text:
    Guaranty Trust Company of New York, as Trustee under a Deed of Trust, Dated February 14, 1916, Respondent, v. New York Trust Company, as Executor and Trustee under the Will of Cornelius J. Sullivan, Deceased, et al., Appellants; Helen Sullivan et al., Respondents, et al., Defendants.
    Argued May 26, 1947;
    decided July 2, 1947.

      Chester Bordean for Mew York Trust Company, as executor and trustee under the will of Cornelius J. Sullivan, deceased, appellant.
    I. Defendant executor is entitled to the principal under the agreement of trust dated February 14, 1916, at its termination upon the death of the life beneficiary. (Doctor v. Hughes, 225 N. Y. 305; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134; Fish v. Chemical Bank & Trust Co., 270 App. Div. 251; Matter of Scholtz v. Central Hanover Bank & Trust Co., 295 N. Y. 488; Whittemore v. Equitable Trust Co., 250 N. Y. 298; Engel v. Guaranty Trust Co., 280 N. Y. 43; Guaranty Trust Co. v. Armstrong, 294 N. Y. 666; Culver v. Title Guarantee and Trust Co., 296 N. Y. 74; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; United Paper-Board Co. v. Iroquois Pulp & Paper Co., 217 App. Div. 253, 249 N. Y. 588.) II. The residuary trust contained in the will is valid. (New York Life Insurance & Trust Co. v. Cary, 191 N. Y. 33; Farmers’ Loan & Trust Company v. Kip, 192 N. Y. 266.) III. Under the agreement of trust, the legatees under the will are entitled to the principal. IV. The will of the decedent was an exercise of the power in favor of such decedent’s general estate. (Matter of Lynn. 261 App. Div. 513, 287 N. Y. 627.)

      John Lane, Gerald Donovan, in person, George W. Bacon and Edward A. Silliere for Gerald Donovan and another, as executors of Mary Sullivan, deceased, appellants.
    I. The members of the class entitled to the principal of the trust must be determined as of the date of death by the statute then in effect. II. At the date of death of the decedent in 1932, his widow was one of his “ next of kin ” entitled to receive the principal of the trust under the statute of distributions if the said principal had been owned by him at the time of his death intestate with respect thereto. (Matter of Koch, 282 N. Y. 462; Hutchison v. Ross, 262 N. Y. 381; Matter of Waring, 275 N. Y. 6; Matter of Battell, 286 N. Y. 97; Matter of Hecker, 178 Misc. 449; Matter of Bates, 173 Misc. 703.) III. The intention of the donor or testator shall determine whether the widow is to be included among the next of kin. (Matter of Fordham, 235 N. Y. 384;
      New York Life Insurance & Trust Co. v. Winthrop, 237 N. Y. 93.) IV. Decedent intended Ms widow to share. (Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Matter of Koch, 282 N. Y. 462.) V. If the principal of the trust constitutes a reversion to decedent which passed to his executors upon his death in 1932, general legatees must be paid in full therefrom, but the balance must be distributed as in intestacy. (Doctor v. Hughes, 225 N. Y. 305; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134.) VI. The residuary trust under the will violates the rule against perpetuities. (Matter of Wilcox, 194 N. Y. 288.) VII. The widow’s estate is entitled to receive her intestate share. (City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134; Street v. Post, 197 App. Div. 304, 232 N. Y. 563.)

      Eli Whitney Débevoise and Harold C. Jesse for respondents.
    I. The trust agreement • did not create a reversion in the decedent and the courts below properly disposed of the principal of the trust as a remainder. (Doctor v. Hughes, 225 N. Y. 305; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134; Fish v. Chemical Bank & Trust Co., 270 App. Div. 251; Matter of Scholtz v. Central Hanover Bank and Trust Co., 295 N. Y. 488; Whittemore v. Equitable Trust Co., 250 N. Y. 298; Engel v. Guaranty Trust Co., 280 N. Y. 43.) II. The contentioi that decedent had a reversionary interest finds no support in the language of the trust agreement or of the letter or in the actions of decedent. (Whittemore v. Equitable Trust Co., 250 N. Y. 298; Guaranty Trust Co. of N. Y. v. Armstrong, 294 N. Y. 666.) III. The trust company’s contentions that if no reversior was created, the legatees under the will of decedent are entitle! to the principal of the trust or in the alternative that that wih. was an exercise of the power in favor of his general estate, are without merit. IV. The property vested as a remainder to the next of kin of decedent as a class; the widow was not one of his next of kin within the meaning of the trust agreement. (Matter of Waring, 275 N. Y. 6; Matter of Wolf, 28 N. Y. 644; Matter of Battell, 286 N. Y. 97; Trowbridge v. First-Stamford National Bank & Trust Co., 182 Misc. 180, 268 App. Div. 768, 294 N. Y. 785; Matter of Lake, 170 Misc. 840; Matter of Cohn, 184 Misc. 258.)
   Fuld, J.

This appeal presents a controversy as to the persons entitled — upon termination of a life interest — to receive the principal of an inter vivas trust set up under a trust agreement executed on February 14,1916, by two attorneys at law, Cornelius J. Sullivan and Paul M. Herzog.

It is conceded by all the parties that the life beneficiary of the trust — one Blanche Malli — had, or claimed to have, a cause of action against an undisclosed client of Sullivan, that the trust was created solely for the purpose of freeing him from annoyance by the beneficiary, and that he — the undisclosed client — was the original owner and source of the securities which formed the corpus of the trust as created.

The trust agreement provides that, upon the death of the life beneficiary, the principal is .to be paid over to Sullivan, if living, or to such person as he may nominate in a specified manner; if, at his death, there has been no such nomination, then the. principal shall pass “ to such person or persons as may be entitled to receive the same as specific or residuary legatees under the Last Will and Testament of the said nominator, and in default of any such Last Will and Testament, then to such of the next of kin of said nominator as would be entitled to receive the same under the statute of distributions of- the State of New York if the said principal had been owned by him at the time of his death intestate with respect thereto.”

The beneficiary is still alive. Sullivan, however, died in April, 1932, survived by his widow and Ms four sisters. By Ms will, he left Ms residuary estate —1 ‘ including all property over which I may have or hereafter acquire power of appointment ” — to Ms executor upon a trust made dependent upon the lives of Ms widow and his youngest surviving sister.

The courts below have held the residuary clause of Sullivan’s will invalid to the extent that it suspends for three lives in being the absolute ownership of the principal of the inter vivas trust (Personal Property Law, § 11). It is now urged that Sullivan, as creator of the trust, retained a reversionary interest in the corpus. If that be so, the residuary clause incorporating that reversion in a testamentary trust' must, of course, be considered separate and apart from the inter vivas* trust agreement, and, hence, would not; entail an unlawful suspension--of absolute ownership. (N. Y. Life Ins. & Trust Co. v. Cary, 191 N. Y. 33.)

The claim advanced must be rejected. Section 39 of the Eeal Property Law contains the statutory definition of reversion, which also applies with equal force to personal property. (Personal Property Law, § 11; see Davies v. City Bank Farmers Trust Co., 248 App. Div. 380.) That section declares: “A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of one or more particular estates granted or devised.” At its inception, then, ownership of a reversion must remain in the grantor or testator — or in those who take .from him by descent — since it can arise only in the hands of the original owner; a reversion, by definition, cannot be created by an instrument purportedly conveying or transferring it to another.

Any conclusion, therefore, that Sullivan’s interest in the trust corpus constituted a reversion must necessarily depend, in the first instance, upon a determination that he was a grantor ” or “ testator” within the intendment of section 39. That he could not be a testator ” is, of course, obvious, since the trust was created by a transfer inter vivas. That he may not be termed a grantor ”, without doing violence to the plain meaning of the statute, is equally clear.

As already indicated, the trust was created at the behest of Sullivan’s undisclosed client, its corpus formed from securities supplied by him. There can be no doubt that the person who furnishes the consideration for the creation of a trust is the settlor, even though, in form, the trust is created by another. (Morgan v. Fiduciary Trust Co., 290 N. Y. 615; Maynard v. Farmers’ Loan & Trust Co., 208 App. Div. 112, affd. 238 N. Y. 592; 1 Bogert on Trusts and Trustees, § 41; 1 Scott on Trusts, § 17; 3 Scott on Trusts, §§ 422A-425; Griswold on Spendthrift Trusts [2d ed.], §§ 487-491; cf. Matter of Blake, 226 App. Div. 580, affd. 252 N. Y. 613.) Since the client was thus, in legal effect, the settlor of the trust, it follows that Sullivan can hardly be regarded as grantor ” of the selfsame trust. Certainly, the word fe grantor ”, as used in the statute, must be given substantial meaning; it should not be construed to include a purely technical conveyoncer, a mere conduit or dummy through whom title passes from the true owner to the ultimate grantee. Even if Sullivan had had legal title to the securities — which is not at all clear from the record before us — the equitable title would have remained in his client and, had the express trust failed for one reason or another, Sullivan would have held the property upon a resulting trust for him. (3 Scott on Trusts, §§ 422A-425.)

Since Sullivan’s interest did not constitute a reversion, the residuary clause of his will is, in effect, an attempted exercise of the power of appointment granted him by the inter vivas agreement. (Personal Property Law, § 18; cf. Low v. Bankers Trust Co., 270 N. Y. 143, 147-148.) The power, of course, relates back to and becomes a part of that agreement for the purpose of measuring lives; consequently, Sullivan’s ‘ ‘ residuary ’ ’ trust is invalid to the extent that it suspends the absolute ownership of the inter vivas trust corpus for more than two lives in being. (Personal Property Law, § 11; Real Property Law, § 178; see Low v. Bankers Trust Co., supra.)

Ineffective exercise of a power of appointment is the same as nonexercise, and, hence, upon termination of the inter vivas trust, the principal will pass, as specified in the trust agreement, “ tó such of the next of kin of said nominator [i.e., Sullivan] as would be entitled to receive the same under the statute of distributions of the State of New York if the said principal had been owned by him at the time of his death intestate with respect thereto.”

