text:
    Los Angeles Investment Securities Corporation, Respondent, v. Alice W. Joslyn et al., Appellants, Impleaded with Others.
    Argued February 29, 1940;
    decided April 16, 1940.

      Robert E. Whalen and Frederic R. Sanborn for appellants.
    The order of reversal is reviewable. (Gould v. Equitable Assur. Soc., 231 N. Y. 208; Matter of Smidt v. McKee, 262 N. Y. 373; People ex rel. Higley v. Millspaw, 281 N. Y. 441; Matter of Davies, 168 N. Y. 89; Matter of People [City Eq. Fire Ins. Co.], 238 N. Y. 147; Drake v. Herman, 261 N. Y. 414; Matter of Edge Ho Holding Corp., 256 N. Y. 374; Bovin v. Galitzka, 249 N. Y. 512; Gunder v. 164 East 72nd St. Corp., 266 N. Y. 382.) The two decisions of the Supreme Court of California, being the law of another jurisdiction, constituted a fact to be alleged and proved by way of defense. (Genet v. Delaware & Hudson Canal Co., 163 N. Y. 173; Southworth v. Morgan, 205 N. Y. 293; Muck v. Hitchcock, 212 N. Y. 283; Fitzpatrick v. International Ry. Co., 252 N. Y. 127; Apfelberg v. Lax, 255 N. Y. 377; Fleming v. Fleming, 264 U. S. 29; Martin v. Home Bank, 160 N. Y. 190; Kennedy Corp. v. Kennedy, 165 N. Y. 353; Stilwell v. Carpenter, 62 N. Y. 639; Day v. Town of New Lots, 107 N. Y. 148; Dunham v. Townshend, 118 N. Y. 281; People ex rel. Warschauer v. Dalton, 159 N. Y. 235; Cherwien v. Geiter, 272 N. Y. 165.) It was well within the discretion of the Special Term to grant defendants’ motion for a new trial. (United States v. Morgan, 307 U. S. 183; Matter of Superintendent of Banks, 207 N. Y. 11; Halfmoon Bridge Co. v. Canal Board, 213 N. Y. 160; Rudiger v. Coleman, 228 N. Y. 225.)

      Frank L. Wiswall and Carl O. Olson for respondent.
    The Court of Appeals has no jurisdiction to review the determination of the Appellate Division. (Donnelly v. McArdle, 14 App. Div. 217; Croner v. Farmers Fire Ins. Co., 18 App. Div. 263; Ellis v. Hearn, 132 App. Div. 207; Archer v. Archer, 171 App. Div. 549; Mills v. Nedza, 222 App. Div. 615; Vanderbilt v. Schreyer, 81 N. Y. 646; Barrett v. Third Ave. R. R. Co., 45 N. Y. 632; Collins v. Central Trust Co. of Rochester, 226 App. Div. 486; Carmody’s New York Practice, vol. 6, § 790; Cohen on Powers of the New York Court of Appeals, p. 364; Chernuchin v. Barkin, Inc., 243 N. Y. 602; Gaines v. Fidelity & Casualty Co., 188 N. Y. 411; Schieffelin v. Hylan, 229 N. Y. 633; Bowlby v. McQuail, 240 N. Y. 683; Bini v. Smith, 161 N. Y. 120; Spies v. Lockwood, 165 N. Y. 481.) A determination of the question certified will not be decisive of the correctness of the order appealed from. (Gray v. Vought, 243 N. Y. 585; Greenhouse v. Rochester Taxicab Co., 244 N. Y. 559; Bowlby v. McQuail, 240 N. Y. 684; Public Nat. Bank v. National City Bank, 261 N. Y. 316; Schench v. Barnes, 156 N. Y. 316.) The motion should have been dismissed. (Civ. Prac. Act, § 391; People ex rel. Higley v. Millspaw, 281 N. Y. 441.)
   Lewis, J.

The plaintiff is the owner and holder of bonds issued by a California corporation of which .the defendants are stockholders. By the present action the plaintiff would enforce against each defendant a proportionate stockholder's liability based upon provisions formerly existing in the Constitution and Civil Code of California. Under such provisions of law it is claimed that each defendant herein is individually and personally liable as a stockholder for such proportion of the corporation’s debts and liabilities, contracted or incurred during the time the defendant was a stockholder, as the amount of stock or shares owned by him bears to the corporation’s entire outstanding capital stock.

Upon the trial of issues framed by the pleadings the plaintiff had judgment against the several defendants (158 Misc. Rep. 164) which was thereafter affirmed by the Appellate Division by a divided court (254 App. Div. 711-712) and thereafter by the Court of Appeals (279 N. Y. 734).

Meantime, on February 26, 1937 — more than fourteen months after the entry of judgment herein — the Supreme Court of California announced its decision in two cases in which the ruling is said to have been made that, despite the former provisions of the Constitution and Civil Code of California, the holder of a corporate bond could not maintain an action based upon such bond against stockholders of the issuing corporation without first complying with a condition of the trust indenture that the bondholder must make written request to the trustee to sue and give the trustee a reasonable opportunity to comply therewith.

Following affirmance by the Appellate Division and the Court of Appeals of the judgment entered in favor of the plaintiff and against the defendants, Special Term granted a motion by the defendants for an order vacating that judgment, permitting the defendants to serve a supplemental answer and granting a new trial herein upon the ground of newly-discovered evidence. Thereafter the order of Special Term was reversed by the Appellate Division on the law and the facts. Upon a motion for leave to appeal to this court the Appellate Division has certified that the following question of law is involved which ought to be reviewed by the Court of Appeals: “ Did the judgment herein entered in Albany County Clerk’s office December 20th, 1935 (158 Misc. 164), the affirmance thereof by this Court’s judgment entered in said Clerk’s office April 29, 1938 (254 App. Div. 711), the affirmance of this court’s judgment by the Court of Appeals on January 4, 1939 (279 N. Y. 734) and denial by the Court of Appeals on February 28, 1939, of the motion for reargument of the appeal thereto (280 N. Y. 570) preclude the Special Term from granting the order herein entered in Albany County Clerk’s office April 12th, 1939?”

The newly-discovered evidence, which affords the basis of the Special Term order for a new trial, comprises the two decisions mentioned above rendered by the Supreme Court of California. These decisions were not announced until after the trial herein and the entry of judgment, but more than a year before the argument of the appeal in the Appellate Division. It also appears from affidavits before us in the present record that upon the argument of the appeal in this court attention was directed by counsel to the two decisions by the California Supreme Court. In the circumstances this court had the right to consider these decisions despite the fact that they were not introduced in evidence upon the trial. (Civil Practice Act, § 391 [L.1933, ch. 690].)

An order granting or denying a motion for a new trial upon newly-discovered evidence is a discretionary order and accordingly is not reviewable by this court. (Chernuchin v. Barkin, Inc., 243 N. Y. 602; Gaines v. Fidelity & Casualty Co., 188 N. Y. 411, 415. See, also, Cohen on Powers of New York Court of Appeals, p. 364; Carmody’s New York Practice, vol. 6, § 790, p. 670.)

Furthermore, the record before us makes it clear that an answer to the question certified by the Appellate Division would not determine the correctness of the order sought to be reviewed. (Public Nat. Bank v. National City Bank, 261 N. Y. 316,' 322, 323; Gray v. Vought & Co., 243 N. Y. 585; Bowlbyv. McQuail, 240 N. Y. 684, 687.)

The appeal should be dismissed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Appeal dismissed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Mary Bowers, an Infant, by May Bowers, Her Guardian ad Litem, et al., Appellants, v. City Bank Farmers Trust Company, Respondent, Impleaded with Another.

      Submitted March 8, 1940;
    decided April 16, 1940.

      Henry Cohen and Maurice Chachkes for appellants.
    Defendant owed the infant plaintiff the duty to maintain its roof in safe condition. (Vaughan v. Transit Development Co., 222 N. Y. 79; Murtha v. Ridley, 232 N. Y. 488; Noonan v. O’Hearn, 216 Mass. 583.) There was evidence of defendant’s negligence. (Collentine v. City of New York, 279 N. Y. 119; Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604; Connell v. Berland, 223 App. Div. 234 ; 248 N. Y. 641; Dorsey v. Chautauqua Institution, 203 App. Div. 251.)

      Herbert F. Hastings, Jr., and F. G. Mann for respondent.
    The infant plaintiff was at most a mere licensee at the time of the accident; therefore, defendant’s obligation to its tenants or their guests was immaterial and the complaint was properly dismissed. (Heskell v. Auburn L. H. & P. Co., 209 N. Y. 86; Meiers v. Koch Brewery, 229 N. Y. 10; Garthe v. Ruppert, 264 N. Y. 290; Vaughan v. Transit Development Co., 222 N. Y. 79; Donohue v. Erie County Sav. Bank, 258 App. Div. 1; Vega v. Lange, 248 App. Div. 521; Mendelowitz v. Neisner, 258 N. Y. 181; Walker v. Bachman, 268 N. Y. 294; Rosado v. Perch Realty Corp., 239 App. Div. 373; Simmons v. Poughkeepsie Sav. Bank, 255 App. Div. 887; Counias v. Thomas, 247 App. Div. 117; Bergman v. Feitelowitz, 278 N. Y. 620; June v. Lichtenstein, 253 App. Div. 766; Horowitz v. Home Title Ins. Co., 258 App. Div. 901.) There was no proof of negligence on the part of defendant. (Polemenakos v. Cohn, 234 App. Div. 563; 260 N. Y. 524; Saraceni v. Mount Vernon Trust Co., 271 N. Y. 514; Keenan v. Lawyers Mortgage Co., 254 App. Div. 348; 280 N. Y. 525; Miller v. El Mirasol, Inc., 163 Misc. Rep. 346; Armstrong v. Rapp, 165 Misc. Rep. 583; Bergman v. Feitelowitz, 278 N. Y. 620; June v. Lichtenstein, 253 App. Div. 766; Horowitz v. Home Title Ins. Co., 258 App. Div. 901.)
   Lewis, J.

