text:
    The People of the State of New York, Appellant, v. Hy Bellows and Tony Maiorano, Respondents.

      Argued May 31, 1939;
    decided July 11, 1939.

      William F. X. Geoghan, District Attorney (George F. Palmer of counsel), for appellant.

      Robert R. Kaufman for United Sign Writers & Sign Hangers Union, Local 304, amicus curise.

      Sidney O. Raphael for Millie Munzer, complainant, and others, amici curise.

      David I. Ashe and Louis Waldman for respondents.
   Crane, Ch. J.

The appellants were convicted of disorderly conduct in the City Magistrates’ Court, City of New York, County of Kings. Sentence was suspended. An appeal to the Court of Special Sessions, pursuant to section 41 of the Inferior Criminal Courts Act (L. 1910, ch. 659, as amd.), resulted in the judgment of conviction being reversed for errors, both of law and fact. The information against them was dismissed and the defendants discharged. An appeal has been allowed to this court, pursuant to section 520 of the Code of Criminal Procedure.

Mollie Munzer and her husband conducted a little store for the sale of handbags at 816 Nostrand avenue, borough of Brooklyn. They employed no help and had no employees. In the summer of 1938 they bought of the Peerless Neon Company two neon signs to put up on their store. The signs were erected in August of 1938. This sign company had a contract with the United Sign Bepairs, Local 304, affiliated with the International Industrial and Building Construction Workers of America, and the sign was hung by members of Local 304. The defendants were members of Local No. 3, Electrical Workers — New York Sign Painters Local No. 230, affiliated with the American Federation of Labor. The two defendants, members of the latter union, thereafter picketed the store carrying up and down in front signs bearing these legends:

Maintenance of electric signs on these premises unfair to Local Union No. 3, Electrical Workers — New York Sign Painters Local No. 230 — Affiliated with A. F. of L.” “ Electrical signs on these premises unfair to Local Union No. 3, Electrical Workers — New York Sign Painters Local No. 230.”
In the middle of the latter sign appeared: Workers Local No. 137 — Affiliated with A. F. of L.”

This constituted a secondary boycott and was illegal. The Munzers were merely purchasers of the product in the market and not parties to any labor dispute. There was no more right to picket their store than to picket the home or store of any other person who happened to buy non-union material or goods from a rival union. (Goldfinger v. Feintuch, 276 N. Y. 281.) There was here no such unity of interest with the manufacturer as was developed in the Goldfinger case. (Cf. Canepa v. “ John Doe,” 277 N. Y. 52.) The magistrate, in his decision, said: I find here that the acts of these defendants did annoy this complainant. They obstructed the complainant’s place of business. They interfered with the complainant and disturbed him, and the extent of the annoyance and disturbance, and the obstruction is such that a breach of the peace might have been occasioned by the acts of the defendants, and therefore constitute disorderly conduct.” And he cited subdivision 2 of section 722 of the Penal Law.

The appellate court, in reversing, said: “ In our opinion the record abundantly justifies the finding that the picketing was peaceful and free from disorder. That being so, the defendants were entitled to an acquittal.” (170 Misc. Rep. 66, 67.)

Before we can come to the merits of any case we must first determine our jurisdiction. The Inferior Criminal Courts Act, section 41, says that an appeal to the Court of Special Sessions may be taken as a matter of right by the defendant from a judgment upon conviction rendered by a city magistrate in any criminal action or proceeding or special proceeding of a criminal nature. No appeal of course can be taken from an acquittal even though the judge is wrong on both his law and facts. The Special Sessions, on appeal, “ may render the judgment which the court below should have rendered, or may, according to the justice of the case, affirm or reverse the judgment, in whole or in part, as to all or any of the defendants.” (§ 50.)

The Constitution of the State of New York, article VI, section 7, limits this court in criminal cases to the review of questions of law except where the judgment is of death.

“ The jurisdiction of the court of appeals, except where the judgment is of death, * * * shall be limited to the review of questions of law; * * *.

Appeals may be taken to the- court of appeals in the classes of cases enumerated in this section.

In criminal cases, directly from a court of original jurisdiction where the judgment is of death, and in other criminal cases from an appellate division or otherwise as the legislature may from time to time provide.”

It will be seen that the Legislature has no power to give this court a review of the facts in any criminal case except where the judgment is of death.

By section 519 of the Code of Criminal Procedure an appeal may be taken from a judgment or order of the Appellate Division of the Supreme Court to the Court of Appeals from a judgment reversing a judgment of conviction. If we consider this appellate branch of the Special Sessions'within the category of an Appellate Division for the purposes of this section, yet on the appeal no question may be reviewed, only questions of law.

That an appeal may be taken from a reversal of the judgment of conviction by the Special Sessions’ appellate branch is specifically provided for in section 520 of the Code of Criminal Procedure, which says that an appeal may be taken from the appellate tribunal specified in said section, upon the certification of a judge of the Court of Appeals or a justice of the Appellate Division of the Supreme Court. Among the appellate tribunals mentioned is the Appellate Part of the Court of Special Sessions. (People v. Wolf, 247 N. Y. 189; People v. Carmichael, 249 N. Y. 189.) None of these provisions, however, enlarge the scope of the review or permit this court to pass upon the facts. An appeal to this court from a judgment reversing a judgment. of conviction could be allowed, under section 520 of the Code of Criminal Procedure, but the allowance must result in an affirmance or dismissal if there be nothing we can review.

As stated, the Special Sessions reversed on the law and the facts and directed an acquittal. This form followed the practice on appeals by the Appellate Division, as provided in section 543-a of the Code of Criminal Procedure. This requires the order of the Appellate Division, reversing \a judgment of conviction, to state whether the reversal is made upon the facts or upon the law, or upon both the law and the facts, as in civil cases. Where the order merely states that the reversal is for error of law, it shall be presumed, for the purpose of an appeal to the Court of Appeals, that the Appellate Division reviewed the facts and was satisfied with them.

Treating this appeal for the present as governed by the procedure on appeals from reversals by the Appellate Division, we are confronted with , a question impliedly but not squarely decided by this court. When the order of reversal states that it is upon both the law and facts, and the indictment or information is dismissed, may this court review the reversal and direct a new trial instead of dismissal? Is this a review of the facts and is it a question of second jeopardy? If there be a substantial question of fact and evidence sufficient, if believed, to convict the defendant, is the appellate court justified in directing an acquittal or dismissing the indictment, instead of ordering a new trial? In such a case the Appellate Division should and generally does order a new trial, but if, through error, it dismisses the indictment, may this court pass upon the evidence to the extent of reversing the judgment and ordering a new trial? This is done in civil cases where the complaint has been dismissed, but the evidence made out a question of fact for the jury. Whether there be evidence to take the case to the jury always presents a question of law.

I see no reason why the same rule should not apply in criminal cases, and, although we are obliged to review the evidence to see whether or not there be a substantial question of fact, yet this is not the review on the facts prohibited by the Constitution. It is a question of law whether, from any view of the testimony, there was a question of fact regarding the defendant’s guilt which should have been submitted to the trial judge or to the jury and not disposed of by dismissal in the appellate court. This point has not been squarely decided ■ by this court, yet the cases lean to this conclusion, and some dicta indicate that we have considered such to be the law. (People v. Weiner, 211 N. Y. 469, 475.) Although this case did not contain a statement that the Appellate Division had reviewed the facts and was satisfied with them, we have this statement in the opinion which assumes that, if the dismissal had been improper, this court could have said so: "If the Appellate Division had merely reversed the judgment in this case, and had proceeded no further, the order would not have been reviewable in this court in the absence of a statement in the body thereof that the court had reviewed the facts and was satisfied with the judgment so far as the facts were concerned. (People v. O’Brien, 164 N. Y. 57.) The Appellate Division, however, has not only reversed the judgment but it has also dismissed the indictment, thus finally disposing of the prosecution. This course was taken, we presume, upon the ground that it was manifestly impossible upon another trial to establish an essential element of the offense charged, to wit, the presence of the defendant in the town of Andes and the act of solicitation by him personally in that town. The district attorney appears to have made no suggestion that he could strengthen the case in that respect nor does he make any such suggestion in this court. The case, therefore, was one of reversal in which it was neither necessary nor proper to order a new trial. (Code Crim. Proc. § 543.) Under these cireumstance$ the dismissal of the indictment seems to have been warranted.”

The Weiner case was cited in People v. Redmond (225 N. Y. 206), which only indirectly bears upon the matter. People v. Kuland (266 N. Y. 1) is not in point: Anyhow it arose prior to the adoption of section 543-a of the Code of Criminal Procedure. People v. Mangan (262 N. Y. 508) was decided without opinion. Here the Appellate Division reversed a conviction and dismissed the indictment, and we‘ 'affirmed the judgment of the Appellate Division. The record shows that the sufficiency of the evidence to establish knowledge of falsity of bank reports was presented to the court. On the other hand, in People v. Peck (205 N. Y. 554) the Appellate Division had reversed a judgment of conviction for perjury and had dismissed the indictment. A motion was made to dismiss the appeal to this court, as the reversal was on the facts as well as the law, and that, therefore, the Court of Appeals had no jurisdiction. The memorandum decision states: “ Motion denied on the ground that this court has jurisdiction to pass upon the sufficiency of the indictment, but that Alone, on this appeal.” Reference may be made to People v. Williams (243 N. Y. 162); People v. Schwartz (265 N. Y. 310), and People v. Shafer (273 N. Y. 475).