Thus, we are brought to the only remaining question in the case, namely, whether Sullivan’s widow is within the content of the above language. In the light of settled authority, the answer is clear: use of the phrase “ next of kin ” in an agreement executed prior to September, 1930 — when amendment to the Decedent Estate Law (L. 1929, ch. 229) made a surviving spouse a distributee — does not include a widow. (Matter of Waring, 275 N. Y. 6; Matter of Battell, 286 N. Y. 97; Trowbridge v. Trowbridge, 294 N. Y. 785; Matter of Cohn, 297 N. Y. 536, decided herewith.)

The judgment should be affirmed, with costs.

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

Judgment affirmed.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Bernard Abrams et al., on Behalf of Themselves and All Other Stockholders of Remington Rand Inc., Similarly Situated, Appellants, v. Theodore F. Allen et al., Defendants, and Loring R. Hoover et al., Respondents.
    Argued May 19, 1947;
    decided July 2, 1947.

      Emil K. Ellis and Abraham J. Heller for appellants.
    The first cause of action sets forth ultimate facts sufficient to constitute a cause of action. (Geer v. Union Mutual Life Ins. Co., 273 N. Y. 261; New York Life Ins. Co. v. Veit, 294 N. Y. 222; Belsky v. New York Life Ins. Co., 255 App. Div. 288, 280 N. Y. 614; Vanderbilt v. Travelers Ins. Co., 112 Misc. 248, 202 App. Div. 738, 235 N. Y. 514; People v. Security Life Ins. & Annuity Co., 78 N. Y. 114; Boswell v. Security Mut. Life Ins. Co., 193 N. Y. 465; Lynch v. United States, 292 U. S. 571; Home Ins. Co. v. Dick, 281 U. S. 397; Kavanaugh v. Commonwealth Trust Co., 223 N. Y. 103; Lonas v. Layman Pressed Rod Co., Inc., 242 App. Div. 444, 269 N. Y. 529; Hornstein v. Paramount Pictures, 37 N. Y. S. 2d 404, 266 App. Div. 659, 292 N. Y. 468; City Bank Farmers’ Trust Co. v. Hewitt Realty Co., 257 N. Y. 62.)

      Inzer B. Wyatt, Roy H. Steyer arid Victor Futter for respondents.
    I. There is no charge of any personal profits by any of the defendant directors or any adverse personal interest by them in any of the matters alleged. The most that is claimed on any theory are mistakes of judgment. (National Labor Relations Bd. v. Remington Rand Inc., 94 F. 2d 862.) II. Directors of a corporation are not liable for mistakes of judgment. (Everett v. Phillips, 288 N. Y. 227; Chelrob, Inc., v. Barrett, 293 N. Y. 442.) III. The accusations and allegations of misconduct in the complaint are all conclusions of the pleader. Such conclusions violate section 241 of the Civil Practice Act and are not sufficient to state a cause of action. (Kalmanash v. Smith, 291 N. Y. 142; Hornstein v. Paramount Pictures, 37 N. Y. S. 2d 404, 266 App. Div. 659, 292 N. Y. 468; Blaustein v. Pan American Petroleum & Transport Co., 293 N. Y. 281.) IV. Sound reasons of policy dictate a strict application of section 241 of the Civil Practice Act to' stockholders’ derivative actions. (Gerdes v. Reynolds, 281 N. Y. 180; Rous v. Carlisle, 261 App. Div. 432, 290 N. Y. 869; Weinberger v. Quinn, 264 App. Div. 405, 290 N. Y. 635; Kalmanash v. Smith, 291 N. Y. 142; Clarke v. Greenberg, 296 N. Y. 146.)
   Desmond, J.

The Appellate Division has dismissed this complaint on the ground that, “ stripped of its conclusory statements ”, it “ shows only a reasonable exercise of business judgment by the directors ” and that no facts are set forth which show that appellants [defendants] had interests adverse to the corporation or that they dealt with the corporation for their own benefit or that they were guilty of waste or fraud ” (271 App. Div. 326, 328). If in any aspect upon the facts stated plaintiffs are entitled to a recovery, dismissal was, of course, improper (Dyer v. Broadway Central Bank, 252 N. Y. 430, 432; Condon v. Associated Hospital Service, 287 N. Y. 411). We need examine only two paragraphs (8th and 19th) of this long complaint to find a sufficient statement of alleged facts which, if proven, may entitle plaintiffs to judgment.

Paragraph 8 of the complaint is as follows: “ 8. That in Furtherance of the aforesaid objects, said defendants caused and brought about the dismantling and removal of corporate plants, equipment and machinery, as well as the intentioDal curtailment of production, and thereby caused defendant corporation to incur and suffer great loss thereby, not on legitimate, honest, prudent and reasonable business grounds, but solely for the purpose of discouraging, intimidating and punishing its employees by removing hopes of re-employment of the said employees by the defendant corporation.” That quoted matter contains four plain and concise statements of material fact (Civ. Prac. Act, § 241.) First, it is alleged that defendant directors caused the dismantling and removal of corporate plants and the intentional curtailment of production; second, that this caused great loss to the corporation on whose behalf this suit is brought; third, that these things were not done for any legitimate business reasons, but (fourth) were done solely to discourage, intimidate and punish the corporation’s employees. Surely the allegations that plants were dismantled and that damage was thereby caused, are typical allegations of fact. The same is true as to the.recital of the motives with which these things were done (Richmondville Union Seminary v. McDonald, 34 N. Y. 379, 381; People v. Lewis, 275 N. Y. 33, 39; Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79, 85; 1 Wigmore on Evidence [3d ed.], § 119; 23 C. J. S., Criminal Law, § 1127; National Labor Relations Bd. v. Nevada Copper Co., 316 U. S. 105; Matter of New York State Labor Relations Bd. v. Union Club, 295 N. Y. 917).

Paragraph 19 of the complaint charges: “That notwithstanding the knowledge by the individual defendants of the matters set forth in paragraph ‘ 8 ’ hereof, defendants permitted the defendant Band, Jr. to dominate the board of directors of the defendant corporation in respect of its labor policies and acts as aforesaid and permitted him to vent0 his personal bias, animus and hatred in evolving and executing the policy, plan and program described in paragraphs * 7 ’ and ‘ 8 ’ hereof, with the knowledge that the defendant Band, Jr. was not actuated by honest bona fide considerations affecting the welfare of the defendant corporation and its stockholders but by the malice, bias and personal prejudices hereinbefore described and that in so doing defendants abdicated their duties and responsibilities as directors of the defendant corporation and committed inexcusable and wanton breaches of their trust and violations of their duties as directors, to the injury of the defendant corporation.” Those allegations, like the ones quoted from paragraph 8, are plain, direct statements of fact.

If the averments of fact, above quoted, are proven on the trial, they may be held to have amounted to actionable breaches of the duties owed by defendants to the corporation, as its trustees and agents. Depending on circumstances, they may fall into one or more of the categories of acts for which directors are liable in damages, among which are lack of due care (O’Brien v. Fitzgerald, 143 N. Y. 377; General Rubber Co. v. Benedict, 215 N. Y. 18; Bosworth v. Allen, 168 N. Y. 157; Kavanaugh v. Commonwealth Trust Co., 223 N. Y. 103); waste or squandering of the corporate assets (Bowers v. Male, 186 N. Y. 28; Hazard v. Wight, 201 N. Y. 399); willful conversion or misapplication of the company’s goods (Brinckerhoff v. Bostwick, 88 N. Y. 52, 62; Quintal v. Kellner, 264 N. Y. 32; Pollitz v. Wabash R. R. Co., 207 N. Y. 113; see Hornstein v. Paramount Pictures, 292 N. Y. 468, 471); and using the corporation’s property for the doing of an unlawful or immoral act (Bath Gas Light Co. v. Claffy, 151 N. Y. 24, 31; Continental Securities Co. v. Belmont, 206 N. Y. 7; Berkey v. Third Avenue Bailway Co., 244 N. Y. 84).

That the public policy of this State and nation is opposed to the closing or removal of factories, for such purposes as are here asserted, is obvious (Labor Law, § 704; National Labor Relations Act, § 8; U. S. Code, tit. 29, § 158; see National Labor Relations Bd. v. Cape Co. Milling Co., 140 F. 2d 543, Note, 152 A. L. R. 149 et seq.; National Labor Relations Bd. v. Remington Rand Inc., 94 F. 2d 862).

Whether, or how, .these accusations may be proven is not our present concern. These defendants may not have done these things at all, or they may have done them for the best of reasons. But the complaint, which we are bound to take as true at this point, says the opposite. If we dismiss, we are saying that for such spoliation of a corporation, there is no redress. The case should be tried.

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

Loughban, Ch. J., Conway and Fund, JJ., concur with Desmond, J.; Lewis, Thacheb and Dye, JJ., dissent and vote to affirm.

Judgment accordingly.


author: Dye, J.

text:
    The People of the State of New York, Respondent, v. Louis Wallens, Appellant.
    Reargued April 14, 1947;
    decided July 2, 1947.

      Harry L. Gilrie, John B. Corcoran and William B. Mahoney for appellant.
    I. The trial was not conducted in accordance with established rules of law. (People v. Dobosen, 33 N. Y. S. 2d 318; People v. McLaughlin, 291 N. Y. 480; People v. Vario, 257 App. Div. 975; Searle v. Halstead & Co., 139 App. Div. 134; Dooling v. City of New York, 148 App. Div. 713; Maher v. Buffalo, R. & P. R. Co., 217 App. Div. 532; People ex rel. Walsh [Franco] v. Warden of Sing Sing, 176 Misc. 627; People v. Wolf, 183 N. Y. 464.) II. In a criminal case tried before a Court of Special Sessions and a jury, the presiding justice is required by law to charge and instruct the jury. • (Code Crim. Pro., § 62; People v. Dobosen, 33 N. Y. S. 2d 318.) III. The statutory duty of a justice of the peace to charge and instruct the jury cannot be waived by failure to request the charge or otherwise. (People ex rel. Battista v. Christian, 249 N. Y. 314; Hopt v. Utah, 110 U. S. 574; People v. Miles, 289 N. Y. 360; People v. McLaughlin, 291 N. Y. 480; Screws v. United States, 65 S. Ct. 1038; People
      v. Odell, 230 N. Y. 481; People v. Montesanto, 236 N. Y. 396; People v. Levine, 39 N. Y. S. 2d 938.)

      Daniel J. O’Mara, Earle G. Basiow, Walter B. Reynolds and Gordon Steele for District Attorneys’ Association of the State of New York, amicus curice.

