text:
    The People of the State of New York, Appellant and Respondent, v. Abraham M. Daiboch, Respondent and Appellant.

      (Argued May 29, 1934;
    decided July 3, 1934.)

      William Copeland Dodge, District Attorney (John C. McDermott of counsel), for The People of the State of New York, appellant and respondent.

      Samuel Gottlieb and Hyman Bushel for defendant, respondent and appellant.
   Crane, J.

The defendant was indicted in New York county, Court of General Sessions, for forgery in the second degree. On December 7, 1932, he pleaded guilty and was sentenced to an indeterminate term of not less than three years and not more than ten years in State prison. Later he was sent back by the warden of Sing Sing for resentence as a second offender when it was discovered that in 1924 he had been convicted of a felony in New Jersey. Pursuant to the procedure outlined in section 1943 of the Penal Law and People v. Gowasky (244 N. Y. 451), an information was lodged against him, and he 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, and was thereupon sentenced by the Court of General Sessions as a second offender to nine years, eight months and seven days, the court having deducted three months, seven days, the time served before he was sent back for resentence. The judgment has been reversed by the Appellate Division upon the law only, the facts having been affirmed. The court was of the opinion that the plea of non vult in the New Jersey court, followed by a judgment placing the defendant on probation for two years and to pay twenty-five cents a week for the same'period, was not a previous conviction of crime. Two of the justices dissented. In this determination we think' the court was in error.

The plea of non vult or nolo contendere is an ancient plea in criminal cases still in use in some of the States but abolished here. It simply means that the defendant will not contend against the charge but will submit to such punishment as the court inflicts, usually less than would have been imposed after a plea of guilty, The court, however, on such a plea may sentence the prisoner to the same punishment as if convicted after a trial or on a plea of guilty. Aside from the ameliorating effect the plea of non vult has the same consequences in a criminal court as a plea of guilty; at least it is a conviction of the crime to which the plea is taken. In civil cases, however, the plea cannot be used or taken as an admission of the facts alleged in the indictment. (Hudson v. United States, 272 U. S. 451; United States v. Norris, 281 U. S. 619; State v. Martin, 92 N. J. L. 436; State v. Henson, 66 N. J. L. 601; State v. Duelks, 97 N. J. L. 43; Commonwealth v. Ingersoll, 145 Mass. 381; Commonwealth v. Marino, 254 Mass. 533; State v. Herlihy, 102 Me. 310; State ex rel. McElliott v. Fousek, 91 Mont. 457; Commonwealth v. Jackson, 248 Penn. St. 530; State v. Radoff, 140 Wash. 202; Schad v. McNinch, 103 W. Va. 44; Brozosky v. State, 197 Wis. 446.)

The trial justice was well able to determine the effect of the plea of non vult, it being known to the common law and, as the above cases indicate, in frequent use in this country. There was no need for oral testimony from a New Jersey lawyer when the judge could read the books. (Fitzpatrick v. International Ry. Co., 252 N. Y. 127.) (Cf. L. 1933, ch. 690, amending Civ. Pr. Act, § 391.)

The Penal Law, section 1941, provides: A person, who, after having been convicted * * * under the laws of any other state * * * of a crime which, if committed within this state, would be a felony, commits any felony within this state, is punishable upon conviction of such second offense as follows:

The defendant came within this section and was properly sentenced as a second offender.

Before the first sentence was imposed the judge knew of the prior offense and had no right or power to impose an indeterminate sentence. The records of the proceeding on December 7, 1932, the day of original sentence, show that District Attorney MacDonnell appeared for the People and Hyman Bushel for the defendant. Here is what took place.

“ The Clerk: What have you now to say why judgment of the Court should not be pronounced against you according to law?
Mr. MacDonnell: In this case I understand it turned out the defendant is a second offender. *******
The Court: Now, Mr. MacDonnell.
“ Mr. MacDonnell: We took a plea, when you were in Part II, in this case. Your Honor told Mr. Bushel, the defendant’s attorney, that if the defendant turned out to be a second offender you would permit him to withdraw his plea and plead to a misdemeanor.
The Court: I did not tell him that. If, you did, that is different.
Mr. MacDonnell: The District Attorney did. That was understood at that time. I do not know if he is a second offender or not.
The Court: I do not know. All I have before me this morning — I received the probation officer’s report this morning, and it seems in 1924 the defendant was convicted of or pleaded guilty to drawing a check against insufficient funds, and he was placed on probation in Newark, New Jersey, for two years. Then there was another one in July 14th, 1931; the defendant was convicted or pleaded guilty to misapplying bank funds. At Quarter Sessions he was placed on probation for five years, and I have the notation, ‘ It is a felony.’ Whether it is or not I do not know.”

There was no motion to withdraw the plea of guilty.

On February 17, 1933, the defendant was brought back from prison and tried on the information charging him with being a second offender. He stood mute and was found by the jury after a hearing to be the man convicted in 1924 in New Jersey.

Three days later, February 20, 1933, as on January 5, 1933, he asked to withdraw his plea of guilty to forgery in the second degree, which was denied, and on March 13, 1933, he was resentenced as heretofore stated. The reason assigned by the prisoner for the privilege of withdrawing his plea was a promise or statement made that if the New Jersey offenses turned out to be felonies the court would let him plead to petit larceny. At the time of the original sentence the judge told the District Attorney and the prisoner that no such arrangement had been made, at least with him. The case of Matter of Dodd v. Martin (248 N. Y. 394) related to similar facts. The court in that case received a plea of burglary in the third degree as a first offense. The warden of Sing Sing Prison sent him back to be sentenced as a second offender. The judge then let the prisoner withdraw his plea of guilty and plead to petit larceny. The sentence was nine months in the county jail. We held that the county judge had no power or jurisdiction after the beginning of the term of imprisonment to permit the defendant to change his plea and affirmed a peremptory order of mandamus compelling the judge to sentence him as a second offender. We see no distinction here. In other words, after judgment and the commencement of the sentence, the plea of guilty cannot be withdrawn simply because the defendant happens to have had a past record of felonies. A man may be tricked or deceived into pleading guilty. When such appears the courts may be able to find some remedy, but there is no trick or deception when the judge tells the prisoner before the original sentence that he never said the defendant could withdraw his plea if he turned out to be a second offender and also said that he had before him the record of his previous convictions as for a felony.

On the appeal by the People the judgment of the Appellate Division should be reversed and that of the Court of General Sessions affirmed. On the appeal by the defendant from so much of the judgment of the Appellate Division as unanimously affirmed the order of the Court of General Sessions, denying the defendant’s motion to withdraw his plea of guilty, the judgment should be affirmed.

Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JL, concur.

Judgment accordingly.


source: Caselaw Access Project

author: Hubbs, J. Crane, J. Pound, Ch. J.

license: Public Domain

text:
    In the Matter of Max Gluck, Respondent, against William G. Rice et al., Constituting the Civil Service Commission of the State of New York, Defendants, and Abraham Kaplan et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    (Argued January 23, 1934;
    decided July 3, 1934.)

      Paul Windels, Corporation Counsel (William E. C. Mayer and Paxton Blair of counsel), for appellants.

      H. Eliot Kaplan, Samuel H. Ordway and Albert de Roode for respondent.
   Hubbs, J.

The petitioner-respondent is an interpreter in the Municipal Court of the City of New York. In February, 1928, a promotion examination was held by the appellant Municipal Civil Service Commission of the city for the position of assistant clerk in the Municipal Court. As a result of the examination, an eligible list of twenty names was established on March 19, 1928, including the name of the petitioner. The time for appointment from that list expired prior to the commencement of this proceeding so that the rights of the petitioner are confined to such rights as he has as a private citizen and not by reason of the fact that he was at one time upon an eligible list. The proceeding was instituted for a peremptory mandamus order, directing “ that the respondent the State Civil Service Commission pursuant to the provisions of Section 11 of the Civil Service Law shall by unanimous vote amend the rules of the Municipal Civil Service Commission of the City of New York by striking from the exempt classification the said forty-eight positions of assistant clerks in the Municipal Court of the City of New York; or, in the alternative, that respondents herein forthwith jointly rescind or cause the rescission of the present rule of the Municipal Civil Service Commission of the City of New York placing in the exempt classification the said forty-eight positions of assistant clerks in the Municipal Court of the City of New York, and take all the necessary steps or proceedings thereto; and for such other and further relief as may seem just and proper in the premises.”

The respondent State Civil Service Commission of the State of New York answered, alleging that for a period of over eleven years, or from December, 1921, respondent State Civil Service Commission of the State of New York held and voted that it is possible and practicable to fill the position of assistant clerk in the Municipal Court of the City of New York through competitive examinations and that such position may be and should be in the competitive class and not in the exempt class of the classified civil service and that in view of such repeated rulings and various decisions of the courts, it did not oppose the motion but submits this matter to this court and asks for the instructions, directions and orders of this court in the premises which, of course, will be promptly and willingly obeyed.”