As to second jeopardy, dismissal of the indictment or charge by the Appellate Court, while having the same results as an acquittal, does not constitute a retrial, if ordered_by this court, second jeopardy, as the defendant has waived his constitutional immunity by his appeal. (People v. Palmer, 109 N. Y. 413.)

Perhaps a more serious question arises over the wording of section 50 of the Inferior Criminal Courts Act. It differs from section 543 of the Code of Criminal Procedure in that it gives to the Special Sessions the right or power to direct the judgment which the magistrate should have given. The language is: After hearing the appeal the court * * * may render the judgment which the court below should have rendered, or may, according to the justice of the case, affirm or reverse the judgment, in whole or in part.” Section 543 of the Code of Criminal Procedure says: The appellate court * * * must either reverse or affirm the judgment appealed from * * * and in cases of reversal may, if necessary or proper, order a new trial.”

Does section 50 of the Inferior Criminal Courts Act give to the Appellate Part of the Special Sessions the right to review the evidence de nova as upon a trial and acquit the defendant if it so desires? In other words, does the appellate court have the same power to acquit as the magistrate had? The magistrate, even although he is wrong on both his law and his facts, may acquit the defendant, and from his judgment there is no appeal. Is the Special Sessions in the same position? Even though there be a question of fact regarding the defendant’s guilt, may it in the same way direct his acquittal, without ordering a new trial? If this is the meaning of the section then there certainly can be no appeal to this court; and even if there may be, we have no power to order a retrial, as it would amount to second jeopardy. Note the words used. Power is given to return the judgment which the court below should have rendered, not coidd have rendered. This leads me to believe that this refers to a case where the magistrate should have dismissed the case and directed an acquittal because there was no evidence; then the appellate court may do likewise. Uniformity of practice in criminal cases in appellate tribunals should be preserved unless it is quite clear that the Legislature intended otherwise. The right of an appeal rests with the Legislature, and it may limit or condition the appeal at its will as long as it preserves constitutional rights, but if it intends to give to_the Special Sessions the right to retry the' defendant on the printed record, without seeing the witnesses, it should make this very clear.

We, therefore, conclude that the practice regarding the granting of new trials upon questions of fact should be the same in the Special Sessions as in the Appellate Divisions.

• We come back, therefore, to a consideration of the case upon the record, and are of the opinion that the Special Sessions was in error in dismissing the charge and should have granted a new trial. A reading of the opinion would indicate that the reversal was actually upon the law. That the defendants picketed in a secondary boycott is assumed by that court, but contrary to the finding of the magistrate, the Special Sessions says that the picketing was .peaceful and free from disorder.” Apparently for this reason, and this reason alone, the court determined that no offense of disorderly conduct had been proved. If this be the ground of reversal it amounts to a question of law and not one of. fact. In this particular we differ with the Special Sessions and hold that such picketing, which has been declared unlawful by this court, does constitute disorderly conduct, according to the conceded facts in this case. (People v. Jenkins, 138 Misc. Rep. 498; 255 N. Y. 637; Goldfinger v. Feintuch, 276 N. Y. 281; Canepa v. “ John Doe,” 277 N. Y. 52.) However, as the appellate tribunal did reverse upon the facts as well as upon the law, we, in order to keep well within our own jurisdiction, reverse the judgment in part, by ordering a new trial.

As to each defendant, the judgment, in so far as it dismisses the complaint or charge, should be reversed and a new trial ordered.

Hubbs, Loughran, Finch and Rippey, JJ., concur; Lehman, J., dissents on the ground that the picketing in this case, even if unlawful, did not constitute disorderly conduct; O’Brien, J., taking no part.

Judgment accordingly.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    Reuben Bernstein, Appellant, v. Samuel Greenfield, Respondent.

      Argued May 31, 1939;
    decided July 11, 1939.

      Leo Fixler and Leo Rosenberg for appellant.

      Harold H. Corbin, William F. Martin and Lorenz J. Brcsnan for respondent.
   Hubbs, J.

This is an action to recover damages sustained as a result of malpractice. Defendant’s assistant, while injecting with a hypodermic needle in the tonsillar area of the plaintiff, broke the needle and the end of it became embedded in plaintiff’s throat. Plaintiff does not claim that there was negligence in the breaking of the needle. The needle is still embedded in plaintiff’s throat and several operations to remove it have been unsuccessful.

The defendant is a specialist in ear, nose and throat diseases and had practiced twenty-one years at the time of the trial; he had interned at Manhattan Eye and Ear Hospital, studied in Vienna, was full attending physician at the Beth Moses Hospital of Brooklyn, assistant surgeon at the Brooklyn Eye and Ear Hospital, and attending physician at the Wyckoff Heights Hospital. Plaintiff went to defendant to have his tonsils removed. Defendant’s assistant, Dr. Lieberman, was assigned to inject novocaine. When the needle broke Dr. Lieberman called the defendant and showed him the place where the needle entered and pointed out the pinpoint made by the insertion. They examined the area and determined that since the needle point might be in the tonsil it would be best to remove the tonsil. Having removed the tonsil defendant found that the needle was not there and must have been drawn further into plaintiff’s throat. Defendant then started to probe for the needle but after about forty-five minutes, being unsucessful in finding it, rested. Plaintiff was given a brief rest and defendant then probed again for about twenty-five minutes. Again the search was unsuccessful and plaintiff was told to go home and return in about ten or twelve days. Plaintiff was in bed for about a week, and suffered intense pain. Upon his return to the defendant’s office he was sent to another doctor for an X-ray, and upon defendant’s advice submitted to another operation of probing for the needle. This was the last attempt by the defendant to remove the needle and was unsuccessful. Plaintiff shortly thereafter entered Dr. Lempert’s Hospital to have the needle removed. All attempts to remove it have been unsuccessful.

The trial court found a verdict for the plaintiff of $6,000. The Appellate Division reversed on the law. The question here is whether there was evidence which justified sending the case to the jury. While the reversal was on the law, it seems clear from the decision of the Appellate Division that it was the weight of the evidence that the court passed on rather than the law.

The specific malpractice relied on was the failure to take X-rays immediately to see where the needle was and in probing for the needle when it would be likely that the probing would push the needle in further. There was evidence both ways on whether the method followed by the defendant was proper practice. Plaintiff relies on the testimony of Dr. Harry. G. Goldman, a physician and surgeon. He is a graduate of New York University and Cornell Medical College. He was a special student in anatomy of the neck during the years 1922, 1923 and 1924. He specializes in nose, throat and ear diseases and has done so since 1918. For twenty years he was associate surgeon in the field of nose, throat and ear in the Montefiore Hospital, and concurrently for twelve years in a similar capacity in the Harlem Hospital of New York. He now has a similar position at the Metropolitan Hospital at Welfare Island. He qualified as an expert and while there was strong evidence to the contrary his views must be given weight. His testimony tended to establish that the defendant’s operation was “ a departure from approved methods in general use ” at the time, the result of which rendered the defendant liable under the law as stated in Pike v. Honsinger (155 N. Y. 201, 209, 210).

Dr. Goldman’s testimony was direct and unequivocal. He said it was not good and proper practice under the circumstances to proceed with the tonsilectomy; that it was not good practice to attempt to take out the needle without first having taken an X-ray; that it was not good practice to let the patient go home and be without medical attention for ten or twelve days after the breaking of the needle; that a needle, when it breaks, is immediately sucked into the muscles; that it cannot be said that a superficial probing would do no harm because there is nothing to seize superficially; ” and that it is not possible to take hold of the needle after you take out the tonsil. He would not say that there was no possibility of success in the method employed by the defendant “ because coincidence plays a big part.” He testified that the only way to approach the needle point would be to get it from the outside by an incision; that “ if needles break off in the mouth or that region, the only way to approach it is from the outside; ” that the possibility of getting it from the inside is very very slim; ” that before any attempt was made to take out the needle X-rays should have been taken; that the only way to get the needle was externally through the neck; that Absolutely. There is no other way ; ” that he would have attempted to get the needle out in only one way, and that from the outside; that it was improper practice to attempt to get the needle without an X-ray; that he would have taken X-rays and cut from the outside; that the attempts of the defendant were a folly; that the only practical way to get the needle out was from the outside; that the gist of the error of the defendant was that he did not take X-rays before attempting to get out the needle; and that this amounted to a failure to follow proper and approved practice.

This testimony was not merely to the effect that the witness would have done the work differently, but rather that the method adopted was not proper and approved practice. The Appellate Division thought that the witness’ testimony was nullified by his admission that probing might have been successful. The witness merely allowed for coincidence. His testimony was that the defendant might have gotten hold of the needle but that the proper and approved practice ” was to get it from the outside.

While the evidence in favor of the defendant is strong and on the weight of the evidence the result reached by the Appellate Division may be correct, it cannot be said that there is no evidence to support the finding of the jury. There is, in fact, strong evidence to support its finding. The testimony of the witness was logical and credible. Certainly it cannot be held as a matter of law that there was no evidence which justified the submission of the case to the jury.

As the Appellate Division erroneously reversed upon the law and dismissed the complaint we are required to reinstate the verdict. (The Powers of the New York Court of Appeals, by Cohen, p. 442; Woicianowicz v. Philadelphia & Reading Coal & Iron Co., 232 N. Y. 256.)

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.

Crane, Ch. J., Lehman, Lotjghran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


author: Rippey, J.

text:
    Josephine Trudell, as Administratrix of the Estate of Wilbur Trudell, Deceased, Appellant, v. New York Rapid Transit Corporation, Respondent.
    Submitted May 31, 1939;
    decided July 11, 1939.