    I. In a criminal case tried before a jury and a justice of the peace the justice is required to charge and instruct the jury. (Bishop v. Welch, 149 Ill. App. 491; People ex rel. Cosgriff v. Craig, 195 N. Y. 190; People v. Dobosen, 33 N. Y. S. 2d 318; People v. Raco, 47 N. Y. S. 2d 448; Duffy v. People, 26 N. Y. 588; People v. Sherlock, 166 N. Y. 180.) II. If the justice is required to charge and instruct the jury, this requirement cannot be waived by failure to request such a charge, or otherwise. (People ex rel. Battista v. Christian, 249 N. Y. 314; Cancemi v. People, 18 N. Y. 128.)

      John S. Marsh, District Attorney {William E. Miller of counsel), for respondent.
    I. Defendant had a fair and impartial trial. (People v. Reese, 258 N. Y. 89; People v. LaFace, 266 N. Y. S. 458.) II. The errors relied on by defendant for reversal were not properly excepted to and are thus not reviewable by the Court of Appeals. (People v. Romano, 279 N. Y. 392; People v. Trybus, 219 N. Y. 18; People v. Kerns, 7 App. Div. 535; People v. Pindar, 210 N. Y. 191; People v. Cummins, 209 N. Y. 283; People v. Bresler, 218 N. Y. 567; People v. Jackson, 196 N. Y. 357; People v. Tobin, 176 N. Y. 278.) III. If there is a duty for a justice of the peace to charge a jury, it can be waived. (People v. Tobin, 176 N. Y. 278; People v. Cummins, 209 N. Y. 283; People v. Pindar, 210 N. Y. 191.)

      Nathaniel L. Goldstein, Attorney-General {Wendell P. Brown and Henry S. Manley of counsel), for Nathaniel L. Goldstein, Attorney-General.
    I. The justice is not required to charge and instruct the jury. (People v. Dobosen, 33 N. Y. S. 2d 318; People ex rel. Comaford v. Dutcher, 83 N. Y. 240; People ex rel. Lawrence v. Mann, 97 N. Y. 530; People ex rel. Burby v. Howland, 155 N. Y. 270; Town of Putnam Valley v. Slutzsky, 283 N. Y. 334.) II. If there is a duty for a justice of the peace to charge a jury, it can be waived. No question about that duty was properly raised on the trial, or on appeal. (People v. McLaughlin, 291 N. Y. 480 ; People v. Gray, 5 Wend. 289; People
      v. Bellinger, 269 N. Y. 265; People ex rel. Battista v. Christian, 249 N. Y. 314.)
   Dye, J.

The defendant has been convicted on three separate counts after a jury trial in Justice Court in the Town of Pendleton, Niagara County, for violation of the Agriculture and Markets Law prohibiting unlicensed slaughtering (§ 96-b), unsanitary slaughtering (§ 96-d) and processing of unwholesome and adulterated meats for human consumption (§§ 199-a, 200). He has been sentenced to pay a fine of $200 and to be confined for ninety days on each of the three counts, the jail sentences to run concurrently.

At the end of the trial the justice made a statement to the jury, viz.: “ Ladies and G-entlemen: Take this case, weigh the matter carefully. Your verdict must be either one that he is guilty or not guilty as charged.” This gives rise to the question considered on this appeal, viz.: “ In a criminal case tried before a jury and a Justice of the Peace, is the Justice required to charge and instruct the jury, and, if so, may this requirement be waived by failure to request such a charge, or otherwise? ”

The People take the position that a justice of the peace is not required to charge and instruct the jury; that the procedure followed here was in keeping with long-established Justice Court practice; that, in any event, failure to make objection, to request a charge or to take exception for failure to charge constituted a waiver and the question is not available on this appeal, and that, in any event, the overwhelming proof of guilt was so clear and convincing that no room exists for an appeal based on grounds of reasonable doubt (Code Crim. Pro., §§ 542, 764). The defendant-appellant contends that failure to meet the requirements of the Code of Criminal Procedure as to a jury trial was reversible error (Code Crim. Pro., §§ 62, 388).

We deem the question comes within the defendant’s statement in his affidavit on appeal that he did not have a fair and impartial trial ” and the statement of the justice in his supplemental return that he did not charge the Jury ” and is a sufficient specification to confer jurisdiction (Code Crim. Pro., § 751). It is true that the constitutional guarantee of a right to trial by jury does not extend to petty offenses tried before, a court of special sessions (N. Y. Const., art. I, § 2; People v. Bellinger, 269 N. Y. 265), but, when the accused — as here — demands and has been accorded a trial by jury, the order of trial from then on must follow prescribed procedure, without distinction as to whether the charge is a felony or a misdemeanor.

The Code of Criminal Procedure provides: “ § 388. In what order trial to procbed. The jury having been impaneled and sworn, the trial must proceed in the following order:

“ 1. The district attorney, or other counsel for the people, must open the case; * * *

7. The court must then charge the jury.” (Italics supplied.)

The Code of Criminal Procedure was originally enacted as chapter 442 of the Laws of 1881, and applied to courts of record only, all reference to courts of special sessions having been omitted. This was immediately recognized as an oversight, and in the following session of the Legislature, chapter 360 of the Laws of 1882, was enacted, which amended the Code by adopting section 62, making applicable some 106 sections of the Code “ as far as may be to proceedings in all courts of special sessions ”. Section 388 was one of those included, subdivision 5 of which used identical language with that now being used in subdivision 7, viz.: The court must then charge the jury.” There has been no change throughout the succeeding years, except to renumber the paragraph (L. 1926, eh. 417).

Justices of the peace — we are told — paid little or no attention to that part of the enabling amendment requiring the court to charge the jury or, if they did, interpreted the statutory must ” as a permissive “ may ” and continued not to charge the jury in a criminal case. The practice became so general, particularly in the rural counties, that it gave rise to a well-established belief that a charge was unnecessary. It is explained that the reasons stem from the fact that justices of the peace, as a group, are men unskilled in the law and, by the simple device of omitting to charge the jury, have avoided many an appealable error, thereby facilitating a prompt and, in most instances, a final disposition of a criminal charge, for under such circumstances the jury necessarily acted as a judge of both the law and the facts. This view may have had a limited sanction many years ago (People v. Croswell, 8 Johns. Cas. 336), but in law has been settled otherwise. In criminal trials in special sessions the jury must take the law from the court (Duffy v. People, 26 N. Y. 588; Sparf and Hanson v. United States, 156 U. S. 51. See, also, People v. Sherlock, 166 N. Y. 180, 184).

The ostensible purpose of the amendment was to give to courts of special sessions a jury trial procedure in criminal cases, which it accomplished by reference to the sections establishing jury trial procedure in criminal cases in courts of record and by the use of the phrase “ as far as may be ” to eliminate inappropriate matter. While this method of enactment may be characterized as a legislative short cut, it is neither irregular nor prohibited and its force and effect must be deemed equivalent to an extended and repetitious enactment of the same matter under a like title. If the latter course had been followed, no one could have doubted the necessity for a jury charge. The use of the phrase “ as far as may be ” in section 62 does not excuse observance of the applicable requirements set forth in the specified sections, for to hold otherwise is to declare the statute a nullity. Nor do we construe the omission of the words and charge to the jury ”, or words of similar import, from section 713 of the Code of Criminal Procedure as authority for the justices of the peace not to charge the jury; nor may it be construed as furnishing an exception to the provisions of section 62. If there could be any doubt about this — and none is apparent — we would be bound to construe it in favor of the accused. In People ex rel. Cosgriff v. Craig (195 N. Y. 190, 197) Cullen, Ch. J., writing for the court, said: “ It is sufficient to say that in cases of doubtful construction or of conflicting statutory provisions, that interpretation should be given which best protects the rights of a person charged with an offense, to a trial according to the common law.”

Here the defendant, without raising objection to the form or sufficiency of the information, pleaded not guilty and demanded, and was accorded, the right to have the issues tried on the merits before a jury of six. He was entitled to have the jury instructed on the law as an essential of the trial. In the administration of justice, fundamentals designed to protect the indij vidual in his presumed innocence may not be disregarded (People v. Bradner, 107 N. Y. 1) and are not waived "by failure to object (People ex rel. Battista v. Christian, 249 N. Y. 314). The necessity to charge has the same imperative connotation as the opening statement by the District Attorney (People v. Romano, 279 N. Y. 392), which cannot be waived (People v. McLaughlin, 291 N. Y. 480). When liberty is the forfeit it can be slight comfort to the individual to be told that the distinction between a misdemeanor and a felony determines the measure of a fair trial; that in a trial by jury in a court of special sessions the protective procedure, designed to insure a fair and impartial trial, may be disregarded because the justice is unskilled in the law; and that trial procedure, which varies between communities, should be upheld because sanctioned by long-established practice. Failure, over the years, to charge a jury in criminal trials in special sessions is insufficient to overcome the statutory mandate expressed in clear and explicit language.

Having determined that in a criminal case the justice of the peace is required to charge and instruct the jury, we are also of the opinion that such requirement may not be waived, either by failure to object and take appropriate exception, or, for that matter, by affirmative stipulation. It is a fundamental requirement and the accused, having elected to proceed to trial by jury, must be accorded a trial in keeping with prescribed procedure.

In addition to the question hereinabove discussed, nine separate errors were advanced on this appeal, the principal of which challenged sufficiency of the information to confer jurisdiction, while the remainder depended upon technical rules of evidence, only one of which — use of field notes by a witness called by the People without showing a necessity to refresh recollection — had been preserved.by appropriate exception and which, in view of the indicated disposition, does not require discussion at this time.

The judgments should be reversed and a new trial ordered.

Lottghban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ., concur.

Judgments reversed, etc.


author: Thacher, J. Fuld, J.

text:
    In the Matter of the Accounting of Charles H. Sanford et al., as Surviving Trustees under the Will of Alfred H. Durston, Deceased. Jessie B. Durston et al., Appellants; Elizabeth C. Robertson et al., Respondents.
    Argued May 21, 1947;
    decided July 2, 1947.

