been given. The condition was as matter of law waived by the buyer in regard to the 3,500 skins referred to in the first cause of action, when the buyer refused to accept any skins even if approved by Jules Star & Co. Of course, the condition was waived also in regard to the contract which forms the basis of the second cause of action if refusal of approval by Jules Star & Co. was the result of bad faith on the part of Jules Star & Co. in which the defendant had some share. If by its own interference and wrong the defendant prevented the plaintiff from obtaining the stipulated approval, then the plaintiff may recover without it. We have pointed out that in the second cause of action the plaintiff has pleaded that the condition was waived and excused not only because of wrongful act on the part of the defendant but because approval was “ unreasonably withheld,” and the serious question raised upon this appeal is whether the plaintiff may recover under its contract upon proof that it offered to deliver skins which in quality complied with the contract requirements, and that the representative of Jules Star & Co. unreasonably withheld its approval of these skins.

The trial judge charged that if approval was unreasonably withheld, whether Barnet had anything to do with it or not, the plaintiff could recover. Star must have acted honestly. If he showed an honest judgment the defendant is entitled^ to a verdict.” Though the parties have stipulated that the approval of Jules Star & Co. must be obtained for any skins delivered under the contract, under the rule laid down in the charge, the plaintiff may become liable for damages if he insists upon this stipulation being carried out. It places upon the buyer the risk of determining whether Jules Star & Co. have acted reasonably; it makes the buyer determine whether approval should reasonably have been given, though not he but Jules Star & Co. were to approve of the quality of the skins. In effect it makes the buyer a guarantor of both the honesty and the good judgment of Jules Star & Co.

It is said that authority for the rule laid down in the charge may be found in many cases in this and other jurisdictions where the courts have considered the effect of unreasonable or dishonest refusal of architect or engineer to approve of work done or materials furnished, under building contracts when such approval was made a condition precedent to payment. (Bowery National Bank v. Mayor, etc., 63 N. Y. 336; MacKnight Flintic Stone Co. v. Mayor, etc., 160 N. Y. 72.) In those cases it must be remembered that by the nature of the contracts, if failure to obtain approval deprived the contractor of right to recover the agreed compensation the result would be that the benefit of work actually performed and materials actually furnished could be appropriated by the owner without payment, though in other respects the contractor had fully complied with his contract. It would cause forfeiture of agreed price for agreed service without any fault on the contractor’s part. In the same manner as the courts have evolved the rule that under contracts of that nature there may be recovery for substantial performance, they have evolved a rule which permits recovery without stipulated certificate of approval where the certificate has been wrongfully or unreasonably refused. (Nolan v. Whitney, 88 N. Y. 648.) So, too, in some cases where the contract shows that the person whose approval is required' under the contract is merely an agent of a buyer selected by the buyer to pass upon the goods in the buyer’s place, wrong on the part of the agent is imputed to the principal. (Lynn v. Baltimore, etc., R. R. Co., 60 Md. 404.) Here the contract is of different nature. The parties agree that a designated broker acting as expert and not simply as the buyer’s agent must pass upon the goods and delivery must be made subject to the expert’s approval. Refusal to approve by the expert does not enable the buyer to obtain property from the seller without payment. According to the terms of the contract it merely permits him to refuse to accept the goods because he stipulated not merely for goods of a certain quality but for goods of that quality approved by a particular expert. To compel him to accept and pay for the goods without such approval is to impose liability upon him which he had not agreed to assume, and gives compensation to the seller for goods not delivered in full compliance with contract. The theoretical soundness of the rule applied to building contracts has not escaped criticism. It rests upon the basis that enforcement of the contract according to its strict terms would cause forfeiture of compensation for work done or materials furnished. The rule should not be extended by analogy where the reason for the rule fails. (See Williston on Contracts, sections 794-797.) Unless the certificate has been withheld dishonestly and in bad faith, and the defendant is a party to that bad faith through control of the expert or collusion with him, there may be no recovery under the second cause of action.