      Mordecai Konowitz and Gustave Schwarts for appellant.

      Andrew F. Van Thun, Jr., and W. Harry Sefton for respondent.
   Rippey, J.

This action was brought to recover damages from defendant for its alleged negligence which caused the death of plaintiff’s intestate, a boy fourteen years of age. It is asserted that he was a passenger on one of defendant’s cars' and was precipitated from the platform of the car through a sudden, violent and extraordinary jerk or lurch of the train of which the car was a part. At the close of all the evidence, the trial judge directed a verdict for defendant. Judgment, entered upon the directed verdict, was affirmed by the Appellate Division by a divided court. It was error to direct a verdict, if the evidence presented issues of fact (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66).

There was evidence on the part of plaintiff which, if credible, warranted a jury to find that, on the afternoon of March 29, 1933, the deceased and other school boys when returning home from school entered by way of the front door of the last car as passengers of defendant in a three-car train and were forced to pass to the rear and through the rear door of the car and stand on the rear platform while the train proceeded, since there were then no vacant seats or standing room within the car ; that, after riding on the car platform for some distance, the train stopped at Atlantic avenue in the city of New York; that it started out of the station slowly and proceeded about a block, when it gave an extraordinary and unusual violent jerk or lurch; that the deceased was thrown violently against the gate on the left side of the train platform, which gave way, and that he was thrown from the platform, receiving the injuries which caused his death.

Whether the jerk or lurch was unusual and violent or the contrary was sharply contested and raised a question of fact. If out of the ordinary and unusual, the sudden jerk was evidence warranting the imputation of negligence in the operation of the train (Gardner v. Central Park, North & East River R. R. Co., 218 N. Y. 753; Futoransky v. Nassau Electric R. R. Co., 227 N. Y. 638). There was evidence to show that the deceased was standing, prior to the sudden jerk, with his back toward the gate and a few feet away and that there were neither seats nor standing room within the car available for use of deceased. It was the duty of defendant to furnish a safe and secure place for deceased to ride. “ Proof of its omission to do so, whereby the plaintiff’s intestate was obliged to ride in an unsafe place on the platform of the car,” coupled with the other circumstances established by the evidence, presented a question of fact as to defendant’s negligence. (Werle v. Long Island R. R. Co., 98 N. Y. 650, 651; Lehr v. Steinway & Hunters Point R. R. Co., 118 N. Y. 556; Graham v. Manhattan Ry. Co., 149 N. Y. 336, 341). There was evidence to show that riding by passengers on the platform of its cars, when crowded, was not only a common occurrence but had also been permitted. The danger of an accident such as resulted from the deceased riding on the platform might reasonably have been anticipated by the defendant (Graham & Manhattan Ry. Co., supra; Lehr v. Steinway & Hunters Point R. R. Co., supra). The construction of the gate and its fastenings and the method and means of opening, closing and locking it were covered by the testimony. Whether it was securely closed and fastened before the accident was a question of fact. Whether it was securely fastened or not, from the evidence in the case it might reasonably be inferred that the opening of the gate through which the deceased fell was caused by the lurch of the train and his consequent violent fall against the gate and its fastenings. As to defendant’s negligence, a question of fact was presented for the consideration of the jury.

Section 83 of the Railroad Law (Cons. Laws, ch. 49) reads, in part, as follows: “ No railroad corporation shall be hable for any injury to any passenger while on the platform of a car, or in any baggage, wood or freight car, in violation of the printed regulations of the corporation, posted up at the time in a conspicuous place inside of the passenger cars, then in the train, if there shall be at the time sufficient room for the proper accommodation of the passenger inside such passenger cars.” The statute has no application to a street railroad (Vail v. Broadway R. R. Co., 147 N. Y. 377). Even though it were otherwise, defendant obtained no immunity from liability for the accident in question by virtue of the provisions of that section since, at the time of the accident, there were no printed regulations of the corporation posted inside of the passenger car prohibiting a passenger from riding on the platform of the car and there was not sufficient room for the proper accommodation of the deceased inside the car.

The question of the contributory negligence of the deceased was also one of fact for the jury, even though the deceased was sui juris (Graham v. Manhattan Ry. Co., supra; Lehr v. Steinway & Hunters Point R. R. Co., supra; Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y. 326; Cattano v. Metropolitan St. Ry. Co., 173 N. Y. 565; Werle v. Long Island R. R. Co., supra; Jacobs v. Koehler S. G. Co., 208 N. Y. 416; Camardo v. N. Y. State Railways, 247 N. Y. 111, 115, 116). Upon the argument here, defendant asserts that it relied upon the provisions of section 4 of article I of chapter 19 of the Code of Ordinances of the City of New York, providing in part, that “ no passenger on any elevated railroad train, whether operated over, upon or under the surface, in the city of New York, shall ride on the rear platform of the rear car, where such rear platform is not enclosed by vestibule ” (now Administrative Code of City of New York [L. 1937, ch. 929], § 362-6.0), and that a violation of the section shall upon conviction be punishable by fine or imprisonment. This ordinance was not pleaded. Had it been pleaded, however, violation of the ordinance would have been merely, some evidence of negligence which, if relevant and causal connection between the ordinance and its violation and the accident were shown and proper foundation were laid for its admission, might have been considered by the jury along with the other evidence in the case on the question of contributory negligence of the deceased (Carlock v. Westchester Lighting Co., 268 N. Y. 345, 349). Violation of the ordinance by the deceased, though material and relevant, would not bar plaintiff’s recovery as matter of law (McRickard v. Flint, 114 N. Y. 222, 226).

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

Crane, Ch. J., Lehman, Hxjbbs, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.

Judgments reversed, etc.


author: Crane, Ch. J.

text:
    In the Matter of Judith Ackerman et al., Respondents, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.

      Argued June 2, 1939;
    decided July 11, 1939

      William, C. Chanler, Corporation Counsel (Paxton Blair and Samuel J. Silverman of counsel) for appellants.

      Albert de Roode for respondents.
   Crane, Ch. J.

In Matter of Kraus v. Singstad (275 N. Y. 302) this court called attention to the fact that section 19 of the Laws of 1931, chapter 798, was unconstitutional, in that it provided that the clerical and other assistants employed, or to be employed, by the temporary Emergency Relief Administration should not be subject to the provisions of the Civil Service Law (Cons. Laws, ch. 7), as might be necessary for the administration of home relief. Recognizing that the emergency might require temporary employment without examination, we held that the Constitution required competitive examination for these places, and that there were existing lists for many of them, from which employees and assistants should have been taken. Existing lists were ignored and, for six years, clerks, social investigators and stenographers were continued in employment without competitive examination and in violation of the Constitution of this State. We said: Since 1931, or for a period of five years or more, these clerks, typewriters, telephone operators, social investigators have been employed at city and State expense, without any consideration being given whatever to the Civil Service Law or the demands of the State Constitution — and all this done under the plea of emergency which never existed regarding employees- who did not need relief.” (p. 307.)

The Kraus case related to social investigators who had passed a competitive examination conducted by the Municipal Civil Service Commission of the City of New York. We directed that these petitioners and social investigators supplant those who were filling like positions under these so-called emergency laws and had been designated from year to year as temporary employees.

The case of Matter of Britt v. Kern (279 N. Y. 701) directed the Municipal Civil Service Commission of the City of New York to certify to the Commissioner of Public Welfare the appointment of petitioners employed as stenographers, clerks and bookkeepers in the Department of Welfare of the City of New York in the place of temporary employees occupying such positions. It was noted that the Department of Welfare is the successor of the Emergency Relief Bureau in respect to home relief, and as such successor took over the employees of the Emergency Relief Bureau. The petitioners were on promotion lists promulgated in 1936 and 1937, and they sought, by the proceeding, appointments ■from the lists in place of former emergency relief bureau appointees who had obtained their places without examination. This case was decided upon the authority of Matter of Kraus v. Singstad (275 N. Y. 302).

We have a similar situation in the case now before us. The petitioners, thirty-five in number, were social investigators and supervisors in the Department of Welfare, receiving salaries between $1,800 and up to, but not including, $2,400. They had passed a competitive examination for the place. They had also passed a departmental competitive examination for a higher grade, a supervisory position, designated Assistant Chief Investigator,” at a salary of $2,640 per year. The promotion examination for this position was limited to the competitive employees of the Department of Welfare simply and solely because it was an examination for promotion to a higher grade.

The Emergency Relief Bureau became the Department of Welfare on July 1st, 1937, and there were at that time ninety-four supervisory places carrying salaries of from $2,400 to $2,999, Grade 3. These places were filled by holdovers, who passed no competitive examination. These supervisory positions should have been filled by these petitioners who had passed competitive examinations for supervisors coming within the salary grade. In other words, so long as there was a competitive fist for supervisors, these petitioners should have been taken instead of the temporary employees continued. The Appellate Division has unanimously so decided, placing its decision upon the authority of the Britt case. The Corporation Counsel concedes that this is right, provided the competitive fist was appropriate for the supervising positions in home relief. He seeks to make a distinction between social investigator, such as the petitioners, and social investigator for home relief. We can find nothing in the record justifying such a distinction.

Section 14 of the Civil Service Law provides: Appointment shall be made from the eligible list most nearly appropriate for the group in which the position to be filled is classified, and a new fist shall be created for a stated position or group of positions only when there is no appropriate list existing from which appointment may be made.”