The infant-plaintiff, while at play with other children on the roof of a tenement house owned by the defendant trust company, was permanently injured when she fell through a skylight to a concrete surface six floors below. Her action for personal injuries thus sustained met with a nonsuit at Trial Term when, at the close of her evidence, the trial justice ruled as matter of law that at the time of her injuries plaintiff was not an invitee upon defendant’s premises but a bare licensee to whom the owner owed no greater duty than to refrain from intentional or wanton injury. (Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 243, 245; Mendelowitz v. Neisner, 258 N. Y. 181, 184; Garthe v. Ruppert, 264 N. Y. 290, 294, 295; Ehret v. Village of Scarsdale, 269 N. Y. 198, 208; Morse v. Buffalo Tank Corp., 280 N. Y. 110, 115.) Having granted to the plaintiffs leave to appeal from the Appellate Division’s unanimous affirmance of that ruling, we search the record to ascertain whether, giving to plaintiff the benefit of every reasonable inference to be drawn from facts proved, there is evidence from which the jury might have found that at the time she was injured plaintiff was an invitee upon the defendant’s premises. If so, and in the event she established her own freedom from contributory negligence, she was entitled to have the jury determine whether her injuries resulted from a failure by the defendant to maintain its premises in accord with the standard of reasonable care which the law requires of an owner in favor of an invitee. (Hudson v. Church of Holy Trinity, 250 N. Y. 513, 515; DeLee v. Pardy Construction Co., 249 N. Y. 103, 105; Boylhart v. DiMarco & Reimann, Inc., 270 N. Y. 217, 221; Collentine v. City of New York, 279 N. Y. 119, 125.)

The record discloses proof from which the jury could have found that the plaintiff, a child of nine years, had accompanied a school friend to the latter’s home in a fifth floor apartment of the defendant’s building. Finding no one in the apartment, the plaintiff, in response to her friend’s invitation, joined her as she mounted a flight of stairs which led from the fifth floor up to a door opening onto the roof where ten other children were then at play. The plaintiff and her friend soon found an acquaintance and immediately the three children engaged in a game of their own improvising. As the game progressed there came a time when the plaintiff was required to search for her two playmates. In doing so she climbed upon a quantity of stone slabs and bricks which were piled against the side of a ventilator shaft and skylight which projected above the roof and was capped by unscreened glass. It was while plaintiff was thus poised that the bricks beneath her moved in such a way that she fell through the skylight and down a shaft with resulting injuries which form the basis of her present action.

In addition to proof that the tenants in the building used the roof as a place to dry clothes, there is an abundance of evidence that for a period of months prior to plaintiff’s accident children had played on the roof. Apparently the defendant’s janitor — who was conceded to be in charge of the building — recognized in himself latent showmanship, for it appears that on many occasions he dressed himself as a cowboy and came to the roof when children were at play and there in their presence practiced at throwing a lariat and performed tricks with a whip. There is also proof that when not engaged in this form of entertainment he was present on the roof when children were there at play. This evidence goes far to prove knowledge by the janitor that children were accustomed to play upon the roof — which knowledge the law imputed to the defendant. (Dollard v. Roberts, 130 N. Y. 269, 273, 274.) Its special value to the plaintiff’s case becomes more apparent when read in connection with the following concession made on behalf of the defendant trust company in support of its successful motion for a nonsuit: “ As the evidence now stands, this infant plaintiff came to the house as the guest of the little girl Kelly who was a tenant in the house. I think I am entirely willing to concede that she had, as a guest of the child, the same rights as the child would have.” It follows that to the plaintiff, a conceded “guest * * * [of] a tenant in the house,” the defendant owed the same duty as it owed to its tenant. (Parnell v. Holland Furnace Co., 234 App. Div. 567, 570; affd., 260 N. Y. 604.) The “ little girl Kelly,” who invited the plaintiff to accompany her to the roof and who was conceded to be a tenant of the defendant, testified that she “ went up there after school mostly every day ” and that “ there were other children up there on the roof playing.”

Although it is true that the doctrine of attractive nuisance does not apply in this State (Morse v. Buffalo Tank Corp., supra, p. 115) the jury was “ entitled to take into consideration the well-known propensities of children to climb about and play.” (Collentine v. City of New York, supra, p. 125; Parnell v. Holland Furnace Co., supra, p. 571.) The jury should also have been permitted to consider whether the loose slabs and bricks had been securely piled against the raised skylight below which was a ventilator shaft extending down at least six floors. In that connection we have it in mind that the standard of care required of children is at times lower than that which would be required of an adult under the same circumstances. (Gloshinsky v. Bergen Milk Transportation Co., 279 N. Y. 54, 58.) Their proclivities as matter of common knowledge might draw them to such objects in the course of play.” (Boylhart v. DiMarco & Reimann, Inc., supra, p. 221.)

We reach the conclusion that there was evidence from which the jury could have found that at the time of her injuries the infant plaintiff was an invitee upon the roof of defendant’s building, and that the defendant failed in its duty to exercise reasonable care to maintain the place in safe condition for her use.

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

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Judgments reversed, etc.


author: Sears, J.

text:
    Jacob Rosen, Respondent, v. Massachusetts Accident Company, Appellant.

      Submitted February 28, 1940;
    decided April 16, 1940.

      William A. Hyman and Harold W. Hayman for appellant.
    Section 406-f of the Insurance Law (Cons. Laws, ch. 28) provides that whenever a proceeding for rehabilitation, reorganization or liquidation shall be commenced in a reciprocal State against an insurer domiciled in such State and doing business in this State, no action or proceeding against such insurer may thereafter be commenced or continued in the courts of this State unless initiated or consented to by the insurance supervisory of such reciprocal State. Massachusetts is a reciprocal State. At the time of the appointment of the receiver the defendant was doing business in this State. Therefore, under said statute, the receiver was entitled to a stay of the action. (Ginsburg v. Equitable Life Assur. Society, 254 App. Div. 445; 279 N. Y. 810; Smith v. Massachusetts Accident Co., 143 Misc. Rep. 227; 236 App. Div. 886; Provident Savings Life Assur. Society v. Kentucky, 239 U. S. 103; Johnston v. Mutual Reserve Life Ins. Co., 43 Misc. Rep. 251; Smith v. Compania Litografica de La Habana, 121 Misc. Rep. 368; Connecticut Mutual Life Ins. Co. v. Spratley, 172 U. S. 602.) The only question presented for review is whether the Massachusetts Accident Company was doing business in the State of New York on August 30, 1939. (Bowlby v. McQuail, 240 N. Y. 684; Central Trust Co. v. Pittsburgh, S. & N. R. R. Co., 229 N. Y. 68; Waldo v. Schmidt, 200 N. Y. 199; Gramnan v. Westchester Racing Assn., 153 N. Y. 449.)

      Meyer Kreeger and Charles E. Buckner for respondent.
   Sears, J.

In 1928 the defendant issued to the plaintiff a policy of disability insurance (accident and health) by the terms of which it insured the plaintiff for the period of one year against loss from certain disabilities therein stated. The policy provided for annual renewals and was continuously renewed so that it was in force on October 11, 1938, when this action was brought. The action is for alleged losses from disabilities as provided in the policy. The Commissioner of Insurance of the Commonwealth of ■ Massachusetts, who was appointed receiver of the defendant for the purpose of rehabilitation by a decree of the Supreme Court of that State on August 30, 1939, has moved to stay the further prosecution of the action under the provisions of section 406-f of the Insurance Law (Cons. Laws, ch. 28) as then in force (now section 522) which reads as follows: Whenever a proceeding for rehabilitation, reorganization or liquidation shall be commenced in a reciprocal state against an insurer domiciled in such state and doing business in this state, title to all of the assets of such insurer, except special deposits as hereinafter provided, then located in this state shall vest in the insurance supervisory or other administrative agency of such reciprocal state. Thereafter no action or proceeding against such insurer or such assets, except such special deposits, shall be commenced or continued in the courts of this state unless initiated, or consented to, by such insurance supervisory or other administrative agency of such reciprocal state.” The Special Term denied the motion for a stay and its order to this effect was affirmed by the Appellate Division, which, however, allowed an appeal and certified the following question: Was the Massachusetts Accident Company doing business in the State of New York on August 30th, 1939, when the Commissioner of Insurance of the Commonwealth of Massachusetts was appointed Receiver of the defendant company, so as to entitle said Commissioner of Insurance to a stay under Section 406-f of the Insurance Law of the State of New York?” The answer to the question depends upon the interpretation of the words “ and doing business in this state ” in the quoted section of the law.

By chapter 232 of the Laws of 1936 the Legislature enacted a series of new sections of the Insurance Law (§§ 406-a to 406-h), the purpose of which was stated in the first of these sections (§ 406-a), as follows: “ The purpose of sections four hundred and six-a to four hundred and six-h, inclusive, is to promote uniformity in the rehabilitation, reorganization or liquidation of insurers doing business in more than one state. It is intended that such sections shall be liberally construed to the end so far as possible that the assets of such insurers shall be equally and uniformly conserved in all states and that claimants against such insurers shall receive equal and uniform treatment irrespective of residence or place of the acts or contracts upon which their claims are based.”

