text:
    In the Matter of Frances W. Stone, Respondent, against Mark Graves et al., Constituting the State Tax Commission, et al., Appellants.

      Argued May 27, 1940;
    decided July 24, 1940.

      John J. Bennett, Jr., Attorney-General (Mortimer M. Kassell and Harry T. O’Brien, Jr., of counsel), for appellants.
    Payment of the refund is barred by the Constitution of the State. (Matter of Furey v. Graves, 148 Misc. Rep. 785; 241 App. Div. 897; 266 N. Y. 415; Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351; Matter of Hoople, 179 N. Y. 308; Cayuga County v. State, 153 N. Y. 279; Gates v. State, 128 N. Y. 221; Ross v. State, 186 App. Div. 156; Bauserman v. Blunt, 147 U. S. 647; Reid v. Board of Supervisors, 128 N. Y. 364; Tillman v. Guaranty Trust Co., 253 N. Y. 295; Brown v. Bronson, 93 App. Div. 312; Gilbert v. Taylor, 148 N. Y. 298; Cooley v. Lobdell, 82 Hun, 98; Matter of Jacob v. Gilchrist, 211 App. Div. 62; Matter of Bausher v. Lynch, 231 App. Div. 486; 257 N. Y. 615.) Chapter 434 of the Laws of 1934 does not provide for a refund herein. (Matter of Furey v. Graves, 148 Misc. Rep. 785; Matter of Dee, 282 N. Y. 617; People ex rel. Bankers Trust Co. v. Graves, 270 N. Y. 316.) Any refund must be without interest. (Matter of DeCordova, 199 App. Div. 492; 234 N. Y. 514.)

      H. Herbert Romanoff for respondent.
    The amendment to the Tax Law (Cons. Laws, ch. 60) by chapter 434 of the Laws of 1934 authorized the refund demanded. (Matter of Socolow v. Murphy, 219 App. Div. 184; Payne v. Gardiner, 29 N. Y. 146; Brooklyn Borough Gas Co. v. Bennett, 154 Misc. Rep. 106; City of New York v. Fidelity Trust Co., 243 App. Div. 46; Bank of British North America v. Merchants’ Nat. Bank, 91 N. Y. 106; Matter of Rosenthal v. Graves, 246 App. Div. 656; 274 N. Y. 524.) The amendment does not violate section 6 of article VII of the Constitution (now art. III, § 19). (Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351; Rexford v. Knight, 11 N. Y. 308; Matter of Dee, 257 App. Div. 531; 282 N. Y. 617.)
   Lehman, Ch. J.

Gordon Wendell died, a resident of the county of New York, on January 31, 1910. By his last will and testament he directed that his residuary estate should be held in trust during the lifetime of his wife for her benefit. The testator left contingent remainders in the trust fund, upon the death of his wife, to their children and in case no child survived his wife, he directed that the principal of]the fund should be paid to more distant relatives. Until the death of the life tenant it was not possible to determine at what rate the transfer of the remainder would be ultimately taxed but, in accordance with the provisions of section 230 of the Tax Law (Cons. Laws, ch. 60), a tax upon the transfer of the remainder was imposed upon said transfer at the highest rate which, on the happening of any contingency, would be possible. The tax so imposed amounted to $3,277.10. A temporary order fixing the tax was then entered on October 3, 1911, and the tax was paid by the executors. The life tenant died on June 19, 1929, leaving her surviving, as the sole issue of the testator and herself, one daughter, Frances C. E. Wendell. In February, 1938, she made application to the Surrogate’s Court for an order modifying the tax imposed upon the transfer of the remainder to her. Accordingly an order was entered on March 8, 1938, which finally fixed and determined the tax due on such transfer at $655.42. Miss Wendell then applied for the refund to her of the difference between the sum of $3,277.10, which was paid under the temporary order of October, 1911, fixing the tax at the highest rate possible upon the happening of any contingency, and $655.42, which, by the order of March 8, 1938, was finally fixed and determined as the amount of the tax due upon the transfer of the remainder to a lineal descendant of the testator. Payment was refused on the ground that the claim for refund had accrued more than six years before the demand and that, under the decision of this court in Matter of Furey v. Graves (266 N. Y. 415), refund of the tax was prohibited by the Constitution. Then application was made to the Supreme Court for an order directing the Comptroller to refund the difference between the amount of the tax temporarily fixed at the highest rate and the amount of the tax as finally fixed upon the transfer of the remainder.

In Matter of Furey v. Graves (148 Misc. Rep. 785; affd., 241 App. Div. 897; 266 N. Y. 415), a sum roughly estimated as the amount of the transfer tax which would be due upon the estate of a decedent was paid to the State.Comptroller in May, 1917, before any order was made fixing the tax. The purpose of the payment was to procure the discount on the tax which is allowed if the tax is paid within six months of its accrual. No order was entered, fixing the tax, until 1932. Then the tax was fixed at an amount less than had been paid and the administrator of the estate belatedly asked for a refund of the amount erroneously paid. The statute made no provision for the payment to the State of any tax before an order is entered fixing the amount of the tax and made no provision for a refund by the State of any excess if such payment is made and an order is thereafter entered fixing the tax at an amount less than was paid. The custom, however, of paying the estimated amount of a tax in advance of an order fixing the amount, had become common and the Comptroller had without question refunded any excess in the amount so paid over the amount of the tax thereafter fixed by order of the Surrogate. The right to such a refund depended on common law principles.’ After the amount of the tax was fixed and determined, the State held moneys which equitably and fairly belonged to the taxpayer and which the taxpayer might recover in an action for money had and received. Such an action, between citizens, would be subject to a statutory period of limitation of six years from the date the cause of action accrued. It would not accrue until the entry of the order fixing the tax but a taxpayer could not reasonably delay his application for such an order more than two years. Therefore, the action would be barred eight years after the payment of the estimated amount of the tax. The Constitution of the State of New York at that time provided that neither the Legislature, canal board, nor any person or persons acting in behalf of the State, shall audit, allow, or pay any claim which, as between citizens of the State, wquld be barred by lapse of time.” (Art. VII, § 6.) The courts held in Matter of Furey v. Graves (supra) that this provision of the Constitution prohibited the State from refunding the moneys paid by the taxpayer; for more than eight years had elapsed since payment of the estimated amount of the tax and since the date when the taxpayer might have applied for an order fixing the tax.

While the appeal in that case was still pending and before argument in the Court of Appeals, the Legislature adopted a statute, doubtless intended to authorize the refund which had been denied to the taxpayer by the decision of the lower courts. That statute, chapter 434 of the Laws of 1934, amended section 225 of the Tax Law by inserting a provision that “ Where it appears that a tax was paid before the entry of a taxing order and such order shows that the amount of tax due is less than the amount so’paid, the tax commission, with the approval of the comptroller, shall refund to the persons entitled thereto the amount so paid in- excess of the amount of tax fixed by the taxing order, * * * provided application for such refund be filed with the tax commission within one year from the entry of such taxing order.” It was the clear intent of the Legislature in that statute to direct the refund of excess tax paid upon application within one year from the entry of an order fixing the tax regardless of the time when the order was entered, but this court, although writing no opinion, held that it could give no effect to the statute because the same provision of the Constitution which prohibited an officer of the State from auditing, allowing, or paying any claim which, as between citizens of the State, would be barred by lapse of time,” also prohibited the Legislature from authorizing an officer to make such payment. In the recent case of Matter of Dee v. State Tax Commission (282 N. Y. 617), decided January 25, 1940, a similar situation was presented to this court as in the case of Matter of Furey v. Graves (supra), but with one significant difference. In that case, at the time when chapter 434 of the Laws of 1934 went into effect, not quite eight years had passed since payment of the estimated amount of the tax without a taxing order. Consequently, at that time the claim as between citizens of the State would not have been barred by lapse of time and the Legislature was not precluded by any constitutional restriction from passing a statute directing the payment of the claim within one year after entry of the order fixing the tax. This court did not, in that case, overrule its earlier decision in Matter of Furey v. Graves. The court, in the latter case, applied, according to its terms, a statute of the Legislature which could not be applied in the earlier case because of the mandate of the Constitution.

The Constitution, as amended in 1938, contains a similar limitation upon the power of the Legislature to authorize or direct payment of a claim against the State which as between citizens would be barred by lapse of time. (Art. III, § 19.) As in Matter of Dee v. State Tax Commission (supra), however, the claim in this case would not, as between citizens of the State, have been barred by any six-year period of limitation at the time the Legislature enacted chapter 434 of the Laws of 1934, for no order finally determining the tax could have been entered till the death of the life tenant in 1929. It follows, then, under our decision in the Dee case, that, if the provisions of chapter 434 of the Laws of 1934 were intended to apply to refunds of moneys paid before entry of an order finally fixing the tax, though after the entry of a “ temporary ” order which was subject to modification in accordance with the provision of section 225 of the Tax Law, the State must, regardless of the time when the order finally fixing the tax is actually entered, refund the excess tax paid under the order temporarily fixing the tax at the highest rate possible in any contingency. It is urged, however, that the statute relied upon refers in express terms only to cases where a tax has been paid “ before the entry of a taxing order,” and can have no application to a case where payment was made under a temporary order fixing the tax tentatively.