The promotion fist of supervising investigators, on which the names of these petitioners appear, was, in our judgment, an appropriate list for the positions occupied as supervisors in home relief occupied by temporary appointees. The name of the position is not important, although the change in name may be significant when there is no change in duty. Under the classification of the Municipal Civil Service Commission the position, for which these petitioners have taken promotion examinations, was called Assistant Chief Investigator.” That the duties of such investigator were essentially the same as those of Supervisor, Grade 3, the position occupied by the temporary appointees, is indicated by the reclassification made by the Municipal Civil Service Commission of New York on September 21, 1938. It reads in part:

“ Resolved, That the competitive class of the classification of the Municipal Civil Service Commission be and the same is hereby amended as follows:
“ 1. By striking from Part I, The Ungraded Service, Group 3, the following:
Assistant Chief Investigator; * * *
“ Grade 3, Supervisor, $2,400 to but not including $3,000 per annum. * * *
3. The following titles are hereby declared subject to the reclassification set forth in paragraph 2, under the terms and conditions set forth in paragraph 4, and shall hereafter be designated Old Classification Titles:
Assistant Chief Investigator; * * *
“4. Terms and conditions:
“ a. All persons of the title of Social Investigator, who are affected by this resolution, shall continue in such title with salaries, present duties and status unaffected and unimpaired by this reclassification. Promotion lists presently in existence will continue to be certified for appropriate positions in the new classification. * * *
d. The title of Assistant Chief Investigator shall be changed to Supervisor. * * * ”

Thus it is that the Department of Welfare Social Investigator Assistant, known as Assistant Chief Investigator, was to be considered thereafter Supervisor, duties unchanged. These petitioners had taken examination for Assistant Chief Investigator, Grade 3, and they were continued o's Supervisors, Grade 3. positions filled by non-competitive appointees.

These rules of the Municipal Civil Service Commission are found unchallenged in the brief of the respondents, being a public document or record which this court may consider. The social investigators, a position for which these petitioners passed competitive examination, were persons, say the appellants, who merely investigated the conditions of the blind, the aged and veterans. (Public Welfare Law [Cons. Laws, ch. 42], §§ 117, 119, 122; Charter of the City of New York [L. 1901, ch. 466, as amd.], §§ 662, 676.) It is now claimed that the Social Investigator for home relief, included pursuant to chapter 259 of the Laws of 1933, and chapter 358 of the Laws of 1937, must have qualifications separate and distinct from the Social Investigator who looks after the old, the aged, the blind and the veterans. Why a person who is fit to supervise Social Investigators for the aged, the blind and for veterans is not qualified to supervise Social Investigators for people out of work, is rather difficult to understand from the facts presented in the record. It may be necessary in any instance to gather different or additional facts, or to require different kinds of reports, but the ability for the one is the same kind of ability necessary for the other, as far as I can see; or at least, the Supervisor, Grade 3 list, is an appropriate one for the positions occupied by these temporary appointees supervising home relief until it appears that the duties of supervising investigators in home relief are different from the nature of the work done by the Supervisor of Investigators in other classes of misfortune and need. Of course there is a distinction in name, and there is a difference in some of the duties and some of the facts which must be gathered, but I cannot find any real difference among the social investigators who are finding out cases which need the public moneys to provide food and rent and medical treatment. Whether the one need comes from unemployment, or comes from old age, or blindness, or war disability, the need for food and for home and for shelter and for medical aid is the same. This distinction is one which apparently has been magnified lately, as the papers presented to the Special Term made no mention of it.

Article 78 of the Civil Practice net, section 1291, relating to the present practice, states: “ The answer must contain proper denials and statements of new matter, as in an action, and must set forth such facts as may be pertinent and material to show the grounds of the action taken * * *. He shall also serve and submit with the answer affidavits, made by a person having knowledge of the facts, or other written proof, showing such evidentiary facts as shall entitle him to a trial of any issue of fact.’’

The petition in this case alleged that the moving parties were in the competitive classified Civil Service, Department of Welfare, of the City of New York, known as “ Social Investigators, Supervisors; ” that each of the petitioners were on an existing promotion eligible list for the supervisory position of Assistant Chief Investigator, which list was promulgated and established by the Civil Service Commission in June of 1935 and is still in existence, thefininimum compensation of the grade being fixed at $2,640 per annum. It states that fifty-five persons were employed in these supervisory positions who have not passed any competitive civil service examination. Paragraph 10 reads: “The said promotion list for Assistant Chief Investigator is an appropriate list from which to appoint persons to supervisory positions as Supervisors, Grade 3 in the Department of Welfare carrying salaries of $2,400 to $3,000 per year. That it is appropriate is clearly shown by the examination held for such promotion, the questions in which were as set forth in Exhibit ‘ D ’ annexed to this petition.”

The answer of the appellants merely denies these allegations of paragraph 10, and there is not one word to show or to explain why the list is not appropriate or why the duties of Supervisor of Home Relief are different from those of the Supervisor in other kinds of relief, or why relief caused by unemployment is any different than relief caused by blindness or old age or other disability. Jt is the relief which people have got to have, temporary or permanent, depending upon the cause. Investigation is to get the facts — the law does the rest. Neither does Mr. William Hodson, the Commissioner of Welfare of the City of New York, in his affidavit make any mention whatever or any explanation of the difference between the classes of investigation or supervisory investigators. That one requires more investigators than the other is about the substance of his affidavit.

Exhibit D, annexed to the petition, gives the questions required for promotion to Assistant Chief Investigator, and includes a discussion of the five most important facts in evaluating the work of a Social Investigator. The applicant is required to “ name ten books on social work, which you have read in recent years which contributed most largely to your understanding and progress in social work.” He is also required to write a paragraph of at least 150 words on any two books, such as he might prepare for a bulletin board or office circular of constructive value for the social worker. Section 8 is quite informative: What suggestions would you make for closer correlation in social case work between the different bureaus and divisions of the Department of Public Welfare in order to promote greater efficiency and economy in the administration of such work? Give reasons for your suggestions.” There is nothing here to indicate that the social investigator or worker is to qualify merely for one division — the blind division as distinguished from the unemployment division.

Although the act of 1931, chapter 798, defines home relief as shelter, food, clothing, etc., furnished by a municipal corporation to persons in their abode, and does not include relief to veterans under existing laws, old age relief and allowance to mothers for the care of dependent children, it by no means indicates that the investigator for home relief is not doing practically the same work as investigator of any other claimed necessary relief requiring the same kind of help.

In section 3-k of chapter 358 of the Laws of 1937 we find this regarding the employees in public welfare departments: “ * * * in cities’ public welfare departments, in addition to their employees previously appointed from civil service eligible lists, may employ, until July first, nineteen hundred thirty-eight, such number of additional persons as may be needed for the administration of home relief for which such departments are responsible as temporary employees in the competitive class of the civil service, * * This seems to be a recognition that employees in the public welfare who have been taken from civil service fists and performing home relief may be supplemented by such number of additional persons as may be needed for the work who will be taken on as temporary employees until a competitive examination can be held. Nowhere do we find in any of these laws regarding home relief indication or implication of distinctions in welfare relief work, or that home relief is not similar to that already performed or being performed by the city welfare boards. Home relief merely is furnished to keep up the home.

The claim is made that these petitioners have not passed an examination, as provided by section 3-k of chapter 358 of the Laws of 1937, or an examination held, pursuant to the provisions of section 19 of chapter 798 of the Laws of 1931, as amended. (L. 1936, ch. 822.) Section 19 of chapter 798 of the Laws of 1931, unamended, was unconstitutional, in so far as. it ignored existing fists for social investigators, clerks, stenographers and telephone operators. The persons upon these fists cannot be excluded from the positions to which they are entitled merely because they are filled by social investigators who have never taken the competitive examination. Neither can the persons entitled to the positions be excluded by methods which in result work a violation of our civil service laws. The requirement for competitive examination cannot be evaded by an examination to one who has held a position for years in violation of the law, giving him a rating for experience thus gained over and above one who had taken the competitive examination and should have been appointed in the first place. This is permitting an experience acquired in violation of law to supersede existing competitive lists. We do not mean to say that in the examinations which have been held for all these many persons who have been temporarily appointed under these welfare laws that experience is not to count and be given a proper rating, but. what we dó say is that such experience cannot work against those who were upon competitive lists and should have been appointed originally. A man entitled under the Civil Service Law to appointment cannot be kept out of it by one who is not entitled to it.

For the reasons here stated the order should be affirmed, without costs.

Hubbs, Loughran, Finch and Bippey, JJ., concur; Lehman, J., concurs in result; O’Brien, J., taking no part.

Order affirmed.


author: Per Curiam.

text:
    In the Matter of the Estate of James P. Olney, Deceased. Farmers National Bank and Trust Company of Rome, as Executor and Trustee under the Will of James P. Olney, Deceased, Appellant. Stoddard M. Stevens, as Special Guardian for Barbara VD. Lambert et al., Infants, Respondent.

      Argued May 25, 1939;
    decided July 11, 1939.

      Michael J. Larkin for appellant.

      Edward A. Wolff and Stoddard M. Stevens for respondent.
   Per Curiam.

The appeal must be dismissed upon the ground that this court is without jurisdiction as the order is not a final order. The order does not end the proceeding in so far as appellant is concerned as to any part thereof. It does not irrevocably determine its rights, irrevocably change its position, or sever the proceeding. The reason why it is not irrevocable is that the payment is to itself and can always be restored. There still remains the necessity of a further hearing in the Surrogate’s Court. (Matter of Clift, 256 N. Y. 680; Maggi v. Sabatini, 250 N. Y. 296; Cohen on The Powers of the New York Court of Appeals, p. 31, § 9.)