Until 1934 the defendant company was fully licensed to carry on its business in this State, and this included the power to issue policies of insurance. In 1934, however, when the license expired, the defendant did not ask for a renewal so as to enable it to transact the business of issuing policies of insurance within the State. It did obtain licenses from the State to have agents in the State for the purpose only of collecting premiums due or renewal premiums which might become due on business which the agent wrote for the company while the company was fully licensed, and to render such services as an agent might properly render under the provisions of former section 91-a of the Insurance Law, either to the insured or to the company. Under these licenses the defendant has done business and has regularly paid franchise taxes as required by section 187 of the Tax Law (Cons. Laws, ch. 60). It has maintained offices in the city of New York, with telephone listing. It has several employees in the New York offices. It has filed income tax reports with the State of New York for salaries received and earned within the State. Agents of the defendant, duly licensed, have transacted business for the defendant in twelve cities of the State outside of New York city. It is clear that the defendant, despite its withdrawal from the business of writing new insurance, still has been doing business so as to bring it within the jurisdiction of the courts of this State. (Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602. And see Provident Savings Life Assurance Society v. Commonwealth of Kentucky, 239 U. S. 103.) In fact, the plaintiff alleges in his complaint that the defendant is licensed to do business in the State and has an office for the transaction of its business in the State of New York.

We are called upon, then, to determine whether the words and doing business in the state,” as used in section 406-f of the Insurance Law, has reference to the full business of an insurance company, or to the doing of business (as that expression is usually construed) sufficient to give our courts jurisdiction. The purpose of the enactment of the series of sections of the Insurance Law, of which section 406-f is one, helps us to reach a conclusion in this respect. The orderly liquidation or rehabilitation is the aim. When practicable a single legal proceeding in one State will best accomplish this. So the Legislature has determined. This is the reason why suits in other States are to be stayed. This being the purpose of the enactment, it is immaterial what kind of business is done by the insurance company in other States than the one undertaking the liquidation or rehabilitation. Orderly procedure would be disturbed just as much by litigation in other States whatever kind of business the company conducts there. Recognizing the requirement that the provisions of section 406-f are to be liberally construed so as to attain the purpose of the enactment of which it is a part, we reach the conclusion that doing business within the State does not have reference solely to such business as the company may do under a full license but refers equally to the situation where the company is doing a limited business but enough to bring it within the jurisdiction of the State tribunals.

Whether Massachusetts is a reciprocal State within the meaning of the provisions of the Insurance Law is not open to determination on this appeal as no such question was raised on the motion at the Special Term or in the Appellate Division. The only question open is that certified by the Appellate Division.

The orders should, therefore, be reversed, with costs in all courts, and the motion of the defendant granted. The question certified should be answered in the affirmative.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Conway, JJ., concur.

Orders reversed, etc.


author: Loughran, J.

text:
    Gladys Brown, Appellant, v. Provident Loan Society of New York, Respondent.
    Argued March 11, 1940;
    decided April 16, 1940.

      A. L. Geilich and Robert Morris for appellant.
    The evidence justified the submission of the case to the jury and supported the finding in favor of the plaintiff. (Bernstein v. Greenfield, 281 N. Y. 77; Boyd v. Boyd, 252 N. Y. 422; Vatner v. Mackey, 250 App. Div. 383; Smith v. Smith, 273 N. Y. 380; Peck Distributing Corp. v. Kellogg Sales Co., 250 App. Div. 738; Matter of Pinney, 250 App. Div. 60; Mays v. Mays, 300 N. Y. Supp. 137; Rooney v. Rooney, 15 N. Y. Supp. [2d] 6; Mansbacher v. Prudential Ins. Co., 273 N. Y. 140; Newhall v. McCann, 267 N. Y. 394; Hogan v. Franken, 221 App. Div. 164; Robison v. Lockridge, 230 App. Div. 389; Dashnau v. City of Oswego, 204 App. Div. 189; 236 N. Y. 542; Persons v. Kruger, 45 App. Div. 187; Diehl v. Becker, 227 N. Y. 318; Frankenberger v. Schneller, 258 N. Y. 270.)

      Neil P. Cullom and Frederick M. Schlater for respondent.
    Where a witness is not impeached or contradicted and his testimony on the vital issue in a case is positive, direct and not incredible upon its face, it must be believed for judicial purposes and the trial court should dismiss the complaint or direct a verdict; he cannot permit the jury to speculate upon the truth or falsity of such evidence. (Goeller v. Equitable Life Assur. Society, 251 App. Div. 371; Trusts & Guarantee Co. v. Barnhardt, 270 N. Y. 350; Title Guarantee & Trust Co. v. Geller, 254 App. Div. 574; 278 N. Y. 742; Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209.)
   Loughran, J.

The parties were pledgor and pledgee. The action is one for conversion. The wrong alleged is that the defendant sold the pledge of the plaintiff without notice to her. The applicable law is this provision: “No pledge shall be sold unless written or printed notice of intention to sell with a statement of the article or articles to be sold has been first mailed by letter addressed to the pledgor at the address given at the time of pledging at least ten days prior to the date of sale.” (General Business Law, § 49 [Cons. Laws, ch. 20].)

In his charge the trial judge submitted the issue to the jury as follows: “ Bear in mind that the duty imposed upon the defendant is to mail such notice, and if you find that it did so, even though the plaintiff never received it, then the defendant is not liable and your verdict must be for the defendant. E you find from all the evidence that the defendant did not serve notice by mail of its intention to sell, in that event only would the plaintiff be entitled to recover damages.” The verdict of the jury was in favor of the plaintiff.

On appeal by the defendant to the Appellate Division the judgment for the plaintiff was reversed and the complaint was dismissed on the law. The ground of the reversal was that the defendant had incontrovertibly established that it had mailed a letter to the plaintiff in accordance with the requirements of the statute. We cannot accept that reading of the record.

A single employee handled for the defendant the mailing of letters to its pledgors pursuant to the statute. He testified to his general practice in doing this. E that practice was actually pursued in this instance the result doubtless was that the defendant’s statutory duty to the plaintiff was discharged in full on October 26, 1935. But the habit of the defendant’s witness to go through a fixed routine in the mailing of such letters did not without more necessarily require the inference that he had so transmitted to the plaintiff the particular letter here in question. (See Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473, 477, 478.)

For business convenience each pledge taken by the defendant was earmarked by it with a numerical symbol. To that end the pledge made by the plaintiff was designated T-56023.” The defendant’s witness identified a table of the defendant’s symbols of such pledges to it as were in default on October 26, 1935. The witness had not prepared that so-called “ fist of loan numbers.” Among the symbols appearing thereon was 23 ” which (the witness said) was an abbreviation of T-56023 ” — the symbol of the plaintiff’s pledge. Opposite the “ 23 ” was a check mark. At the foot of the list were the rubber stamped words, Checked by me personally with notices mailed on October 26, 1935.” Beneath these words the witness had put his signature.

We think the court below overvalued the probative force of this exhibit. The check marks and the entry of the witness stood in need of interpretation as being a statement that each numerical symbol when checked had been found to correspond with an identical symbol then showing upon a notice of sale through the window of an envelope wherein the notice had been addressed for mailing. That interpretation the witness was unable to supply out of his present recollection. Hence the evidentiary value of the document was chiefly owing to its significance as a record of the past recollection of the witness. But he did not testify in any manner that the entries accurately represented his past knowledge. Such a suppletory oath is essential to the vitality of a record of past recollection. (2 Wigmore on Evidence [2d ed.], § 747.)

The Appellate Division said of the defendant’s witness that he testified from his records he was in a position to say that he had mailed the notice of sale to the plaintiff.” (257 App. Div. 648, 651.) We do not discover that testimony. The witness was not asked whether he could so testify. He was asked whether he had mailed such a notice to the plaintiff and his answer was, The records here would indicate that I did.”

We find ourselves unable to say that a mailing to the plaintiff of the letter in question was here established beyond the possibility of fair controversy.

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

Finch, Rippey, Sears, Lewis and Conway, JJ., concur; Lehman, Ch. J., dissents.

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Rudolph Wurlitzer Company, Appellant.
    Argued March 13, 1940;
    decided April 16, 1940.

      Jay O. Kramer and Jacob J. Kramer for appellant.
    The Board of Aldermen did not intend to require retail dealers primarily selling new merchandise to be licensed under section B32-127.0 of the Administrative Code (L. 1937, ch. 929). (People v. Tilford, 268 N. Y. 557; People v. Star Metal Smelting & Refining Co., 274 N. Y. 617; Matter of Itzkowitz & Sons, Inc., v. Geraghty, 139 Misc. Rep. 163; City of New York v. Vandewater, 113 App. Div. 456.)

      Frank L. Weil and Theodore Tannenwald, Jr., for Retail Dry Goods Association of New York City, amicus curiæ.

    The provisions of article 19 of chapter 32 of the Administrative Code indicate that licenses should not be required of retailers who merely sell used merchandise obtained solely in connection with the sale of new merchandise. (City of New York v. Vandewater, 113 App. Div. 456; Eastman v. City of Chicago, 79 Ill. 178.)

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for respondent.
    The resale of second-hand musical instruments obtained as part payment in the sale of other instruments is violative of the Administrative Code unless the seller obtains a second-hand dealer’s license. (People v. Bates, 198 N. Y. Supp. 440.)
   Sears, J.

The defendant has been convicted of a violation of an ordinance of the city of New York (Administrative Code of the City of New York [Laws of 1937, ch. 929], ch. 32, art. 19, § B32-127.0, p. 1113) which made it unlawful for any person to act as a dealer in second-hand articles without a license therefor. The ordinance contains the following pertinent provisions:

“ § B32-126.0. Definition, a. Whenever used in this article, the words ‘ dealer in second-hand articles ’ shall mean any person dealing in the mirchase or sale of secondhand articles of whatever nature,, or dealing in the purchase or sale of any second-hand manufactured article composed wholly or in part of gold, silver, platinum or other metals, or in the purchase or sale of old gold, silver or platinum, or any person dealing in the purchase of articles or things comprised of gold, silver or platinum for the purpose of melting or refining or engaged in melting precious metals for the purpose of selling, or in the purchase or sale of pawnbroker tickets or other evidence of pledged articles, or, not being a pawnbroker, who deals in the redemption or sale of pledge articles.