      Colley E. Williams and Horace E. Whiteside for Jessie B. Durston and others, appellants.
    I. The trustees’ continued investment throughout the accounting period of funds in their own business- enterprise was unauthorized by the terms of the will and was in violation of law. (City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125; Matter of Stone, 138 Ohio St. 293; People v. Canton National Bank, 288 Ill. App. 418; Albright v. Jefferson County Nat. Bank, 292 N. Y. 31; Marcellus v. First Trust & Deposit Co., 291 N. Y. 372; Matter of Ryan, 291 N. Y. 376; Matter of Roche, 233 App. Div. 236, 245 App. Div. 192, 259 N. Y. 458.) II. The trustees’ duty with respect to this security was greater than with others. (Matter of Richardson, 149 Misc. 192, 229 App. Div. 738; Matter of Keane, 95 Misc. 25; Mills v. Hoffman, 26 Hun 594, 92 N. Y. 181; Strauss v. United States Fidelity & Guaranty Co., 63 F. 2d 174; Matter of Scudder, 21 Misc. 179; Matter of Foster, 218 Iowa 1202.) III. The trustees were negligent as a matter of law in failing promptly to dispose of this investment. (King v. Talbot, 40 N. Y. 76; Matter of Stumpp, 153 Misc. 92.) IV. The sale by the trust company to this estate of the additional 475 shares of its own capital stock constituted a breach of trust and was illegal and in violation of the duties of the trustees to the estate. (City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125; Central Hanover Bank & Trust Co. v. Russell, 290 N. Y. 593; Matter of Berges, 30 D. & C. 549; Matter of Stone, 138 Ohio St. 293.) V. The trustees’ retention of an undivided interest in real property was grossly negligent and . constituted a violation of their fiduciary duties. (Matter of Jackson, 258 N. Y. 281; Matter of Rowland, 273 N. Y. 100; Furniss v. Cruikshank, 230 N. Y. 495; Lawrence v. Littlefield, 215 N. Y. 561; Walbridge v. Brooklyn Trust Co., 143 App. Div. 502; Matter of Schuster, 257 App. Div. 55, 284 N. Y. 569.)

      Henry H. Bruce, special guardian, for Barbara D. Smith and others, appellant.
    I. The retention of the original 712 shares of the trust company stock, the exercise of subscription rights and the investment in additional stock was illegal. (City Bank Farmers Trust Co. v. Wylie, 273 N. Y. 304; Wendt v. Fischer, 243 N. Y. 439; Meinhard v. Salmon, 249 N. Y. 458; Matter of Roche, 223 App. Div. 236, 259 N. Y. 458, 245 App. Div. 192; City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125; Central Hanover Bank & Trust Co. v. Russell, 290 N. Y. 593; People v. Canton National Bank, 288 Ill. App. 418; Matter of Lewisohn, 294 N. Y. 596; Albright v. Jefferson County Nat. Bank, 292 N. Y. 31; Matter of Ryan, 291 N. Y. 376; Thruston v. Nashville & American Trust Co., 32 F. Supp. 929; Pyle v. Pyle, 137 App. Div. 568, 199 N. Y. 538.) II. The trustees were negligent in investing in the additional stock of the trust company and in retaining both the original and the additional stock throughout the accounting period. (Litchfield v. White, 7 N. Y. 438; King v. Talbot, 40 N. Y. 76; Matter of Stumpp, 153 Misc. 92; Gould v. Gould, 126 Misc. 54; Matter of Richardson, 149 Misc. 192, 229 App. Div. 738; Matter of Markowitz, 152 Misc. 1.) III. The trustees were negligent in retaining the real property in the trust. (Lawrence v. Littlefield, 215 N. Y. 561; Furniss v. Cruikshank, 230 N. Y. 495; Matter of Jackson, 258 N. Y. 281; Matter of Pinkney, 208 App. Div. 181, 238 N. Y. 602; Matter of Hopkins,
      133 Misc. 554, 226 App. Div. 180; Matter of Ziegler, 256 App. Div. 305; Matter of Schuster, 257 App. Div. 55, 284 N. Y. 569.)

      George B. Fearon and M. Harold Dwyer for Durston H. Sanford, as executor of Charles H. Sanford, deceased, respondent.
    I. There has been no self-dealing or violation of the rule against undivided loyalty on the part of the trustees. (Matter of Clarke, 257 N. Y. 132; Matter of Balfe, 245 App. Div. 22; Matter of Baker, 249 App. Div. 265; Albright v. Jefferson County Nat. Bank, 292 N. Y. 31; Matter of Lewisohn, 294 N. Y. 596; Matter of Griggs, 125 N. J. Eq. 73; Merchants Loan Co. v. Trust Co., 250 Ill. 86; Young v. Hood, 209 N. C. 801; Greenawalts Estate, 343 Pa. 413.) II. The evidence amply supports the conclusion of the courts- below that the trustees were not negligent in failing to sell the real estate. No question of law is presented in this respect. (Matter of Blaustein v. Pan American Pet. & Transp. Co., 174 Misc. 601; Matter of Winburn, 140 Misc. 18; North Adams National Bank v. Curtiss, 278 Mass. 471; Matter of Winburn, 140 Misc. 18; President and Directors of Manhattan Co. v. Williams, 152 Misc. 901; Matter of McCafferty, 147 Misc. 179; Matter of Andrews, 239 App. Div. 32; Matter of Wechsler, 173 Misc. 802; Matter of Rowland, 273 N. Y. 100.) III. The conclusion of the courts below t*hat the trustees were not negligent in failing to sell the trust company stock during the periods covered by the accounts is amply supported by the evidence. No question of law is presented on this issue.

      A. Van W. Hancock and William S. Estabrook for The Syracuse Trust Company, respondent.
    I. Retention by the trustees of the 178 shares of the trust company stock received from the executors was proper. There was no divided loyalty in such retention. (Matter of Riker, 124 N. J. Eq. 228, 125 N. J. Eq. 349; Matter of Paterson National Bank [Griggs], 125 N. J. Eq. 73; Matter of Cuddeback, 168 Misc. 698; Matter of Clark, 257 N. Y. 132; Matter of Weston, 91 N. Y. 502.) II. The exercise by the trustees of their rights to subscribe to additional shares of the capital stock of .the trust company was proper and justified. There was no self-dealing in the exercise of the stock rights by the three trustees. (Matter of First National Bank of the City of New York [Baker], N. Y. L. J., Feb. 6, 1941, p. 574; Matter of

      Vanderbilt, 132 Misc. 150; Merchants Loan Co. v. Trust Co., 250 Ill. 86; Young v. Hood, 209 N. C. 801; Greenawalt Estate, 343 Pa. 413; Clay’s Estate, 25 Pa. D. & C. 257.) III. In exercising the stock rights the trustees acted as reasonably prudent men in similar circumstances. (Chemical Bank & Trust Co. v. Renaud, 150 Misc. 821, 239 App. Div. 904; Matter of Hirsch, 116 App. Div. 367, 188 N. Y. 584; Matter of Hall, 164 N. Y. 196; Matter of Balfe, 245 App. Div. 22; Matter of Clark, 257 N. Y. 132; Matter of Tuttle, 162 Misc. 286; Matter of Pratt, 143 Misc. 751.) IV. The trustees ’ retention of the 712 shares of the original stock and the 475 shares of stock of the trust company received fropa the exercise of the stock rights was proper. There was no divided loyalty. (Matter of Weston, 91 N. Y. 502; Marshall Field Trust, 250 Ill. 86; Pettigrew’s Estate, 115 N. J. Eq. 401, 116 N. J. Eq. 566; Westfield Trust Company, 117 N. J. Eq. 29; Matter of Parson, 143 Misc. 368; Matter of McKee, 147 Misc. 889; Matter of Andrews, 239 App. Div. 32; Great Northern Ry. Co. v. Weeks, 297 U. S. 135; Werk v. Parker, 249 U. S. 130; Muellar v. Oregon, 208 U. S. 412; Jay Burns Banking Co. v. Bryant, 264 U. S. 404.) V. The Cannon case (291 N. Y. 125) and related cases are not decisive of the issues herein involved. VI. The delegation of administerial duties of the management of the real property and retention of the undivided interest in the real property by the trustees was proper. (Matter of McDowell, 102 Misc. 275.)

      John B. Tuck and John B. Tuck, Jr., for Elizabeth C. Robertson, as executrix of Edward L. Robertson, deceased, respondent.
    I. The trust clause gave to the trustees broad and extensive powers. II. There was no violation of law or abuse of discretion in retaining the trust company stock or exercising rights. (Matter of Ryan, 291 N. Y. 376; Crabb v. Young, 92 N. Y. 56; Matter of Weston, 91 N. Y. 502; Central Hanover Bank & Trust Co. v. Russell, 290 N. Y. 593; Matter of Clark, 257 N. Y. 132; Matter of Balfe, 245 App. Div. 22.) III. The exercise of rights to subscribe for additional shares in the trust company did not constitute a violation of the trust. (Matter of Vanderbilt, 132 Misc. 150; Merchants Loan Co. v. Trust Company, 250 Ill. 86; Ballantine v. Young, 79 N. J. Eq. 70; Tower’s Estate, 253 Pa. 396; Matter of First National Bank of the City of New

      York [Baker], N. Y. L. J., Feb. 6, 1941, p. 574.) IV. There is no proof of disloyalty to the trust. (Matter of Kramer, 172 Misc. 598; Crabb v. Young, 92 N. Y. 56; Purdy v. Lynch, 145 N. Y. 462; Guaranty Trust Co. of N. Y. v. Fisk, 244 App. Div. 200; Costello v. Costello, 209 N. Y. 252 Matter of Andrews, 239 App. Div. 32.) V. No possible charge of divided loyalty can be placed against the deceased trustee. (Earle v. Earle, 93 N. Y. 104; Ormiston v. Olcott, 84 N. Y. 339; Wilmerding v. McKesson, 103 N. Y. 329; Matter of Whitmore, 172 Misc. 277.) VI. There was no negligence or breach of trust in the handling of the real estate. (Purdy v. Lynch, 145 N. Y. 462; Matter of Jackson, 258 N. Y. 281; Matter of Rowland, 273 N. Y. 100; Furniss v. Cruikshank, 230 N. Y. 495; Lawrence v. Littlefield, 215 N. Y. 561; Aerated Products Co. v. Godfrey, 290 N. Y. 92; Chaplin v. Selznick, 293 N. Y. 529.)
   Thacher, J.