The appeal should be dismissed, with costs.

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Appeal dismissed.


author: Loughran, J.

text:
    Port Chester Wine & Liquor Shop, Inc., et al., Respondents, v. Miller Bros. Fruiterers, Inc., Appellant.
    Argued April 20, 1939;
    decided July 11, 1939.

      Miner W. Tuttle, Walter C. Lundgren, John E. Haigney and Soia Mentschikoff for appellant.

      Benjamin I. Tunick for respondents.

      Thomas Kiernan, Orison S. Marden and Ezra Cornell for Seagram Distillers Corporation et al., amici curise.

   Loughran, J.

This case presents questions as to the construction and application of the Fair Trade Act of the State (Laws of 1935, ch. 976).

The statute is entitled, “ An Act to protect trade mark owners, distributors and the public against injurious and uneconomic practices in the distribution of articles of standard quality under a distinguished trade mark, brand, or name.” Section 1 provides in part: “No contract relating to the sale or resale of a commodity which bears, or the label or content of which bears, the trade mark, brand or name of the producer or owner of such commodity and which is in fair and open competition with commodities of the same general class produced by others shall be deemed in violation of any law of the state of New York by reason of any of the following provisions which may be contained in such contract: (a) That the buyer will not resell such commodity except at the price stipulated by the vendor * * Section 2 provides in part: Willfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section one of this act, whether the person so advertising, offering for sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.”

Other provisions of the statute which exclude several situations from its operation are unrelated to the present case. In Bourjois Sales Corp. v. Dorfman (273 N. Y. 167) this court surrendered its view that section 2 is essentially obnoxious to the due process clauses.

Plaintiffs do business in the village of Port Chester as vendors of alcoholic beverages at retail for off-premises consumption. Pursuant to the Fair Trade Act, they agreed not to resell specified branded liquors which were within the purview of the statute, except at prices stipulated by the distillers thereof. With knowledge of these agreements, the defendant, a competitor of the plaintiffs, acquired liquors of the same brands and resold them at retail at prices less than the retail prices stipulated by the distillers. These admitted violations of the statute having been enjoined by a judgment granted to the plaintiffs on the pleadings, the defendant now appeals to this court by leave of the Appellate Division. Precisely stated, the issue for determination is whether a violation of section 2 by a non-signatory retail reseller is actionable at the suit of a signatory competitor.

Before the Fair Trade Act had become part of our statutes, it had been said in this court: The law endeavors to protect the interest of parties in existing contractual relations from intentional and wrongful interference by strangers. The principle constitutes a limitation upon the doctrine of freedom of contract, which courts have imposed in an attempt to promote justice and fair dealing and to prevent wrongs.” (Reiner v. North American Newspaper Alliance, 259 N. Y. 250, 254.) Section 2 of the statute is an extension of this principle. Conscious disregard of price maintenance provisions by non-signatories is made a tort (“ unfair competition ”) and is made actionable at the suit of any person damaged thereby.” This last phrase must, we think, be taken to include a retail reseller who is bound to abide by the resale price restrictions of a fair trade agreement.

Our conclusion is that the relief awarded to the plaintiffs by the courts below had clear warrant in the statute.

We express no opinion as to whether a reseller must observe resale price restrictions laid' down after he acquired the commodity. (Cf. Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U. S. 183, 194.)

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, Htjbbs, Finch and Bippey, JJ., concur; O’Brien, J., taking no part.

Judgment affirmed.


text:
    Ernest A. Rozell, an Infant, by Ernest D. Cowles, His Guardian ad Litem, Respondent, v. Evelyn D. Rozell, an Infant, by George Rozell, Her Guardian ad Litem, Appellant

      Argued May 16, 1939;
    decided July 11, 1939.

      Walter A. Chambers for appellant.

      Walter A. Fullerton and James A. Leary for respondent.
   Rippey, J.

On May 2, 1937, at about 1:00 p. m., the plaintiff, a boy then twelve years of age, was a passenger in an automobile being driven by defendant, his sister, then sixteen years of age, when a collision occurred between the car in which they were riding and another car due, as the jury have found, to the negligence of the defendant in the operation of the car. For the injuries received, plaintiff has recovered. The judgment entered upon the verdict of the jury has been unanimously affirmed by the Appellate Division and defendant has appealed by permission of this court.

Defendant in her answer denied the charge of negligence against her set up in the complaint and alleged, and the testimony shows, that both infants were living with their father and mother at the time of the accident and were being supported by their father, that neither had any separate estate and that both were under the control and direction of the father. Neither was married. On the issues here involved, it seems of little moment whether they were or were not emancipated. An infant is generally responsible for his own torts (Tifft v. Tifft, 4 Denio, 175; Steinberg v. Cauchois, 249 App. Div. 518; Williams v. Hays, 143 N. Y. 442, 448). Persons who are not members of the family when injured through the tortious negligence of minors may recover damages against them by way of compensation for' injuries sustained. The principle is not affected by the mere fact that the injuries are caused by the negligent operation of an automobile. No logical reason nor reported authority exists to indicate that the rule of liability should be changed when brothers and sisters are involved.

As a ground for reversal, the defendant asserts that the action is not maintainable because public policy forbids. Neither the Constitution, statutes nor judicial decisions of the State directly or by fair implication declare any State policy against which the maintenance of such an action offends. In the absence of such a declaration, it is asserted that such an action should not be permitted because litigation between brothers and sisters seriously disturbs the family relationships and is destructive of the family unit, which is still the basis of society, and, if permitted, will be a prolific incentive to fraud, especially in personal injury cases where the owner or operator of the automobile is protected by insurance from liability.

The family has been for centuries the fundamental unit of society. The modern family, however, is far different in structure, status and internal social and legal relationship than the family of ancient times. Rigorous restrictions upon the rights and duties of its members, not only in their relations with those outside of the family unit but, as. well, with one another have gradually moderated and, in some respects have totally disappeared until our common law and constitutional and statutory sanctions affecting family relations are more in harmony with the common sense of modern life. The modern tendency of decided cases is to ignore fictions and deal with things as they are ” (per Pound, J., in Drobner v. Peters, 232 N. Y. 220, 223).

Diligence of counsel and our own investigation have brought to our attention many analogous references. The relation between the sexes has radically changed. Man and woman are now upon a plane of substantial legal equality. Although one spouse has been held incompetent to sue the other to recover damages for a tort on the theory that husband and wife are one (Young v. Young, [Eng.] 5 Fraser 330; Phillips v. Barnet, 1 Q. B. D. 436; Harper v. Harper, [1929] S. C. 220; Mertz v. Mertz, 271 N. Y. 466), the law in Connecticut is to the contrary (Mertz v. Mertz, supra) and the Legislature of this State has now changed that rule (Laws 1937, ch. 669, amdg. Domestic Relations Law, § 57 [Cons. Laws,- ch. 14]). No such doctrine of identification exists between brothers and sisters or parent and child. The sons and daughters in the family are no longer subject to the patria potestas. An infant may now of his own motion maintain an action for negligence against his grandmother (Spaulding v. Mineah, 264 N. Y. 589) and representatives of a deceased brother against his infant sister (Lavender v. Lavender, 261 N. Y. 574). As between a parent and an unemancipated minor child, the weight of authority seems to be that an action still will not lie by one against the other for personal injury due to the tortious act of the latter (Sorrentino v. Sorrentino, 248 N. Y. 626; Ciani v. Ciani, 127 Misc Rep. 304; Mesite v. Kirchenstein, 109 Conn. 77; Schneider v. Schneider, 160 Md. 18; Hewlett v. George, 68 Miss. 703; McKelvey v. McKelvey, 111 Term. 388; Smith v. Smith, 81 Ind. App. 566; Foley v. Foley, 61 Ill. App. 577; Roller v. Roller, 37 Wash. 242; Small v. Morrison, 185 N. C. 577; Wick v. Wick, 192 Wis. 260; Matarese v. Matarese, 47 R. I. 131; Bulloch v. Bulloch, 163 S. E. Rep. [Ga.] 708; Elias v. Collins, 237 Mich. 175; Mannion v. Mannion, 129 Atl. Rep. [N. J.] 431; Taubert v. Taubert, 103 Minn. 247), although, on principle and authority, a cause of action lies in favor of a mature or emancipated minor child against the parent or by a parent against an emancipated son to recover damages for willful or active negligence (1 Beven on Negligence in Law [4th ed.], pp. 229-232; Lo Galbo v. Lo Galbo, 138 Misc. Rep. 485, 488; Wells v. Wells, 48 S. W. Rep. [2d] [Mo.] 109, 111; Taubert v. Taubert, supra; Fowlkes v. Ray-O-Vac Co., 183 S. E. Rep. [Ga.] 210; Dunlap v. Dunlap, 150 Atl. Rep. [N. H.] 905; Lusk v. Lusk, 113 W. Va. 17; cf. Harper on the Law of Torts § 285, pp. 626, 627). Immunity of the responsible parent to suit vanishes where there is injury to the infant’s property (see Beven on Negligence, supra; Domestic Relations Law, §§ 80 and 83, as amd.; Real Property Law, § 522 [Cons. Laws, ch. 50];), and the ancient tradition that a son, whether emancipated or not, may not sue his father to recover damages for the negligence of the latter, whether active or passive if there may be such a distinction, has recently been destroyed in Scotland (Young v. Rankin, [1934] S. C. 499). Elsewhere, suits between brother and brother have been maintained (Beilke v. Knaack, 207 Wis. 490; Munsert v. Farmers Mut. Automobile Ins. Co., 281 N. W. Rep. [Wis.] 671), an infant may recover damages from her maternal aunt for the latter’s negligence (Clasen v. Pruhs, 69 Neb. 278), a minor may recover from her stepmother for an assault (Treschman v. Treschman, 28 Ind. App. 206), and as stated in the headnote, a child cannot be denied right to sue parent for tort because of effect on discipline and family life ” (Dunlap v. Dunlap, supra).