“ b. Nothing contained in this article shall be construed to apply to pianos, books, magazines, rugs, tapestries, burlaps, paintings, drawings, etchings and engravings; nor to exchanges of, returns of, or credits on merchandise where the article or articles exchanged, returned or credited are accepted in full or part payment for new merchandise; nor to the first purchase or sale in the city of any imported second-hand article.

“ § B32-127.0. License required. It shall be unlawful for any person to act as a dealer in second-hand articles without a license therefor.”

Some indication of the purpose of the ordinance and of the evils which it was intended to correct is disclosed by other provisions of the ordinance as follows:

§ B32-129.0. Report to the police commissioner. Every dealer in second-hand articles, upon being served with a written notice so to do by a member of the police department, shall report to the police commissioner * * * a copy of the records * * * of all goods or articles or any part thereof, purchased, received or sold in the course of his business, during the days specified in such notice.

“ § B32-130.0. Restrictions. * * * b. It shall be unlawful for any such dealer to purchase any second-hand goods, or things from any person whom he knows to be or has reason to believe is a minor, apprentice, or servant.

c. It shall be unlawful for any such dealer to purchase any second-hand goods or articles from any person between the hours of six o’clock in the evening and seven o’clock in the morning.

“ d. It shall be unlawful for any such dealer to sell or dispose of any articles or things * * * received from persons known to be jewelers, dealers, banking institutions, executors or administrators, until the expiration of fifteen days after such purchase or redemption.”

§ B32-132.0. Record of purchase and sales, a. Every dealer in second-hand articles shall keep a book in which shall be legibly written in English, at the time of every purchase or sale, a description of every article so purchased or sold * * * the name, residence and general description of the person from whom such purchase was made or to whom sold and the day and hour of the purchase or sale * * *.”

The record shows that on the 13th day of July, 1939, the defendant, which had no license to act as a dealer in secondhand articles, through a salesman in its large store on Forty-second street in the city of New York, contracted to sell to the complaining witness, an inspector in the Department of Licenses of the city, a used bass accordion for the sum of one hundred and twenty-five dollars. In addition to the proof of this single transaction, the record contains defendant’s admissions that the defendant sells musical instruments which it takes in part payment for articles sold. In other words, it resells what are familiarly known as “ trade-ins.” The conviction rests on the evidence and admissions stated.

The defendant contends not only that the ordinance was not intended to cover the business of a merchant who deals principally in the sale of new articles, but also contends specifically that used articles taken in trade as part payment is not violative of the ordinance. As the ordinance is penal in character, it must be construed strictly, and the exception relating to credits on merchandise where the articles credited are accepted in full or part payment for the new merchandise must be construed to include the taking in of any articles in payment or part payment and not to be restricted to those previously sold by the dealer. But, urges the prosecution, even if the act of trading in used articles is excepted from the condemnation of the ordinance, the sale of the articles so obtained by the dealer would not be excepted and the defendant on its admission would be violating the ordinance. Our attention is directed to the disjunctive “ or ” between buying and selling in the definition of a dealer in second-hand articles. We do not read the ordinance so literally. The word “ dealer ” refers in general to one who buys and sells. A farmer who grows and sells, a miner who takes from the ground and sells, a manufacturer who fabricates and sells, would not ordinarily be called a dealer. The use of the word “ dealer ” has significance. While proof of either buying or selling under this ordinance would be proof of acting as a dealer in the transaction, the ordinance could hardly be intended to inhibit selling by the unlicensed merchant of the same article, the acquisition of which is excepted by the very terms of the ordinance from its condemnation. A construction which condemned a sale in such a case would make the article of little value to the merchant. So unsatisfactory a result should not be imposed unless the language offers no escape from it.

Our conclusion is, therefore, that a violation of the ordinance was not established upon the record before us.

The judgments of the Court of Special Sessions of the City of New York, Appellate Part, and of the Magistrates’ Court of the City of New York should be reversed, and the information dismissed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


author: Conway, J.

text:
    In the Matter of the Will of Katharine Koch, Deceased. Alida Koch, Appellant; Louise Zuber, as Administratrix with the Will Annexed of the Estate of Katharine Koch, Deceased, Respondent.
    Argued February 28, 1940;
    decided April 16, 1940.

      Glenn W. Woodin for appellant.
    Under the statutes in force on the date of the death of testatrix the appellant, as the surviving spouse of Frank J. Koch, was his heir and takes the share given to him by the will. (N. Y. Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Dwight v. Fancher, 245 N. Y. 71; Matter of Milliette, 123 Misc. Rep. 745; Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Beetson
      v. Stoops, 186 N. Y. 456; Stokes v. Weston, 142 N. Y. 433; Nelson v. Russell, 135 N. Y. 137; Matter of Fordham, 235 N. Y. 384; Matter of Ward, 162 Misc. Rep. 855; 251 App. Div. 781; Matter of Chalmers, 264 N. Y. 239; Johnston v. Brasington, 156 N. Y. 181; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Canfield, 136 Misc. Rep. 551; 231 App. Div. 708; 256 N. Y. 610; United States Trust Co. v. Nathan, 196 App. Div. 126; 233 N. Y. 505.)

      William J. Driscoll and Marvin G. Schwert for respondent.
    The intention of the testatrix in disposing of her residuary-estate is to be ascertained not by what occurred long after execution of her will, but by what was apparently or presumably in her contemplation at the time she was making it. (Matter of Hoffman, 201 N. Y. 247; Morris v. Sickly, 133 N. Y. 456; McLean v. Freeman, 70 N. Y. 81.) The use of the words, “ to his or her heirs,” intentionally excludes appellant. (Tillman v. Davis, 95 N. Y. 17; Murdock v. Ward, 67 N. Y. 387; Keteltas v. Keteltas, 72 N. Y. 312; Luce v. Dunham, 69 N. Y. 36; Platt v. Mickle, 137 N. Y. 106; Snider v. Snider, 160 N. Y. 151; Bayley v. Lawrence, 133 App. Div. 888; 197 N. Y. 593; Matter of Waring, 275 N. Y. 6; Matter of Lake, 170 Misc. Rep. 840; Matter of Wintringham, 292 N. Y. Supp. 290.) The date on which distribution to appellant should be based is the date of the death of Frank J. Koch. (Matter of Waring, 275 N. Y. 6; Matter of Canfield, 256 N. Y. 610; Matter of Scudder, 282 N. Y. Supp. 261.) Section 47-c of the Decedent Estate Law (Cons. Laws, ch. 13) is not applicable to the instant case, for it was not intended that the section should affect wills executed prior to its enactment. (Matter of Lake, 170 Misc. Rep. 840; Matter of Waring, 275 N. Y. 6; Matter of Germaine, 268 N. Y. 475; Lawrence v. DeRham, 136 Misc. Rep. 518; Matter of Mann, 138 Misc. Rep. 42; Matter of Taft, 143 Misc. Rep. 387.)
   Conway, J.

The testatrix, Katharine Koch, executed her will on May 27, 1916. She gave, devised and bequeathed all her property, both real and personal, to her children, naming them, share and share alike. She then provided: “ In case of the death of any of the above named children, I give, devise and bequeath his_or her share to his or her heirs.” Frank J. Koch was one of the children. He predeceased testatrix on December 13, 1929, leaving no issue. He was survived by his widow, Alida Koch, the appellant. At the time of the execution of the will Alida Koch was neither heir at law nor next of kin of Frank J. Koch. (Tillman v. Davis, 95 N. Y. 17; Murdock v. Ward, 67 N. Y. 387; Platt v. Mickle, 137 N. Y. 106.) The Appellate Division decided that she was not entitled to take her husband’s share of the estate, on the authority of Matter of Waring (275 N. Y. 6). Subsequent to that decision the Decedent Estate Law (Cons. Laws ch. 13) was amended (L. 1938, ch. 181) by adding section 47-e, which became effective March 28, 1938. That section provides: “ When used in a statute, in a will or in any other written instrument prescribing the devolution of property rights and unless the statute, the will or the instrument shall expressly or impliedly declare otherwise the terms ' heirs,’ ‘ heirs at law,’ ‘ next of kin ’ and ' distributees ’ and any terms of like import shall be deemed and shall be construed to mean the distributees, including a surviving spouse, who are defined in section eighty-three of Decedent Estate Law.” In connection with that legislation there appears the following note of the Commission: “ This amendment * * * is intended to supplement the amendments to Section 83 of Decedent Estate Law recommended by the Commission to Investigate Defects in the Law of Estates and subsequently enacted by the legislature. The new amendment seems to be required because of comment contained in the opinion in Matter of Waring (275 N. Y. 6; 9 N. E. [2d] 754). In that case the decision was made upon the basis that the language of a will of a person who died in 1907 was to be interpreted in any event in the light of the statute as it existed in 1907. In its opinion, however, the court went beyond the immediate issues in the case and said that the amendment to Section 81 of Decedent Estate Law effected by Chapter 174 of the Laws of 1930 prescribed only a rule for construction of a statute and that the amendment did not have the effect ascribed to it in the lower court decisions on the subject. The amendment proposed is designed to carry into effect the intent of the revision proposed by the Commission to Investigate Defects in the Law of Estates and to establish beyond controversy that a surviving spouse is to be deemed included among distributees as they are deemed to be defined by the words ‘ heirs,’ heirs at law ’ and ‘ next of kin ’ and the like. The amendment is in line with the general purposes of the legislation in 1929 and 1930 designed better to protect surviving spouses.” (McKinney’s Cons. Laws, Book 13, p. 274.)