In City Bank Farmers Trust Co. v. Cannon (291 N. Y. 125) we stated the . rule of undivided loyalty which, in the absence of statute, contrary directions in the instrument creating the trust, or estoppel, is applicable to retention or purchase of its own shares by a corporate trustee. The respondents urge that the rule óf undivided loyalty there stated is not applicable here because the shares in the corporate trustee came to the trust from the estate of the testator and because of the broad powers granted to the trustees with respect to investments.

The testator died on October 5, 1926. His will read in part as follows: “ I give, bequeath and devise all the rest, residue and remainder of my property, both real and personal, to Charles H. Sanford, Edward L. Robertson and The Syracuse Trust Company in trust, nevertheless, to hold, care for, manage and control the same, to sell and convert into money any part or all thereof, without the authorization or approval of any court, to invest or reinvest the same, or portions thereof, in such interest bearing or income producing securities or property as to the said trustees, in the exercise of their discretion, may seem best, with all the authority, and powers in connection with the same, I would possess, if living * * *.

“ * * * in addition to the powers and authority herein conferred upon my said executors and trustees, I authorize and empower my said executors to contract for the sale of, and to sell, with or without covenants of title, any and all of the real property or estate or interest therein, of which 1 shall die seized or the owner * * *

Testator’s lather was.one of the subscribers to the original shares of the Trust Company and a member of the board of directors from 1906 to his death in 1921 with the exception of a two-year period. Upon his father’s death the testator received 168 shares of the Trust Company from his estate, and, prior to receiving the 168 shares, had bought 10 shares.

On June 12, 1929, a reduction in the par value of the Trust Company’s shares from $100 to $25 and a corresponding increase in the number of shares from 15,000 to 60,000 was authorized. At the same meeting an increase of the company’s capital from $1,500,000 to $2,500,000 was authorized, and for this purpose 40,000 additional $25 par shares were to be issued. Thus for'the 178 original shares ($100 par) the trustees became entitled to receive 712 shares ($25 par) and to subscribe for 474% shares. A fractional right was purchased for $29 and the trustees subscribed for 475 additional shares, making a total of 1,187 shares which they now hold. For each of these additional shares they paid $75. There was a market for the sale of these subscription rights at a price which varied from $39.50 to $63. Judge Robertson advised that exercise of the subscription rights was proper and he and Mr. Sanford concurred with the Trust Company in deciding to exercise the rights. The subscription to the additional shares was made on September 30, 1929, and resulted in an overdraft of $18,723.56 in the trustees’ account with the Trust Company. Five thousand dollars left with the executors by the Surrogate’s Court for the purpose of taking care of disputed tax items was also used in payment of the subscription. Sales of securities sufficient to cover the balance of the overdraft were effected by January 31, 1930,

No dividends have been paid on the Trust Company’s stock since 1933 and the value of the 1,187 shares at September 19. 1939, the close of the accounting period involved in this litigation, was $9,496 as compared with a book value of $114,864.

In view of the rule of undivided loyalty as applied to the retention or purchase of shares of stock in a corporate trustee, one must, in order to authorize such transactions, find authority either in the statute or in the instrument creating the trust. In 1938 (L. 1938, ch. 356) the Legislature amended the Decedent Estate Law and the Personal Property Law by adding to section 111 of the Decedent Estate Law a new subdivision 6 reading as follows: 6. No fiduciary shall be liable for any loss incurred with respect to any investment not eligible by law for the investment of trust funds if such ineligible investment was received by such fiduciary pursuant to the terms of the will, deed, decree of court, or other instrument creating the fiduciary relationship or if such ineligible investment was eligible when received, or when the investment was made by the fiduciary; provided such fiduciary exercises due care and prudence in the disposition or retention of any such ineligible investment ”, and by adding a similar provision to section 21 of the Personal Property Law.

The transactions involved in the Cannon case (supra), and in this case occurred before the enactment of this statute. Consequently one must turn for authority, if any there be, to provisions of the testator’s will under the terms of which the testamentary trust was created. The will contains no retention clause authorizing retention by the trustees of the Trust Company’s shares or any other securities. Eespondents emphasize the relationship of the parties and the broad grant of power denoted by the phrase with all the authority, and powers in connection with the same, I would possess, if living ”, These are broad words and it is claimed that no" stronger could have been found to authorize the retention or purchase of securities as trust investments. The circumstances that the testator used these words with reference to the very shares of the corporate trustee forming part of his estate at the time of his death and named the corporate trustee and its president as two of his three testamentary trustees are urged in support of the interpretation of the language of the will as meaning that they should deal with these shares as he himself might have done. There is much force in this argument and if we were dealing with a simple contract it would perhaps prevail. But we are here dealing with the fundamental relationship between a trustee and the beneficiaries of the trust, which we have attempted to define in language which will permit no exception or departure from the rule of fundamental fidelity expressed m Meinhard v. Salmon (249 N. Y. 458, 464); Wendt v. Fischer (243 N. Y. 439, 444); Munson v. Syracuse, G. & C. R. R. Co. (103 N. Y. 58, 74); Dutton v. Willner (52 N. Y. 312, 318), a rule which in City Bank Farmers Trust Co. v. Cannon (supra) we declared to have been designed “ to obliterate all divided loyalties which may creep into a fiduciary relationship and utterly to destroy their effect by making voidable any transactions in which they may appear.” (P. 132.)

The testamentary trust created a trust relationship, a trust administered under law by trustees governed and controlled by the fundamental duties and obligations of the legal status in which they were required to act. We may not infer from broad grants of power to hold, care for, manage and control ” the trust estate; “ to sell and convert into money any part or all thereof * * *, to invest or reinvest the same, or portions thereof, in such interest bearing or income producing securities or property as to the said trustees, in the exercise of their discretion may seem best ”, that such authority was to be exercised without regard to the fundamental duties and loyalties imposed upon all trustees, and we must construe the language used in the same context — “ with all the authority, and powers in connection with the same, I would possess, if living ” — as a grant of wide power and discretion, to be exercised, however, in the manner and subject to the obligations and duties of trustees. If the testator intended that all these things could be done without regard to the fundamental rule of absolute loyalty and fidelity prohibiting any purchase or retention of securities involving a divided loyalty, the authority should have been stated. The discretionary powers granted were broad but still subject to the prohibitions laid upon all trustees. Although a power is conferred upon the trustee, he cannot properly exercise the power under such circumstances or to such extent or in such manner as will involve a violation of any of his duties to the beneficiary (Carrier v. Carrier, 226 N. Y. 114, 125-126; Restatement, Trusts, § 186, comment f).

It is contended by the executrix of the estate of Edward L. Robertson, who before his death was one of the trustees, that her testator’s estate is not subject to a surcharge because his action in approving the retention of shares of the Trust Company and the acquisition of additional shares was entirely disinterested and uninfluenced by any consideration other than the interests of the beneficiaries. That was true, but it is not questioned that he gave his approval to the retention of the shares of the Trust Company held by the testator and to the acquisition of additional shares as well. Under these circumstances his liability as a cotrustee concurring in and approving illegal investments may not be avoided because he was personally uninfluenced by the conflicting interests to which his cotrustees were subjected. The basis of his liability is found in his approval of and acquiescence in such investments which resulted in loss to the beneficiaries. When a cotrustee approves a prohibited investment and such losses result, his liability is clear (Wilmerding v. McKesson, 103 N. Y. 329, 339-340; Matter of Myers, 131 N. Y. 409, 420; Croft v. Williams, 88 N. Y. 384, 388-389; Meldon v. Devlin, 31 App. Div. 146, 162-163, affd. on certified questions covering other points 167 N. Y. 573; Restatement, Trusts, § 224, subd. [2], cl. [c]; 2 Scott on Trusts [1939 ed.], §§ 224, 224.4).

Attempt was made in this case to surcharge the trustees for failure to sell undivided one-third interests in certain real estate the value of which greatly depreciated during the depression years. These objections to the trustees ’ accounts were overruled in both courts below. The questions presented involved determinations of fact and we cannot- say as a matter of law that the courts erred in overruling these objections.

In the brief of The Syracuse Trust Company there is a suggestion that, while the life beneficiary of the testamentary trust did not have a power of revocation as did the life beneficiary in the Cannon case (supra) nevertheless the life beneficiary, and through her .the remaindermen, were estopped as fully as were the settlor and the beneficiaries claiming under her in the Cannon case. The point is not mentioned in the opinions below and we see no merit in it.

The orders should be reversed and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion.

Fuld, J.

(dissenting). The principle of undivided loyalty —

that a corporate trustee may not retain or deal in its own securities or otherwise occupy a position in which it has interests to serve other than the interest of the trust estate (City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125, 131) — is firmly entrenched in our law. It prescribes an essential, an admirably essential, standard of conduct, but there is no doubt that a settlor may relax the rule and permit the trustee to deal with the trust property in such manner as otherwise might not be sanctioned. He may, for instance, expressly authorize his trustee to retain, or deal in, its own securities. Verbiage so explicit, however, is not demanded; the same result may be accomplished by other language, and here, I believe, the testator indicated his intent that his trustees be vested with such power.

The words chosen by the testator, as Judge Thacher acknowledges, confer truly broad powers of discretion upon the trustees, particularly the power to exercise “ all the authority, and powers in connection with the same, I would possess, if living ”. Neither the Cannon case (supra), nor any other case can effectively alter their breadth. Here, in addition, we have more than words to point the testator’s intent. It also appears that the testator had participated in the affairs of The Syracuse Trust Company as a member of its board of directors; that he had owned and retained a block of its stock; that he had appointed two trustees in addition to The Syracuse Trust Company, one of them his own attorney of long standing, the other the Trust Company’s president who was also his brother-in-law. Under such circumstances, the testator’s choice of language certainly evinces an unmistakable intent that the Trust Company was not to be bound by the rule of undivided loyalty insofar as retention of, and dealing in, its stock were concerned. (See, e.g., Scott, Trustee’s Retention of Its Own Shares, 57 Harv. L. Rev. 601, 608, et seq., 616-617.)

The orders should be affirmed, with costs.

Loughran, Ch. J., Conway, Desmond and Dye, JJ., concur with Thacher, J.; Fuld, J., dissents in opinion; Lewis, J., taking no part.