It is unnecessary to pile up further analogous references. Allusions to others of similar import might be extensively made. Persuasive are the analogies cited and they are not too remote. Notwithstanding such changes from tradition, predictions of dire results to the continued peace and amity of the family relationship have not been sustained. Legal prohibitions alone will not hold together the family life. There is something finer and deeper than artificial compulsions that makes the family relationship as strong and causes it to be as zealously maintained as in the ancient age. Family ties between brother and sister are as strong today as ever. If permitting a suit by a brother against a sister to recover for injuries received by the former through the tortious negligence of the latter is to tear asunder the ties that sustain the family unit, as predicted by appellant, then it must indeed be held together by a slender thread. Under present-day realities unrelated to bygone traditions, the past ought not to dictate legal relations between them. The “ unquestioned principle of jurisprudence from very early times that there can be no wrong without a remedy ” ■ (1 Cyc. p. 700) is still in force with all its ancient vigor. There is no occasion here to establish an exception to that maxim by judicial legislation vaguely gathered from the dubious implications of a legal institution. There is no sound public policy against enforcing it.

It is also urged that the courts should wait until there is legislative sanction for such an action (Mertz v. Mertz, 271 N. Y. 466). There is no rule of law existing today in this State by which actions between brothers and sisters for tortious negligence may not be maintained. We are not changing any existing rule of law or modifying or upsetting any judicial decision. It is not necessarily the function of a court to refuse to declare a rule of conduct until the economic and social order of the day forces its declaration by the State. The genius of the common law lies in its flexibility and in its adaptability to the changing nature of human affairs and in its ability to enunciate rights and to provide remedies for wrongs where previously none had been declared (Oppenheim v. Kridel, 236 N. Y. 156). “ The common law,” says Crane, J., in the Oppenheim case at page 164, “ is not rigid and inflexible, a thing dead to all surrounding and changing conditions, it does expand with reason. The common law is not a compendium of mechani-' cal rulesfwritten in fixed and indelible characters, but a living organism which grows and’ moves in response to the larger and fuller development of the nation.”

Legalistic doctrines and ancient traditions like those of identity of husband and wife and family unity between parent and child and other members of the household and intimate legal or social relationship between others as affecting the question of the propriety for allowing suit for personal injuries by one against another are and have been vanishing with the advent of modern means of transportation and the spread of insurance against liability of the wrongdoer and protection for the sufferer. We cannot bury our heads in the sand and ignore the new tendencies and conditions so notorious. Insurance as protection to the sufferer is now a matter of common knowledge. Of course, that fact alone creates no right to sue where one otherwise would not exist (Luster v. Luster, 13 N. E. Rep. [2d] [Mass.] 438, 440; Schneider v. Schneider, supra). But I am unwilling to admit that sanction to the maintenance of such an action between brother and sister is any more of an incentive to fraud than when a similar action was sanctioned between husband and wife, between an emancipated son and his father, between grandmother and grandchild, between owner and guest, or-between intimate friends. No warrant is found for any prediction that brothers and sisters will flock into the courts on fictitious claims through mere judicial recognition of the right of one to sue the other in personal injury cases. Common honesty inherent in the family unit presents an effective barrier. If it should appear that there is any foundation for the suggestion, a means of protection may be found in diligence on the part of the insurance carriers to ferret out and expose the fictitious claims and reliance may be placed on our courts and juries to detect and prevent a fraud.

Finally, it is urged that lack of precedent for such an action must control. In Kujek v. Goldman (150 N. Y. 176, 178), apropos to this objection, it is said: “ While no precedent is cited for such an action, it does not follow that there is no remedy for the wrong, because every form of action when brought for the first time must have been without a precedent to support it. Courts sometimes of necessity abandon their search for precedents and yet sustain a recovery upon legal principles clearly applicable to the new state of facts, although there was no direct precedent for it, because there had never been an occasion to make one.” It is not a question here as to whether there may be a precedent to cite for permission to maintain the action but whether the defendant inflicted such a wrong upon the plaintiff as resulted in lawful damages” (Kujek v. Goldman, supra, p. 179), for the law will never suffer an injury and a damage without a remedy” (p. 178). The law is not static. Even though the past furnishes no current declaration of the right to maintain such an action, neither reason nor logic dictates that it must be held that no such cause of action exists. The declaration of legal rights arises when the occasion presents itself for such a declaration, when social and economic progress commands that such a one be made. If we are to be tied down to precedent without exception the law must remain static, something inflexible and unadaptable to new or changing conditions as they arise.

The judgment appealed from should be affirmed, with costs.

Cbane, Ch. J., Lehman, Htjbbs, Loughban and Finch, JJ., concur; O’Bbien, J., taking no part.

Judgment affirmed.


author: Finch, J. Hubbs, J.

text:
    St. Joseph’s Hospital, Respondent, v. John J. Bennett, Jr., as Attorney-General of the State of New York, Appellant.
    Argued April 3, 1939;
    decided July 11, 1939.

      John J. Bennett, Jr., Attorney-General (.Irving II. Lessen and Henry Epstein of counsel), appellant.

      M. Harold Dwyer and George B. Fearon for respondent.
   Finch, J.

This is an appeal from an order of the Appellate Division of the Supreme Court, fourth department, affirming a declaratory judgment of the Supreme Court at Special Term, Onondaga county, granting the relief prayed for in the complaint. The Supreme Court denied defendant appellant’s motion for a dismissal of the complaint after issue had been joined, and granted plaintiff’s motion for judgment on the pleadings.

Plaintiff is a charitable corporation which operates a hospital in Syracuse. It received and accepted a bequest under the following clause of the will of one George Doheny, deceased:

Seventh: All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to St. Joseph Hospital, the Syracuse Memorial Hospital, the House of Providence, St. Vincents Asylum and School (Madison St.) the Syracuse Free Dispensary, the Syracuse Homeopathic Hospital, St. Mary’s Maternity Hospital and Infants Asylum, the Onondaga Orphans Home and the Syracuse Home Association (commonly known as the Old Ladies Home) all of Syracuse, N. Y., share and share alike, one-ninth to each to be held as an endowment fund and the income used for the ordinary expenses of maintenance.”

Plaintiff’s share has been kept separate and intact and, at the time of this action, consisted of personal property valued at $147,932.93. The income from the fund has been used to meet “ the ordinary expenses of maintenance ” of the institution. The real estate of plaintiff is encumbered by a mortgage of $175,000. By this action, plaintiff sought authorization to apply the fund in partial payment of the mortgage debt or in its judgment to use the principal of the fund for objects within its corporate powers other than meeting the ordinary expenses of maintenance. The Attorney-General opposed on the grounds that the bequest was a gift in trust, that the intention of the testator was to create a perpetual fund, the income from which was to be used for the ordinary expenses of maintaining the plaintiff institution, and that any use of the principal or any other use of the income would be a violation of the testator’s intention and of the fiduciary duties of plaintiff. The declaratory judgment, which was affirmed by a divided court in the Appellate Division, held that the bequest to plaintiff did not create a trust but an absolute gift, and that the plaintiff need not maintain the gift intact as an endowment fund but that it could use the income and principal of said fund for any of its corporate purposes, in particular toward the discharge of the mortgage on its property.

In the case at bar it is practically conceded that the language of the bequest shows the intention of the testator that his gift be held as a permanent fund. The testator has coupled in one sentence gifts to charitable corporations and a statement that each gift is “ to be held as an endowment fund and the income used for the ordinary expenses of maintenance.” The gift and the statement of its purpose ■ cannot be separated, one from the other. Not only was there an express direction that the principal be held, but this direction was fortified by the use of the words “ endowment fund.” The term endowment ” has been defined as the bestowmeht of money as a permanent fund, the income of which is to be used in the administration of a proposed work. In still further restriction, direction is given to use only the income. Giving to these plain words their ordinary meaning, the intention of the testator is clear to direct the holding of a permanent fund, the income of which is to be used in the administration of the work. Though these words may not avail to create a legal trust, they furnish a direction and restriction upon the use of the gift. No different result is reached through the application of the rule of construction that where language employed in a will looks in the first place towards a gift without restrictions, such gift cannot be cut down by later words ■unless these later words express as clear an intention to cut down the gift as the former do to make the gift. In this case the later words are of equal force with the former and are free from ambiguity.

The question here presented is whether the clearly expressed direction of the testator must be obeyed. The answer to that question does not depend upon, whether the gift was absolute or created a trust, or whether the testator annexed a direction or a technical condition to the gift. The authorities sustain the validity of the direction of the testator, and'equity will afford protection to a donor to a charitable corporation in that the Attorney-General may maintain a suit to compel the property to be held for the charitable purpose for which it was given to the corporation. (American Law Institute, Restatement of the Law of Trusts, vol. 2, ch. 11, p. 1093.) Nothing in authority, statute or public policy has been brought to our attention which prevents a testator from leaving bis money to a charitable corporation and having his clearly expressed intention enforced. In the case at bar, no question is raised as to the reasonableness or propriety of the restriction.