There are cases where parties stipulate for the approval or certificate of a third person not as part of the contractual obligation of either party to the contract but rather as machinery for avoiding dispute between the parties as to whether these obligations have been properly performed. Question may then arise as to whether the stipulated approval or certificate constitutes in full sense a condition precedent to recovery, or whether there may be recovery based on substantial performance, upon proof that in other respects the contract has been fully complied with. Such question we do not now decide. Doubtless there are cases where such hardship would be imposed upon a party who performs work or manufactures goods at the special instance of another if payment were withheld merely because approval is wrongfully refused, that argument may well be made that such result was not intended by the parties. Here we have no such circumstances. The plaintiff’s obligation is only to deliver certain goods, and by express stipulation there may be no delivery without approval of a third party. It has done nothing for which it might legally or equitably expect compensation until delivery is made. If approval is withheld the plaintiff cannot perform; it loses the profit which it might have otherwise made by delivery of goods at a contract price higher than the then prevailing market price. It assumed this risk. It still ret.ains the goods' and may sell them at market price. The defendant should not be required to pay the contract price unless the plaintiff performs according to contract subject to the approval ” of the third party.

It is also urged that the trial judge erred in the admission of certain evidence. Proof of fraud may sometimes be made by circumstantial evidence. Circumstances insignificant in themselves may acquire probative force as links in the chain of circumstantial proof. The majority of the court is of opinion that the evidence admitted over objections may have some relevancy, and that the jury might properly consider it in connection with all the other evidence.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Cardozo, Pound and Andrews, JJ., concur; Hiscock, Ch. J., McLaughlin and Crane, JJ., dissent.

Judgments reversed, etc.


text:
    Charles Loktich, Respondent, v. Bethlehem Engineering Corporation et al., Defendants, and The New York Edison Company, Appellant.
    Negligence —■ workman injured by fall of movable box containing meters for measuring electric current used on job — where box or contents not dangerous in themselves and it had been moved from place where located by electric company, latter not liable — inference of negligence not drawn from lapse of time — company under no duty to send agent to premises to see whether position of box had become unsafe.
    The defendant-appellant, which had contracted to furnish electric current for use in the construction of a building and had placed upon the premises a box containing meters, movable because as the work advanced, convenience or necessity would at times dictate the moving of the electric equipment, is not liable for injury to a workman employed in the building, caused by the slipping or fall of the box, where, at the time of the accident, it was not located where placed when brought upon the premises and there is no evidence that it was moved from its original position by agents or servants of defendant-appellant or by any one authorized by it to do so and it is not shown that the use to which defendant-appellant put the box or its contents would itself tend to create any danger to others or that it was not securely fastened originally or could become insecure unless interfered with. An inference of negligence may not be drawn merely from lapse of time. The defendant-appellant having placed upon the premises an instrument which was not dangerous in itself and which could not become dangerous unless negligently used by contractors on the work, was not negligent in failing to keep watch on the contractors to prevent negligence on their part or in failing to discover and to remove danger which should be apparent to any person working on the job and could be obviated by any person perceiving it.

      Loktich v. Bethlehem Engineering Cory., 215 App. Div. 718, reversed.
    (Argued March 31, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 12, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

      Thomas H. Beardsley and Charles I. Taylor for appellant.
    There is no evidence of the violation of any legal duty toward plaintiff or act of negligence on the part of the appellant Edison Company. (King v. N. Y. Central & H. R. R. R. Co., 66 N. Y. 181; Kraus v. Queens County Water Co., 188 App. Div. 557; 231 N. Y. 537; Schmeer v. Gas Light Company, 147 N. Y. 529; Tobias v. Lewis, 182 App. Div. 598; 230 N. Y. 571; Haskins v. N. Y. Central & H. R. R. R. Co., 79 Hun, 159; 145 N. Y. 604; Artis v. Buffalo, R. & P. R. Co., 3 App. Div. 1.) The doctrine of res ipsa loquitur is not applicable here. (Slater v. Barnes, 241 N. Y. 284.)