The testatrix died December 19, 1938, subsequent to the enactment of section 47-c of Decedent Estate Law. We, thus, have a clear indication of legislative intent that the surviving spouse is to be deemed an heir at law and next of kin, at least from the effective date of section 47-c of the Decedent Estate Law. Lines of inheritance are governed by statute and it must be assumed that the testatrix knew that those lines could be changed at any time. (Gilliam v. Guaranty Trust Co., 186 N. Y. 127, 128.) She died subsequent to a change and made no new will. Alida Koch is, therefore, entitled to take the share her deceased husband would have taken if living. Such taking is not through her husband’s estate but under the will of the testatrix, Katharine Koch. (Matter of Chalmers, 264 N. Y. 239, 244.)

This, moreover, is in accord with the reasoning in Gilliam v. Guaranty Trust Co. (supra) where it was said (at p. 133): The general rule applicable to the facts here presented is well established that when property at a future date is to pass to a certain class of persons it will be distributed amongst the persons who compose such class at the date of distribution. (Paget v. Melcher, 26 App. Div. 12, 18; affd., 156 N. Y. 399; Matter of Baer, 147 N. Y. 348; Bisson v. W. S. R. R. Co., 143 N. Y. 125; McGillis v. McGillis, 11 App. Div. 359.) ”

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, with costs in all courts to appellant payable out of the estate, and the matter remitted to the Surrogate’s Court for the entry of a decree in accordance with this opinion.

Lehman, Ch. J., Loughran and Finch, JJ., concur: Rippey, J., dissents; Sears and Lewis, JJ., taking no part.

Ordered accordingly.


text:
    In the Matter of the Claim of Nicholas Kiriloff, Respondent, against A. G. W. Wet Wash Laundry, Inc.; New York Indemnity Company et al., Respondents. State Industrial Board, Appellant.
    Argued February 27, 1940;
    decided April 16, 1940.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Joseph A. McLaughlin of counsel), for appellant.
    The decision of the Appellate Division finally determined the rights, obligations and privileges of the parties in interest and requires a mere ministerial act to effectuate it on the part of the State Industrial Board. The determination leaves no room for the exercise of judgment, discretion or judicial function by the State Industrial Board. (Matter of Graves v. Tide Water Oil Sales Co., 275 N. Y. 583; Matter of Burmester v. Maryland Casualty Co., 262 N. Y. 637; Matter of Cross v. Whittley, 260 N. Y. 658; Matter of Greenberg v. Fox, 272 N. Y. 549; Matter of Ryan v. American Bridge Co., 268 N. Y. 502.)

      Archibald G. Thacher, H. Walter Reynolds, John C. Crawley and Howard B. Nichols for John M. Cullen, as representative of the Fund for Reopened Cases under section 25-a of the Workmen’s Compensation Law, amicus curiæ.

    The Fund for Reopened Cases was entitled to notice and an opportunity to be heard in opposition to the allowance of any award against the Fund, but the prescribed notice was not given and the Fund was not heard until after the decision of the Appellate Division. (Cons. Laws, ch. 67, § 25-a.) The order of the Appellate Division is final. (Matter of Neglia v. Zimmerman, 237 N. Y. 131; Matter of Vleck v. Parry, 270 N. Y. 371.)

      Albert Adams and Albert Watman for claimant, respondent.
   Conway, J.

The claimant was injured on December 12, 1923. Various awards were made in his favor and against the employer and insurance carrier for temporary total disability and the case was marked closed on December 8, 1931. Application to reopen and reclassify was made July 13, 1933. At that time the employer was no longer in business and the insurance carrier was in process of liquidation. The case was reopened October 11, 1933, and successive awards on the basis of partial permanent disability were made covering the period from July 12, 1932, to May 2, 1936, and on the basis of total permanent disability covering the period from May 2, 1936, to February 26, 1937. Since its reopening the case has been continued open to date. The last payment actually made to the claimant was on January 9, 1932, covering the award from November 11, 1925, to April 20, 1927.

As a result of a letter addressed to the Chairman of the Industrial Board by counsel for claimant under date of June 30, 1937, a further hearing was held to give claimant an opportunity to produce evidence that his case came within the provisions of section 25-a of the Workmen’s Compensation Law (Cons. Laws, ch. 67). No notice of that hearing was given to any representative of the Fund for Reopened Cases created by that section.

On January 4, 1938, the Board filed its notice of decision which read as follows: “The action of the Board by an unanimous vote in a memorandum of decision dated Dec. 23, 1937, was to find that the procedure suggested by claimant’s attorney is not warranted and that such'action would not be applicable under the terms and conditions of section 25-a. The application of the claimant for such procedure is therefore denied and the case is continued to a Referee’s calendar for further consideration.”

The claimant appealed from the Board’s decisions, including that of January 4, 1938, to the Appellate Division, which reversed the decision of the Industrial Board and remitted the matter to that body for further action in accordance with the opinion then rendered. In effect that opinion held that the provisions of section 25-a of the Workmen’s Compensation Law were applicable and that payment should be made to the claimant from the Fund for Reopened Cases.

On appeal to this court the question is presented whether the order of the Appellate Division is a final order. Clearly it is not.

The Fund for Reopened Cases is not a party to this proceeding. Section 25-a provides: When an application for compensation is made under this section the chairman of the industrial board shall appoint a representative of such fund in such proceedings and, in so far as practicable, such representative shall be a person designated by the employer originally liable for the payment of compensation, or his insurance carrier, but whenever it shall appear to the industrial board that through any committee, board or organization or representative of the interest of the insurance carriers an attorney has been appointed to act for and on behalf of such carriers generally to represent such fund in any proceedings brought hereunder, the chairman of the board shall designate such attorney as the representative of the fund in proceedings brought to enforce a claim against such fund.”

The provisions of this chapter with respect to procedure and the right to appeal shall be preserved to the claimant and to the employer originally liable for the payment of compensation and to such fund through its representative as hereinafter provided.” (§ 25-a.)

The Fund for Reopened Cases moved this court for joinder of the Fund as a party appellant and was granted leave, through Mr. John M. Cullen as its representative, to file a brief and to be heard upon the argument of the appeal as amicus curise. From the papers submitted in support of the motion and the brief it appears without question that the Fund has not had its day in court.

The Special Funds Conservation Committee, in behalf of the Fund for Reopened Cases, on October 30, 1939, applied to the Appellate Division, following its decision, for an order withdrawing the opinion of that court and remitting the matter to the Industrial Board for a rehearing on the question of the applicability of section 25-a to the present claim, or in the alternative for reargument upon affidavits setting forth the historical background and purposes of the enactment of section 25-a in 1933. (L. 1933, ch. 384.) That motion was denied.

Thereafter the Chairman of the Industrial Board designated Mr. John M. Cullen, attorney for the Special Funds Conservation Committee, as the representative of the Fund for Reopened Cases herein. It is the contention of the Fund that section 25-a is not applicable to the facts here presented.

More than “ purely ministerial ” action is now necessary by the Industrial Board. (Matter of Vleck v. Parry, 270 N. Y. 371; Cohen on Powers of New York Court of Appeals, § 4, pp. 17, 18; Matter of New York State Elec. Corp. v. Public Service Comm., 260 N. Y. 32; Matter of Grade Crossings [N. Y. C. R. R. Co.], 255 N. Y. 320.)

Under the remission of the Appellate Division, the Fund for Reopened Cases is entitled to be joined and heard as a party before payment to claimant from its funds may be ordered.

Jurisdiction may not be conferred upon this court by the consent of the Fund. (Hoes v. Edison Gen. Elec. Co., 150 N. Y. 87.)

The appeal should be dismissed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Lewis, JJ., concur;

Appeal dismissed.


author: Rippey, J.

text:
    William J. Grill et al., Appellants, v. City of New York, Respondent.

      Argued March 14, 1940;
    decided April 16, 1940.

      Leonard G. Bisco, David Barnett and Herbert E. Mayer for appellants.
    The Commissioner of Public Markets of the City of New York had the power and authority to include in the 1929 lease the city’s covenant to pay for the lessee’s building. (Crater’s Wharf, Inc., v. Valvoline Oil Co., 196 N. Y. Supp. 815; Howe’s Cave Assn. v. Houck, 66 Hun, 205; 141 N. Y. 606; Precht v. Howard, 197 N. Y. 136; Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 341; Seaboard Air-line Ry. v. North Carolina, 245 U. S. 298; Hinrichs, Inc., v. City of New York, 121 Misc. Rep. 592; 212 App. Div. 816; 242 N. Y. 527; Lloyd v. Mayor, 5 N. Y. 369; Matter of City of New York [Lands on North Shore of Harlem River], 127 Misc. Rep. 710; People ex rel. Fleming v. Dalton, 158 N. Y. 175; Peterson v. Martino, 210 N. Y. 412; Hamilton v. Erie R. R. Co., 219 N. Y. 343; 248 U. S. 369; Matter of Marcellus, 165 N. Y. 70; McGovern v. City of New York, 234 N. Y. 377; Beers v. Hotchkiss, 256 N. Y. 41; People v. Cook, 11 Barb. 259; 8 N. Y. 67; Grimmer v. Tenement House Department, 205 N. Y. 549; Matter of City of New York [Willard Parker Hospital, 217 N. Y. 1.) The trial court erred in construing the lease to mean that the lessee would be deprived of his building without compensation if he failed to exercise his renewal option. (Daniel Holding Corp. v. 234 West 42nd Street Corp., 255 App. Div. 8; Pittsburgh & Shawmut R. R. Co. v. Central Trust Co., 156 App. Div. 182; Employers’ Liability Assur. Corp. v. Morrow, 143 Fed. Rep. 750; Marshall v. Commercial

      Travelers’ Mut. Acc. Assn., 170 N. Y. 434; Matter of Brooklyn Trust Co. [Prudence-Bonds Corp.], 163 Misc. Rep. 117; Gillet v. Bank of America, 160 N. Y. 549; Eighteenth St. Realty Corp. v. Maxthan Realty Co., 233 App. Div. 687; Columbus Spa, Inc., v. Star Co., 216 App. Div. 218; Foreman v. Elaine Realty Corp., 240 App. Div. 490.)