The Legislature, many years ago, enacted statutes providing for the incorporation of charitable corporations and permitting such corporations to hold funds in perpetuity. The statute against perpetuities never applied to gifts to such corporations. ‘ ‘ The corporate body is legally immortal; and it is the very nature of contributions to it, to withdraw the subject of them from every kind of circulation; their manifest object being to sustain continually the charitable or religious institutions, in carrying out their pious or benevolent designs.” (Williams v. Williams, 8 N. Y. 525, 534.) In the same case it was also held that the statute of perpetuities did not apply to gifts to individuals upon charitable trusts, and that courts of equity might give effect to a devise or bequest for charitable uses, although defective, for the want of a grantee or donee capable of taking. That doctrine was later rejected by this court in Holmes v. Mead (52 N. Y. 332), but the principle that a charitable corporation might take an absolute gift to be held in perpetuity for purposes prescribed by its charter was expressly approved.

In considering the effect of the cases thereafter decided by this court, the distinction drawn in Holmes v. Mead must be kept in mind. Gifts in perpetuity to a corporation, the income to be applied to any of its corporate purposes, were valid, though such gifts to a corporation upon a general charitable trust and not for its own benefit, were invalid. The courts thereafter gave to wills whenever possible a construction which would sustain the charitable gift rather than render it invalid. In the absence of language requiring other construction, a gift to a charitable corporation was construed as a gift to the corporation not in trust for others but a gift in perpetuity for a corporate purpose. The rule of construction has been followed even after the Tilden Act (L. 1893, ch. 701, now Real Prop. Law [Cons. Laws, ch. 50], § 113; Personal Prop. Law [Cons. Laws, ch. 41], § 12) would have saved the charitable gift. We should not now abandon that rule, but even when the courts found that a gift to a charitable corporation for a corporate purpose was an “ absolute ” gift and not a trust, they also indicated that directions in regard to the manner in which the gift was to be held and used would be enforced.

Thus in Wetmore v. Parker (52 N. Y. 450), decided one week after Holmes v. Mead (supra) the court said (at p. 459): “No mortmain law, restrictive as they have sometimes been, ever prevented the donors from maldng their gifts in such terms as would preserve the principal from dissipation. It does not create a trust in any such sense, as that term is applied to property. The corporation uses the property, in accordance with the law of its creation, for its own purposes; and the dictation of the manner of its use, within the law by the donor, does not affect its ownership or make it a trustee. A person may transform himself into a trustee for another, but he cannot be a trustee for himself.”

Again in Bird v. Merklee (144 N. Y. 544), the court said (at p. 550): “ The fact that the testator has designated the purpose for which this legacy must be used does not indicate a desire upon his part to create a trust. If it were necessary in order to sustain the bequest these words of designation by the testator might be treated as merely precatory, but we think it was entirely competent for him to apply his bounty to the whole or any one or more of the various purposes for which the corporations are authorized to hold property. This is fully reasoned by Judge Denio in Williams v. Williams (8 N. Y. at bottom p. 530).

The fundamental error in this case, in the court below, and in cases that are frequently coming to the attention of this court, is the failure to recognize the fact that gifts to religious and charitable corporations to aid in carrying out the purposes for which they are organized, whether by expending the principal of a bequest, or the income of a bequest to be invested in perpetuity, do not create a trust in any legal sense, do not offend against the statutes of perpetuities, are not to be judged by any of the well-known rules pertaining to the law of trusts as applied to private individuals.”

It is submitted that when the opinions in these cases are read as a whole, they merely decided that gifts to a charitable corporation, though subject to enforceable restrictions, do not create a trust in the legal sense. In Bird v. Merklee (supra) the gift was attacked on the ground that it was invalid because it created a trust with no defined beneficiary, and the court held only that it was not a trust but a gift to a corporation for a single corporate purpose which the corporation must carry out. In Matter of Griffin (167 N. Y. 71) the only question was whether a gift to a corporation - of a fund with instructions to maintain ■ the principal intact and to use the income for a specific purpose within the corporate powers, but which the corporation promoted through a subsidiary or related corporation, created a trust for the subsidiary corporation or whether the corporation which received the principal might use the income if it saw fit to carry out that purpose itself. Though the court held that no trust for the subsidiary corporation was created, the reason for the holding is that the instructions might be carried out without creating a trust. The question in the case of Matter of Durand (194 N. Y. 477) was similar. The gift there was to the trustees of the University of Rochester and their successors, to be held by them as a “ perpetual fund ” and the income to be used for female education of high grade in the City of Rochester, and under the management of the Trustees of said university ” (p. 479). The decision of the court was that the gift was intended as a gift to the University of Rochester for one of its corporate purposes. It is noteworthy that far from intimating that the university was not bound to carry out the direction, the court reached its decision that the gift was intended as a gift to the corporation and not as a trust because, it is clear, so the court said, that the testator had in mind the university itself as the lasting and unchanging beneficiary which would receive his property and carry out his purposes which were of no temporary character ” (p. 484). (Italics not in original.) The testator in his will required that there be express acceptance of the terms of the gift. The court said that the terms of the bequest would be binding without express acceptance. The testator “ was a layman and erroneously he may have deemed it necessary that the beneficiary, being a corporation, should signify that acceptance which the law implied in order to make his bequest effective, or he may have desired to procure from the university a formal though unnecessary acceptance of his bounty in order that it might seem the more fully to be bound by the wishes which accompanied such bounty ” (p. 485).

The case of Sherman v. Richmond Hose Co. (230 N. Y. 462) again illustrates the same rule. The gift was absolute for a corporate purpose. It was not a trust in a technical sense. None the less the court held that the corporation could not divert the fund from its purpose. No authority has been brought to our attention that a gift to a charitable corporation with the express direction that it be applied to a specific corporate purpose in a specific manner may be accepted by the corporation, and then used for a different corporate purpose in a different manner. No trust arises, it is true, in a technical sense, from such a gift for trustee and beneficiary are one. The charitable corporation is not bound by all the limitations and rules which apply to a technical trustee. It may not, however, receive a gift made for one purpose and use it for another, unless the court applying the cy pres doctrine so commands.

It follows that the judgments should be reversed and judgment directed for the defendant, without costs.

Hubbs, J.

(dissenting). George Doheny, deceased, was an attorney at law residing at Syracuse, N. Y. The plaintiff is a charitable corporation located at Syracuse. The seventh paragraph of Mr. Doheny’s will provided:

Seventh: All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to St. Joseph Hospital, the Syracuse Memorial Hospital, the House of Providence, St. Vincents Asylum and School (Madison Street), the Syracuse Free Dispensary, the Syracuse Homeopathic Hospital, St. Mary’s Maternity Hospital and Infants Asylum, the Onondaga Orphans Home and the Syracuse Home Association, (commonly known as the Old Ladies Home) all of Syracuse, N. Y., share and share alike, one ninth to each to be held as an endowment fund and the income used for the ordinary expenses of maintenance.”

The plaintiff accepted the bequest and segregated the funds, kept them invested, and used the income for “ ordinary expenses of administration.” The property of plaintiff is encumbered by a real property mortgage of $175,000. This action is for a declaratory judgment decreeing that the gift to plaintiff was absolute and that it may legally use the fund to pay off the mortgage and for other purposes of the corporation. The Special Term so decided and the judgment was affirmed by the Appellate Division, one justice dissenting. The Attorney-General contends that the funds bequeathed constitute a trust fund that must be held “as an endowment fund and the income used for the ordinary expenses of maintenance,” as stated in the will.

It is a familiar principle of law that when a will in the first place makes an absolute gift such gift cannot be cut down by later words of the will unless the later words express as clear an intent to cut down the absolute gift as the prior words do to make the gift. In Matter of Hayes (263 N. Y. 219, 226) we said: “ Here we have words constituting an absolute gift followed by words in the same sentence which do not disclose a clear intention to cut it down. Under such circumstances, courts favor giving effect to the absolute gift. (Clark v. Leupp, 88 N. Y. 228; 1 Perry on Trusts [6th ed.], p. 162, § 115.) The question always is whether the maker of the will by the language used, intended to impose an obligation on the legatee to carry out an expressed purpose or having expressed a wish intended to leave it to the legatee to act in accordance therewith or not in his discretion.” In that case we were discussing the question whether the words used in the will created a trust.

The courts have found great difficulty in determining whether words which are claimed to have the effect of cutting down words of absolute gift have that effect in particular cases. The cases throughout the country are in conflict. In this State the tendency seems to be to hold that where there are words of absolute gift such gift will not ordinarily be cut down by subsequent words. The donor was a well-known, experienced lawyer who presumably knew the law applicable as announced by this court in various opinions. In seeking his intent as expressed in the language used, we must assume that he used it having in mind the construction placed upon similar language by this court and other courts of the State.

It should be noted that the bequest here in question is not under any construction a bequest for a specific purpose, as for instance a bequest with which to build a hospital'to be called Doheny Memorial Hospital. A bequest to be held and income to be used for ordinary expenses of maintenance ” constitutes a bequest at most for a very general purpose, leaving a very wide discretion to the corporation. What constitutes “ ordinary expenses of maintenance ” may cover a very wide field. It may in certain circumstances justify the use of the income on the fund to build a new addition to the hospital. Wherever a will does not in express terms create a trust and the question is whether the words used shall be construed as precatory or as creating a trust the fact that the purpose expressed is not specific must be considered and the inference is that the words were used not for the purpose of creating a trust. (Bogert on the Law of Trusts [Hornbook Series], p. 48.)