The Municipal Civil Service Commission of the City of New York answered, alleging that for more than thirty years past there have been duly classified in the exempt class under the rules of the Municipal Civil Service Commission of the City of New York the forty-eight positions in question, and denying the right of the petitioner to an order compelling an unanimous vote on the part of the State Civil Service Commission to amend the rules of the Municipal Civil Service Commission by striking from the exempt classification the said forty-eight positions.

A hearing was held at Special Term, which resulted in an order denying petitioner’s motion. The justice at Special Term handed down an opinion (147 Misc. Rep. 327) in which he held that mandamus will not lie to compel the discharge of a duty involving the exercise of judgment or discretion in any specified way; that while the Civil Service Commission of the State as a body may be called upon to act, it may not be directed how to act where it has the right to exercise its judgment; that in making the classification of the positions in question as exempt, the Municipal Civil Service Commission exercised its judgment; that the court should not substitute its judgment for that of the Commission and that the court has not power to compel the State.Commission by an unanimous vote to amend the rules of the Municipal Commission by striking from the exempt classification the said forty-eight positions of assistant clerk.

The Appellate Division reversed the order, on the law, denying the motion for a peremptory order of mandamus and ordered that the State Civil Service Commission “ forthwith classify forty-eight (48) positions of assistant clerk in the Municipal Court of the City of New York in the competitive class of the classified civil service,” and further ordered that the Municipal Civil Service Commission “ forthwith cause to be held competitive examinations as provided by the Civil Service Law to fill vacancies in said positions of assistant clerk in the Municipal Court of the City of New York as hereafter vacancies occur.”

It is apparent that a majority of the members of the State Civil Service Commission believe that the positions in question should not be classified as exempt. The Attorney-General has ruled that the positions in question are municipal and not State positions. (Opinions of Attorney-General, 1927, p. 338.)

There seems to be no court decision on the subject. As municipal positions their classification is under the jurisdiction of the Municipal Civil Service Commission except that the State Civil Service Commission may, by unanimous vote, amend the rules of the Municipal Civil Service Commission. (Civil Service Law; Cons. Laws, ch. 7, § 11, subd. 7.)

If the matter of amending rules of a municipal commission involves the exercise of discretion on the part of the State Commission, then under the decisions the court should not substitute its discretion for that of the State Civil Service Commission.

We are confronted with the question of whether amending the rules of a municipal commission involves the exercise of a reasonable discretion on the part of the State Commission. The Commission has voted that it is practicable to classify these particular positions as competitive. Such a vote is advisory only. It might or might not be acted upon by the Municipal Commission. Not having been so acted upon by the Municipal Commission by putting these positions into the competitive class, can it be said that there is no discretion involved in the matter of determining whether to force such action on the part of the Municipal Commission by amending its rules?

If such action is purely administrative, then the court may act provided the State Commission arbitrarily refuses to take such administrative action, but here there clearly is no duty imposed upon the State Commission by law or otherwise to amend the rules of a Municipal Commission in one respect or another. It may, by unanimous vote, take such action. Whether to do it or not, clearly involves the exercise of a reasonable discretion.

The distinction between what acts are discretionary and what acts are not is well illustrated in Matter of Ottinger v. State Civil Service Comm. (240 N. Y. 435, 443). The Attorney-General, by statute and the practice of his office, was authorized to and did appoint deputies and assistants without examination by the Civil Service Commission and submitted the payrolls to the Commission, which, declining to give effect to the statutory exemption, proceeded to determine for itself whether the nature of the several positions made the test of examination appropriate or futile and took the ground it would not classify certain positions as exempt until it had further information as to the nature of the duties. The Attorney-General made an application for an order of mandamus directing the Commission to certify that the appointments had been made pursuant to law. This court denied the application and said: We find no reasonable basis for a belief that in all the positions, present or future, that exist or may exist in connection with this Bureau, there can be no place for a test of efficiency by any form of examination, even as a supplement to tests more intimate and personal. If the Legislature may so declare as to this Bureau for no better reason than the need of secrecy, it may say as much of the employees of the District Attorneys in every County in the State * * * no such sweeping exemption within the limits of the administrative departments of the government has ever been proclaimed since the Constitution set bounds to the discretion of the Legislature in the formation of the Civil Service.

Our ruling does not go beyond the necessities of the case before us. We do not attempt to say how the positions in controversy shall be classified by the Commission when classification becomes necessary. Very likely many, if not all, will be taken out of the competitive class, or perhaps exempted altogether.”

No clear legal right exists to the relief prayed for, as a matter of discretion on the part of the State .Civil Service Commission is involved, and this court may not properly interfere with the exercise of that discretion.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Crane, J.

(concurring). I concur with Judge Hubbs for reversal. Section 13 of the Civil Service Law designates the exempt class. After specifying one deputy clerk of each court, one clerk of each elective judicial officer, subdivision 4 also permits the Commission to exempt any position where examination “ may be found to be not practicable.” I do not think we can go so far as to say that the action of the municipal and also State Civil Service Commission has been an abuse of this discretion.

Pound, Ch. J.

(dissenting). I find nothing in the record to indicate that it is not practicable to appoint assistant clerks of the Municipal Court according to the constitutional mandate (Canst, art. V, § 6) that appoint-merits in the civil service shall be made for merit and fitness to be determined by competitive examinations. I dissent.

Lehman and O’Brien, JJ., concur with Hubbs, J.; Crane, J., concurs in opinion; Pound, Ch. J., dissents in opinion in which Crouch, J., concurs.

Ordered accordingly.


author: Crouch, J.

text:
    Jane V. West, Appellant, v. The City of New York et al., Respondents.

      (Submitted June 8, 1934;
    decided July 3, 1934.)

      Samuel F. Frank and Arthur W. Weil for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Samuel A. Bloom of counsel), for city of New York, respondent.

      Walter L. Glenny for Empire State, Inc., et al., respondents.

      Henry J. Smith and Joseph L. Zelaskow for Fifth Avenue Coach Company, respondent.
   Crouch, J.

In September, 1929, during the demolition of the old Waldorf-Astoria Hotel and the construction of the Empire State Building, Starrett Bros., Inc., the contractor, under permit from the city of New York, constructed a sidewalk shed on the west side of Fifth avenue between Thirty-third and Thirty-fourth streets, to protect pedestrians. The posts which supported the structure rested upon a sill four inches in height and eight inches in width, laid upon the sidewalk parallel with and six inches in from the curb. The posts were about nine and one-half feet apart. Except for the posts and the sill there was no obstruction to passage from the sidewalk to the roadway. South-bound omnibuses of the Fifth Avenue Coach Company after crossing Thirty-fourth street when signaled to take on or discharge passengers, came to a full stop south of the crosswalk, and, therefore, in front of the arches of the shed through which passengers passed to and fro. At night the interior of the shed was illuminated (except for the diffused light from the street lamps) only by a string of single incandescent lamps about fifteen feet apart and about nine feet above the sidewalk.

On the evening of December 10, 1929, the plaintiff, intending to board an omnibus which had stopped with its rear end about twenty feet south of the crosswalk of Thirty-fourth street, walked diagonally across the sidewalk from the corner toward the rear of the standing omnibus. The sidewalk was crowded with pedestrians, and as plaintiff attempted to pass out into the roadway through the third arch, she tripped over the sill and fell forward into the street.

To recover for the injuries thus sustained, this action was brought against the city of New York, Starrett Bros., Inc., the contractor, Empire State, Inc., the owner of the premises, and Fifth Avenue Coach Company. At the trial the complaint was dismissed as to Empire State, Inc., and Fifth Avenue Coach Company. As to the other two defendants, the case was sent to the jury. The jury having disagreed, the trial judge under a reserved motion dismissed the complaint as to them also. The judgment was unanimously affirmed by the Appellate Division.

So far as the defendants Empire State, Inc., and Fifth Avenue Coach Company are concerned, the judgment may be affirmed without discussion. We are left to say whether or not the dismissal as to the city and the Starrett Bros., Inc., was erroneous.

The city ordinances provide that where a building is to be erected or demolished, the person doing the work shall erect and maintain during such work a substantial shed over the sidewalk in front of said building and extending, so far as practicable, from building line to curb. * * * Every such shed shall be kept properly lighted at night.” (New York Code of Ordinances, ch. 5, art. 10, § 191, as amd.) A regulation promulgated by the Superintendent of Buildings required sills to be eight inches by six inches. There are no other relevant provisions, except those relating to permits. The contractor had procured from the city a permit, which, among other things, required the interior of the shed to be properly lighted.