      Manuel Maxwell and Arthur I. Meyer for Frederick H. Vahlsing et al., amici curiæ.

    Chapter 569 of the Laws of 1894, as amended, ceased to govern leases between the predecessor of the plaintiff Grill, and the defendant in 1909. (1 Sutherland on Statutory Construction [2d ed.], § 254; Matter of W. S. A. & P. R. R. Co., 115 N. Y. 442; City of New York v. Maltbie, 274 N. Y. 90; City of New York v. New York City Ry. Co., 193 N. Y. 543; Grimmer v. Tenement House Department, 205 N. Y. 549; Matter of City of New York [Willard Parker Hospital], 217 N. Y. 1; Hamilton v. Erie R. R. Co., 219 N. Y. 343; McGovern v. City of New York, 234 N. Y. 377; Beers v. Hotchkiss, 256 N. Y. 41.)

      William C. Chanler, Corporation Counsel (Julius Isaacs, Joseph F. Mulqueen, Jr., Reuben Levy and William A. Marks of counsel), for respondent.
    Condition eight which obligates the city to pay for the building under certain conditions was in the Grill lease by express requirement of the earlier statutes. Since these statutes expressly forbade terms inconsistent with them, the tenth paragraph, on which the appellants rely, must be a nullity if repugnant to condition eight. (McDonald v. Mayor, 68 N. Y. 23; Bonesteel v. City of New York, 22 N. Y. 162; Bird v. Grout, 106 App.. Div. 159; Rowehl v. City of New York, 236 App. Div. 852; Matter of Smith v. Morgan, 253 App. Div. 239; Matter of Smith v. Morgan, 167 Misc. Rep. 815; 254 App. Div. 672; Hinrichs, Inc., v. City of New York, 121 Misc. Rep. 592; 212 App. Div. 816; 242 N. Y. 527; Trustees of Columbia University v. Kalvin, 250 N. Y. 469.) The only obligation of the city to pay for the building is the one prescribed in condition eight of the Grill lease. (Talbot
      v. Cruger, 151 N. Y. 117; Loughran v. Ross, 45 N. Y. 792; Burns v. City of New York, 213 N. Y. 516; Zorkowski v. Astor, 156 N. Y. 393; 348 Madison Avenue Corp. v. Marshall, 212 App. Div. 672; 241 N. Y. 520.)
   Rippey, J.

Plaintiff Grill was the lessee of Lot 322 of Wallabout Market, borough of Brooklyn, and the owner of the building thereon. The Manufacturers Trust Company held a mortgage on the building. Defendant is the owner of the land. This action was commenced on October 31, 1938, to secure a judgment declaratory of the rights and obligations of the parties under a written lease dated May 1, 1929, and expiring May 1, 1939. Defendant asked for a dismissal of the complaint and counterclaimed for a judgment canceling the lease for non-payment of rent, compelling the lessee to vacate and for damages for withholding possession. After a trial, defendant’s counterclaim was dismissed. It was the claim of plaintiffs that defendant could not require them to renew the lease and that the buildings on the premises would revert to the city of New York on the expiration of the lease upon payment by the city of the then value of the buildings to be fixed as provided by the provisions of the lease, which sum the defendant should be compelled to pay. The judgment of the trial court was that the city was required neither to grant a renewal of the lease nor to pay the value of the buildings on the premises unless the tenant, within the time specified in the lease, served a notice of his election to renew, in which event the-city must renew the lease or pay to the tenant the value of the buildings on the premises. The Appellate Division affirmed by a divided court.

The lease in question was executed and delivered to one Isaac Sunshine by the city of New York, acting by and through the Commissioner of the Department of Public Markets of the City of New York, under the authority, as expressly stated in the lease, conferred on him by section 261 of article 22 of the Farms and Markets Law (now known as the Agriculture and Markets Law [Cons. Laws, ch. 69]) and by section 30 of article 2 of chapter 15 of the Code of Ordinances of the City of New York. The ground rent was fixed at $380 per year, payable in equal monthly installments in advance. The lease was a renewal of a previous lease dated May 1,1919, which gave the tenant an option to renew for the additional term of ten years at a rental to be fixed by the Commissioner and the tenant, or by a commission if those parties could not agree, “ without regard to any building erected upon said premises in all cases where the same is not owned by the city,” at not less than an amount equal to two-thirds of the rent of the preceding term nor in excess of an amount equal to one and one-third times such rent. Thus the rental as fixed was ground rent ” only, it being conceded and found that the building on the land was the property of the tenant. It had been built in 1896 by a tenant under a somewhat similar lease and title had passed by conveyances to Sunshine through earlier tenant owners. As further consideration for the lease, the tenant was required to pay all taxes and water rents imposed on the premises by the city. The lease contained an option to the tenant to renew for an additional period of ten years to be exercised by giving to the landlord at least six months’ written notice previous to May 1, 1939, of his desire to exercise the option. There are many provisions of the lease, inserted by the city and not required or authorized in express terms by any provision of law, not here important. The clauses which are up for construction will be numbered 1, 2 and 3 for convenient reference and read as follows:

1. And the party of the first part further covenants and agrees that the buildings erected on the premises herein demised shall upon the expiration or sooner termination of the within lease, or, if renewed, upon the expiration of said renewal term, revert to and become the property of the City of New York upon payment to the Lessee or his successor or assigns of the then value of the buildings built as herein-before provided, such value to be fixed and determined as agreed upon by and between the Commissioner of the Department of Public Markets of The City of New York, and the said party of the second part, his successors and assigns, not less than four months prior to the expiration of said lease or of the renewal thereof, if renewed, and in the event that no such agreement can be reached by the said Commissioner and the said party of the second part four months prior to and preceding the expiration of said lease or of the renewal term thereof, then such value shall be ascertained by three disinterested Commissioners to be nominated and appointed by a Justice of the Supreme Court on the application of the Commissioner of Public Markets of the City of New York on ten days’ notice to the party of the second part, his successors, or assigns. The findings of the Commissioners so appointed as aforesaid as to the value of such building or buildings shall be final and conclusive upon all parties and the expense of such Commissioners shall be paid and borne one-half by the City and one-half by the party of the second part, but it is mutually agreed that the party of the first part shall not be obligated to pay to the party of the second part, his legal representatives or assigns the value of the said buildings if the party of the second part has surrendered this lease or failed to pay the rent as herein provided.”

2. 7. That if at any time before the expiration of the term aforesaid, the said party of the second part, his legal representatives or assigns shall surrender this lease or fail to pay the rent of the said premises after the same becomes due and payable on the dates and at the times hereinbefore specified, or shah refuse or neglect to renew this lease at the rent which shall be fixed and determined for such renewal, then and in that event the buildings erected on the said premises shall revert to and belong to The City of New York without.the payment of any compensation therefor to the party of the second part, his legal representatives or assigns, for the said buildings.”

3. 8. That at the final expiration of the term of this lease and of the renewal thereof herein provided for and of any other renewals which may be at any time made, the said The City of New York shall, at its option, to be exercised by the Commissioner of the Department of Public Markets, either grant further renewals thereof at rents to be fixed as herein provided for, or pay unto the said party of the second part, his legal representatives or assigns, the value at that time of the buildings built as aforesaid upon the said premises, which value, if not fixed, determined and agreed upon by and between the said Commissioner of the Department of Public Markets and the party of the second part, shall be ascertained by three disinterested Commissioners to be appointed as herein provided for the fixing of rents.”

Clause numbered 1 above requires the city to pay for the building at the termination of the lease a sum fixed according to the provisions therein contained except upon voluntary surrender by the tenant before the expiration of the term or by virtue of his default in the payment of rent. Clause numbered 2 above as clearly and unequivocally provides for reverter of the building to the city without cost on the same conditions of voluntary surrender or failure to pay rent. It also contains the clause that the same result will obtain when the tenant shall refuse or neglect to renew this lease' at the rent which shall be fixed and determined for such renewal.” Under another clause of the lease, briefly referred to above, the tenant “ shall have the option of a renewal of this lease for an additional term of ten years from the first day of May Nineteen Hundred Thirty-nine by giving at least six months’ notice in writing prior to the expiration of the existing term of his election so to renew.” The same clause then provides that the rent for the renewal term shall be fixed, determined and agreed upon between the parties but, if not agreed upon prior to January 1, 1939, then the rent for such renewal term shall, if either the Commissioner or the Lessee or holder so elects, be fixed and ascertained by three disinterested Commissioners, to be nominated and appointed by a Justice óf the Supreme Court upon the application of the Commissioner of Public Markets, on ten days’ notice of such application to the Lessee of said premises, or his successors or assigns,” This clause simply provides (1) for the privilege to the tenant to elect to renew to be exercised at least six months before the expiration date of the lease, (2) a determination by the parties, if possible, of the rent to be paid prior to the January first preceding the termination date, (3) a determination by Commissioners, if the parties cannot so agree, but only if “ the Commissioner or the Lessee or holder so elects,” of the rent to be paid for the renewal term, and after those steps have been taken and the rents fixed (4) for the actual renewal of the lease. The distinction is clear between election to renew and actual renewal. Unless the rent is fixed, there can be no actual renewal. There is nothing, however, in the lease that gives the city any right to require the tenant to elect to renew. The option to make that election is conferred only on the tenant. That clause becomes important only in the event that the tenant indicates his purpose to take advantage of the option by a notice of election to renew and subsequently refuses or neglects to enter into the renewal lease after the rent and terms have been agreed to. Giving it that effect fits in with other clauses of the lease. Thus the expression “ shall refuse or neglect to renew this lease at the rent which shall be fixed and determined for such renewal refers to a neglect or refusal actually to renew after the tenant (1) has indicated his election to renew and (2) all prefiminary steps in fixing rent for the new term have been taken. The court has found that the tenant, by letter dated October 3, 1938, and the mortgagee, by letter dated October 4, 1938, notified the Commissioner that they respectively did not desire to exercise the option to renew the lease, that there was no voluntary surrender of the lease by the tenant and that defendant had duly waived in writing and by its conduct the default in the failure to pay rent due on October 1, 1938 (all previous rents having been paid when due), that defendant had refused to accept a valid tender thereof and that defendant could not, for those reasons and others, assert any default on the part of the tenant in the refusal to pay rent. Thus neither clause 1 nor clause 2 furnishes any ground for defendant to assert that it may be relieved from payment for the building as provided in clause 1. Clause 3 above, with similar clarity, relieves the city from its obligations under clause 1 only in the event that it grants a renewal at the rents previously fixed as provided for in the lease after election by the tenant to renew.