The Tax Law, in section 230, which provides for the assessment of a tax at the highest rate possible, also provides that the order determining the tax at that rate shall be a “ temporary order,” and that on the happening of any contingency whereby the said property, or any part thereof, is transferred * * . * to any person taxable at a rate less than the rate imposed and paid, such person or corporation shall be entitled to a return of so much of the tax imposed and paid as is the difference between the amount paid and the amount whichfsaid person or corporation should pay under the provisions of this article, computed upon the full, undiminished value of the property as aforesaid.” The person so entitled to a refund may apply, under the express terms of that section, for an order modifying the original tax. The right to recover the excess is not, as in the case of Matter of Furey v. Graves (supra), through an action for money had and received based on common-law principles, which, as between citizens would be barred by lapse' of time, but is granted by express provision of the statute directing that such refund be made and not providing any limitation upon the time when application for an order finally fixing the tax must be made or when proceedings must be initiated, to compel the refund of an amount paid in excess of the tax as finally fixed. By chapter 434 of the Laws of 1934 the Legislature has in express terms provided that even a common-law cause of action to compel a refund in analogous cases shall not be barred by any lapse of time in applying for the order fixing the tax, though otherwise a common-law cause of action would, as between citizens, be barred. Persuasive argument might be made that when the Legislature used the words “ a tax was paid before the entry of a taxing order,” it intended to include every case where a tax was paid before the entry of the order which finally fixed the tax, though a “ temporary ” order had been entered. We need not now determine that question. Here we are asked to read into a statute, which expressly provides a statutory right to compel a refund, a limitation not con-tamed in the statute which grants the right. Such a limitation would be in conflict with the practice of the State, at least until the decision in Matter of Furey v. Graves (supra). No principle of statutory construction constrains us to read into the statute by implication a Hmitation not expressed. Indeed, it may be doubted whether there would be any justification for such an imphcation. The statute apphcable to payment of taxes before the entry of a temporary order is, at least, convincing evidence that the Legislature did not intend that a Hmitation not expressed should be incorporated in a statutory remedy granted in an analogous situation.

The right to a refund of the excess amount fixed with three per cent interest is a substantial right which affected the amount of the tax which the State would be permitted to retain when the tax should be fixed by final order. We agree with the courts below that the amendment of the statute, (L. 1911, ch. 800) made after the death of the testator,'which took away the right to interest on moneys refunded, has no retroactive effect. Matter of De Cordova (199 App. Div. 492; affd., 234 N. Y. 514) is not authority to the contrary.

The order should be affirmed, with costs.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed.


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. William W. Paige, Appellant.
    Argued April 17, 1940;
    decided July 24, 1940.

      Samuel Stern, Meyer Alterman and N. Henry Lindenauer for appellant.
    The evidence did not warrant a verdict of murder in the first degree. (People v. Ludkowitz, 266 N. Y. 233; People v. Cashin, 259 N. Y. 434; People v. Filippelli, 173 N. Y. 517.)

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Burr F. Coleman of counsel), for respondent.
    The defendant’s guilt was established beyond a reasonable doubt. (People v. Becker, 215 N. Y. 126; People v. Sanducci, 195 N. Y. 361; People v. Broncado, 188 N. Y. 150; People
      v. Rodawald, 177 N. Y. 408; People v. Breen, 181 N. Y. 493; People v. Ferraro, 161 N. Y. 365; People v. Fish, 125 N. Y. 136; People v. Trezza, 125 N. Y. 740.)
   Lehman, Ch. J.

The defendant has been convicted of murder in the first degree. He does not deny that in a fight on December 29th he stabbed Robert Forbes, a youth nineteen years old, and that Forbes died as a result of the wound he inflicted, but he claims that the homicide was justifiable because committed in lawful self-defense.

Many witnesses testified for the People. The defendant contradicted much of their testimony but the jury was justified in accepting the testimony of the witnesses for the People. The question remains whether their testimony is sufficient to prove beyond a reasonable doubt that the homicide was committed by the defendant from a deliberate and premeditated design to effect the death of Forbes and that the defendant is, therefore, guilty of murder in the first degree. In stating briefly the circumstances surrounding the homicide, we refer almost exclusively to the testimony of the witnesses for the People.

On the evening of December 26, 1939, defendant and Forbes had a fight in the gallery of the gymnasium of the Harlem Y. M. C. A., where both were spectators at a basketball game. The homicide, three days later, was the sequel of that fight. Previously there was no rivalry or animosity between Forbes and the defendant. Indeed, they were not acquainted. Forbes was an athletic young man who had played basketball while a student at a high school in Harlem and was well known in Harlem and popular with his former schoolmates. He was a first-year student at an out of town college and was home for the Christmas holidays. He went to see the basketball game with two friends and sat with them in the gallery of the gymnasium. Other young friends of Forbes were in the gallery and seated near them. The defendant Paige also had attended a high school in Harlem. He was a few years older than Forbes and was a W. P. A. worker in a Harlem health clinic. He accompanied a young girl to the basketball game and, finding no vacant seats in the gallery^ they stood behind the chairs occupied by Forbes and his friends. The young girl rested her hand on the back of one of these seats and twice during intermissions in the game a friend and companion of Forbes, who was sitting in that chair, leaned back and in doing so caught her hand against the back of the seat. Angry words followed and then a fist fight. •

The testimony of the People’s witnesses shows that the defendant, by the use of fóul and insulting language, invited the resentment of Forbes and his friends and perhaps even attack and" physical chastisement by them. In the fight which followed; the defendant was without friends or supporters in the gallery while Forbes was surrounded by his friends and admirers. The fight was stopped by attendants of the Y” and by a policeman, and all those who had part in it were told to go home.

Though the blame for the fight may properly be placed upon the defendant, yet after the fight was stopped he felt an overwhelming sense of injury because he had been humiliated before the young girl whom he escorted to the game, and a sense of wrong not unmixed with fear because Forbes was a popular youth and his friends had given him moral and even physical support in the fight. That night in the Y ” building, he made threats to Forbes and his friends that he would not forget what had occurred but would “ see ” them again. The next day he told a number of the People’s witnesses,.inclúding friends of Forbes, that he would get Forbes and even that he would kill ” him, and showed some of them a knife; but it is significant that the witnesses for the People who heard these threats testified that when the defendant threatened to “ kill ” Forbes, they understood that he was not using that word in a literal sense or expressing any intent to do more than hurt Forbes.

It is even more significant ‘ that the testimony of the People’s witnesses also shows beyond any possible doubt that the defendant’s threats were accompanied by expressions of fear as well as resentment. Thus, one witness testified that when he showed them the knife, he explained: I am afraid because they jumped on me once and I would not want them to jump on me again; ” and again that he said that he was afraid those boys would jump on him and that he was going to get Bobby Forbes.” Another witness for the People testified that on the day after the encounter in the gallery of the “ Y ” the defendant told him, about it. According to the witness the defendant seemed to be pretty scared ” that Forbes and his friends would attack him without giving him a chance to defend himself. According to this witness: He said, There is only one way for the fellows to make them leave him alone/ he said he had to hurt one of the fellows to make them leave him alone,” and when this witness suggested that he thought he could straighten out the matter ” with Forbes and his friends, the defendant gratefully accepted.the suggestion and together they went to the “ Y ” hoping to find some of the boys there.

On the evening of the affray the defendant had two encounters with Forbes. The first encounter was on the street in a neighborhood where Forbes and his friends were accustomed to meet. Forbes was surrounded by a small crowd of his friends. The defendant was alone except for one companion who felt no ill-will towards Forbes and who was not a partisan of the defendant and had, apparently, no intention of helping the defendant if he got into a fight. Alone, according to the testimony of the People’s witnesses, the defendant ran towards Forbes and his friends — pulling out his knife as he came near them. They scattered, running off in different directions, but the defendant caught up with Forbes and cut his lip superficially — the cut, indeed, was so slight that it may be doubted whether defendant even knew that he had inflicted it.

After the fight the defendant and his companion took a bus to visit a girl friend. The defendant, it appears, said to his companion, “ Now, they will respect me.” As they got off the bus, more than half a mile from the comer where the original encounter had taken place, they saw Forbes and an unidentified companion. The meeting was purely fortuitous. The defendant started towards Forbes, again drawing his knife. Defendant’s companion ran away and Forbes’ companion was not seen again. Forbes seized a stick which supported a push cart at the curb. There Was a short fight. Then defendant ran after his friend and they went together as planned to pay the visit which they had started to pay. Forbes thereafter fell to the ground and died in a few minutes from stab wounds. The defendant, so far as appears, did not know that Forbes was seriously injured until much later that night, when friends came to his room, where he was asleep, and told him of rumors they had heard about the fight and a fatal result. Then he left his room and stayed away till the next evening when he went to a police station and gave himself up.

Ordinarily, where a person has said he would “ kill ” another and a few days later does kill him, a finding that the homicide was committed with a deliberate, premeditated design to effect the death of the person killed, is justified by the evidence and often no other inference is possible. Here, however, even hostile witnesses who heard the threat to “ kill ” admit that they did not think that the defendant had an actual intent to kill. In the composite testimony of many witnesses for the People, the picture of the defendant is clearly delineated — a young man frightened, humiliated and resentful, because in a fight, which he invited, he had aroused the ill-will of Forbes and his group of friends. With mixed motives of bravado, resentment and desire to inspire fear, he carries a knife and shows it to many persons, making threats or boasts of what he will do to Forbes when he meets him. When he did meet and attack Forbes, who was then surrounded by a crowd of friends, he may have hoped to make the group fear him and to wipe out his humiliation, but it can hardly be supposed that this frightened, humiliated boy, who had never been in trouble before, intended, in a public street in the presence of Forbes’ friends, to kill Forbes with a knife which he had used when a boy scout. Such an intent is belied by what the defendant said and did both before and after the fight.. The attack may have been made with, intent to injure Forbes, and the defendant may have been guilty of manslaughter, but assuredly the evidence produced by the People is insufficient to prove- beyond reasonable doubt that the defendant is guilty of murder because when he stabbed Forbes in a fight he had formed a deliberate design to. kill.

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

Loughran, Finch, Eippey, Sears, Lewis and Conway, JJ., concur.

Judgment of conviction reversed, etc.


text:
    The People of the State of New York, Appellant, v. Brooklyn and Queens Transit Corporation, Respondent.