The complaint was framed and the case tried on what seems to have been a theory of negligent nuisance. That the erection and maintenance of the shed were lawful was not disputed; but it was claimed that the sill was an unreasonably dangerous obstruction because the shed was not properly lighted and because the sill was not marked or guarded, as for example by a guard rail above it, so as to warn travelers of its existence.

The rules and ordinances of the city dealt not at all with the details of construction, except so far as structural strength and lighting are concerned. There was, therefore, an implied condition that the shed should be so built and its parts so located as to avoid unreasonable and unnecessary danger to travelers. (Stern v. International Ry. Co., 220 N. Y. 284, 291.) Primarily a sidewalk shed is intended as protection from danger above. To that end, such obstruction of the passageway as is reasonably necessary can in no sense be a nuisance. If, however, the obstruction is so needless and so dangerous as to be unreasonable, under all the circumstances of time and place; or if there is a failure to comply with some specific provisions of the law which directly or indirectly creates a dangerous situation, the one who creates the danger may be charged with liability, because the obstruction is then a nuisance; and the city may be charged with liability for failing to abate it.

Whether the sill in question as it existed at the time of the accident was an obstruction so needless and so dangerous as to be unreasonable was, we think, a question of fact for the jury. The arches or open spaces between the posts, unobstructed save by the sill, constituted an invitation to use. Travelers would naturally pass through them, just as plaintiff did, in boarding or leaving the omnibuses at a point where the omnibuses stopped upon signal. Had beams or sills of the same size been laid across the sidewalk, intercepting the direct line of traffic, there could be little doubt that they would have constituted a dangerous obstruction. That the sill in question intercepted a smaller and collateral fine of traffic is a matter of degree only. Whether or not it was customary to block such spaces with a guard rail between the posts, it is obvious that such a device would have done away with the invitation to use. Moreover, the question of reasonableness must be considered in connection with the evidence of crowded foot traffic on this block and of defective or insufficient illumination.

But it is urged that the plaintiff was, as matter of law, guilty of negligence precluding recovery. It is true that a person traversing a temporary passageway or even, as here, a covered sidewalk, is not at liberty to proceed with as little heed and care as upon a permanent and completed way. (Nolan v. King, 97 N. Y. 565.) The testimony, however, shows that plaintiff walked exactly as the crowd around her walked —“ as anyone would walk, slowly and making her way towards the curb and towards the bus.” And when she reached the curb she says she looked as she started to step off, “ but it was so dark I couldn’t see it.” Again, we think, the question was for the jury.

The judgment should be modified so as to grant a new trial as to defendants city of New York and Starrett Bros., Inc., with costs to appellant in all courts to abide the event; otherwise, judgment affirmed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Loughran, JJ., concur.

Judgment accordingly.


author: Loughran, J.

text:
    Manufacturers Trust Company, Appellant, v. William B. Steinhardt, Respondent.

      (Argued May 29, 1934;
    decided July 3, 1934.)

      Leonard G. Bisco and Samuel Chugerman for appellant.

      Edward B. Schulkind amd E. Robert Marks for respondent.
   Loughran, J.

Defendant is sued as indorser of two promissory notes. These intruments are the second and third of a series of four notes made by Archibald Davidow to the order of plaintiff, which were to mature respectively March 25, April 25, May 25 and June 25, 1932. All were indorsed by the maker and by Melville Davidow and Leonard H. Davidow. Defendant’s indorsements of the two notes in suit were for the accommodation of Archibald Davidow, the maker, to the knowledge of plaintiff.

The four notes, so indorsed, were delivered to plaintiff in settlement of a liability of William H. Davidow Sons Co., Inc. As part of the same transaction, a written agreement was made by Archibald Davidow, Melville Davidow and Leonard H. Davidow with plaintiff, stipulating that if any of the four notes was not paid at maturity all were immediately to become due. Of this agreement defendant was not apprised. When the first note in the series matured on March 25, 1932, Archibald Davidow, the maker, made default. Pursuant to the agreement for acceleration, plaintiff thereupon declared all four notes payable and took the requisite steps to charge indorsers other than defendant. Of this, too, defendant had no knowledge. On the respective due days of the notes in suit, April 25 and May 25, 1932, these were again presented for payment to Archibald Davidow, the maker, who again defaulted and defendant was then given notice of dishonor.

The facts, as we have stated them, are admitted in the pleadings. The question is whether defendant remains liable upon his undertakings as indorser.

Section 205 of the Negotiable Instruments Law (Cons. Laws, eh. 38) provides: “ Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration and subsequent indorsers. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.” It is provided by section 206: Any alteration which changes * * * the time * * * of payment * * * or any other change or addition which alters the effect of the instrument in any respect, is a material alteration.”

The acceleration agreement is a complete formal writing. It is not a mere memorandum purporting to be collateral to the series of four notes. Independently of the notes, the agreement serves no purpose and can have no effect. The notes and the agreement were contemporaneously delivered to plaintiff. Thus these writings were fused by force of the rule which requires all papers and instruments relating to the same subject and executed simultaneously, to be read together, and as constituting, when thus read, a single contract or agreement.” (Benedict v. Cowden, 49 N. Y. 396, 401.) In accordance with the provisions of the acceleration agreement, plaintiff advanced the respective dates of maturity of the notes in suit. There was a material alteration of these notes within the logic and policy of the statute. (Warrington v. Early, 2 El. & Bl. 763; 23 L. J. [Q. B.] 47; Benedict v. Cowden, supra; Creteau v. Foote & Thorne Glass Co., 40 App. Div. 215; First Nat. Bank v. Gridley, 112 App. Div. 398; Mertz v. Fleming, 185 Wis. 58. Cf. Cambridge Sav. Bank v. Hyde, 131 Mass. 77; Lewis v. Blume, 226 Mass. 505.) Defendant did not assent to that alteration. Plaintiff was a party to it. We hold defendant exonerated as indorser.

The briefs of counsel discuss the question whether section 201 of the Negotiable Instruments Law deprives an accommodation indorser of defenses otherwise available to a surety at common law. That question is an open one in this court. (Cf. National Citizens’ Bank v. Toplitz, 178 N. Y. 464; Building & Engineering Co. v. Northern Bank, 206 N. Y. 400.) We do not attempt to decide it here.

The judgment should be affirmed, with costs. (See 265 N. Y. 508.)

Pound, Ch. J., Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Crane, J., not sitting.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Jacob Sellinger and Philip Rawdin, Appellants.

      (Argued May 24, 1934;
    decided July 3, 1934.)

      Walter S. Beck, Jay Leo Rothschild and Edward H. Freiberger for Jacob Sellinger, appellant.

      Harold R. Medina, William F. McNulty and Edward H. Freiberger for Philip Rawdin, appellant.

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   Loughran, J.

The defendants have been convicted of the crime of arson in the second degree upon an indictment which charges that on March 24, 1933, in the county of Kings they willfully burned and set on fire a dwelling house in the night time. They insist that they have been so prejudiced by the reception of illegal evidence as to have been denied a trial in conformity to law.

The dwelling referred to in the indictment was a frame structure at No. 648 East Forty-eighth street, Brooklyn. At about ten o’clock on the night of March 24, 1933, it was razed by an explosion. The ruins caught fire and were substantially consumed. Members of the fire department detected the odor of gasoline and, after the flames had been extinguished, made an examination of the debris. They found some cotton having the odor of gasoline. Ownership of the premises was in the wife of the defendant Sellinger. The dwelling was insured in her name for $13,000. He occupied it with her as their family home. The contents were insured in his name for $6,000. His business was that of tea and coffee merchant with an establishment in Long Island City. The defendant Rawdin was employed in the business as a buyer.

The families of both defendants were sojourning at Lakewood, New Jersey, on the night of the explosion and fire. The defendant Sellinger was questioned by the authorities the following morning. He told them that he had been in his home with the defendant Rawdin about nine o’clock the night before and that both had afterward gone to the home of the latter’s father where they had spent the night. He said that, although he knew early the next day of the destruction of his home, he had remained at his place of business; and that when his wife later communicated to him a newspaper account of the occurrence, he had sent the defendant Rawdin to Lakewood to give assurance to their families that everything was all right.” When first questioned the defendant Sellinger denied that he had carried anything into his home at the time he was last there.

Thereafter the defendant Rawdin came from Lakewood in response to a message from the police. At first, he denied that anything had been taken into the Sellinger home when he entered it the night it was destroyed. Ultimately he asserted that some large object had been brought into the house at that time by the defendant Sellinger. Both defendants were subsequently questioned together. The defendant Sellinger then conceded the fact stated by the defendant Rawdin and described the object' as a keg of alcohol with which, he explained, he had intended to make whisky.