Orders reversed, etc.


author: Per Curiam.

text:
    In the Matter of Niagara Frontier Co-operative Milk Producers Bargaining Agency, Inc., et al., Individually and on Behalf of All Other Co-operative Associations and Milk Producers Similarly Situated, Appellants, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, et al., Respondents. In the Matter of Rochester Co-operative Milk Producers Bargaining Agency, Inc., et al., Individually and on Behalf of All Other Co-operative Associations and Milk Producers Similarly Situated, Appellants, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, et al., Respondents.
    Argued May 26, 1947;
    decided July 2, 1947.

      Raymond F. Allen, T. Carl Nixon and Hampton H. Halsey for petitioners-appellants.
    I. A quality differential is one based upon the inherent constituents of mill?, that is, butter fat content. Cost of production and marketability are not factors upon which a quality differential may properly be based. (Chittenden Lumber Co. v. Silberblatt & Lasker, Inc., 288 N. Y. 396;
      Woollcott v. Shubert, 217 N. Y. 212; New York Trust Co. v. Eisner, 256 U. S. 345; Lightbody v. Russell, 293 N. Y. 492; Matter of McNerney v. City of Geneva, 290 N. Y. 505; Matter of Russell, 294 N. Y. 99; Matter of Weiden, 263 N. Y. 107; New York State Guernsey Breeders Co-op. v. Wickard, 141 F. 2d 805; Hegeman Farms Corp. v. Baldwin, 293 U. S. 163; Matter of Morgan v. Noyes, 264 App. Div. 823, 290 N. Y. 737.) II. There are no findings of fact to support the order reviewed. (Matter of New York State Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197.) I'll. The facts found by the former commissioner and reaffirmed by the present commissioner are supported by substantial evidence, and a denial of a differential was proper. The Court of Appeals should direct the commissioner to annul the present order and reinstate the former determination denying the differential. (Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459; Matter of Bergman v. Mergenthaler Linotype Co., 294 N. Y. 204; Matter of Dusinberre v. Noyes, 284 N. Y. 304; Matter of New York State Guernsey Breeders Co-op. v. Wickard, 141 F. 2d 805; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Weinstein v. Board of Regents, 292 N. Y. 682; United States v. Ruzicka, 329 U. S. 287; Messersmith v. American Fidelity Co., 232 N. Y. 161; Matter of Nash v. Brooks, 276 N. Y. 75; Matter of Cole, 235 N. Y. 48; Swayne & Hoyt v. United States, 300 U. S. 297; Bullock v. Cooley, 225 N. Y. 566; Sioux Tribe of Indians v. United States, 316 U. S. 317.)

      Rowland L. Davis for Holstein-Friesian Association of America, amicus curiae, in support of appellants’ position.
    The order of the commissioner is illegal and void. (Matter of Dusinberre v. Noyes, 284 N. Y. 304; People ex rel. Jung v. Exam. Board of Plumbers, 252 App. Div. 830; New York State Guernsey Breeders Co-op. v. Wickard, 141 F. 2d 805; Tagg Bros. v. United States, 280 U. S. 420.)

      Robert G. Blabey and Donald L. Brush for C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, respondent.
    I. The. hazards of fair competition do not authorize or justify the Guernsey differential. (Hegeman Farms Corp. v. Baldwin, 293 U. S. 163.) II. The determination of the former commissioner is supported by sufficient proof. The weight of the evidence’ is not against it and its reasonableness is satisfied upon the whole record. (Matter of

      Dusinberre v. Noyes, 284 N. Y. 304.) III. Petitioners were not aggrieved until the present commissioner’s decision. The instant cases presented their first opportunity for their day in court. (Dunn & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; New York Foreign Trade Zone Operators. Inc., v. State Liquor Authority, 285 N. Y. 272.)

      Irving G. Hubbs and Merritt A. Switzer for New York State Guernsey Breeders Co-operative, Inc., respondent.
    I. Appellants are not proper parties to the proceeding and have no right to review the determination of the commissioner under article 78 of the Civil Practice Act, or to appeal to the Appellate Division or to this court, and their appeal should be dismissed. (Matter of Mount Hope Development Corp. v. James, 233 App. Div. 284; Matter of Goldstein v. State Commissioner of Correction, 182 Misc. 695; People ex rel. Burnham v. Jones, 110 N. Y. 509; Matter of Dolphin, 240 N. Y. 89.) II. The intermediate orders of the Appellate Division are not reviewable on this appeal under section 580 of the Civil Practice Act, although specified in the notice of appeal. (People ex rel. Burnham v. Jones, 110 N. Y. 509; Matter of Weinstein v. Board of Regents, 292 N. Y. 589; Matter of Epstein v. Board of Regents, 295 N. Y. 154; Matter of Robitzek Investing Co. v. Murdock, 296 N. Y. 632; Matter of Budlong, 126 N. Y. 423; Matter of City of New York, 265 N. Y. 170; Fade v. Sanitary Fireproofing and Contracting Co., 257 N. Y. 203; Matter of Begent v. Noyes, 284 N. Y. 229; Matter of Colonial Liquor Distributors v. O’Connell, 295 N. Y. 129; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459.) III. Petitioners are bound by the rules of stare decisis and res judicata. While áll the petitioners were not formal parties to the previous proceedings, some filed briefs amicus curiae and they were all represented by the commissioner and are .as firmly bound by the decisions against him as they would have been if they had been formal parties. (Matter of Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197; Matter of Clark v. Smith, 250 App. Div. 233; Rowlee v. Durfey, 227 App. Div. 219; Brenner v. Title Guarantee & Trust Co., 276 N. Y. 230; Ashton v. City of Rochester, 133 N. Y. 187; People’s Gas & Electric Co. v. City of Oswego, 207 App. Div. 134, 238 N. Y. 606; McIntosh v. City of Pittsburgh, 112 F. 705; Montgomery v. Equitable Life Assur. Soc., 83 F. 2d 758; House v. Lockwood, 137 N. Y. 259; Donahue v. New York Life Ins. Co., 259 N. Y. 98.) IV. A differential under the statute is based on quality. In determining the question of quality, the commissioner should consider the cost of production as an element. The word “ quality ” used in the statute does not mean butter fat alone. (Matter of Guernsey Breeders Co-op. v. Noyes, 284 N. Y. 197; Heiman v. Bishop, 272 N. Y. 83.) V. The findings of fact are sufficient to support the order of the commissioner here for review, even if findings were required; in fact no findings were required, as the decision was in favor of respondent. (Gibson v. Stetzer, 3 Hun 539; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488; Matter of Cole v. Lyboldt, 296 N. Y. 659.) VI. The order is not void because of the statement of the commissioner embodied therein to the effect that he made the order in compliance with the decision and order of the Appellate Division. (Matter of Weinstein v. Board of Regents, 292 N. Y. 589; Matter of Robitzek Investing Co. v. Murdock, 296 N. Y. 632; Matter of Clark v. Smith, 250 App. Div. 233; Cambron v. State, 191 Ind. 431, 19 A. L. R. 623.)
   Per Curiam.

The petitioners, having appeared and opposed the order sought to be reviewed, were entitled to prosecute a proceeding under article 78 of the Civil Practice Act to review the commissioner’s determination as parties to the record before the commissioner whose property and rights were immediately and directly involved. The order was invalid upon its face, the commissioner having recited that he signed it without finding or determining the facts upon which his official act was predicated, and only because of a belief, quite obviously mistaken, that he had been directed so to do by the Appellate Division. The statute, subdivision 6 of section 258-m of the Agriculture and Markets Law, provides for an equalization of prices “ so that each producer or co-operative association shall receive the same base price for all milk delivered subject to reasonable differentials for quality and location and for services.” In the instant case the only questions presented relate to quality. The testimony established with little if any question that there is an intrinsic characteristic in Guernsey milk which distinguishes it from other milk. The intrinsic difference may or may not justify a “ reasonable differential ”. In determining what is reasonable under all the circumstances the commissioner exercises a wide discretion but is to be guided by the fundamental purpose of the statute of establishing in a great market fair and equitable equalization of prices. The Legislature has quite deliberately refrained from prescribing rigid rules to control the exercise of this broad discretion, and in Matter of New York State Guernsey Breeders Co-op., Inc., v. Noyes (284 N. Y. 197), we did not intend to bind this discretion by mandatory prescriptions regarding the commissioner’s process of decision but in that case found it necessary to remit the matter to the commissioner because of his failure to make findings upon which he predicated his conclusion that a differential should not be granted. Without such findings the courts would be unable to determine whether or not the statutory mandate had been carried out.

It may be that confusion has resulted from the statement in the opinion in Matter of New York State Guernsey Breeders Co-op., Inc., v. Noyes (284 N. Y. 197, 203, supra), that the commissioner has power to grant a differential where it is shown that there exists a distinct difference in production cost, quality or marketability of milk of one breed of cows from that of other breeds ’ ’. The correctness of that statement cannot be questioned but it does not mean that every such difference in production cost necessarily imposes a statutory duty upon the commissioner to grant a differential. On the contrary, that circumstance is but one of many elements to be considered in fairly and justly determining the equalization price and differential with reference to quality, location and service. It is enough to say at this time that the case is remitted to the commissioner with directions to find and state the conclusions of fact upon which he predicates whatever determination he may make upon a reconsideration of the testimony already taken and such other testimony as the parties may adduce.

The orders of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to the commissioner for further proceedings in accordance with this opinion.

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

Orders reversed, ets.


author: Conway, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Kenneth Snyder and Henry Kennedy, Appellants.
    Argued May 27, 1947;
    decided July 2, 1947.