      Submitted April 11, 1940;
    decided July 24, 1940.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for appellant.
    The maintenance of a public nuisance by the defendant was established beyond a reasonable doubt. (People v. High Ground Dairy Co., 166 App. Div. 81; People v. Borden’s Condensed Milk Co., 165 App. Div. 711; People v. Hess, 110 Misc. Rep. 76; People v. Kings County Iron Foundry, 209 N. Y. 207; People v. Kingston, 177 App. Div. 376; People v. Hoffman, 118 App. Div. 862; 189 N. Y. 561; People v. Weeks, 172 App. Div. 117; People v. Vandewater, 224 App. Div. 767; 250 N. Y. 83; People v. Tendetnick, 237 App. Div. 9; People v. Curtis, 152 App. Div. 372; 206 N. Y. 747; People v. Cooke, 220 App. Div. 110; 248 N. Y. 597; People ex rel. Collins v. Callaghan, 28 N. Y. Crim. Rep. 377; People v. Third Ave. R. R. Co., 30 How. Pr. 121; People v. Rubenfeld, 254 N. Y. 245.) The previous acquittal of the defendant on a similar but not the same, charge is not a bar to the present prosecution. (2 Wharton’s Criminal Law [12th ed.], § 1687; People v. Townsend, 3 Hill, 479.)

      Trabue Carswell, William W. Spear and W. Harry Sefton for respondent.
    As a matter of law, the defendant could not be guilty of the crime of public nuisance. (Matter of City of New York [Saratoga Ave.], 226 N. Y. 128; Brooklyn Hgts. R. R. Co. v. City of Brooklyn, 152 N. Y. 244; Matter of Westchester El. R. R. Co. v. City of Mount Vernon, 237 N. Y. 199.) The defendant is lawfully using its own property for operation of its railroad system in the. movement of its empty cars to and from the car bam, and such operation, in the absence of negligence cannot be a nuisance. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Conabeer v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 474; Bennett v. L. I. R. R. Co., 181 N. Y. 431; Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Richards v. Washington Terminal Co., 233 U. S. 546; Friedman v. N. Y. & H. R. R. R. Co., 89 App. Div. 38; 180 N. Y. 550; People v. N. Y. C. & H. R. R. R. Co., 159 App. Div. 329; Hearst v. N. Y. C. & H. R. R. R. Co., 215 N. Y. 268; Ball v. N. Y. C. R. R. Co., 229 N. Y. 33.) The question as to the necessity for this operation was a matter to be determined by the officials of the defendant in the exercise of reasonable discretion. (People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543; Matter of N. Y. & H. R. R. R. Co. v. Kip, 46 N. Y. 546; Matter of U. El. R. R. Co., 113 N. Y. 275; Matter of City of Syracuse, 137 Misc. Rep. 632; Long Island R. R. Co. v. Sherwood, 69 Misc. Rep. 383; 205 N. Y. 1.) An abutting property owner cannot resort to the criminal law to redress a fancied private grievance. (Fobes v. R. W. & O. R. R. Co., 121 N. Y. 505; Kennedy v. Mineola, H. & F. Traction Co., 77 App. Div. 484; 178 N. Y. 508; Richards v. Washington Terminal Co., 233 U. S. 546; L. I. R. R. Co. v. Garvey, 159 N. Y. 334; People v. Cooper, 200 App. Div. 413; People v. Kings County Iron Foundry, 209 N. Y. 207; People v. Transit Development Co., 131 App. Div. 174; People v. Vandewater, 250 N. Y. 83; People v. Dayton Cleaners & Dyers Corp., 251 App. Div. 332.) The defendant was entitled either to a dismissal of the indictment or the direction of a verdict on the ground of acquittal on former trial for the same crime, or on the ground that the issue in this case was res judicata by reason of the former trial. (United States v. Oppenheimer, 242 U. S. 85; Woodman v. United States, 30 Fed. Rep. [2d] 482; Collins v. Loisel, 262 U. S. 426; Coffey v. United States, 116 U. S. 436; Murphy v. United States, 272 U. S. 630; United States v. La Franca, 282 U. S. 568; McGrane v. N. Y. El. R. R. Co., 67 App. Div. 37; State ex rel. Remley v. Meek, 112 Iowa, 338.)
   Lehman, Ch. J.

The defendant railroad corporation operates a street railroad system in the city of Brooklyn. Some of its street car lines extend into the county of Queens. During the late hours of the night and the early hours of the morning, fewer cars are required and operated for the transportation of passengers than during the busy hours of the day. The street cars not in service during those hours cannot be left upon the tracks or upon the street without obstructing traffic. Several of the street car lines operated by the defendant have their terminal at Myrtle avenue. Street cars not operated during the night are moved by the defendant from the terminal at Myrtle avenue along a right-of-way owned by the defendant to a storage yard or storage barn owned by the defendant, eight-tenths of a- mile from the terminal. Between midnight and two a. m., sixty street cars, on the average, pass over the right-of-way from the terminar to the place of temporary storage, and between five and seven o’clock in the morning, one hundred and twelve empty cars pass in the opposite direction from the storage place to the terminal for use during the rush hours of the morning. The right-of-way is intersected by public streets and at some of the intersections traffic lights have' been placed. The empty cars passing over" the right-of-way, at times in procession almost continuous, stopping and starting as the traffic lights indicate, cause loud noise. There is clanging of bells and grinding of brakes and many witnesses, whose homes abut on or are in close proximity to the defendant’s right-of-way, complain that the noise annoys them and disturbs their comfort, health and repose. Upon their testimony, the defendant has been convicted of maintaining a nuisance, and the court has granted an order directing the defendant to abate the nuisance within ninety days. Under that sentence the street railroad company will not be able to use its right-of-way for the passage of empty street cars not required during the night upon the lines which terminate at Myrtle avenue; ndr will it be able to use as a temporary storage place for such cars the property which it now devotes to that purpose.

The defendant acquired its right-of-way through merger with another railroad company which had taken title to it in 1881. At that time the right-of-way passed through farm land. Since then the neighborhood has been built up, and many persons are now living in houses which abut on or are in close proximity to the right-of-way. The noise of the passage of the empty cars between midnight and seven a. m. annoys them and disturbs their repose, or at least a trier of the fact might so find. Because the defendant causes that noise during the night by its use of the right-of-way for the passage of empty cars, it has been convicted upon the charge of maintaining a public nuisance. Even without that noise the right-of-way no longer enjoys the quiet of a country lane passing through farm land. The defendant corporation not only uses it for the passage , of the empty cars from the terminal at Myrtle avenue but it also operates on the tracks, upon the surface of the right-of-way, a car line for the transportation of passengers, and above the surface of the right-of-way it operates an elevated railroad. Even so, a trier of the fact might find that, entirely apart from the noise caused by the operation of an elevated railroad and the operation of a street- railroad for the transportation of passengers upon the right-of-way, the noise caused by the passage of the empty cars from other lines does annoy and disturb the repose of a considerable number of persons whose homes are placed on either side of the right-of-way.

Public or common nuisances at common law have been described as such inconvenient and troublesome offences as annoy the whole community in general, and not merely some particular person.” (4 Blackstone, Commentaries, p. 167.) Such nuisances may be defined to be an offence against the public, either by doing a thing which tends to the annoyance of all the king’s subjects, or by neglecting to do a thing which the common good requires. * * * But annoyances to the interest of particular persons are not punishable by a public prosecution as common nuisances, but are left to be redressed by the private actions of the parties aggrieved by them.” (1 Hawkins, Pleas of the Crown, p. 692.) More recently it has been said that A common nuisance is an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects. It is immaterial whether the act complained of is convenient to a larger number of the public than it inconveniences, but the fact that the act complained of facilitates the lawful exercise of their rights by part of the public may show that it is not a nuisance to any of the public.” (Stephens, Digest of Criminal Law [5th ed.], art. 197.)

The offense of maintaining a public nuisance has now been defined by the Penal Law, section 1530. That section, so far as relevant here, provides that

“ A ‘ public nuisance ’ is a crime against the order and economy of the state, and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission;

1. Annoys, injures or endangers the comfort, repose, health or- safety of any considerable number of persons; * * * yy

To establish guilt here the People must show that the defendant by unlawfully doing an act ” has caused annoyance or injury to a “ considerable number of persons.’ The Appellate Division has reversed the conviction and dismissed the indictment on the ground that, even assuming that the facts establish the existence of a nuisance, the rights invaded by the maintenance of the alleged nuisance are not suffered by the complainants in their status as citizens or part of the public.” (258 App. Div. 753.)

Under the express terms of the statute, annoyance to a considerable number of persons is an essential element of the offense. This court has said, however, that the expression “ ‘ any considerable number of persons ’ is used solely for the purpose of differentiating a public nuisance, which is subject to indictment, from a private nuisance ” (People v. Kings County Iron Foundry, 209 N. Y. 207, 210), and in other cases this court has construed the statute as the definition of an offense to the public of a neighborhood or community in the enjoyment of its common rights and not as a definition of an offense which consists merely of injury to a large number of persons in the enjoyment of private rights not shared by the members of a community or neighborhood. Thus in the often-cited case of People v. Rubenfeld (254 N. Y. 245, 247, 249), the court, speaking through Cardozo, Ch. J., said:

“ The definition corresponds to the distinction between public and private nuisances as it stood at common law. * * * To be reckoned as ‘ considerable,’ the number of persons affected need not be shown to be very great ’ (People v. Kings County Iron Foundry, supra). Enough that so many are touched by the offense and in ways so indiscriminate and general that the multiplied annoyance may not unreasonably be classified as a wrong to the community. Public is the nuisance whereby a public right or privilege common to every person in the community is interrupted or interfered with,’ as by the obstruction of a public way (Wesson v. Washburn Iron Co., 13 Allen, 95, 102). Public also is the nuisance committed ‘ in such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public annoyance and inconvenience, and a wrong against the community, which may be properly the subject of a public prosecution ’ (Wesson v. Washburn Iron Co., supra; cf. Wood on Nuisances [2d ed], § 71, and cases cited). * * *

“ We think the area of this tumult, the range of its disturbing power, is wide enough to bring it within the category of an offense to the community, or so the triers of the facts might find. Here is something more than an interference with a single dwelling or even two or three. Here is tumult so great, if the witnesses are to be credited, as to be a plague to a whole neighborhood.”