On June 12, 1933, employees of an underwriters salvage concern, while searching the Sellinger premises, discovered a dismembered human body. By means of articles found upon it the corpse was identified by bis relatives as that of one Tommy Cataleno. No vestige of it had been revealed by the earlier investigation made by the fire department.

The principal witness for the People was one John Bolobanich. He denied that he knew the defendants. This denial was undoubtedly a surprise to the People. The witness was vigorously re-examined by the trial judge. Though sharply and repeatedly pressed to do so, Bolobanich consistently refused to identify either defendant. No one he saw in the court room, he said, had ever spoken to him except the two assistant district attorneys in charge of the prosecution. He testified that he knew Tommy Cataleno, Sellinger ” and Rawdin; ” that about a week before the destruction of the Sellinger home he had a talk with them for the purpose of a fire; ” that Rawdin ” gave him thirty dollars which he handed to Cataleno; that there was delivered to Cataleno a milk container with cotton in it which smelled like kerosene or benzine; ” that they passed by a house on East Forty-eighth street; that something was said by Sellinger ” or by “ Rawdin ” about leaving a window open — " to. throw in the package they handed over to Tommy Cataleno, to light the package and throw it through the open window; ” that on the night of March 24, 1933, he had accompanied Cataleno, who then had “ the package ” with him, to a place some distance from “ the house.” This testimony was admitted under objection and exception by the defendants.

When the witness Bolobanich was asked, How do you know it was Jacob Sellinger? ” he answered: I only knew him as Jack; his name was mentioned in the station house — they told me it was Sellinger.” When he was asked, Who told you Rawdin’s name? ” the answer was: A fellow named Jack; he introduced me to Rawdin.” There is nothing else in the record to identify the defendants with the persons named by the witness. Their identity as the persons so named could not have been validly presumed from the mere agreement of their surnames with the appellations used by the witness. The refusal of the witness to identify either defendant was persistent and unequivocal. In our opinion, the testimony should not have been admitted. (Cf. People v. Minsky, 227 N. Y. 94, 97, 98.)

Bolobanich was presented to the jury as a witness committed to close custody to assure his appearance at the trial. The trial judge inquired of him whether he had received any mail while he was in jail. The witness denied receipt of any communication there. After the People had rested, the trial judge, of his own motion, called the bookkeeper of the civil prison and examined him. The bookkeeper testified, under objection and exception by the defendants, that Bolobanich had received two or three letters in the civil prison. This testimony was irrelevant. It was error so to sanction a contradiction of the witness by another where the only effect is to impeach and not to give any material evidence upon any issue in the case.” (Becker v. Koch, 104 N. Y. 394, 401; People v. Purtell, 243 N. Y. 273.)

There are discrepancies in the statements of the defendant Sellinger as reported by the authorities. This is not so in the same degree in the case, of the defendant Rawdin. His account of his activities, so reported, is in the main a consistent recital. We are often warned of the true significance of the fact, standing alone, of false statements by an accused. (People v. Nowakowski, 221 App. Div. 521.) It cannot be said that the story of either defendant, as reported by the authorities, would have had the same effect' upon the jury without the background of the testimony of Bolobanich.

We are not satisfied that the guilt of the defendants is so clearly exhibited by the record that the material errors on the trial should be disregarded.

The judgments should be reversed, and a new trial ordered.

Pound, Ch. J., Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Crane, J., concurs as to defendant Rawdin, but dissents and votes to affirm as to defendant Sellinger.

Judgments reversed, etc.


text:
    In the Matter of the Accounting of John W. Remer, as Committee of Jens T. Erlandsen, an Incompetent Person, Respondent. United States Veterans Administration, Appellant.
    (Submitted May 23, 1934;
    decided July 3, 1934.)

      Matthew T. Hale and James A. Clark for appellant.

      John W. Remer, respondent, in person.
   Loughran, J.

The Appellate Division has affirmed an order, made in a proceeding under Civil Practice Act, article 81-A, judicially settling an intermediate account of the respondent as committee of Jens T. Erlandsen, an incompetent United States veteran. The appellant United States Veterans’ Administration, pursuant to the authority conferred by section 1384-t of that article, challenges so much of the order as awards to the respondent additional compensation for his services as committee.

The statute makes the following provisions: “ The term ‘ bureau ’ means the United States veterans’ bureau or its successor.” (Civ. Prac. Act, § 1384-a.) “ The term ward ’ means a beneficiary of the bureau.” (Id.) The term ' guardian ’ as used herein shall mean any person acting as a fiduciary for a ward.” (Id.) “ The terms ‘ estate and ‘ income ’ shall include only moneys received by the guardian from the bureau and all earnings, interest and profits derived therefrom.” (Id.) Compensation payable to guardians for administering the estate of a ward, shall be fixed by the court not to exceed five per centum of the income of the ward during any year. In the event of extraordinary services rendered by such guardian the court may, upon petition and after hearing thereon, authorize additional compensation therefor, payable from the estate of the ward.” (Civ. Prac. Act, § 1384-k.) We think that in this proceeding the courts below have failed to give effect to these provisions.

The respondent does not assert that the discharge of his duties involved anything that is not ordinarily required of the committee of an incompetent. He describes his services as the investment of funds, correspondence, annual inventories, attendance at hearings before a referee, and the preparation of the account. All this was no more than the usual routine of administration of any estate. It is true that it was in part the work of a lawyer. The statute here applicable (Civ. Prac. Act, art. 81-A), with certain exceptions not now material, supersedes (Civ. Prac. Act, § 1384-b) other provisions of law in respect of incompetents, and authorizes added compensation for legal services rendered by a fiduciary in connection with his official duties only when such services are found to be extraordinary. (Cf. Civ. Prac. Act, § 1376, and Surr. Ct. Act, § 285.) No service of the respondent is found to have been uncommon in character, nor is the additional allowance allocated to any specified activity. In this state of the record, the compensation fixed by the statute must be deemed a full equivalent for all services of the respondent in the execution of his fiduciary undertaking.

The order of the Appellate Division should be reversed and the order of the Special Term modified by striking therefrom the direction for the allowance to the respondent of additional compensation for his services, and as so modified affirmed, with costs in all courts.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ., concur.

Ordered accordingly.


author: Per Curiam.

text:
    The People of the State of New York ex rel. Arseekay Syndicate, Inc., Respondent, v. Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants.
    (Argued May 22, 1934;
    decided July 3, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair and Vine H. Smith of counsel), for appellants.

      Meyer Kraushaar for respondent.
   Per Curiam.

The property here involved is a parcel at the northeast corner of Queens boulevard and Dongan avenue in the Elmhurst section of the borough of Queens, city of New York. It is divided by a zoning boundary between a business district and a residence district. These districts were established prior to petitioner’s ownership. The order of the Special Term enabled petitioner to erect and maintain a gasoline service station upon the segment of the premises zoned for business. The Appellate Division modified the order by a direction that when circumstances so change by development of the neighborhood that the property is reasonably susceptible of being applied to a conforming use, then upon the application of the authorities or any one interested, the gasoline station must be removed.

We find in the record no valid basis for the relief so awarded. All that appears is that property acquired as a speculation is not presently adaptable to a productive conforming use. The determination of the Board of Standards and Appeals is conclusive in the circumstances. (People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73.)

The orders should be reversed, and the determination of the Board of Standards and Appeals reinstated, with costs in all courts.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Ordered accordingly.


author: Crouch, J. Lehman, J.

text:
    In the Matter of Louis M. Jaffe et al., Appellants, against The Board of Education of the City of New York et al., Respondents.

      (Argued May 22, 1934;
    decided July 3, 1934.)

      Harry Reiss and Samuel E. Schrier for appellants.

      Paul Windels, Corporation Counsel (Henry J. Shields and Paxton Blair of counsel), for respondents.
   Crouch, J.

The petitioners are licensed teachers whose names are on eligible lists for appointment in accordance with the provisions of the Education Law (Cons. Laws, ch. 16), section 872, to positions in the day-high schools of the city of New York. None of them is among the first three persons on the lists. Two are on the history eligible lists, being number 13 and number 22, respectively. There are seventy-nine vacancies in history. One is number 29 on the English eligible list for women. There are one hundred and forty-seven vacancies in English. One is number 31 on the elocution list. There are twenty-nine vacancies in elocution.