      W. Bartlett Sumner and John 0. Henderson for Henry Kennedy, appellant.
    I. The fundamental right of a defendant to defend by counsel of his own choosing is denied unless he obtains a reasonable time and a fair opportunity to secure counsel of his own choice and, with that counsel’s assistance, to prepare for trial. (People v. McLaughlin, 291 N. Y. 480; U. S. Const. 6th Amendt.; N. Y. Const, art. I, § 6; Code Crim. Pro., §§ 8,188, 308, 357; People v. Spohr, 206 N. Y. 516.) II. Where a homicide case is submitted to the jury on two or more distinct theories, one of which is basically wrong, the court cannot speculate as to which theory was adopted and a conviction of murder in the first degree will be reversed. (People v. Lazar, 271 N. Y. 27.) III. Where a person is convicted of a felony murder, it must be properly charged that the killing must take place during the period between the inception of the attempt to commit the felony and the consummation, frustration or abandonment of the attempt and that the accused specifically intended to commit such felony. (People v. Wagner, 245 N. Y. 143; People v. Ryan, 263 N. Y. 298; People v. Luscomb, 292 N. Y. 390; People v. Levan, 295 N. Y. 26; People v. Roper, 259 N. Y. 170.) TV". Where a confession of a defendant is obtained while he is handcuffed to a police officer and returned to the scene of the crime and asked questions concerning the crime, it is not an involuntary confession and should not be admitted in evidence against him. (Code Grim. Pro., § 395; People v. Smith, 232 N. Y. 239.)

      Jerome Cantor and W. Franklin Ness for Kenneth Snyder, appellant.
    I. Defendant Snyder was entitled to a separate trial and refusal to grant this, was an abuse of trial court’s discretion; in retrospect, the failure to give him a separate trial was an injustice and an impairment of his substantial rights.' (People v. Feolo, 282 N. Y. 276; People v. Robinson, 273 N. Y. 438.) II. Allowing proof of the commission of another crime and permitting the introduction of other evidence, implying or intimating that another crime was committed by the defendant, was reversible ‘ error. (People v. Feldman, 296 N. Y. 127; People v. Molineaux, 168 N. Y. 264; People v. Robinson, 273 N. Y. 438; People v. Harvey, 235 N. Y. 282; People v. Loomis, 178 N. Y. 400; People v. Buffom, 214 N. Y. 53; Boyd v. United States, 142 U. S. 450.) III. The trial court committed numerous errors of more than a technical nature which were prejudicial to defendant Snyder and which justify and require a reversal of his conviction. (People v. Feldman, 296 N. Y. 127; People v. Elmore, 277 N. Y. 397.) IV. It was error for the trial court to refuse to charge that there was a duty on the police to arraign the defendant Snyder without necessary delay, which is the substance of section 165 of the Code of Criminal Procedure, to wit, “ The defendant must in all cases he taken before the magistrate without unnecessary delay ”. (Penal Law § 1844; People v. Elmore, 277 N. Y. 397; People v. Alex, 260 N. Y. 425; People v. Leonardi, 143 N. Y. 360.) V. Under section 425 of the Code of Criminal Procedure, the court “may permit” the jury, upon retiring, to take all exhibits, “but only upon the consent of the defendant and counsel for the People”, VI, Defendant Snyder was not accorded a fair trial and his conviction should be reversed and a new trial granted. (People v. Sobieskoda, 235 N. Y. 411; People v. Wolf, 183 N. Y. 464.)

      Gordon Steele, District Attorney (Leonard Finkelsteim of counsel), for respondent.
    I. The trial court’s denial of the motion for adjournment did not prejudice the rights of appellant Kennedy. II. The trial court submitted the case to the jury with proper instructions on two theories, murder by premeditation and deliberation, and felony murder. The jury returned a verdict of guilty of murder in the first degree, on felony murder, without recommendation of life imprisonment. The theory adopted, and the intention of the jury, was thus clear and distinct. ITT, The trial court properly charged that in felony murder, the homicide must occur during the commission of, or in an attempt to commit, a felony and also, on intent of accused to commit the felony. (People v. Rutigliano, 261 N. Y. 103.) IV. The trial court fully and adequately charged on the various degrees of homicide in connection with the ability of the defendant to form intent to commit the felony. (People v. Cummings, 274 N. Y. 336; People v. Koerber, 244 N. Y. 147; People v. Stevens, 272 N. Y. 373; People v. Moran, 246 N. Y. 100.) V. The confessions by appellants, in re-enacting the crime at the scene, were properly received and submitted for consideration by the jury. (People v. Meyer, 162 N. Y. 357; People v. Chapman, 224 N. Y. 463; People v. DiGregario, 205 App. Div. 629; People v. Doran, 246 N. Y. 409; People v. Garfalo, 207 N. Y. 141; People v. Randazzio, 194 N. Y. 147.) VI. The court’s discretion was properly exercised in the denial of a separate trial. (People v. Snyder, 246 N. Y. 491; People v. Fisher, 249 N. Y. 419; People v. Doran, 246 N. Y. 409; People v. Marcus, 220 App. Div. 697, 246 N. Y. 637.) VII. Denial was made of any unnecessary delay. The evidence, not only by the People’s witnesses but by the appellants, clearly establishes that the arraignment was not unnecessarily delayed to provide time and opportunity for the extortion of the confessions, by means of force, fear, threats or promises. VIII. The trial court’s action with respect to the exhibits was proper. An objection plainly stated on the record is more satisfactory than the unrecorded words of a private conversation, and, is in greater protection of the appellant’s rights, in the event of error or inadvertence in the taking of the exhibits. This is consistent with the intent of se.tion --,05 of the Code of Criminal Procedure. (People v. Hrglr. ,u, N. Y. 153; People v. Gallagher, 75 App. Div. 39, 174 N. Y. 500; People v. Dolan, 186 N. Y. 4; Levy v. Corn, 191 App. Div. 56.)
   Conway, J.

On an evening in September, 1946, the defendants met in a tavern in Buffalo. Both had been drinking and they continued to do so together. They had known each other for a few months. About midnight Snyder asked Kennedy if he would go with him to a house at Mortimer Street and Broadway, where he had formerly occupied a room, to get a watch which he had left there as well as any other money or valuables which could there be stolen. Kennedy said he would and they set off together. The watch was a “ woman’s gold wrist watch ” which Snyder had purchased for $5, believing it to have been stolen, and which he had hidden in an electrical outlet. The room was numbered 1 and was on the second floor, of a two-story building, over a store. There were a dozen or more very small rooms on the floor with a common bathroom. They were numbered and let to roomers. They rented for approximately $2.50 each per week or for about 35 cents a day. Snyder had not lived in the house since 1944 but this was not the first time he had returned to seek the watch. In July of 1946, two months before, he had returned when intoxicated'— he had been convicted of drunkenness in 1944 and again in 1945 — and had told the then occupant of room 1, the witness Bress, about the watch and had asked to be permitted to get it. Bress had refused and had put him out of the house. When Snyder and Kennedy arrived on this September night, they climbed upon the roof of the adjoining building and then entered the rooming house through a window. Kennedy said Snyder unlocked a door with some keys and they entered room 1. Snyder took the face off an outlet near the floor but failed to find his watch. They searched some clothes there, pulled the mattress off the bed and cut or ripped it open. They stayed in the room for ten or fifteen minutes but found nothing. Snyder then left that room, went along the corridor toward the rear and approached room 10. That had been the room of a man whom Snyder had noticed on more than one occasion loitering, as he thought, near room 1, when Snyder lived there and he intended to ask him, if he were still there, whether he knew anything about the watch. He saw a light under the door and knocked. Unfortunately room 10 was then occupied by William Callahan, the deceased, an elderly man who was employed as a janitor of a church. Callahan was not the man Snyder expected to see and neither defendant had ever seen him before. He opened his door and appeared to be surprised to see the defendants. They thought he was going to call out so they struck him, knocked him down and jumped upon him with their feet or kicked him. One or both ruptured his liver, lacerated his spleen, fractured his sternum and ribs and cut him upon the hand and face. From the injuries to the liver and spleen he died. They searched Callahan and the room but found nothing of value. They then left the premises, visited another tavern and separated. Snyder said he remembered nothing more until he awakened in his sister's home at noon the next day. Kennedy’s wife testified that someone brought him home and he staggered to bed where he slept in his clothes and she left him there the following morning when she went to work. Neither Snyder nor Kennedy saw the other again until after their arrest on the 8th and 9th days of October respectively. Then each attempted to absolve himself of the killing and to put the full blame for the crime upon the other.

Such is the substance of the occurrences detailed to the jury. The defendants could have been bent upon robbery and brutally slaying Callahan to effectuate .their purpose or the slaying might have been the result of drunken frenzy, without intent either to commit robbery or cause death. This was surely a case where it was necessary for prosecution and court to exercise “ a caution increasing in degree as the offenses dealt with ” increased in gravity (Patton v. United States, 281 U. S. 276, 313) in order that the defendants might be accorded their legal rights despite the natural indignation inspired by their conduct. One of those rights was to have counsel who was adequately prepared to defend them (Glasser v. United States, 315 U. S. 60, 71).

The defendants were tried for murder committed while engaged in an attempted robbery and for common-law murder. While some reference was made to burglary the court in response to the final request to charge stated to the jury that “ if it were a burglary to get into that house originally, it had been completed, in the Court’s opinion, and when they went into room 10 they were embarking on a different enterprise. There is no connection whatsoever with the burglary.” (Emphasis supplied.) That became the law which the jury was obligated to accept and apply and which is binding upon the People on this appeal. Both defendants were convicted of murder in the first degree while engaged in the commission of a felony, without a recommendation of life imprisonment.

The crime was committed on September 28, 1946. By October 25th it was evident that Snyder and Kennedy were wholly destitute and unable to employ counsel of their own choosing or to defray any incidental expense which might be incurred in the conduct of their cases. The County Court Judge so found and thereupon, on that day, assigned counsel for Snyder and separate counsel, Mr. Dwyer and Mr. Henderson, for Kennedy. In the following month, Mr. Steele, who later tried the instant case, was elected District Attorney of Erie County. Between the date of his election and December 31st he invited Mr. Dwyer, counsel for Kennedy, to become First Assistant District Attorney under him. On December 31st the same County Judge who had made the original assignment, entered an order, dated on that day, which contained the following recitals, among others, “ It further appearing that the said John F. Dwyer has been appointed and has accepted the position of Assistant District Attorney of Erie County, and

It further appearing that by accepting said appointment, the said John F. Dwyer, Esq., has disqualified himself to act as counsel for the said defendant, Henry Kennedy, and the said resignation of the said John F. Dwyer having been received and accepted, and * * *

The order then directed that Mr. Dwyer be relieved of his counselship to Kennedy and that W. Bartlett Sumner be appointed in his place.