Again, in People v. Borden’s Condensed Milk Co. (165 App. Div. 711; affd., 216 N. Y. 658), findings of the Court of Special Sessions established that there, too, there was a tumult so great * * * as to be a plague to a whole neighborhood,” and in all the other cases cited by the People there has been interference with a public right common to every person in a neighborhood or community.

Here noise at one end of the right-of-way would not disturb persons living near the other end, almost a mile away. Each person suffers annoyance or injury only by what occurs in immediate proximity to his own home. Only because the right-of-way is long and narrow do the acts of the defendant corporation cause annoyance to a considerable number of persons, and here, unlike the cases cited by the appellant, it is not the peace and quiet of a community or neighborhood which is destroyed by unlawful conduct which affects the entire neighborhood or community, but the complaint is directed against acts of the defendant which disturb only persons scattered along a narrow, private right-of-way. -

What public right common to the member's of a community has been invaded by any unlawful act or omission of the defendant railroad company or what “ wrong against the community, which may be properly the subject of a public prosecution ” has it committed in using its own right-of-way for the passage of empty street cars as an incident to the operation" of a railroad authorized by the State? That is the question presented upon this appeal.

In determining the question presented upon this appeal, we must constantly keep in mind that we are not considering here the liability of a railroad company for damages for injury to an individual by an unreasonable user either of the public streets or of private property. The right of the individual to damages for special injury caused by such user has been repeatedly affirmed. Legislative authorization for the construction and operation of a railroad has never been construed as a sanction to a railroad company to perform any act incidental to the operation of its railroad in a place or manner which will cause special injury to individuals; and indeed, the Legislature has not unlimited power to grant immunity from liability for a special injury caused to an individual in his private rights by the operation of a railroad under sanction of the State and for the public benefit.

Such roads are treated as public highways, and the proprietors as public servants, with the exemption normally enjoyed by such servants from liability to private suit, so far as concerns the incidental damages accruing to owners of non-adjacent land through the proper and skillful management and operations of the railways. ’ * * * The immunity is limited to such damages^ as naturally and unavoidably result from the proper conduct of the road and are shared generally by property owners whose lands he within range of the inconveniences necessarily incident to proximity to a railroad. It includes the noises and vibrations- incident to the running of trains, the necessary emission of smoke and sparks from' the locomotives, and similar annoyances inseparable from the normal and non-negligent operation of a railroad.” (Transportation Co. v. Chicago, 99 U. S. 635, 641; Richards v. Washington Terminal Co., 233 U. S. 546, 553.) The court there was speaking of actions brought by owners of the property to recover damages which they suffered by reason of the operation of railroads. We do not now determine what evidence would be sufficient to establish a right to redress of special injury to an individual. We are considering only penal responsibility resulting from -the performance by the railroad company of a public function.

In Baltimore & Potomac R. R. Co. v. Fifth Baptist Church (108 U. S. 317, 332) the Supreme Court of the United States drew a distinction between public and private nuisances which was later expressly approved by the same court in Richards v. Washington Terminal Co. (supra). In the earlier case it was said: “ The acts that a Legislature may authorize, which, without such authorization would constitute nuisances, are those which affect public highways or public streets, or matters in which the public have an interest and over which the public have control. The legislative authorization exempts only from liability to suits, civil or criminal, at the instance' of the State; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at-large.” (Italics are new.) It is interesting to note that in every judicial decision cited by the appellant where it has been held that a railroad company is guilty of an actionable wrong or creates a private nuisance by performing in an unreasonable manner or at an -unreasonable place acts incidental to its public function, the court was considering the essential elements of a cause of action asserted by an individual or a gróup of individuals for redress or protection where there has-been an invasion of private rights. In no case cited has a railroad company been charged with penal responsibility for a public nuisance. Even relief from special injury may be obtained only for “ acts [which] were injurious and were hot necessarily or reasonably incidental to the. operation of the railroad at the point in question.” (Hearst v. N. Y. C. & H. R. R. R. Co., 215 N. Y. 268, 280; Ball v. New York Central R. R. Co., 229 N. Y. 33.)

Here, the People claim that the use of the defendant’s right-of-way for the passage at night, in almost constant procession, of empty cars from the terminal of its street railroad lines in Myrtle avenue to the storage yard or bam, almost a mile away, would not be a part of the normal operation of the defendant’s railroad under proper and skillful management. No lack of skill or care causing unnecessary noise has been shown in connection with the passage of empty cars. Sanction of the State for railway operation includes sanction of any action reasonably incidental to the operation of a railroad. The People do not, of course, contend that it would be reasonable to require a street railroad company to keep in operation during the hours from midnight till early morning, when the tide of traffic is at low ebb, all the street cars required for transportation of passengers during the rush hours. Concededly, the defendant acts reasonably and properly in taking from its street car lines, during the quiet hours of the night, many of the cars which it operates during J;he busy hours of the day and in storing these cars upon its own property off the street. Concededly, too, passage of the empty cars from the terminal of the railway lines to premises used by the railroad company for storage and reasonably suited to that purpose, is a necessary or reasonable incident of the operation of the railroad. The right of the railroad company to use its right-of-way for that purpose is challenged only upon the narrow ground that the railroad should store the empty cars at a point which would be nearer the terminal and to which the empty cars could pass with less annoyance to those living in the neighborhood or, at least, with annoyance to fewer people. The People point out that the railroad company owns other premises which, the People claim, could more reasonably be used for the storage of the empty cars and which, indeed, were for a long time used for such purpose.

The evidence shows the size and physical condition of the premises which the People urge should be used for the storage of these empty cars. Officers of the defendant corporation, responsible for its operation, testified that these premises, though formerly used for storage of cars, were not suitable for that purpose, and the People produced no expert testimony to contradict this conclusion but urge that the jury might, without the assistance of expert witnesses, reach the conclusion that the railroad company is acting unreasonably in taking its empty cars along its right-of-way for a distance of almost a mile, past dwelling houses, instead of acquiring or using premises nearer its terminal. The State of New York has established official bodies charged with the responsibility of regulating the operation of railroads and other public utilities. No such body has found that the use of its right of way by the defendant is unreasonable or unlawful, but upon this appeal the People urge that a railroad company may be charged with the maintenance of a public nuisance and a court of criminal jurisdiction may require the abatement of the nuisance upon a finding of a jury that, upon its own property, the railroad company conducts activities required in the operation of the railroad but which are not reasonable at that point because, in the opinion of the jury, the railroad company might conduct them elsewhere with less annoyance to private citizens.

Though in this case the jury found that the defendant acted unreasonably in using its right-of-way for passage of its empty cars and, for that reason, maintained a nuisance from July 1, 1937, to February 10, 1938, it appears that in the Court of Special Sessions the defendant was acquitted upon a charge of maintaining, at the same place, a public nuisance from August 2, 1934, to August 2, 1936, yet it is not disputed that in the interval there has been no substantial change of conditions. Acquittal upon the charge of maintaining a nuisance prior to August 2, 1936, is, of course, not a bar to prosecution upon a charge of maintaining a nuisance thereafter, yet it may in proper case constitute an adjudication of an issue of fact or of law necessaily determined by the earlier judgment, and parlous indeed will be the state of a railroad company if a jury may convict the railroad company of maintaining a public nuisance because, on its own property, it performs without negligence an act incidental to the operation of its railroad but which, in the opinion of the jury, should be performed at some other point where it might cause less annoyance to others; and if,, in addition, successive juries may pass upon the question until one jury finds that the railroad is acting unreasonably.

The State has ample power to regulate the performance by a railroad company of its public, functions and every act incidental to such functions, and the. State has not provided that, where no regulatory body has given direction for the performance of its functions in appropriate manner and at an appropriate, place, a railroad .company may be charged with the crime of maintaining a public nuisance, because it performs some incidental .parts of its public function in a manner and at a place which it deems suitable, though a trier of the facts might reach other conclusion. Injury to individuals in.their private rights does not constitute a public nuisance and no unlawful injury to ■ the public results from an act of the railroad company in the performance of its public function with the sanction of the State and in manner and at a place not prohibited by any regulatory body.

The public officials charged with regulation of the operation of the defendant’s railroad might perhaps find that the. defendant is using for the storage of its empty cars the space, which is best suited for that purpose and that a direction that the company may not use its right-of-way for passage at night of the empty cars would cripple the service which the, defendant must render the public, yet a decision affirming the judgment of conviction would mean that a jury of laymen might determine whether a railroad acts unreasonably and in disregard of public rights when it performs its functions in manner to which the responsible public officials have not objected and which, indeed, such officials might deem in the public interest.

The order should be affirmed.

Lottghran, Finch, Sears, Lewis ■ and Conway, JJY, concur; Rippey, J,, taking no part. , -

Order affirmed.


author: Per Curiam.

text:
    Jack Levine, Appellant, v. Bowery Savings Bank, Respondent.
    Argued June 6, 1940;
    decided July 24, 1940.

      Jacquin Frank and David M. Fink for appellant.
    Plaintiff’s presence in the building was that of a business invitee. His use of the fire-escape was at the express invitation of the defendant’s authorized representative and there was also an implied invitation. (Quinn v. Staten Island R. T. Co., 224 N. Y. 493; Heskell v. Auburn L. & P. Co., 209 N. Y. 86; Fleischmann Malting Co. v. Mrkacek, 14 Fed. Rep. [2d] 602; Radoslovich v. Navigazione Libera Triestina, S. A., 72 Fed. Rep. [2d] 367; Quinn v. Power, 87 N. Y. 537; Riley v. Standard Oil Co., 231 N. Y. 301; Gross v. Mertz, 216 App. Div. 728; Reilly v. Connable, 214 N. Y. 586; Kane v. Couch, 254 App. Div. 797; McAlpin v. Powell, 70 N. Y. 126; Malcolm v. Thomas, 207 App. Div. 230; 238 N. Y. 577; Fey v. Wolf, 256 App. Div. 842.)