The record is silent as to what constitutes a vacancy. We take the explanation of the term as given in the petitioners’ brief. It apparently refers to a teaching position for a class or classes created by the Board of Education to which no regular appointment has been made. It appears that for some time past, the Board of Education has temporarily assigned these petitioners and others like them to teach these classes. When so assigned they are characterized as substitute teachers. Although they are on the eligible lists, their service as substitute teachers carries with it none of the rights of tenure, pension or statutory salary which go with an appointment under section 872 of the Education Law. They are paid a per diem of $7.50.

The petitioners brought this proceeding for a peremptory order of mandamus to compel the Board of Education to cease the use of substitute teachers above described; to compel the Board of Superintendents to recommend for appointment to such vacant positions these petitioners and those having precedence of them on the eligible lists in history, English and elocution; and finally to compel the Board of Education forthwith to appoint these petitioners and those having precedence of them on said lists to such vacant positions, on the recommendation of the Board of Superintendents, for a probationary period at the annual statutory salary rate.

The order granted by the Special Term was reversed and the motion denied by the Appellate Division.

The problem confronting the Board of Education, at least in its broad aspect, is obvious. Economic and social conditions have led to a greatly increased attendance in the schools with no corresponding increase in appropriations. Even though funds were available to pay an increased number of regularly appointed teachers, it would seemingly be unwise to appoint them; for when the peak of extraordinary attendance shall have been passed — if it has not already been passed — -the city might find itself saddled with a large number of life appointees for whose services it had no use. Power to meet such an emergency by resort to some such expedient as it has used, the Board of Education should have. But, differing with the Appellate Division, we fail to find anywhere a grant of such power, either express or fairly implied. As the emergency was unforeseen, so the need of power to meet it was unforeseen. Substitute —■ or as they are sometimes called — supply teachers have been used time out of mind; but only to take the place temporarily of absent regular teachers or to meet a sudden and momentary emergency created by the death or removal of a regular teacher. While we find no express authority even for that practice in the statutes, the necessity for it has been common and generally recognized, so that it may fairly be said to fall within the general omnibus provisions of section 868 of the Education Law. But those provisions may not be stretched to cover the practice here in question. We are told that there are twelve hundred so-called substitute teachers employed in the day high schools in the city. If that is lawful, then by the same reasoning the entire teaching staff might conceivably be so employed. In the face of the mandatory provisions of section 872 of the Education Law, that may not be. If the Board of Education cannot solve its problem by means of appointing and then discontinuing the service of probationers within the provisions of that section, relief must be had from the Legislature.

The foregoing views, however, are not decisive of this particular proceeding. Whether and when to appoint teachers in the manner provided by section 872, rests in the sound discretion of the Board of Education. It is given the power and it is its duty “ to appoint * * * such * * * teachers * * * as said board shall determine necessary for the efficient management of the schools.” (Education Law, § 868, subd. 2.) How many teachers shall be appointed, for what classes and in what subjects and when, depend upon the judgment of the Board of Education as to what efficiency under any given set of circumstances demands. Efficiency is not determined mechanically by the number of teachers. Other matters are embraced in the concept. The mere existence of the so-called vacancies in history, English and elocution does not ipso facto cast an absolute and mandatory duty upon the Board of Education to fill them or any of them regardless of other considerations. If this court were to order the Board of Superintendents to recommend and the Board of Education to appoint these petitioners and those who precede them on the eligible lists, it would be substituting its judgment and discretion for those of the two Boards, and it would be doing so without any data to guide it. This it cannot legally do.

Since the petitioners have shown no clear legal right to the relief prayed for, the order of the Appellate Division was right and should be affirmed, with costs.

Lehman, J.

(concurring in result). I agree that the order of the Appellate Division should be affirmed. X differ, however, with much of that part of the opinion of Crouch, J., which discusses the power of the Board of Education to appoint substitute teachers. The Education Law is intended to provide a complete system of control of the schools of the city by the Board of Education. Section 868 of that statute confers upon Boards of Education comprehensive powers for that purpose. Among those powers are: (2) To create, abolish, maintain and consolidate such positions, divisions, boards or bureaus as, in its judgment, may be necessary for the proper and efficient administration of its work; to appoint a superintendent of schools, such associate, district and other superintendents, * * * teachers * * * as said board shall determine necessary for the efficient management of the schools.” Section 872 of the Education Law provides the manner in which appointments as teachers shall be made. Where applicable, the provisions of that section are mandatory, and may not be evaded in any manner by the Board of Education. That section becomes applicable, however, only after the Board of Education has determined to make an appointment to a position as teacher which is included within the purview of the section. As the opinion of Crouch, J., points out, when sections 868 and 872 are read together, it is evident that the Board of Education has power to determine how many teachers should be appointed to such positions, and when such appointments shall be made, and until such decision has been made, the Board of Education may not be compelled by court order to exercise its discretion in a manner which the courts might deem proper. Discretion in this regard is confided solely to the Board of Education.

In arriving at a determination of whether the appointment should now be made to permanent positions as teachers, the Board of Education is faced with a difficult situation. The Board of Education must maintain the schools with funds appropriated by another body for that purpose. Where the appropriation is insufficient to meet- the salaries of additional teachers, the Board of Education cannot properly appoint such additional teachers. In this case, the appropriation to meet the budget of the Board of Education may be sufficient to permit the appointment of some additional teachers for the high schools, but is insufficient to cover the salaries of all the teachers who may be necessary for the proper administration of those schools. The problem is complicated by the fact that in recent years of economic depression from the peak of 1928 and 1929, there has been an unusual increase in the number of high school students. Quite probably a return of prosperity will result in a decrease in that number. In that case, if appointments are now made to permanent positions as teachers, the Board of Education may in the future find that there are more high school teachers than can be properly used in the schools.

The Board of Education has determined that the best way to meet this situation is to create additional positions of substitute teachers who may be assigned to classes in the high schools for which no permanent teacher has been appointed. These substitute teachers receive a smaller remuneration than is provided by law for teachers appointed to permanent positions, and the tenure of the substitute teachers is purely temporary. That constitutes the solution of the difficult problem which, in the opinion of the Board of Education, will best serve the interests of the schools. The question remains whether the Board of Education has any power under the Education Law to make such appointments of substitute teachers. Otherwise the Board of Education must adopt a different solution, or the problem must remain unsolved-

Assuming that in this proceeding we should pass upon that question, it seems to me that under the Education Law the Board of Education has the power to appoint such substitute teachers. Certainly the powers granted to the Board of Education under section 868 are broad in scope, and power to create the position of substitute teachers falls within such powers, unless these powers are restricted by section 872. Appointment of teachers under section 872 must, as I have pointed out, be made to permanent positions. If that section is construed to mean that no teachers may be employed to step in temporarily to teach classes for which no regular teacher has been appointed or where the teacher regularly appointed is temporarily incapacitated, the proper administration of the schools becomes impossible.

At all times some regular teachers will be temporarily absent from their classes, and there 'will be some vacancies in the regular teaching staff, pending appointments in place of teachers who have died or been removed. Obviously, it is the duty of Boards of Education to provide for such a situation, and as the opinion of Crouch, J., points out, from time out of mind it has been the custom to appoint substitute or supply teachers who may be called upon to teach during the time when no regular teacher is for such reasons available. It would be unreasonable to construe section 872 as intended to render illegal the employment of such substitute or supply teachers. It seems to me quite clear that that section was intended to apply only to the appointment . of regular teachers, and that under the omnibus provisions of section 868, the Board of Education still has power to employ substitute teachers, at least for such purposes.

Now the Board of Education is employing substitute teachers because in its opinion a situation has arisen during which sufficient regular teachers cannot or should not be appointed necessary to supply all the classes of the schools. It is clear to me, as it is to my associates, that in enacting section 872 of the Education Law the Legislature intended to abolish insecurity of tenure for all regular teachers in the schools. Substitute or supply teachers may be employed only where regular teachers are not available, and when the Board of Education exercises the power conferred upon it under section 868 of the Education Law to appoint such teachers “ as said board shall determine necessary for the efficient management of the schools ” it may not evade its duty, in proper case, to appoint regular teachers with security of tenure by the device of employing substitute teachers in place of regular teachers. Here, however, there is good ground for believing that the appointment of regular teachers would not promote the best interests of the schools, and under the circumstances are not necessary for the efficient management of the schools. Indeed, it would appear that the Board of Education cannot appoint regular teachers sufficient to care for all the classes without exceeding their appropriations and interfering with the efficient management of the schools. As the opinion of Crouch, J., points out, the Board of Education cannot in these circumstances be directed to appoint more regular teachers. If they do not appoint more regular teachers then there are not sufficient regular teachers to conduct all the classes in the public schools. In such case, it seems to me that the Board of Education by clearest implication, if not by the express terms of section 868, has power to employ substitute teachers, so that these classes shall not be left without teachers until sufficient regular teachers are appointed.