The will does not name a trustee to hold the fund. It is true that a charitable corporation holds all of its funds in trust for the charitable purpose for which it was organized. That does not however, create a trust in a legal sense or make applicable rules of law governing trusts to private persons. (Bird v. Merklee, 144 N. Y. 544.) Such a corporation holds, its funds in a sort of public trust, in a trust as provided in its charter, not in a trust created by a donor. (Sherman v. Richmond Hose Co., 230 N. Y. 462.)

The gift was direct to the hospital, not as trustee for the benefit of another. (Matter of Griffin, 167 N. Y. 71, 75.) The hospital cannot be a trustee for itself in a legal sense. (Brayton v. Rector of Christ Church, 249 App. Div. 290; affd., 275 N. Y. 631.) The will does not provide for any forfeiture or gift over in case of a breach. It was not made to perpetuate the donor’s name or that of any one else. It was an absolute gift for a charitable purpose unless the language must be construed as imposing a trust. It seems to us that Justice Untermyer has stated the law accurately in Corporation of the Chamber of Commerce v. Bennett (143 Misc. Rep. 513). In that case funds had been given to the corporation for the relief of members who may have been reduced to poverty, and their widows and children. He wrote: “ A gift to a corporation to be used for one of several corporate purposes does not constitute a trust. ‘ Nor is the donation rendered the less absolute, or converted into a trust, because the donor specifies that the , donation shall be employed for one of the uses or purposes ' for which the corporation was chartered.’ ” (p. 517.) There can be no doubt that the cases cited by Justice Untermyer and relied on by him fully support his statement. Those were cases decided prior to 1932. Certainly we have not expressly overruled those cases, and we would not intend to overrule them by implication. Attention is called to a few of those cases.

In Wetmore v. Parker (52 N. Y. 450, 459) the will of testatrix bequeathed to the Utica Orphans Asylum $25,000 to be invested by the trustees and the income expended in their discretion “ for the support and maintenance of said asylum.” Chief Judge Church, writing for the court, said: It does not create a trust in any such sense, as that term is applied to property. The corporation uses the property, in accordance with the law of its creation, for its own purposes; and the dictation of the manner of its use, within the law by the donor, does not affect its ownership or make it a trustee.”

In Bird v. Merklee (supra, p. 548) the will bequeathed to the Methodist Episcopal Church a part of the residuary estate to buy coal for the poor of said churches.” There was no direction to invest and use the income. Judge Edward T. Bartlett said: We * * * are of opinion that the testator contemplated no trust, but made a valid bequest to the churches ” (citing Wetmore v. Parker, supra).The fact that the testator has designated the purpose for which this legacy must be used does not indicate a desire upon bis part to create a trust.” (p. 550.)

In Matter of Griffin (167 N. Y. 71, 75, 84) the will gave funds to The Round Lake Association “ to be devoted and applied by said association to the support and maintenance of the school at said Round Lake known as the Round Lake Summer Institute.” Cullen, J., said, “ Such a gift, though the corporation may be instructed to maintain the principal intact and use the income only for a specific purpose, does not create a trust ” (citing Wetmore v. Parker, supra, and Bird v. Merklee, supra).

In Matter of Durand (194 N. Y. 477, 479) the will gave a fund to the trustees of the University of Rochester “ to be held by them as a perpetual fund, and the income thereof to be devoted to the objects named ” (female education). Hiscock, J., wrote the opinion in this court and it was decided that there was an absolute gift instead of a trust (citing Matter of Griffin, supra, also Wetmore v. Parker, supra, and Bird v. Merklee, supra).

The will involved in Sherman v. Richmond Hose Co. (230 N. Y. 462, 466) bequeathed $10,000 to the Richmond Hose Company “to be kept at all times intact and the income * * * to be devoted to the reasonable and proper uses of said company for whatever purposes its members acting as an organization may see fit to direct.” The city organized a paid fire department and the Richmond Hose Company was dissolved and a question arose as to where the $10,000 bequest should go. This court held that the bequest did not impose a trust, but that as the hose company was a charitable corporation, section 12 of the Personal Property Law applied. Therefore, that the cy pres doctrine applied and the fund should go to the city as the gift was a gift to charity impressed with a public trust. That case pointed the way for the decision in Matter of Neher (279 N. Y. 370) where the will gave a home in the village of Red Hook to the village to be used as a hospital. The village, being without necessary resources, petitioned the court to apply the cy pres doctrine. This court held that principle applicable under section 113 of the Real Property Law as the gift was for a charitable purpose impressed with a public trust as in the Richmond Hose case_^(supra).

Appellant argues that the intent of the testator should control and that his intent is clear. Assuming that the intent is clear as contended by appellant, nevertheless the intent to be effective must be a legal intent enforceable under applicable principles of law.

It is urged by the Attorney-General that decisions made since 1873, when the case of Holmes v. Mead (52 N. Y. 332) was decided, and the passage of the Tilden statute (so called) in 1893 (L. of 1893, ch. 701), now embodied in section 113 of the Real Property Law and section 12 of the Personal Property Law, should no longer be followed as those decisions were made in an effort to avoid the effect of that decision and in all cases where possible to sustain charitable bequests as absolute gifts. That argument overlooks the fact that many of the cases heretofore cited were decided long after the passage of the Tilden Act.

An absolute bequest to a charitable corporation of a fund which a testator directs shall be held in trust by the corporation and used for a special purpose is, under the decisions of this court, in fact an absolute gift to the corporation, and the request or direction that it be used or held in trust for a special purpose are precatory words which do not in law compel the corporation to use the fund in the way directed by the testator. That is the law of this jurisdiction as announced in many decisions. It has become a rule of property and should be followed.

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

Lehman, Loughran and Rippey, JJ., concur with Finch, J.; Hubbs, J., dissents in opinion, in which Crane, Ch. J., concurs; O’Brien, J., taking no part.

Judgments reversed, etc.


author: Finch, J.

text:
    The People of the State of New York, Respondent, v. John Osinski, Appellant.
    Argued May 31, 1939;
    decided July 11, 1939.

      H. E. Blodgett and Howard Murrin for appellant.

      Thomas W. Wallace, District Attorney (Adam Ogonowski of counsel), for respondent.
   Finch, J.

Defendant was indicted for assault in the first degree, to wit, defendant, with the intent to kill, assaulted one Case with a loaded pistol. The jury returned a verdict of guilty of assault in the second degree with a recommendation of leniency.

Defendant Osinski and a companion. Hood, had been drinking in a saloon, and had become drunk. There is some dispute as to the extent to which they Were inebriated, but it is clear that Hood was in the worse condition. Casé, a deputy sheriff, placed the two men under arrest while they were in the saloon, and proceeded to take them in his coupe to the town clerk’s office. The inside handle on the right-hand door of the car had been previously removed, so that it was possible to leave only on the left side. When they arrived at the town hall, Case left the car with the two men in it. On the ledge in back of the seat inside of the car, Case had left a pistol in a holster. The gun was hidden by a “ Justice’s Manual.” After walking about ten to fifteen feet, Case remembered that he had left bis keys in the car. He started back to the car and, as he did so, defendant Osinski was putting his left foot out of the side of the car. Case saw defendant holding the holster in his right hand. The butt and trigger of the gun are uncovered in a shoulder holster, the kind here involved. At this point Case’s testimoriy is as follows; “ Q. From then on what did you see? A. As I went back to the car I saw my holster in his [defendant’s] hand. I could see the brown holster. I grabbed for it. Then, of course, as I grabbed for it the gun exploded, * * * Q. Your best judgment is you did get hold of it? A. Yes.” Case was shot through the leg.

Case also testified that later that evening, when defendant Osinski and Hood were brought to the hospital, Osinski said he was sorry he done it. I said I was sorry too.” At no time did defendant attempt to escape.

There are no exceptions to the judge’s charge, which in part is as follows: Now, you see the intent to kill is omitted from the definition of second degree assault, but to do bodily harm to the person of the officer is an element of the crime of assault in the second degree and the prosecution * * * has the burden of proving that intent of this defendant * * * ”

In order to sustain the conviction, there must be some evidence that defendant did the shooting, and that he shot Case with the requisite intent. There is no direct evidence of either element, unless Case’s testimony that Osinski “ said he was sorry he done it ” when he was in the hospital be regarded as adequate. This amounts to no more than saying that he regretted that the accident happened.

Thus it would appear that the inference of intent is based upon the fact that defendant did the shooting, which, in turn, is inferred from the fact that defendant was holding the holster in his hand when the complaining witness also grabbed hold and the explosion occurred,

From the foregoing facts it would appear that the evidence to establish Osinski’s intent to inflict bodily harm is so slight as to be no more than a scintilla, if even that. Where the intent, which is an essential element of a crime, can be established only by inference from another fact, and the latter fact is not shown by direct evidence but must itself be derived from the existence of another event, the testimony is ordinarily too slight to permit the question to be submitted to the jury. The jury’s finding that defendant possessed the intent to do bodily harm would be no more than mere surmise on the basis of the evidence adduced. (People v. Razezicz, 206 N. Y. 249.)

The judgments, therefore, should be reversed and the indictment dismissed.

Crane, Ch. J., Lehman, Hubbs, Loughran and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgments reversed, etc.