      Clarence S. Zipp, William S. O’Connor and Daniel Miner for respondent.
    Plaintiff was neither in the building nor did he attempt to use the fire-escape by either express or implied invitation of defendant or an authorized representative. (Matter of Marks v. Gray, 251 N. Y. 90; Friedman v. Board of Education, 262 N. Y. 364; Vaughan v. Transit Development Co., 222 N. Y. 79; McAlpine v. Powell, 70 N. Y. 126; Aubrey v. McCarthy, 217 App. Div. 492; Vega v. Lange, 248 App. Div. 521; Roth v. Mitteldorf, 248 App. Div. 608; Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Potter v. Watts, 262 N. Y. 582; Van Blaricom v. Dodgson, 220 N. Y. 111; Matter of De Voe v. N. Y. State Railways, 218 N. Y. 318; Solomon v. Manhattan Ry. Co., 103 N. Y. 437.)
   Per Curiam.

Plaintiff’s evidence was sufficient to present a question of fact whether, upon accompanying his fellow-employee back to their place of employment in defendant’s building on the night of the accident after regular working hours, the plaintiff entered the building as a business invitee or a mere licensee. If it is found that he was present in the building as a business invitee, the further question of fact is presented, did the injuries sustained by plaintiff, when he attempted to leave the building by means of a fire escape in the exigency of having doors and elevators closed and made unavailable to him as means of egress, result from a breach of legal duty owed to him by the defendant.'

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

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

Judgments reversed, etc,


author: Per Curiam. Rippey, J.

text:
    In the Matter of Tracy Development Company et al., Respondents, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Appellants.
    Argued June 6, 1940;
    decided July 24, 1940.

      Gay H. Brown, Laurence J. Olmsted and Sherman C. Ward for appellants.
    The record not only' contains no evidence that the proposed transfer is in the public interest, but establishes that such transfer will be detrimental to the public. (People ex rel. Iroquois Gas Corp. v. Public Service Comm., 264 N. Y. 17; Matter of Yonkers R. R. Co. v. Maltbie, 242 App. Div. 319; 251 App. Div. 204; People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84.)

      Edmund B. Naylon and George Foster, Jr., for respondents.
    The proposal was not inimical to, but actually was in the public interest. (Northern Pennsylvania Power Co. v. Public Utility Comm., 333 Penn. St. 265; State ex rel. St. Louis v. Public Service Comm., 335 Mo. 448; Electric Public Utilities Co. v. West, 154 Md. 445.)
   Per Curiam.

By subsequent events the benefits to the lessee which were anticipated from the lease made in 1913 and approved by the Public Service Commission have become a burden. The lessee can relieve itself of that burden by purchasing the leased property and thus terminating the obligations of the lease. In determining whether the proposed purchase will be in the public interest, the Public Service Commission cannot now disregard the fact that by the purchase the lessee will relieve itself of the burden of the lease approved by the Public Service Commission. By relieving itself of that burden, the purchaser will reduce the cost of operation and cost of operation is, of course, a factor in fixing rates for the public. The disadvantage to the public which might result from the purchase of property of little or no economic value becomes illusory when effect is given to the saving so made, especially in view of the fact that in estimating the cost of operation thereafter, the engineer of the Commission has included an annual allowance for depreciation which, by the end of the term of the lease, will almost wipe out the original cost.

The order should be affirmed, with costs.

Rippey, J.

(dissenting). The per curiam opinion in this case presents a most persuasive argument, in my opinion, that a question of fact was presented for the determination of the Public Service Commission. Nothing appears to indicate that the determination of the Commission was arbitrary or beyond its powers. Its determination was made in accordance with due administration of the law, after a hearing and the introduction of evidence. There was competent evidence upon which the Public Service Commission might base its findings. Unless we are to discard the rule, recently and unanimously reiterated by this court, as to the finality of the decision of the Public Service Commission on a question of fact (Matter of Niagara Falls Power Co. v. Water Power & Control Comm., 267 N. Y. 265, 278), the decision appealed from must be reversed and the determination of the Commission reinstated, with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Sears, Lewis and Conway, JJ., concur in per curiam opinion; Rippey, J., dissents in memorandum.

Order affirmed.


text:
    William J. Bradford et al., Appellants, v. County of Suffolk, Respondent.
    Argued May 29, 1940;
    decided July 24, 1940.

      M. E. Harby and Frederick W. Bickmann, Jr., for appellants.
    The decision, that the judgment rendered at Special Term was correct but that it has been retroactively avoided by statute, violates rules of property, and is void. (Feiber Realty Co. v. Abel, 265 N. Y. 94; Meigs v. Roberts, 162 N. Y. 371; County of Nassau v. City of Long Beach, 272 N. Y. 260; Town of Walton v. Adair, 111 App. Div. 817; 191 N. Y. 509; Germania Sav. Bank v. Suspension Bridge, 159 N. Y. 362; Gilman v. Tucker, 128 N. Y. 190; Louisiana v. New Orleans, 102 U. S. 203; Danzer & Co. v. Gulf & Ship Island R. R. Co., 268 U. S. 633.)

      Ralph Stout, Harry S. Austin and Edgar F. Hazleton for respondent.
    Any question, as to the validity of the resolution of the Board of Supervisors dated October' 26, 1936, and of the proceedings had thereunder, has been disposed of by chapter 572 of the Laws of 1939. (People ex rel. Clark v. Gilchrist, 243 N. Y. 173; American Steel Foundries v. Tri-City C. T. Council, 257 U. S. 184; Ruland v. Tuthill, 187 App. Div. 20; City of New York v. Village of Lawrence, 250 N. Y. 429; Wrought Iron Bridge Co. v. Town of Attica, 119 N. Y. 204; People ex rel. Lucey v. Molloy, 35 App. Div. 136; 161 N. Y. 621; Matter of Pardee v. Rayfield, 192 App. Div. 5; 230 N. Y. 543; People ex rel. American Exchange Nat. Bank v. Purdy, 196 N. Y. 270; United States v. Heinszen & Co., 206 U. S. 370; Hodges v. Snyder, 261 U. S. 600.)
   Per Curiam.

This' action was .one. for. á judgment declaring two resolutions of the. Board .of Supervisors of Suffolk county and three ensuing items of a. tax warrant to" be unlawful and-void for -want of .statutory authorization thereof. Special Term granted such a judgment. Pending an appeal by the defendant to the Appellate Division, the Legislature, by chapter 572 of the Laws of 1939, declared that the contested resolution of October 26, 1936, was as of the times in issue legalized and validated, notwithstanding any defect, irregularity or omission therein * * * or in the lack of statutory authority therefor.” The Appellate Division was bound to give effect to this curative statute (People ex rel. Clark v. Gilchrist, 243 N. Y. 173, 180) which interdicted the declaratory judgment granted by Special Term. Since no other relief was sought by plaintiffs, the complaint should have been dismissed by the Appellate Division.

"Whether the curative statute was, as plaintiffs claim, an attempt retroactively to confirm taxation is a .question that .need not be considered. (See Lennon v. Mayor, 55 N. Y. 361.)

The judgment of the Appellate Division should be modified so as to direct only that the complaint be dismissed on the law and, as so modified, affirmed, without costs.

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

Judgment accordingly. .


text:
    Sue Byron, Appellant, v. St. George Swimming Club, Inc., et al., Respondents.

      Argued June 13, 1940;
    decided July 24, 1940.

      Abraham, I. Nelson for appellant.
    The trial court improperly excluded evidence. Plaintiff is entitled to every reasonable inference that may be warranted by the testimony, in view of the fact that this dismissal was at the end of plaintiff’s case. (Colburn v. Chicago, St. P., M. & O. Ry. Co., 109 Wis. 377.) Plaintiff established the negligence of both defendants. (Schubart v. Hotel Astor, Inc., 168 Misc. Rep. 431; 281 N. Y. 597; Allon v. Park Central Hotel Co., 272 N. Y. 631; Tantillo v. Goldstein Bros. Amusement Co., 248 N. Y. 286; Esposito v. St. George Swimming Club, Inc., 143 Misc. Rep. 15.) Plaintiff was free from contributory negligence. (Larson v. Nassau Electric R. R. Co., 223 N. Y. 14; Reinzi v. Tilyou, 252 N. Y. 97; Murphy v. Steeplechase Amusement Co., 250 N. Y. 479; Kettle v. Turl, 162 N. Y. 255.) The doctrine of assumption of risk does not bar the plaintiff from a recovery because the risk of the presence of the swimmer underneath the water in the diving area was one not contemplated by divers using the diving boards and without their knowledge and was not included in the obvious risks intended by the sign “ diving at your own risk.” (Allon v. Park Central Hotel Co., 272 N. Y. 631; Bensen v. Kristeller, 277 N. Y. 561.)

      B. G. Barton for St. George Swimming Club, Inc., respondent.
    Plaintiff failed to prove negligence on the part of the swimming club. (Reinzi v. Tilyou, 252 N. Y. 97.) Plaintiff assumed the risks attendant upon diving. (Murphy v. Steeplechase Amusement, Co., 250 N. Y. 479; Dillon v. National Coal Tar Co., 181 N. Y. 215; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Lobsenz v. Rubinstein, 258 App. Div. 164; Shields v. Van Kelton Amusement Corp., 228 N. Y. 396; Griffin v. State of New York, 250 App. Div. 244; Weller v. Consolidated Gas Co., 198 N. Y. 98; Anderson v. Erie R. R. Co., 223 N. Y. 277; Northern Pacific Ry. Co. v. Adams, 192 U. S. 440; Wilder v. Pennsylvania R. R. Co., 245 N. Y. 36; Murphy v. Steeplechase Amusement Co., 250 N. Y. 479.) Plaintiff failed to prove freedom from contributory negligence. (McFarlane v. City of Niagara Falls, 247 N. Y. 340; Whalen v. Citizens’ Gas Light Co., 151 N. Y. 70.)
   Per Curiam.