I do not mean to imply by what I have said that the courts may not in proper case inquire whether the Board of Education is exercising its power to appoint substitute or supply teachers for the purpose of evading the provisions of the law which require a security of tenure for all regular teachers. There may be cases where it appears quite clearly that a substitute teacher is in fact employed as a regular teacher, but without compliance with the statute. Then perhaps the courts may say that failure by the Board of Education to appoint to a regular position constitutes an arbitrary act. Until that time arrives, the employment of substitute teachers is, in my opinion, within the powers of the Board of Education.

Pound, Ch. J., Crane, O’Brien and Loughran, JJ., concur with Crouch, J.; Lehman, J., concurs in result in opinion in which Hubbs, J., concurs.

Order affirmed.


author: Pound, Ch. J. O’Malley, J., Lehman, J.

text:
    In the Matter of the Application of the City of New York, Appellant and Respondent, Relative to Acquiring Title to the Elevated Railroad in East Forty-second Street in the Borough of Manhattan. Manhattan Railway Company et al., Respondents and Appellants.

      (Argued March 6, 1934;
    decided July 3, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair, Joseph F. Mulqueen, Jr., William B. R. Faber and Reuben Levy of counsel), for City of New York, appellant and respondent.

      Charles Franklin and Edward J. Schmuck for Manhattan Railway Company, respondent and appellant.

      Charles E. Hughes, Jr., Allen S. Hubbard and E. Myron Bull for receiver of Manhattan Railway Company, respondent and appellant.

      J. Osgood Nichols and Carl M. Owen for receivers of Interborough Rapid Transit Company, respondents and appellants.

      Martin A. Schenck, Edward Cornell and Harold C. McCollom for Central Hanover Bank and Trust Company, as trustee, respondent and appellant.

      William H. Page, Richard M. Page, John G. Dalton, P. A. Carroll, Thomas H. Baskerville, Herbert H. Maass
      and Edmund W. Van Voorhis for Bowman Biltmore Hotels Corporation et al., respondents and appellants.

      Ellwood Thomas and Albert S. Wright for Cooper Union for the Advancement of Science and Art, respondent and appellant.

      Wilber Stammler and George Welwood Murray for Chase National Bank of the City of New York, as trustee, respondent and appellant.
   Pound, Ch. J.

The Forty-second street spur of the Third Avenue Elevated Railroad, extending from Third avenue to the Grand Central Railway Station, has been taken down by compulsion of law. Protracted litigation has ensued over the amount of money the company should receive for such taking. The mandatory law is chapter 611 of the Laws of 1919, as amended by chapter 635 of the Laws of 1923. Pursuant to its provisions the Public Service Commission determined that the spur was no longer necessary or convenient for the public service and that it constituted an impediment and obstruction to the public use of the street. After this finding the city commenced these proceedings to condemn and remove the property. Title vested December 7, 1923, and the structure was removed in the spring of 1924. The condemnation proceedings have been pending ever since.

The Manhattan Railway Company owns the Elevated roads which it leased in 1903 to the Interborough Rapid Transit Company for 999 years. The Central Union Trust Company and the Equitable Trust Company are trustees under the Manhattan consolidated and second mortgages. William Roberts was appointed receiver of the Manhattan Railway Company September 6, 1932.

The questions involved on this appeal are novel and important. The railroads claim $6,500,000. They have been allowed about one-tenth of that amount. Their claims are large considering that it was their desire to escape the maintenance and operation of the Forty-second street spur.

There are three groups of parties: (a) The railroad interests; (b) the city, and (c) the abutting owners. The decision below satisfies none of them. All appear here as appellants.'

The legislation leading up to the judgment herein is fully stated in the opinion of Mr. Justice O’Malley on the first hearing (126 Misc. Rep. 879); reversed (229 App. Div. 617) and new hearing ordered. The ultimate question is, How much must .the city of New York pay to get the elevated structure out of Forty-second street? The railroads have a State and city street franchise and an elevated structure and the right to interfere with the light, air and access of abutting owners. What is the difference in the total value of such rights in perpetuity and as thus terminated?

The franchise, both from the State and the city, had its origin in the Rapid Transit Act (Laws of 1875, ch. 606). It dates from September 7, 1875, and vests the railway with an interest in the street in perpetuity ” for the purpose of an elevated railroad. Long after the acquisition of the street franchise it was held that private easements of light, air and access, where the city did not own the abutting property, were not the property of the city but of the abutting owners. (Story v. New York Elevated R. R. Co., 90 N. Y. 122.) The railroad thereafter acquired title to these easements at large expense. The railroad companies now claim that these easements are real estate, separate and distinct from the railroads and that they are entitled to compensation therefor at the market value thereof at the time of the present taking, for the reason that the removal of the elevated structure restores these easements to the abutting owners, greatly enhances the value of such property and thus deprives the railroads of the value of their property therein.

The contention of the city is that these easements are of no value without the railroad. In brief its position is: The railway company owned at the time title vested in the city in this proceeding (a) a franchise, (b) an elevated railroad structure, (c) and the right to maintain the structure for railroad purposes without liability to the abutting owners, the three constituting one entire property,- — ■ a railroad in a public street.”

It was held in substance in Kernochan v. New York Elevated R. R. Co. (128 N. Y. 559) that the easements were appurtenant to the premises themselves and could not be owned separately and distinctly. Quite apart from the discussion of the cases, it is clear that the railroad merely exhausted the right of the abutting owners to complain because the railroad was in the street and so trespassing on their property. The railroad as such possesses a right to impair the easements by the operation of its road. If it did not have such rights it would be guilty of an injury to the inheritance.

O’Malley, J.,

held that these property rights, whatever they might be called, vested in the railroad, so that it is entitled to be compensated therefor, whether considered as an ownership separate and distinct from the franchise or as considered as a value measured only by the limited railroad use granted by the franchises. He held that the rights as such had no market value but that the value must be found by considering original cost, replacement value and earning capacity. The claimants demand an award for these rights of $3,600,000, the amount that it would cost them to acquire such rights on the date when title vested in the city under the legislation under consideration. O’Malley, J., on his theory fixed the value of such rights at $750,000. The Appellate Division held that the rights to impair light, air and access appurtenant to the property abutting on Forty-second street at the time of vesting of title herein should be valued upon the basis of the value judicially determined at the time of the original acquisition of those rights. The Special Term on the new hearing thereupon placed a value on such rights of $539,117.40. This has been affirmed by the Appellate Division and is now before us for review. The judgment of O’Malley, J., is not before us for review, as it is not an intermediate order subject to review on this appeal.

The railroads claim here as below that the court erred in failing to award the full market value of the private easements acquired by the railroad company. Such value Should be applied only if the railroad is operated as a going concern and it cannot be so operated unless it owns such rights as it acquired in 1877 or thereabouts.

In other words, the property in such easements, strictly speaking, is of no value to the railroads when the railroad ceases to operate and is taken out of the street, but the city should reimburse the railroads for what it cost them to acquire such easements when it terminates the right of use in perpetuity. The decision of the court below awards the railroads fair compensation. The contention of the city, that the railroads are entitled to no compensation, is based on the argument that these rights were of no use to the railroads except as they were compelled to acquire them to operate and of no value except to a going concern, has some logical force, but such rights were obtained in order to permit the roads to exercise their franchise in the street in perpetuity, and when the city terminated such rights it should fairly compensate the roads for the loss of such rights.

The language of the many opinions in the elevated railroad cases is not helpful in dealing with this problem. The decisions are conflicting and deal with a different problem. What is the right which the roads acquired to exercise their street franchise in perpetuity as against the abutting owners worth when the right to operate the elevated road is taken from them? It is as extreme to say nothing as to say that their property in the easements is property entirely distinct from the right to maintain the elevated structure, the same as if the abutting owners still owned them. That these easements would be worth $3,600,000 to the abutting owners if they now owned them is beside the point. What is the city taking from the railroads? That is the question. The railroads could not release their rights to the abutting owners and continue to operate their railroads in the street. It, therefore, acquired no real title to these easements apart apart from the operation of its road. They otherwise still attach to the property of the abutting owners.

We next come to the value of the street franchise itself. O’Malley, J., found that it had a value based on pro- ■ ductiveness and that present earning power and reasonable prospective value should be considered. The Appellate Division held: “ The franchise to build, maintain and operate the spur is of no value, since the spur can no longer be operated except at an annual loss and the taking by the city is a distinct benefit to the claimants since the Public Service Commission has determined that the spur is no longer necessary and convenient for public service.”