      Nathaniel Cohen for respondent.
    The defendant owed a duty to safely maintain the box which fell upon plaintiff. (Kennedy v. McAllister, 31 App. Div. 453; Lee v. Vacuum Oil Co., 54 Hun, 156; Schmeer v. Gas Light Co., 147 N. Y. 529; Fish v. Waverly El. & Power Co., 189 N. Y. 336.)
   Lehman, J.

While the plaintiff, a carpenter, was doing some work for which he was employed in connection with the construction of a building at Broadway and Fifty-first street, a large box belonging to the defendant New York Edison Company and weighing with its contents about five hundred pounds, slipped or fell upon the plaintiff and caused him some injury. The accident occurred on June 6, 1922. The New York Edison Company at the time was furnishing, by agreement with some of the contractors engaged in the construction of the building, electric current for use in their work. The box which injured the plaintiff contained the meters used in measuring the current so furnished. The box with its contents belonged to the New York Edison Company and was placed upon the premises as part of the equipment used in the performance of its agreement to furnish electric current for use in the construction of the building. The plaintiff’s evidence is sufficient to show that for some weeks before the accident the box was insecurely fastened and rested in part upon the outer wall of a vault which extended into the street. Liability, if any, on the part of the New York Edison Company must be based upon a finding that it was negligent either in placing the box in the position from which it fell or in leaving it there for some weeks prior to the accident without bracing or fastening it.

The proof is clear and undisputed that the box was brought upon the premises by the New York Edison Company about two months before the accident but was not at that time located in the position where it rested at the time of the accident. The box was used in connection with contracts for current to be used in connection with the construction of a building. It was movable because, as the work of construction advanced and conditions of the work changed, convenience or necessity would at times dictate the moving of electric equipment used in connection with the work. There is no evidence that it was moved from its original position by agents or servants of the defendant New York Edison Company. Its position may have been changed for their own purposes by contractors or workmen employed in the building construction; the evidence shows that no person was authorized to do so for the Edison Company. Since there is no evidence from which inference might be drawn that the New York Edison Company negligently placed the box in the position from which it fell, the ’ judgment may be sustained only if the evidence permits inference that the defendant was negligent in failing to make it secure after it was removed by some person from the position in which it was placed to its new position.

The box and its contents were placed on the work by the defendant to enable it to carry out its contract and to secure.payment for current used. If the defendant knew or in the exercise of reasonable care should have known that the box was in a position which might cause injury to others, then perhaps the defendant should have taken steps to obviate the danger. The defendant was doing no work on the premises; it could furnish electric current without presence of workmen or agents there and it appears that the defendant did not actually know that the box was removed. We may not draw any inference of negligence merely from lapse of time unless the defendant was under some duty to send an agent to the premises for the purpose of seeing whether the position of the box had become unsafe. It is not shown that the use to which the defendant put the box or its contents would itself tend to create any danger to others; it is not shown that it was not securely fastened originally and that it could become insecure or otherwise dangerous unless contractor or workmen negligently interfered with it. Even then the danger would not arise from the electric current but from the position of the box and no special knowledge of electricity was required to understand or obviate the danger. Even if the box was in part on the street, the street at that point was temporarily not used by travelers but only by the workmen employed on the job. The defendant having placed upon the premises an instrument which was not dangerous in itself and which could not become dangerous unless negligently used by contractors on the work, was not negligent in failing to keep watch on the contractors to prevent negligence on their part or in failing to discover and to remove danger which should be apparent to any person working on the job and could be obviated by any person perceiving it.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, McLaughlin and Andrews, JJ., concur; Hiscock, Ch. J., Pound and Crane, JJ., dissent.

Judgments reversed, etc.