The accident happened when plaintiff, a paying customer of the defendant swimming club, dove into a part of the pool especially maintained by the defendant for diving, without knowledge of the presence of a swimmer underneath the surface of the water. At the end of the dive she struck her head upon the swimmer and received the injuries of which she complains. Evidence that the swimmer was in that part of the pool reserved for divers with the consent of defendant’s lifeguard and admissions of defendant made upon examination before trial that the uniform custom and practice of the defendant in the maintenance of the pool and the protection of its diving patrons were to maintain two guards to keep that part of the pool free from swimmers when patrons were diving were- erroneously -excluded., , The complaint was dismissed at the close of plaintiff’s case. . - The evidence together with inferences, to be reasonably drawn therefrom was sufficient to take the case to the jury upon the question of the negligence of both defendants -and. of freedom from contributory negligence on the part of the plaintiff: (Bensen v. Kristeller, 277 N. Y. 561.) The risk of injury from diving under the conditions obtaining, at the place and time of the accident was not,, as. matter of law, assumed by the plaintiff. (Allon v. Park Central Hotel Co., 272 N. Y. 631.)

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

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur; Lehman, Ch. J., dissents. .' ", ' ’

" Judgment reversed, etc.


author: Conway, J.

text:
    In the Matter of Walter Budd, Appellant, against Lewis J. Valentine, as Police Commissioner of the City of New York, Respondent.

      Submitted April 26, 1940;
    decided July 24, 1940.

      George A. Rosen for appellant.
    The respondent was without jurisdiction to make the order of November 26, 1937, dismissing the petitioner from the police force. (Matter of Deth v. Castimone, 245 App. Div. 156; Matter of New York Telephone Co. v. Ferris, 257 App. Div. 415; Berkshire Life Ins. Co. v. Van Voorhis, 245 App. Div. 592; James v. Patten, 6 N. Y. 9; People ex rel. Spiegel v. McCann, 236 App. Div. 146; People ex rel. Paris v. Hunt, 201 App. Div. 573; 234 N. Y. 558; Matter of Dodd v. Martin, 248 N. Y. 394.)

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Henry J. Shields of counsel), for respondent.
    The Police Commissioner, despite the lapse of time, did not lose jurisdiction to dismiss the petitioner upon the basis of the charges of which he had been .found guilty after a trial. (Escoe v. Zerbst, 295 U. S. 490; Matter of Roge v. Valentine, 280 N. Y. 268; People ex rel. Patterson v. Bockel, 270 N. Y. 76; People ex rel. Bickhofer v. Lawes, 255 App. Div. 873; People ex rel. Valiant v. Patton, 221 N. Y. 409; United States ex rel. Grossberg v. Mulligan, 48 Fed. Rep. [2d] 93.)
   Conway, J.

The petitioner -Walter Budd was appointed in 1926 as a patrolman in the Police Department of the city, of New York. On August 26, 1936, he was brought up on a charge with eight specifications alleging “ violation of rules and regulations, * * * . neglect of duty and conduct prejudicial to.good order and efficiency.” On September 2, 1936, an additional charge with a single specification was preferred against him. A majority of the specifications in effect alleged violation of rule 230 of the police department which reads as follows:

230. A member of the Force shall promptly pay his just debts, and shall not incur liabilities which he is unable or unwilling to discharge.”

Upon a trial before a Deputy Police Commissioner he was found guilty of a total of four specifications. The petitioner was then brought before the Police Commissioner who suspended judgment and placed him on] probation for one year.

On November 26, 1937, thirteen months and three days after the petitioner had been placed on probation, the Police Commissioner recalled him and inquired as to the progress he was making in paying the debts as to which complaints had been made. At the close of the hearing the Commissioner dismissed the petitioner from the police force.

We are asked to determine whether the Police Commissioner exceeded his jurisdiction in imposing punishment after the expiration of the one-year period.

Section 302 of the Greater New York Charter (L. 1901, ch. 466, as amd. by L. 1915, ch. 310), which was in force and effect when the order of dismissal was made, provided as follows: Upon having found a member of the force guilty of the charges preferred against him, either upon his plea of guilty or after trial, the police commissioner or the deputy examining, hearing and investigating the charges, may, in his discretion, suspend judgment and place the member of the force so found guilty upon probation, for a period not exceeding one year; and the police commissioner may impose punishment at any time during such period.” The appellant argues that the words of the statute “ and the police commissioner may impose punishment at any time during such period ” must be construed in their ordinary meaning and as so construed, the statute restricts the Police Commissioner’s power to dismiss to the probationary period. In this I think he is correct. The rule of construction quoted in Matter of New York Telephone Co. v. Ferris (257 App. Div. 415, 419) is applicable. It reads as follows: “ * * * The grammatical rule, which is also the legal rule in construing statutes, is that where general words occur at the end of a sentence, they refer to and qualify the whole; while, if they are in the middle of a sentence, and sensibly apply to a particular branch of it, they are not to be extended to that which follows (citing cases).” Moreover, the quoted section of the charter is not an isolated restriction or limitation, for the Legislature has explicitly prescribed limitations of such character in other probation statutes, the pertinent parts of which are as follows:

Section 2188 of the Penal Law.

* * * The court may, at any time within the term of such defendant’s probation and while such probation is in force * * * revoke the order suspending sentence or its execution and may impose such sentence or make such commitment as might have been made at the time of the conviction.”

Section 483 of the Code of Criminal Procedure, subdivision 4-

4. At any time during the probationary term of a person convicted and released on probation the court * * * may in its or his discretion, revoke and terminate such probation. Upon such revocation and termination, the court * * * may impose sentence or order judgment * *

Section 935 of the Code of Criminal Procedure.

Whenever within the period of probation any probationer shall violate his probation, the court may issue a warrant for his arrest * * *. On his being arraigned * * * the court may revoke, continue or modify his probation. If revoked, the court may impose any sentence it might have originally imposed.”

In People ex rel. Spiegel v. McCann (236 App. Div. 146; affd., 261 N. Y. 606), subdivision 4 of section 483 of the Code of Criminal Procedure (supra) was construed. There it was said:

“ Power to sentence a probationer is expressly limited to the coniines of the probationary period. The Code of Criminal'Procedure," section 483," subdivision 4, declares: ‘ At any ■ time during the probationary term of a person convicted and released on probation the Court * * * may in ■ its ■ or his- discretion-, invoke and terminate such probation: Upon such .revocation and-' termination, the Court or justice may impose sentenced

The time limit is as prescribed: At any time during the probationary term ’ ” (p. 417).

The order of the Appellate Division should be reversed, with costs* and the determination of the Police Commissioner annulled.

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

Order reversed, etc.


text:
    Title Guarantee and Trust Company, as Trustee, Appellant, v. 2846 Briggs Avenue, Inc., Respondent, Impleaded with Others.

      Argued June 14, 1940;
    decided July 24, 1940.

      I. Nathanson, George A. Roland and Alexander Boskoff for appellant.
    Section 1077-cc of the Civil Practice Act having been amended in 1937, an intent to change or clarify its effect must be attributed to the Legislature. The effect of the change was to prevent an increase in the rate of interest specified in the obligations mentioned in the statute. (Franklin Title & Mortgage Co. v. Shernov, 250 App. Div. 267; Elltan Realty Co. v. Irving Trust Co., 252 App. Div. 882; Archer v. Equitable Life Assur. Society, 218 N. Y. 18; Matter of Bowne v. Bowne Co., 221 N. Y. 28; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People v. Weinstock, 193 N. Y. 481.)

      R. Robert Caplan for respondent.
    The respondent is entitled to the benefits of section 1077-cc of the Civil Practice Act, both as originally enacted on August 24, 1934, and as amended on May 28, 1937. (Krebs v. Carpenter, 124 App. Div. 755; Prudential Ins. Co. v. K. L. F. Realty Co., 247 App. Div. 898; Mortgage Commission v. Fay, 255 App. Div. 622; 281 N. Y. 637; Manufacturers Trust Co. v. Reid, 258 App. Div. 915; Manufacturers Trust Co. v. Korsil, 258 App. Div. 914; M. & M. R. Realty Corp. v. Mortgage Commission, 172 Misc. Rep. 818; Elltan Realty Co. v. Irving Trust Co., 252 App. Div. 882; Royal Court Realty Co. v. Thomas, 259 App. Div. 313.)

      Curtiss Ely Frank and John F. Caskey for Mortgage Corporation of New York, amicus curiæ.

   Conway, J.

Appeal by plaintiff, by permission of the Appellate Division, first department, from an order of that court, affirming, one justice dissenting, an order of Special Term dismissing the complaint pursuant to section 1077-e of the Civil Practice Act. The following question was certified: Upon the record herein is the defendant-respondent required to pay interest at the rate of six per cent? ”

This is an action to foreclose a mortgage on real property. The alleged default is in payment of an installment of interest alleged to be due at the rate of six per cent per annum. Payment of the interest at the rate of five per cent was tendered before the commencement of the action but refused. Defendant moved to dismiss upon payment of the interest at five per cent plus taxable costs and disburse-merits. That motion was granted and it is from an affirmance of that order that this appeal is taken.

On May 27, 1930, a bond, secured by a mortgage on the premises in question, in the sum of $28,000, matured. An extension agreement was entered into between the mortgagee and the then owner of the premises extending the mortgage to June 1, 1935, interest to continue at the rate of six per cent per annum. In addition it was provided that yearly payments were to be made on account of principal. Two such payments were made reducing the amount of the mortgage to $27,250. Thereafter, and in May, 1933, the premises were conveyed to defendant 2846 Briggs Avenue, Inc. At the time of that conveyance there were arrears in the payment of taxes and interest. Negotiations were then entered into between the mortgagee and defendant 2846 Briggs Avenue, Inc., looking to a revision of the mortgage. As a result of those negotiations plaintiff mortgagee wrote to defendant’s attorneys under date of May 11,1934, as follows:

“ This is to advise that we have given your request our most careful consideration and our committee has approved the following:
To reduce tne interest rate to 5% to date of maturity, June 1, 1935, providing all arrears are paid to date. At that time we will take up the question of a renewal, the reason for this being that some of the trusts interested have terminated and we will have to consider the question at that time of renewing the mortgage, or allowing it to run open for a definite period of time.
Will you kindly make arrangements with your client to clear off all the present outstanding arrears including taxes and interest and in the future all interest payments will be made quarterly. It is necessary that we have all the arrears paid by May 20, 1934.”