The clerk’s minutes show that on January 3d, three days later, Mr. Steele moved before the Trial Justice to transfer the case to the Supreme Court and that the motion was granted. Mr. Sumner was1 present, as appeared later, because the County Judge had told him on December 31st that the retiring District Attorney had noticed the trial for January 6,1947. Mr. Sumner requested an adjournment for two weeks since he had been in the case for but three days. The minutes recite: Motion denied for any postponement.” (Emphasis supplied.)

On January 6th, Mr. Sumner again appeared with Mr. Henderson before the Trial Justice and the following proceedings, quoted in full, were had:

Mr. Sumner: May it please the Court, last Friday morning the District Attorney moved this case for trial against the defendant Henry Kennedy and the defendant Kenneth Snyder, both being charged with the crime of murder in the first degree.

u At that time there was no stenographer present when I made application for adjournment. Your Honor very graciously heard my argument and after we completed our argument and you ruled I called your attention to the fact there was no stenographer, I assume you will recall, and you said we could make the motion, so it would be part of the record, this morning, and, therefore, I will state now, as I did then, as to myself I was not notified until about noon Tuesday, the 31st day of December, by County Judge Robinson that he had appointed me to take the place of John Dwyer, who previously had been appointed to represent this defendant.

“ At that time I told Judge Robinson I would accept the appointment but I did not know when I could get ready. He informed me he understood it was set for trial January 6th and, of course, any application I would make for adjournment would have to be made to your Honor.

“ The following day was New Year’s, Wednesday, and Thursday was the first time I was able to get in touch with the counsel, Mr. John Henderson, who had been appointed originally with Mr. Dwyer. In consultation with Mr. Henderson I learned he practically knew nothing about the case, had done little or no investigating, having relied upon Mr. Dwyer as counsel. I learned the only thing that had been done was that they made an application to your Honor for appointing a couple of psychiatrists, who were then making an examination of the defendants, and that the final step in their examination was to be taken this morning, the 6th of January, at the General Hospital, at 10 a.m., and would not receive the report until after that date.

“ Mr. Dwyer in the meantime accepted an appointment as First Assistant District Attorney and I was unable to contact him until, I think, Saturday morning. I am not too sure about that; I may have gotten in touch with him Friday.

“ The Court: You argued for adjournment as of last Friday. Let us not get beyond Friday.

“ Mr. Sumner: Yes, let us not get beyond Friday. At that time I stated, and Mr. Henderson amplified my request,— we stated we felt the time was too short to properly prepare this case for trial and that we were not ready and I requested adjournment for two weeks, and your Honor at that time intimated, in fact, we were to be ready for trial, that you would not grant an adjournment and we. should be ready for trial on Tuesday, the 7th of January. I wish now to take exception to your Honor’s ruling.

“ The Court: All right, you have the exception. Case set for tomorrow morning at 10 o’clock.

“ Mr. Henderson: Your Honor ruled from the bench we were to have the names of the witnesses before the Grand Jury, which we assumed would be forthwith. We haven’t them yet.

“ Mr. Ball:' T have them right.now.

“ The Court: All right. Case set for tomorrow morning at 10 a.m.”

Neither the District Attorney nor the court questioned the truthfulness of the representations made by Mr. Sumner and Mr. Henderson in open court. Both counsel were men whose standing at the Bar and character had been certified to the Trial Justice by their assignment in a capital, case by the County Judge.

It should-further be noted that no reason for haste was either suggested or advanced by the District Attorney or the Trial Justice.

Counsel was thus ordered to trial in a capital case within six days after his assignment and within four days after he had contacted the retiring counsel. Of those six days, two and one-half were holidays. There was a further handicap under which the new counsel labored. The defendant Kennedy could neither read nor write and had never attended school. Although his calendar age was twenty-eight years, his mental age was much less. There was testimony by Dr. Ulrich, one of the two psychiatrists appointed by the court, that Kennedy’s mental condition shows that he had an I. Q. of 72 and had the mentality of a boy or child about ten and a half or eleven years of age * * * so he is a more or less feeble-minded type of person, border-line. If he was 70 [I. Q.] or less he might go to a* school for feeble-minded in this State. The electro-encephalogram definitely shows an epileptic condition. And the history and our examination of him also showed epileptic condition.” The epileptic condition was of importance because that condition is aggravated by alcohol which has a more pronounced and confusing effect upon an epileptic, even without a seizure, than upon a normal person. We may safely assume that it would take longer to consult with an epileptic with the mind of a boy of eleven years than with a normal client. The new counsel thus entered upon a trial which continued from January 7th to January 14th, a longer time than was granted him for its preparation.

We think that the right of Kennedy to a fair trial was not properly protected. His right to protection by court and prosecuting authorities so .that he might have the assistance of adequately prepared counsel for his defense was a fundamental one. We think that the denial of a request for an adjournment under the circumstances here presented was an abuse of discretion as a matter of law. (People v. McLaughlin, 291 N. Y. 480; Glasser v. United States, 315 U. S. 60, 71, supra; N. Y. Const., art. I, § 6; Powell v. Alabama, 287 U. S. 45.)

Moreover, within three days after the assignment of the new counsel for Kennedy, following the setting of the day for trial by the outgoing District Attorney, the counsel assigned to defend Snyder moved, on January 3d, for a separate trial for him. That motion was denied. We think it was error to compel Snyder to go to trial jointly with a codefendant whose counsel was unprepared and that in the interest of justice it is necessary also to order a new trial for him.

There are other errors which should be mentioned since there must be another trial of the defendants.

The learned court charged the jury that the People claimed that the defendants were engaged in the commission of the felony known as robbery and that it was for them to determine whether the defendants combined to commit a robbery and “ if so, did either, in the course of the commission of that robbery, kill Callahan.” The court then reviewed the contention of the People and of each of the defendants. The learned court then said: Now, I have discussed the question of felony murder, which is murder in the first degree. If you should come to the conclusion, after discussing this evidence, that these two men were engaged in an attempted robbery at this time in room No. 10 and that during such attempt Callahan received the blows which resulted in his death, then each of these defendants would be guilty of murder in the first degree, a felony murder.” The court then explained that in such case the jury could recommend life imprisonment.

Then the learned court made the following charge: “ Now, if, after carefully considering the evidence in this case you come to the conclusion that the killing of the deceased did not occur while the defendants were engaged in the commission of a felony, then you may consider the other forms of homicide. You would then come to common law murder in the first degree, which involves a deliberate and premeditated intent to kill. You do not come to consider common law murder if you find that the defendants were engaged in a felony at the time of the hilling. Only in case you conclude there was not an attempted felony at the time.” (Emphasis supplied.) Thereafter the other degree of murder and both degrees of manslaughter were charged.

We think that was incorrect. The order of consideration was not at the choosing of the court but of the jury. The jury could have first considered murder in the first degree committed during an attempted felony. It could with equal right have first considered one of the degrees of murder or manslaughter as charged to it. It was for the jury to decide. The charge as quoted improperly circumscribed its power and function.

The defendant Snyder was. arrested about 8 p.m. on October 8th. Kennedy was arrested about 1 a.m. on the morning of October 9th. Neither was arraigned until 10 a.m. on the morning of October 10th. That was approximately thirty-eight hours after Snyder’s arrest and thirty-three hours after that of Kennedy. The statute (Code Grim. Pro.-, § 165) requires arraignment of a prisoner before a magistrate without unnecessary delay. The learned court left it to the jury as a question of fact to determine whether there had been such unnecessary delay saying: The People claim that there was no unnecessary delay; that such a serious charge, with no eye witnesses, required investigation before charging the defendants with murder, and that the defendants’ oral admissions of guilt warranted their being held until the statements could be reduced to writing and the defendants had reenacted their part in the alleged homicide.” We think that that could be no excuse under the statute and that it was not permissible for a jury to find that it was. We have heretofore disapproved of the practice of unnecessarily delaying arraignments. (See People v. Mummiani, 258 N. Y. 394, 396; People v. Elmore, 277 N. Y. 397, 404.)

Finally at -the conclusion of the charge, the learned court insisted in the presence of the jury that counsel stqte in open court ” whether or not they consented that the jury have the exhibits, if they ask for them ”. We find no such requirement in the statute. (Code Grim. Pro., § 425.) It reads as follows: ** § 425. What papers the jury may take with them. The court may permit the jury, upon retiring for deliberation, to take with them any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people.”

A jury may always examine exhibits during its deliberations in the presence of court, counsel and defendant. Exhibits may not be taken to the jury room, however, where they are not under the watchful eye of the court, unless consent be given by the defendant. Even then it is within the discretion of the court to withhold exhibits from the jury room. When counsel decline, as here, to consent after being required to give or refuse consent in the presence of the jury, the reason for their conduct may very well be misinterpreted to the detriment of a defendant, especially when it is not explained that the exhibits may be examined by the jury in the courtroom at any time ■if desired. A statement later, in response to a request, that defendants are within their rights' in refusing consent, does not cure the situation. The procedure followed appears to have accomplished no useful evidentiary purpose. It is better to consider the question of consent under section 425 after th© jury has retired.

The judgments of conviction should be reversed and new trials ordered as to both defendants.

Desmond, J.

(concurring). I agree with Judge Conway except as to the matter of the trial court’s charge wherein the jury was told to take up the felony murder count first, as to the correctness of which instruction I express no opinion at this time.

The State of New York, careful of the lives of the least of her citizens, has a policy, in capital cases, of providing paid attorneys for indigent defendants and of providing in such cases,, at public cost, other facilities for proper defense (Code Crim. Pro., § 308). That policy failed of effect in this case when the newly assigned lawyer for Kennedy, who was to be that defendant’s trial counsel, was forced, over his protests, to go to trial six days after his assignment, with a holiday and a week end intervening. Since no court has any right to deprive a defendant of the protections guaranteed him by law (see People v. McLaughlin, 291 N. Y. 480) my vote is for reversal here, regardless of any lack of showing of prejudice, regardless of the strength of the proof of Kennedy’s guilt, and despite the fact that Kennedy appears to have been expertly defended at the trial.

The judgments of conviction should be reversed and new trials ordered, as to both defendants.

Loughran, Ch. J., and Dye, J., concur with Uonway, J.; Desmond, J., concurs in separate opinion; Lewis, Thacheb and Fuld, JJ., dissent and vote for affirmance.

Judgments of conviction reversed, etc.