After receipt of notices from plaintiffs that they did not desire to exercise their option to renew the lease, on October 11, 1938, the Commissioner wrote to plaintiffs that the city stood “ready to renew this lease under clause 8 thereof ” (clause numbered 3 above), and that, through failure or neglect of the plaintiffs to renew under clause 7 (numbered 2 above), the building would revert to and become the property of the city without cost to it. Again, attention is called to the fact that the city had no right under any provision of the lease to compel the tenant to elect to renew the lease. Obviously, it was not the intent of the parties nor the legal effect of the contract, in the absence of a provision reserving to the city any such legal right and in the face of the provision giving the tenant only the right to exercise such an option, to permit the city to nullify the provisions of clause 1 above by the simple expedient of asserting, when convenient, that it elected to compel the tenant to exercise his exclusive option.

Reading the lease as a whole and giving meaning to the three clauses and to every other pertinent clause of the lease, it seems clear that the city was required to pay for the building on the property in accordance with and under the conditions stated in clause above numbered 1 at the termination of the lease unless (1) there was an earlier voluntary surrender of the leasehold by the tenant, (2) the tenant defaulted in payment of rent reserved, of which default the lessor was entitled to take advantage, or (3) the tenant refused and neglected actually to renew the lease after he had previously exercised his option to renew and the rental had been fixed for the renewal term and the lessor had then consented to such renewal. By no other construction can the intent, purpose and undertakings of the parties and every clause and provision of the lease be given effect. Clause 1 above is not inconsistent with the provisions of clauses 2 and 3 above numbered and is not prohibited by any statutory provision relative to leasing as presently will be pointed out.

Defendant challenges the power of the city to make the agreement embodied in clause numbered 1 above and bases its challenge upon the limited powers granted to the Mayor and to the Commissioner of City Works of the City of Brooklyn, prior to its consolidation with the city of New York in 1897 (L. 1897, ch. 378), with reference to leases on the lots embraced in Wallabout Market (L. 1890, ch. 446; L. 1892, ch. 319; L. 1894, ch. 569; L. 1896, ch. 859; L. 1897, ch. 529) and upon the assertion that the Comptroller of the Greater City was granted no greater power under later acts.

The Wallabout Market plot was acquired by the city of Brooklyn from the United States Government. It was divided into lots and parcels in 1897. Authority to lease the lots was granted to the Commissioner of City Works, with the consent of the Mayor, but only within the strict terms of the statute. Little or no discretion was left to the officials as to the terms and provisions of the leases except as to the amount of rental to be imposed. It was provided that the first lease granted must expire on May 1, 1899, and that two renewals, each of five years, might be granted to the tenant but all leases and renewals must expire on May 1, 1909, at the latest. There was no authority to grant an option for any renewal at or after that date. No authority was given to the Commissioner to agree that the city should pay the tenant for the buildings erected by him on the lot leased except in the case referred to in clause numbered 3 above. The acts provided that such building should revert to the city without cost to it under the conditions mentioned in clauses numbered 2 and 3 above. Accordingly, the Commissioner leased lot 322 to one Benne on December 27, 1895, by lease expiring May 1, 1899, which was renewed for two terms of five years each, the last renewal expiring on May 1, 1909, at an annual rental for land only, without reference to the building which was erected on the lot by Benne, at his own expense, in 1896. In each case the lease and renewals contained clauses numbered 2 and 3 above substantially in the words of the statute (L. 1894, ch. 569) or their equivalent* but did not include clause numbered 1. Prior to May 1, 1909, Isaac Sunshine had duly become the owner of the Benne lease and had succeeded to the ownership of the building on the premises, prior to which date nothing had occurred by which the building had reverted to or become the property of the city.

Alter the Consolidation Act and the enactment of the Greater New York Charter (L. 1897, ch. 378), the Legislature in 1901 (L. 1901, ch. 466) added section 164 to the charter whereby the sole control and management of the Wallabout Market lands were vested in the Department of Finance of the City of New York. The Comptroller was given broad power with reference to the terms of each lease. Such powers not only included whatever power the Commissioner of City Works had under the earlier acts, but, in addition, the Department of Finance and the Comptroller severally were given the sole and exclusive charge, control and management of the market lands, “ power to make suitable regulations concerning fees, the hours during which the said business shall be conducted and “ the sole power to lease any portion of the said market lands and renew existing leases on such terms and at such rentals as may be agreed upon between him and the lessees or holders.” (Italics ours.) Concerning rental to be paid after the expiration of any existing lease, it was provided that the rent should be fixed in the manner provided in existing law only in the event that the amount should not be agreed upon by the January first preceding the expiration of the lease and either the Comptroller or the lessee should so elect. In either event, the act fixed the minimum and maximum rent to be exacted. By the express terms of section 164 the Comptroller had power not only to lease in the manner agreed to between the lessee and himself, subject only as to the amount of rental, but could, with the consent of the lessee, vary or modify the terms of any such lease and could adjust and settle all claims and controversies appertaining to or arising out of any such lease or extension. He was affirmatively granted larger and different powers than those granted to the Commissioner of City Works and the act (§ 164) completely but differently and more broadly covers the powers granted to that official.' There was no limitation, to be considered here, of the broad and complete power of the Comptroller to negotiate for and execute the new lease to Sunshine on May 1, 1909, containing clause numbered 1 above, to the terms of which the parties agreed, prepared and executed, as the lease itself states, under the authority of charter section 164.

If and to the extent that the powers conferred on the Comptroller by charter section 164 were inconsistent with the provisions of the earlier acts, that statute controls and its provisions must be given full force and effect. Otherwise the will of the Legislature would be ineffective. Under such circumstances, though not by express words repealed, the statutes relating to the leasing of Wallabout Market lots in force prior to the enactment of section 164 of the Greater New York Charter as contained in chapter 466 of the Laws of 1901, except as therein expressly saved, were by implication necessarily repealed (Book 1, McKinney’s Consolidated Laws of New York, § 178; 1 Sutherland on Statutory Construction [2d ed. by Lewis], § 254 [145]; Heckmann v. Pinkney, 81 N. Y. 211; Matter of Washington Street Asylum & Park R. R. Co., 115 N. Y. 442; People ex rel. Bronx Parkway Comm. v. Common Council, 229 N. Y. 1).

At the time the lease in suit was negotiated and executed, being a renewal of the lease of May 1, 1919, which, in turn, was a renewal of the lease of May 1, 1909, supervision and control of Wallabout Market were vested in the Commissioner of the Department of Public Markets of the City of New York, whose powers were as broad and unlimited as were those of the Comptroller under section 164 in the matter of maintenance and management of the property and in the matter of fixing fees for services, licenses and privileges and of renting space therein and entering into leases therefor ” (Laws 1917, ch. 802, § 72, now Agriculture and Markets Law, § 261, subds. 1, 2; Code of Ordinances of the City of New York, ch. 15, art. 1, § 1, and art. 2, § 30), and in the matter of inserting in such leases such terms and conditions as might be agreed upon between himself and the tenant which were suitable and proper for the purposes at hand. Attention has already been called to the fact that the lease provided for ground rent only. It was fixed without considering the improvements made by the lessee. The amount was fair and within the maximum and minimum amounts specified by law. Over a period of forty-five years the improvements brought revenue to the city in the form of taxes. When section 164 of the charter and the act and ordinances under the authority of which the lease was executed were enacted, the facts as to the leasing of market lots and the ownership of buildings thereon were open and notorious. The provision in question was reasonable and not unusual and was suitable to the conditions at hand. Under all applicable statutes power was given to prescribe reasonable terms and conditions in addition to those in specific terms authorized if not inconsistent with their provisions. We conclude that it was not beyond the power of the Commissioner to include in the lease clause numbered 1 above.

The judgments of the Appellate Division and of the Special Term, in so far as appealed from, should be reversed, with costs to appellants in all courts, and the action remitted to the Special Term to enter a judgment in accordance with this opinion.

Lehman, Ch. J., Loughran, Finch, Sears, Lewis and Conway, JJ., concur.

Judgment accordingly.


text:
    In the Matter of the Probate of the Will of Esther H. Tremain, Deceased. Henry H. Jackson et al., Appellants; Bank of New York and Trust Company, Respondent.
    Argued February 27, 1940;
    decided April 16, 1940.

      Ralph S. Kent, S. Y. Austin, Jr., and Alvaro J. Adams for appellants.
    Section 34 of the Decedent Estate Law (Cons. Laws, ch. 13) does not require the cancellation marks to encompass the whole will to be expressive of intent, or to affect such a vital part of it that presumptively the will is revoked. (Dan v. Brown, 4 Cow. 483; Ely v. Megie, 219 N. Y. 112; Lovell v. Quitman, 88 N. Y. 377; Quinn v. Quinn, 1 Thompson & Cook, 437; Matter of Curtis, 135 App. Div. 745; Matter of Bissonnette, 127 Misc. Rep. 215; 217 App. Div. 809.)