Under date of May 17, 1934, defendant’s attorney wrote plaintiff accepting those terms on behalf of his client. The arrangement was carried out by defendant and all arrears were cleared up in accordance with the terms of plaintiff’s letter of May eleventh.

From the date of that arrangement defendant paid, and plaintiff accepted without any protest, interest at the rate of five per cent per annum in quarterly installments, until the installment of interest due September 1, 1939, was tendered by defendant at the rate of five per cent and the tender refused by plaintiff on the ground that plaintiff was entitled to interest at the rate of six per cent.

The sole question, therefore, is whether plaintiff is entitled to interest at five per cent or six per cent. It is plaintiff’s contention that upon the maturity of this mortgage, as extended, interest became payable at the rate of six per cent and that its failure to insist upon payment at six per cent from the maturity of the mortgage until September 1, 1939, was no waiver of any rights as to future payments. It is defendant’s contention that the proper rate of interest for the duration of the mortgage moratorium law is five per cent because of the provisions of section 1077-cc of the Civil Practice. Act.

Section 1077-cc of the Civil Practice Act, as it was originally enacted in 1934 (L. 1934, ch. 890), read as follows: Notwithstanding any inconsistent provisions of this act or of any other general or special law, the rate of interest upon any loan, indebtedness, bond, extension agreement, collateral bond, or other evidence of indebtedness or liability, if the indebtedness originated or was originally contracted for simultaneously with a mortgage upon real property and is secured solely by such mortgage, shall not be increased by reason of the maturity of such obligation during the emergency period as defined in section 1077-g of this act, but shall continue after such maturity at the rate specified in such obligation or any agreement reducing such rate until the expiration of such emergency period.”

By chapter 713 of the Laws of 1937 the italicized words were deleted from the statute.

The motion to dismiss the complaint was granted by the Special Term on the authority of Mortgage Commission v. Fay (255 App. Div. 622; affd., 281 N. Y. 637).

Before considering the effect of section 1077-cc, it may be helpful to determine what would be the situation in the absence of that section. Disregarding it for the moment, no interest is payable after the maturity of a debt, whether it be based upon bond and mortgage or other obligation, based upon the contract. As was said in O’Brien v. Young (95 N. Y. 428, 429): “ By the decided weight of authority in this State, where one contracts to pay a principal sum at a certain future time with interest, the interest prior to the maturity of the contract is payable by virtue of the contract, and thereafter as damages for the breach of the contract. * * * The same authorities show that after the maturity of such a contract, the interest is to be computed as damages according to the rate prescribed by the law, and not according to that prescribed in the contract if that be more or less.” So that in the absence of section 1077-cc the present rate of interest on the bond and mortgage would be six per cent, as damages.

Since the enactment of section 1077-cc the rate payable after maturity is still that prescribed by law and, in a case where section 1077-cc applies, the rate so prescribed is that provided in the obligation referred to therein. Obligation ” under section 1077-cc includes extension agreement ” but does not now include any agreement reducing such rate.”

The agreement to reduce interest was made May 17, 1934. The mortgage as extended expired June 1, 1935. Section 1077-cc was enacted in 1934, becoming effective August twenty-fourth. The amendment omitting the words or any agreement reducing such rate ” was made in 1937.

The case at bar is readily distinguishable from the Fay case. In that case there was an extension agreement. In the instant case the agreement relied upon was an agreement to take a reduced amount of interest until the maturity of the pre-existing extension agreement, which had not been entered into by the parties to this action. It was a waiver of interest for a specified time. By the amendment of 1937 the exact situation disclosed here was withdrawn from the protection of the statute. The words or any agreement reducing such [interest] rate ” were deleted.

Defendant, however, urges that even if that be so, the statute as amended is not applicable here since the omitted words were still in the statute in 1935, the date of the expiration of the extension agreement, and at that time its right to pay only five per cent was fixed until the end of the emergency period.

Such is not the law. In O’Brien v. Young (supra) the court said:

“ The same principles apply to all implied contracts. When one makes a valid agreement to pay interest at any stipulated rate for any time he is bound to pay it, and no legislative enactment can release him from his obligation. But in all cases where the obligation to pay interest is one merely implied by the law, or is imposed by law, and there is no contract to pay except the fictitious one which the law implies, then the rate of interest must at all times be the statutory rate. The rate existing at the time the obligation accrued did not become part of any contract, and hence the law which created the obligation could change or alter it for the future without taking away a vested right or impairing a contract.

In the case of all matured contracts which contain no provision for interest after they are past due, as I have before said, interest is allowed, not by virtue, of the contract, but as damages for the breach thereof. In such cases what would be the effect of a statute declaring that no interest should be recovered? As to the interest which had accrued as damages before the date of the law, the law could have no effect because that had become a vested right of property which could not be taken away. But the law could have effect as to the subsequent interest, and in stopping that from running would impair no contract (p. 432).

The rate of interest payable by law is that fixed by section 1077-cc and is subject to change, as by amendment of the statute. That rate is determined by the obligation therein referred to, to wit, the rate fixed by the extension agreement. The extension agreement provided for six per cent interest.

The order of the Appellate Division and that of the Special Term should be reversed, with costs to the appellant, the motion to dismiss the complaint denied, and the question certified answered in the affirmative.

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

Orders reversed, etc.


author:
Conway, J.
      Loughran, J.

text:
    The People of the State of New York, Respondent, v. Benjamin Ertel, Appellant.
    Argued June 10, 1940;
    decided July 24, 1940.

      Frank Balleta and Abraham Broido for appellant.
    The evidence adduced by the People was insufficient as a matter of law to make out a case against the defendant, the verdict was contrary to the weight of the evidence and such evidence did not warrant a verdict of guilt beyond a reasonable doubt. (People v. O’Farrell, 175 N. Y. 323; People v. Elliott, 106 N. Y. 288; People v. Bissert, 71 App. Div. 118; People v. Weiss, 129 App. Div. 671; People v. Butler, 62 App. Div. 508; People v. Kudon, 173 App. Div. 342; People v. Josephs, 143 App. Div. 534; People v. Kerr, 6 N. Y. Supp. 674; People v. Courtney, 28 Hun, 589; People v. White, 62 Hun, 114.)

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Burr F. Coleman of counsel), for respondent.
    The defendant’s guilt was proved beyond a reasonable doubt. (People v. Collins, 271 N. Y. 254; People v. Roper, 259 N. Y. 170; People v. Crum, 272 N. Y. 348; People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111; People v. Cohen, 223 N. Y. 406; People v. Becker, 215 N. Y. 126; People v. Sanducci, 195 N. Y. 361; People v. Broncado, 188 N. Y. 150; People v. Rodawald, 177 N. Y. 408.)
   Conway, J.

The defendant was convicted of murder in the first degree. He entered into a conspiracy with six others to rob the patrons of a restaurant situated on the second floor of the premises 144 Second avenue, Manhattan, New York city. They selected those premises because other robbers had obtained $3,500 in a hold up there only two weeks before. The defendant was one of three who were to “ hold the guns.”

Shortly after three o’clock on the morning of April 10, 1937, the door leading into the restaurant from the hall was suddenly opened and Guariglia and Friedman, two of the other conspirators, entered. Friedman, with a gun in his hand, ran toward the rear of the restaurant, shouting, “This is a stick-up; everybody up.” Two detectives, Foley and Gallagher, in plain clothes, were seated at a table near the entrance, talking to the proprietor. O’Loughlin then entered and went toward the table where the detectives were seated. The defendant, who followed, came as far as the door and stayed there. As O’Loughlin ordered: “ You fellows in the back with the rest of those men,” Gallagher was withdrawing his gun from his topcoat pocket. Foley opened his coat and reached for his gun which he carried in a holster. As he did, O’Loughlin shot and mortally wounded him. Gallagher then shot twice at O’Loughlin, who fell to the floor. After Gallagher arose, the defendant, who was still in the doorway, fired twice at Gallagher, who returned the fire, and then the defendant fled down the stairs. He was not arrested until June 29, 1938. In the meantime the other conspirators had been apprehended and convicted. (People v. Guariglia, 279 N. Y. 707.)

We agree that the evidence established the guilt of the defendant of murder in the first degree within the provisions of subdivision 2. of section 1044 of the Penal Law.

It is urged, however, that the trial court erred in his charge with reference to the recommendation permitted to be made by a jury under the provisions of section 1045-a of the Penal Law. That section reads as follows:

Life imprisonment for felony murder; jury may recommend. A jury finding a person guilty of murder in the first .degree, as defined by subdivision two of section ten hundred forty-four, may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life. Upon such recommendation, the court may sentence the defendant to imprisonment for the term of his natural life.”

The court charged: that “ There is one feature that applies to this sort of murder that does not apply to common law murder. About three years ago the Legislature saw fit to pass a law providing that in cases of felony murder the jury could, as a part of their verdict, recommend to the Court the imposition of life imprisonment instead of the punishment of death. Before that law was passed, the law assumed responsibility for the punishment. The punishment of murder was heavy, but the law took all that responsibility on its own shoulders. It did not put it on the shoulders of a jury or on the shoulders of the Court. Under this law it has been shifted to the shoulders of the jury. And then the law says that the Judge may act on that recommendation, but does not say he must. So it has also been shifted to the shoulders of the Judge.

I cannot guide you in details. There is no fixed law as to that recommendation. All I can say is that the law no doubt presupposes that the jury will be guided by a sense of duty, by a sense of fairness, by a sense of the rights of all parties, in making up their minds whether or not there are extenuating circumstances of such weight as could justify j a recommendation. In other words, it seems to me that! you are in the position that I am in every day here when I have to sentence somebody. Ordinarily, when a defendant comes up for sentence I have to détermine what the sentence is- going to be. I have to take into consideration whether the circumstances are aggravated, whether the circumstances contain extenuating features; I have to take into consideration what the crime is, and so on, in making up my mind what the punishment shall be. And the law assumes that in making, or refusing to make, this recommendation, that you should do about the same thing. You will look upon it as if you were a judge having to impose sentence,' and determine whether you are required or not required to make this recommendation.