It is difficult to see what the railroad has lost by the taking of its street franchise. It has gained relief from the burden of operating the road. What would any one pay for the franchise apart from the right to occupy the street? Should it receive more for its franchise when the spur can be operated only at a large annual loss? Of course it might possibly sometime gain some additional revenue if allowed to operate in perpetuity this spur in connection With the operation of its entire line. The railroad cannot claim a lack of profit, in rate fixing cases, on each part of its road. The whole system was operated at a profit but the finding that the Forty-second street franchise had no value should not be disturbed. While potentially traffic might be driven to the elevated by the congestion of the subways and the spur might have value as a traffic originating line such value is too speculative to be considered.

Next comes the question of the award for the structures in the street. O’Malley, J., held that the railroads were entitled to substantial award based on reproduction cost. The Appellate Division held that junk value was all that should be allowed; nuisance value or what the illegal structure was worth when taken down. The right to have the structure in the street was worthless if the street franchise was terminated. The structures had only a nuisance value when the right to have them in the street ended.

On the whole, a fair valuation of the property taken is the amount awarded by the Appellate Division.

The order should be affirmed, without costs.

Lehman, J.

(dissenting). The Forty-second street spur of the elevated railroad was erected and maintained under a franchise and permission granted by the city and State of New York. It has been removed under compulsion of the law. It is said that a duty to continue the maintenance and operation of the railroad would have been a burden rather than a privilege. The railroad company did not ask to be relieved of that duty. The structure in the street was the property of the railway company, constructed and paid for by that company. The right to erect and maintain that structure was granted by the sovereign. Even after that grant, the railway company was compelled to pay large sums to abutting owners for the right to obstruct permanently the easement of light, air and access which the abutting owners had in the city street. The sovereign State has compelled the removal of the railway structure from the street, and thus the easement of the abutting owners was relieved of the obstruction for which compensation had been paid by the railway company. The State has the power to revoke the franchise it had previously granted, but that power is subject to the constitutional hmitation that it must pay fair compensation for property taken or destroyed in the exercise of its sovereign power.

The elevated railroad structure and the right to maintain and operate it constitute the property of the railway company which has been taken or destroyed by the State. The structure could not have been erected and operated lawfully in the public street without a public franchise; but in addition it was necessary to acquire from abutting owners of land, property rights which wrould be infringed by such a structure. The structure itself, the right to maintain and operate it, with the consequent obstruction, or partial destruction, of the easements in the street of the abutting owners were inseparable parts of that property. None would have value except in connection with the others. The value of the whole cannot be determined by placing separate value upon the parts — for the dismembered parts have no separate value.

Nevertheless, the Appellate Division upon the first appeal has attempted to fix the value of the property of the railway company by fixing separately the value of the inseparable parts of the railway company’s property. It has determined that the public franchise is valueless because the spur cannot be profitably operated. For the same reason it has determined that the structure is valueless for use as a railway, and is worth only the amount which could be salvaged after it has been taken down. Finally, it has determined that the property rights which the railway company has acquired in the abutting land should be valued upon the basis of the value judicially determined in connection with proceedings brought at the time of the original acquisition of such rights. Upon the second trial the court was constrained to follow the rule laid down by the Appellate Division. The award is based upon a valuation fixed accordingly.

The determination of the value of property presents a practical problem. It cannot be solved by definition, classification or formulas. Where property exactly similar can be readily bought and sold in an open market, the market price fixes the value of the property. The value fixed by the consensus of opinion of ready buyers and willing sellers in the open market may be evanescent, for that consensus of opinion may be based upon premises and anticipations which are proven false by the passage of time. None the less, where there is a real market in which there is a constant stream of ready buyers and willing sellers, the market price does, for the time at least, fix accurately the value of property; because property can never be worth more than the price at which exactly similar property can be readily acquired, nor less than the price at which it can be readily sold.

Of course, the value of an elevated railway structure in a public street cannot be fixed in such manner. There is no other property exactly similar to it. As a railway spin it could be operated only in connection with the main railway line of the railway company. No other corporation or person would be willing to buy it for use as a railroad, and after the structure has been removed from the street by command of the sovereign the railway company can never through purchase or construction replace that spur.

Where market price furnishes no standard by which value can be measured, we must seek other practical criteria. In taking the elevated railroad structure out of the street of the city, the state deprives the railway company of its right to use that structure as a railroad spur in connection with the main railroad line, and at the same time deprives the railway company of its alternative right, if any, to sell the railroad structure to a third person or persons. The value of the use to the railway company of its property for railroad purposes and the value of the property for sale to others constitute the practical criteria by which the value of the property can be measured. I can conceive of no other practical criteria.

The Appellate Division has, as I have pointed out, determined that the structure has no value for use as a railroad and that the structure otherwise had no value except for junk. I will assume that the evidence sustains a finding that the structure had little or no value for use as a railroad, and the value of the structure as junk was unsubstantial. Certainly the award of over six hundred thousand dollars is erroneous and must be reversed upon the city’s appeal if the value of the use of the structure for railroad purposes and the value of the structure as junk together constitute the value of the property taken by the authority of the State. The Appellate Division, of course, did not so hold. It gave an independent value to the railway company’s property rights in the abutting land, and authorized a substantial award for them.

Glassification of these rights cannot guide us in fixing their-value. That depends upon the use to which they could be put in connection with the railroad structure, or the price which a willing buyer would pay for their abandonment. If that structure is destroyed forever, then user of these rights is destroyed forever. Their user for railroad purposes may be unprofitable. Then the question must arise whether the State may compel their abandonment without- compensation.

The railway company acquired these rights over fifty years ago from the owners of abutting property by compulsion under the authority of the State. In some cases the value was fixed by the courts; in other cases it was fixed by agreement of parties, but, doubtless, even in such cases the amount agreed upon constituted a rough estimate of the value which the courts would fix if the question were left to them. The measure of value adopted was the diminution of the value of the property suffered through the erection and maintenance of the railroad structure. Conditions have changed since that time. Values of real property in New York increased vastly in the interval. Forty-second street has become a great business thoroughfare. The real property abutting thereon has been improved by the erection of buildings which in size and cost exceed any anticipation that could have been formed fifty years ago. If the railway company now desired to acquire these rights at a value determined by the diminution of value of the abutting property caused by the erection and maintenance of the railroad structure, it would be compelled to pay vastly more. If the railway company is compelled to abandon the structure, it will restore to the abutting property a value vastly greater than the original cost of the rights.

Perhaps in fixing a reasonable return upon the investment of a public utility company, original cost may be a relevant factor in determining the value of the investment. It seems to me irrelevant in fixing the value of property which is taken in invitum. Then the relevant factors are what would it cost to replace the property and the value of its possible use, assuming that a reasonably prudent person would be willing to pay that cost for such user, or if not', either the value of the user of these rights or the amount which a willing buyer would pay for the abandonment of these rights.

It is clear, I think, that if the railway company were not compelled to abandon the structure, the abutting owners would be willing to pay the railway company a very substantial amount for its abandonment with its consequent accretion of great additional value to their land and buildings. That amount would constitute the realizable value of the railroad property to its owner, even if its user for railroad purposes were unprofitable and a burden upon the owner.

It is suggested that what I have called realizable value” is, in fact, only “nuisance value;” that is, the amount which an owner can exact as the price for refraining from injury, rather than the price of a right of property which the owner can exercise for a legitimate purpose. The suggestion may not be lightly cast aside. One of the objects of the exercise of the power of condemnation of private property for a public use is to prevent an owner of property from exacting more than the value which a ready seller could obtain from a willing buyer. The power to injure the value of neighboring property may come through ownership of property, but is not itself a property right nor an element in the value of property which the courts must recognize when they fix the compensation to be paid when the property is taken under the command of the sovereign.

The payment of all the damages which flow from a wrong constitutes full satisfaction for the injury done. As between the parties, such payment obliterates the injury; and the injured party cannot, usually, complain of the wrong for which he has been paid full compensation. It does not, however, result in any accretion of value to the property of the wrongdoer or a transfer of a property right to him out of the real property of the injured party. In many respects the payment by the railway company to the abutting owners is analogous to the payment of damages for wrongful injury, but not in all respects. If the city had possessed an unrestricted fee in the streets, the erection of the railroad spur under the franchise granted by city and State would have caused consequential damages to the abutting property, but no award was, or could have been, made to the owners for such consequential damages. They were entitled to an award because the railroad structure burdened or partially destroyed an easement on the public streets, which, this court has held, was appurtenant to property abutting in the street. The erection of the railroad structure could, therefore, not be authorized by the State and city without grant from the owners of the easement, and the awards to the abutting owners was the compensation paid to them for such grants.