      Robert B. Watts for respondent.
    The marks on the will do not constitute an act of revocation within section 34 of the Decedent Estate Law. (Jackson v. Halloway, 7 Johns. 397; Dan v. Brown, 4 Cow. 483; Jackson v. Kniffen, 2 Johns. 31; Waterman v. Whitney, 11 N. Y. 157; Matter of McGill, 229 N. Y. 405; Matter of Evans, 113 App. Div. 373; Matter of Philp, 64 Hun, 635; Lovell v. Quitman, 88 N. Y. 377; Quinn v. Quinn, 1 Thompson & Cook, 437; Matter of Crawford, 80 Misc. Rep. 615; Matter of Ridgway, 141 Misc. Rep. 582; Casey v. Hogan, 344 Ill. 208.)
   Lewis, J.

The will of Esther Hull Tremain has been admitted to probate by a Surrogate’s decree which granted the proponent’s motion for judgment on the pleadings and dismissed the contestants’ objection that the alleged will had been revoked by cancellation. Following the unanimous affirmance by the Appellate Division of that decree, we have granted leave to appeal and now review the record upon which rests the ruling that the presence of certain marks, lines and writings, concededly made by the testatrix in ink upon four of the eleven pages of the will, are insufficient in law to constitute an act of revocation within section 34 of the Decedent Estate Law (Cons. Laws, ch. 13).

As an aid to construction we shall consider briefly the statutory history which preceded the enactment in 1829 of the law by which we are to test the present record which the appellants claim affords ample proof of revocation. Under the early common law of England a written will could be set aside by paroi proof of the testator’s intention to revoke. There came a time, however, when the administration of that rule in probate proceedings was fraught with perjury and fraud, so much so that, in the course of a proceeding to revoke a written will by oral proof of a nuncupative will Lord Chancellor Nottingham stated: I hope to see one day a law, that no written will should be revoked but by writing.” (Cole v. Mordaunt, cited in Matthews v. Warner, 4 Vesey Jr. pp. 195, 196 [note a]. See, also, Prince v. Hazleton, 20 Johns. 502, 513; Ash v. Abdy, 3 Swanst. 664; 17 Michigan Law Review, p. 331 et seq.) This comment led to the adoption in England in 1677 of the following statute (29 Charles II, ch. 3): “ VI. And moreover no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing of obliterating the same by the testator himself, or in his presence and by his directions and consent; (2) but all devises and bequests of lands and tenements shall remain and continue in force, until the same be burnt, cancelled, tom or obliterated by the testator, or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same; any former law or usage to the contrary notwithstanding. ’ ’

Thereafter, in 1787, the Legislature of New York incorporated in our statutory law similar requirements for proof of revocation. (Laws of 1787, ch. 47; 1 Greenleaf, Laws of New York, [1792], p. 387, ch. 47, § III.) The text of the law was subjected to change in 1801 (Laws 1801, ch. 9, § 3, p. 9) and, substantially as changed, this law was placed in Revised Laws of 1813. (See Laws 1813, ch. 23, § 3, p. 365.) Up to this time the statutes made no mention of the testator’s intent to revoke. Meantime the courts had interpreted this law as requiring that the physical acts prescribed by the statute be done anima revocandi. (Jackson v. Holloway, 7 Johns. 394, 399; Dan v. Brown, 4 Cow, 483, 490.) In 1829 this judicial interpretation was given statutory sanction by the inclusion of the words with the intent and for the purpose of revoking the same.” (Rev. Stat. [1st ed., 1829], vol. 2, part 2, ch. 6, tit. 1, art. 3rd, § 42, p. 64.) In fact, the change was made for the express purpose of sanctioning the interpretation by the court in Dan v. Brown (supra). (See Edmonds Revisers’ Reports and notes 1863, vol. 5 of New York Statutes at Large, part 2, ch. 6, art. 3, § 49 [same as R. S. § 42].)

The language of the statute of 1829 has never been changed and appears today as section 34 of the Decedent Estate Law. It provides:

“ § 34. Revocation and cancellation of written wills. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, tom, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.”

We are to apply this statute in determining upon the record at hand whether there is evidence legally sufficient to establish revocation of the alleged will offered for probate in this proceeding. It is a document of more than three thousand typewritten words covering eleven pages and is manifestly the product of careful draftsmanship. Concededly, seven of its pages — including the last page upon which appear the signature of the testatrix and the attestation clause with the signatures of the three witnesses — are free from writings, marks or interlineations upon which a claim of revocation by cancellation could be based. Accordingly, if there is proof of acts sufficient in law to constitute revocation by cancellation it must be found on the four remaining pages.

On the first page is the paragraph numbered “ Fourth,” by which the testator devised two apartment houses in New York city and a “ Farm at Stormville, Dutchess County, New York, known as the Old Homestead.” Following the above-quoted description of the Stormville farm property the testator has written in longhand “ one mile from Stormville my Mother’s Home.”

In the left margin of the sixth page opposite the “ Eighth ” paragraph, which creates from the residuary estate six charitable trusts, appears the notation, “ I don’t quite understand this.”

In the left margin of the tenth page opposite subdivision “ (e) ” of the “ Twelfth ” paragraph, which grants to the testamentary trustee certain discretionary powers in dealing with funds of the trust, appears a similar notation, “ Don’t understand.”

The only remaining marks and interlineations upon the will are those appearing on the fifth page, as follows:

The “ Sixth ” paragraph contains a bequest under subdivision “(d),” “To Anna Armstrong, of Fayetteville, New York, the sum of Two thousand dollars ($2,000).” Opposite this subdivision and beginning in the left margin is a bifurcated fine so drawn that it does not touch the text of the will at any point but encloses within its fork the character “ (d).”

Subdivision “ (g) ” contains a bequest “ To my friend, Mollie Rose, wife of Hudson P. Rose, of New York City, my necklace composed of sapphires, pearls, and diamonds.” To this sentence the testatrix has added the words “ & Two Thousand.”

Subdivision “ (i) ” bequeaths $2,000 to John M. Thompson of Yonkers, and subdivision “ (j) ” bequeaths $2,000 to his sister Sadie Thompson. Around the left end of these two subdivisions and extending 'Slightly within the left margin is a vertical bracket-shaped line which brackets the two subdivisions but does not touch the text of either.

Finally we reach subdivision “ (k),” which provides a bequest by the testatrix: “ To my maid, Augusta Dean, the sum of Five hundred dollars ($500) if she is still in my employ at the time of my death.” Through the words “ Five hundred ” two horizontal lines have been drawn and above them have been written the words Five Thousand.” Through the figures “ $500 ” a line has been drawn, above which has been written the words Five Thousand.”

Assuming, as we must, the truth of the contestants’ allegation that the testatrix intended to revoke her will, we cannot say upon the present record that there is evidence of compliance with the requirements of section 34 of the Decedent Estate Law to accomplish that end. Had the appellants been permitted to give proof of oral statements by the testatrix of her intent to destroy the will, the statute was not satisfied by proof of the marks and interlineations upon the will itself to which reference has been made. We have seen that paroi evidence of a testator’s intent to revoke a will was sufficient at common law only until it was discovered how easily, under such a rule, perjury and fraud could be employed to pervert justice. Then came statutory requirements in England and in this State which foreshadowed those which we must now apply and under which revocation cannot be proved exclusively by the testator’s statement anima revocandi. Intent alone will not suffice. It must be consummated by some of the acts specified in the statute, or by the execution of an instrument ‘declaring such revocation.’ ” (Matter of McGill, 229 N. Y. 405, 411.)

In the absence of proof in the present record of some writing by the testatrix, properly attested, declaring her intention to revoke the will, proof of revocation requires evidence of some physical act by the testatrix or at her direction, in connection with the will itself, such as burning, tearing, canceling, obliterating or destroying the instrument. The marks, lines and writing upon the will before us do not satisfy the requirements of the statute as interpreted by this court in Lovell v. Quitman (88 N. Y. 377). Construing in that case the statute which we are now considering, this court ruled (p. 379):

“ There is [in the statute] language of prohibition, but it is so qualified as to amount to permission to revoke or alter a will, or any part thereof, by some other will in writing, or some other writing of the testator declaring such revocation or alteration; or by burning, tearing, canceling, obliterating or destroying the will,' for the purpose of revoking the same.’ Now, by the first phrase, the repentant testator is required to write out the proposed alteration, select his witnesses and make to them an acknowledgment or declaration that the act is his; and, so far, the language permits but one inference or construction; that that act becomes effectual whether it relates to the whole will, or some portion only of the will.

“ The second clause requires no such construction. The words or any part thereof ’ are omitted. The ‘ will ’ itself is to be burnt, tom, canceled, obliterated or destroyed, not with an intent or purpose of altering,’ but, as the statute says, with the intent and for the purpose of revoking the same.’ ”

Again (at p. 381), it was said: “ * * * when we find in the first clause that the will, or any part thereof, can be altered by a writing only when duly attested,' and in the second clause the words or any part thereof ’ omitted, we are bound to give effect to the specific words actually used, and say that no obliteration can be effective as to part, unless it altogether destroys the whole will. We have no power to interpolate other words.” (See, also, Matter of McGill, supra, pp. 411, 412; Matter of Akers, 74 App. Div. 461; affd., 173 N. Y. 620.)

In the case at bar the acts of the testatrix do not amount to a cancellation. There is here nothing more than an attempted alteration which the statute requires shall be executed with the same formalities with which the will itself was required by law to be executed.” Concededly the testatrix has crossed out three words of the entire will and has interlined new matter. Being unsigned and unwitnessed, however, no effect can be given to the attempted change. (Cf. “ Dependent Relative Revocation,” by Joseph Warren, 33 Harvard Law Rev. 337, 338; Thompson on Wills [2d ed.], § 160, p. 209.)

The order should be affirmed, with costs to the respondent payable out of the estate.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Order affirmed, etc.