In this case, as I say, you will determine all the features of the case, the behavior of the defendant at the place of the attempted robbery, his age, the circumstances under which he acted, and determine the rights of the community and the rights of police officers to protection in their lives while they are acting in the course of their duty; and make up your minds as fair judges, as you would if you were going to impose sentence yourself, as to whether there should be such a recommendation.”

, This is claimed to be error requiring a reversal of the! judgment of conviction and the granting of a new trial.'

It must be presumed that when the Legislature enacted section 1045-a of the Penal Law it had a purpose in so doing and that that purpose was founded upon reason and justice. We are not prepared to assume that it was done in order to permit a jury to make or withhold the recommendation because of sympathy or prejudice. The crime committed is still murder in the first degree, but because it is the killing of a human being, without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise, the jury has power, if it seems proper to it to exercise such power, to recommend life imprisonment. The mental processes which bring about the recommendation are to be reasoning and rational ones. To hold otherwise is to say that the Legislature purposed permitting jurors to put aside reason. The Legislature has not said so and until it does, we may not. If the trial judge had charged that in making up their minds whether to make a recommendation under section 1045-a of the Penal Law, the jury should make the recommendation if reason dictated or permitted that course, it surely would have been a correct statement. He went further, however, and charged as quoted swpra. We are agreed that it would be better practice to charge in the words of the statute, but the charge under the circumstances here presented was not error. The argument of defendant's counsel in his summation was that the defendant, who did not take the stand, was of poor background and education and should not be executed. He went so far as to say that if defendant were of different class and circumstance, he would not be executed. His appeal was both to passion and to prejudice. Faced with this situation, the trial judge attempted to point out that recommendations under section 1045-a of the Penal Law were to be based on reason and judgment. Viewing the trial as a whole, the charge complained of did not constitute error. Even had the jury made a recommendation, it would not have been binding on the court. (People v. Gati, 279 N. Y. 631.)

The judgment of conviction should be affirmed.

Loughran, J.

(dissenting). The case for the People was that the defendant was engaged with six other persons in the concerted commission of a robbery when one of his confederates shot and fatally wounded a police officer. On that theory of the trial (as the judge told the jury), the defendant could be found guilty only of murder in the first degree though there was no design to kill. (Penal Law, § 1044, subd. 2.) Accordingly the defendant’s request for submission of the degrees of homicide was refused. The verdict was: “We find the defendant guilty of murder in the first degree.”

In finding a person guilty of such a felony murder, the jury “ may, as part of its verdict, recommend that the defendant be imprisoned for the term of his natural fife.” (Penal Law, § 1045-a.) Respecting this power of the jury, the trial judge charged as follows: “ There is no fixed law as to that recommendation. All I can say is that the law no doubt presupposes that the jury will be guided by a sense of duty, by a sense of fairness, by a sense of the rights of all parties, in making up their minds whether or not there are extenuating circumstances of such weight as could justify a recommendation. * * * You will determine all the features of the case, the behavior of the defendant at the place of the attempted robbery, his age, the circumstances under which he acted, and determine the rights of the community and the rights of police officers to protection in their lives while they are acting in the course of their duty; and make up your minds as fair judges, as you would if you were going to impose sentence yourself, as to whether there should be such a recommendation.” (The emphasis is mine.) These admonitions, as I read them, limited too strongly against the defendant the power given to the jury by section 1045-a.

“ Extenuating circumstances ” must be rare in a case of guilt of felony murder. The constructive nature of the offense — murder from implied malice — negatives the idea of palliation. (See People v. Giro, 197 N. Y. 152, 157, 158.) Where there is an issue in respect of the intoxication of the accused or of duress practiced upon him, the degrees of homicide must be submitted to the jury (People v. Cummings, 274 N. Y. 336), and in that case a verdict of guilty of murder in the first degree signifies that no mental limitation excused the defendant. It follows, I think, that there was no valid reason why the jury should have been told (as in effect they were told) that section 1045-a contemplates only cases of felony murder committed in “ extenuating circumstances.”

The evidence disclosed nothing at all that could extenuate the killing of the police officer. Consequently the pronouncement of the court — that the jury should “ determine bhe rights of the community and the rights of police officers to protection in their lives while they are acting in the course of their duty ” — must have meant that a verdict of guilty ought not to include a recommendation of life imprisonment of the defendant. Such a direction cannot be reconciled with the unqualified letter of section 1045-a that as part of its verdict ” a jury “ may ” recommend life imprisonment for felony murder.

I cannot escape the conclusion that the charge of the trial court may have substantially lessened the right of the defendant to have the jury say whether he should be relieved of the death penalty. It is my judgment also that it is a mistake to justify this departure from the principle that the force of a plain and simple statute should not be weakened with the jury by qualifying words. (Cf. People v. Fitzgerald, 156 N. Y. 253, 266.)

I vote to reverse the judgment of conviction and to grant a new trial.

Lehman, Ch. J., Finch and Bjppey, JJ., concur with Conway, J.; Lotjghran, J., dissents in opinion, in which Sears, J., concurs; Lewis, J., taking no part.

Judgment of conviction affirmed.


text:
    The People of the State of New York, Respondent, v. Henry Blank, Appellant. The People of the State of New York, Respondent, v. William Joseph, Appellant.
    Argued April 24, 1940;
    decided July 24, 1940.

      Harry G. Anderson and Samuel Bader for William Joseph, appellant.
    The complainant was an accomplice as a matter of law and a conviction based upon her unsupported testimony cannot stand. (People v. Kupperschmidt, 237 N. Y. 463; People v. Bliven, 112 N. Y. 79; People v. McKane, 143 N. Y. 455; United States v. Holte, 236 U. S. 140; People v. Hyde, 156 App. Div. 618; People v. Davis, 56 N. Y. 95; People v. Murphy, 101 N. Y. 126; Queen v. Whitchurch, 24 Q. B. Div. 420; Rex v. Sockett, 72 J. P. 428; People v.
      Reddy, 261 N. Y. 479; People v. Friedman, 139 App. Div. 795.)

      Robert H. Elder and George Kaminsky for Henry Blank, appellant.

      William O’Dwyer, District Attorney (Henry J. Walsh of counsel), for respondent.
    The complainant was not an accomplice. (Dunn v. People, 29 N. Y. 523; People v. Kupperschmidt, 237 N. Y. 463; People v. Vedder, 98 N. Y. 630; People v. Commonwealth, 87 Ky. 487; Commonwealth v. Turner, 224 Mass. 229; Hammett v. State, 84 Tex. Crim. Rep. 635; State v. Crofford, 133 Iowa, 478; Commonwealth v. Weaver, 61 Pa. Super. Ct. 471.)
   Conway, J.

Appeal by permission from a judgment of the Appellate Division, second department, which unanimously affirmed a judgment of the County Court of Kings County, convicting defendants Blank and Joseph of the crime of abortion. A third defendant, Fiorelli, who was also convicted, did not appeal.

The defendants were convicted of the crime of abortion performed upon one Claire Slinkowski, the complainant, on June 27, 1938, the defendant Blank, a doctor, by having used and employed certain instruments upon the complainant, a pregnant woman, with intent to procure her miscarriage, such acts being unnecessary to preserve her life or the life of the child with which she was pregnant; defendant Fiorelli by having assisted Blank in the commission of said abortion; defendant Joseph by counseling the complainant to submit to the abortion, arranging the appointment with Blank for her and by furnishing the complainant with the fee for the abortion.

It is urged that the court erred in submitting the case to the jury since the complainant was an accomplice and there was no corroboration of her testimony. The complainant was not an accomplice. “ Generally speaking, however, the woman, although consenting to an abortion, cannot be regarded as an accomplice within the law of accomplice testimony, although perhaps her implication is a proper consideration for the jury in weighing her testimony.” (2 Wharton’s Criminal Evidence [11th ed.], § 742.)

The complainant could not be indicted for the crime of abortion. She could be indicted for a separate crime, to wit, “ killing of child in attempting miscarriage.” (Penal Law, § 81.) “ She did not stand legally in the situation of an accomplice; for although she no doubt participated in the moral offence imputed to the defendant, she could not have been indicted for that offence. The law regards her rather as the victim than the perpetrator of the crime.” (Dunn v. People, 29 N. Y. 523, 527.) Later, in People v. Vedder (98 N. Y. 630, 632), it was said: Even though there may be no difference in a moral point of view as to the guilt imputable to the respective participators in the act of abortion, yet the statute has made a distinction in the cases, and the one cannot be punished as a principal or accomplice in the crime which is attributable by the statute to the other. * * * We regard the proposition as too well settled by authority, and too salutary in practice to be now questioned.” To the same effect are People v. McGonegal (136 N. Y. 62, 75, 76); United States v. Holte (236 U. S. 140, 145, 148).

People v. Kupperschmidt (237 N. Y. 463) is not in conflict. There it was said: The test is whether the alleged accomplice can be indicted for the offense. Sometimes as in prosecutions for abortion, the co-participant is regarded as the victim rather than the perpetrator of the crime (Dunn v. People, 29 N. Y. 523, 527), or as in the illegal sale of intoxicating liquors, it is said that the person making the sale is the only one declared by the law to be criminal.”

While it is true that when Dunn v. People (supra) was decided, a conviction could be had upon testimony of an accomplice alone, the statute requiring corroboration (Code Crim. Proc. § 399) effected no change in the law as to who was an accomplice. It was necessary before the passage of the statute to determine who was an accomplice, since the jury had to be instructed as to the weight to be given to that testimony. While, as was said in People v. Mayhew (150 N. Y. 346), the statute introduced a new rule of evidence, the law remained the same as to who was an accomplice.

As to each defendant, the judgment should be affirmed. Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Lewis, JJ., concur.

Judgments affirmed.