It may be urged that since the determination of the value of property presents, as I have said, a practical problem, the juridical concepts underlying an award of damages which, otherwise, carry no practical consesequences, must be disregarded. The difficulty here is that these juridical concepts do carry practical consequences. They resulted in an increase of the legitimate cost of a public improvement, and the money to meet that cost was furnished by investors who purchased the stocks and bonds of the railway company, believing that the railway property was worth at least the expense necessarily and prudently incurred in acquiring the property. Certainly in determining the reasonable rate that could be charged, the value of the property rights which a railway company must acquire, before it could erect and maintain its railway, could not be disregarded. Finally, and most significant, is the fact that the rights which the railway company was compelled to acquire from the abutting owners constituted property which is subject to assessment for taxation (People ex rel. Manhattan Ry. Co. v. Barker, 165 N. Y. 305), and, it must be noted, this court arrived at that conclusion because of the distinction it drew between payment of consequential damages and payments made by the railway company for a grant from the owners of an easement in the street.

True, the right of property thus acquired is in the nature of an easement or an interest in an easement, which has become inseparably attached to the railroad structure, just as an easement is appurtenant to a particular piece of real property; and it could not be used or granted except in connection with the railroad structure. None the less the property right of the railway company, however we may describe it, rests, like an easement, upon grant from the owner of the real property upon which it is a burden, and, like an easement, may be terminated by grant to the owner of the burdened property or by other instrument or act of like effect.

It seems to me quite plain that the city cannot be compelled to pay to the railway company any value for these rights beyond the value which the railway company could enjoy through user or sale. The amount paid for such rights, whether fixed by agreement or by judicial decree, furnishes no true measure of such value. It seems to me scarcely less plain that the city may not be permitted to pay for a taking of property which terminates the user of these rights, less than the value which might have been enjoyed through user or as the price of a grant to a grantee ready and willing to pay such price. After the owner has been compelled to pay for the acquisition of these rights because the courts have held that they were property rights, and after such rights have been made subject to taxation by the State because they constitute property rights, it seems to me too late for the State to urge that it may destroy these rights without paying for them the value which the owner could otherwise have obtained as the price of their sale or abandonment. So, too, it seems to me inequitable to permit the owners of the abutting property to urge that these rights have only a nuisance value for which no compensation should be given when their predecessors in title have received compensation for a grant of these rights.

To fix the value which might be derived from a sale of these rights would doubtless present a difficult problem. Perhaps by the same methods which the courts employed in determining the diminution in the value of abutting property caused by the burdening of the appurtenant easement in the street, the courts could now determine the increment to the value of the abutting property caused by the removal of that burden. It does not follow that the owner of the abutting property would be willing or compelled to pay that price to secure the increment in value. Just as we may say with reasonable certainty that the railway company would not accept that price if the railroad were operated at a profit, so with like certainty we may say that the railway company would accept a much smaller price for the retransfer or abandonment of its rights to maintain the railroad structure if the operation were a burden. The courts must assume that both parties to a transaction will act reasonably. If the abutting owners and the railway company fixed the price by agreement, both sides would be called upon to use their business judgment. Business judgment is not fettered by rigid formulas, nor can a definite measure be applied to all the considerations which may enter. The court must determine, as a question of fact, in fixing values which depend upon business judgment, the price which would be fixed by negotiation between reasonable business men seeking profit. The amount fixed by the courts below as the present value of the property rights bears no relation to any value which might be obtained from user of the property, or as the price of its abandonment or transfer. It is purely arbitrary. It may be greater or less than the value. Property is taken without due process of law when the compensation paid is fixed arbitrarily rather than by a determination of the value which might be obtained from user and sale.

Thus the order of the Appellate Division must be reversed upon the appeal of the city, if the railway’s property rights in the street have no value which the law recognizes, and must be reversed upon the appeal of the railway company if those rights have a value which could be realized as the price of sale or abandonment.

Crane, O’Brien and Crouch, JJ., concur with Pound, Ch. J.; Lehman, J., dissents in opinion in which Hubbs, J., concurs.

Order affirmed.


author: Lehman, J.

text:
    The People of the State of New York, Respondent, v. Michael Alex, Appellant.
    (Argued May 28, 1934;
    decided July 3, 1934.)

      Joseph Lonardo, Richard J. Barry and David M. Wolff for appellant.

      Charles S. Colden, District Attorney (Mordecai Konowitz of counsel), for respondent.
   Lehman, J.

The defendant was arrested late at night on June 15, 1931. He was arraigned on the morning of June seventeenth, and then charged with murder in the first degree. During the period of about thirty-six hours when he was held by the police he confessed his guilty participation in a murder. Aside from the defendant’s oral and written confessions made before his arraignment and before he had opportunity to consult counsel, there is little, if any, competent evidence to connect the defendant with the crime. If these confessions were not made under the influence of fear produced by threats (Code Crim. Pro, § 395) and were given voluntarily, no room for reasonable doubt of the defendant’s guilt remains.

Upon defendant’s trial the defendant made claim that his confessions were the result of brutal beating by the police while in their custody before his arraignment. The police officers who held the defendant denied that they had beaten him. A question of fact thus arose which the trial judge was bound to submit to the jury under proper instructions.

Upon a previous appeal this court was constrained to reverse a judgment convicting the defendant of the crime of murder in the first degree, because the trial judge refused to admit testimony which tended to sustain the defendant’s contention that the confessions were not voluntarily made. (People v. Alex, 260 N. Y. 425.) Upon the second trial this evidence was received. Otherwise the testimony presented at the trial now under review is substantially the same as at the first trial. No useful purpose would be served by detailing again that evidence. The questions of fact which should have been presented to the jury for determination remained the same.

In our earlier opinion we pointed out that the confessions were obtained while the defendant “ had neither been arraigned nor given the privilege of consulting counsel ” (p. 426). The Code of Criminal Procedure provides that the defendant must in all cases be taken before the magistrate without unnecessary delay.” (§ 165.) Here there was delay of almost thirty-six hours. Even where the police, for thirty-six hours, illegally delay arraignment after arrest, for the purpose of obtaining a confession, the confession is admissible, unless “ made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he [the defendant] shall not be prosecuted therefor.” (Code Crim. Pro. § 395.) Nevertheless, in determining whether a confession has been obtained as a result of a beating, or is voluntary, the circumstance that it was obtained while arraignment was illegally delayed for no apparent reason except that the police needed a confession in order to have competent proof of the commission of a crime, should be considered by the jury. (People v. Trybus, 219 N. Y. 18.) In every case where there is a substantial question of the voluntary nature of a confession obtained while a defendant is in the custody of the police, and arraignment is delayed, it is the duty of the trial judge, at least upon request of counsel, to charge that any unnecessary delay ” in arraignment is forbidden by law and should be considered by them.

Here the trial judge refused to so charge, though counsel made request to charge in many forms. The statute was not read to the jury, nor was the jury instructed in other form that arraignment without unnecessary delay was a mandatory duty.

The omission is not cured, indeed it is, perhaps, intensified, by a charge to the jury that you may consider the fact whether it was reasonable or unreasonable for this defendant not to be brought to court within thirty-six hours; whether the evidence satisfies you that the delay in bringing him before the court was justified because of what occurred and the conditions surrounding that interval of time.” The law does not leave to the police discretion as to when a prisoner shall be arraigned. A desire to obtain evidence of guilt through confession may explain delay but furnishes no legal justification for it, and evidence of other justification is wanting. In the absence of justification, the detention for almost thirty-six hours was illegal, and though the illegality does not require the inference that the confession obtained was involuntary, yet it has a substantial bearing upon that disputed question.

The courts, both trial and appellate, must recognize that repeated trials of an indictment delay justice and at times even thwart justice. Error must be sedulously avoided by the trial court, though at times it may be inevitable, and error must be disregarded by an appellate court where reason dictates the conclusion that it did not affect the result of the trial. That is not true here. The error went to the substance of the defense. On two previous trials the jury disagreed. Though there is substantial evidence that the confession was both admissible and voluntary we cannot say that the result of the trial under review might not have been different if the questions of fact had been properly submitted. The statute is clear, and this court has in previous opinions pointed out that disregard of the statute may be considered by the jury. Failure to charge the statute and its effect deprived the defendant of his right to a fair trial.

Since there must be a new trial, it is unnecessary to pass upon the other claims of error in the trial. We may point out, however, that the clear language of the statute governing the admissibility in evidence of a confession (§ 395) was paraphrased inaccurately and unnecessarily. Perhaps the charge was, in that respect, more favorable to the defendant than he was entitled to, and error in that respect might, therefore, be disregarded. Never-less, both the People and the defendant’s rights may be jeopardized by any departure from the clear language of a declaratory statute.

The judgment of conviction should be reversed and a new trial ordered.

Pound, Ch. J., Crane, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Judgment reversed, etc.