text:
    Edson L. Thompson, Appellant, v. Ernest W. Hofstatter, Respondent.

      (Argued June 4, 1934;
    decided July 3, 1934.)

      Irving G. Kennedy and John S. Sickels for appellant.

      Monroe J. Cahn and Humphrey J. Lynch for respondent.
   Crane, J.

The County Law (Cons. Laws, ch. 11), article 12, section 210, applies solely to the appointment, term of office and duties of County Attorneys. It reads: “ The board of supervisors in any county may appoint a county attorney who shall be removable at its pleasure. The term of office^of a county attorney so appointed shall be two years, unless sooner removed, and his salary shall be fixed by the board of supervisors and be a county charge. The board of supervisors may, by local law, prescribe the duties of the county attorney, which duties may include the services to town boards and town officials when not in conflict with the interests of the county.”

This section was amended (Laws of 1918, ch. 573; Laws of 1931, ch. 485; Laws of 1932, ch. 529), and now reads as follows:

§ 210. Appointment, term of office and duties of county attorneys. The board of supervisors in any county may appoint a county attorney to act during the term of office for which the then members of such board were elected, provided, however, that such attorney shall continue in office thereafter until his successor has been appointed, or, until he has been notified, by the succeeding board, that his employment is discontinued. His salary shall be fixed by the board of supervisors and be a county charge. A county attorney may be removed by the appointing board for inefficiency, neglect of duty or misconduct in office, but only after notice and an opportunity to be heard. The board of supervisors may, by local law, prescribe the duties of the county attorney, which duties may include the services to town boards and town officials when not in conflict with the interests of the county.”

The County Attorney appointed in pursuance to this section becomes a public official. He is not a mere employee. The statute refers to his position as an office ” and provides for the appointment to a definite term with a salary to be fixed by the appointing power. Fisher v. City of Mechanicville (225 N. Y. 210) is not an authority to the contrary. There the attorney made a contract with the village to render legal services for a period of one year for the sum of $750. The act incorporating the village of Mechanicville (Laws of 1891, ch. 106, as amd.) gave the Board of Trustees power to appoint annually an attorney and pay such attorney a reasonable annual salary.” The trustees made the contract and this court held that the attorney was an employee, not a public official. The Village Act gave a fist of the officials, not mentioning the attorney. The difference between this village act and the County Law is apparent. Not only is a separate article devoted to the subject of County Attorneys, which somewhat emphasizes their importance, but the section, as already stated, refers to the appointment of the County Attorney as a term of office ” with a salary attached which is to be fixed by the board. (Lancaster County v. Fulton, 128 Penn. St. 48; 22 Ruling Case Law, pp. 380, 381.) Matter of Dawson v. Knox (231 App. Div. 490), holding the County Attorney of Albany county an employee and not an officer, one justice dissenting, does not meet with our approval.

A public officer is hedged about with certain very definite restrictions to be found in the Constitution, the Public Officers Law (Cons. Laws, ch. 47) and the County Law as it applies to county officials. In article III, section 28, of the Constitution of the State we have this provision: The Legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor.”

The Public Officers Law (§ 67, subd. 2) reads: An officer or other person, to whom a fee or other compensation is allowed by law, for any service, shall not charge or receive a greater fee or reward, for that service, than is so allowed.”

The County Law, in specifying the duties and powers of Boards of Supervisors, in subdivision 5 of section 12, gives to the Board the power to fix the amount and the time of payment of the salary of any county officer or employee, and in the last sentence of the subdivision enacts as follows: The salary or compensation of an officer or employee elected or appointed for a definite term shall not be increased or diminished during such term.”

On the 17th day of May, 1915, Ernest W. Hofstatter, the defendant, was appointed County Attorney of the county of Rockland at a fixed salary of $1,500 per annum. In 1917 the salary was raised to $2,000, in 1921 to $2,400, and in 1926 to $2,800. These raises in compensation — as the defendant was reappointed at the expiration of every succeeding two years — were due to the increased work coming to the defendant because of county litigation and the increased activity in road building necessitating the condemnation or purchase of property. It was recognized by the Board of Supervisors that the defendant’s time would be almost entirely occupied with county matters. The resolution increasing the salary reads as follows: Whereas the work of the county attorney has greatly increased and requires practically his entire attention, be it resolved that the salary of the county attorney be and is hereby fixed at $2,000 per annum for the coming year commencing June 1, 1916.”

The respondent was an attorney practicing law in Rockland county, having at times an office in New York city. The defendant in his own behalf testified that he was carrying on his own private practice, which was more or less substantial, before entering into the work as County Attorney. He also says: “ I went to the Board and told them that I thought a salary of $1,500 was entirely inadequate, and more work was coming into the County Attorney’s office and being referred to the County Attorney, and requested them to make some increase.”

The Board of Supervisors never prescribed the duties of the County Attorney by any local law, so that we must assume that all the law work of the county, such as is customary for a lawyer to handle, was to be performed by the defendant for the fixed salary. True, Mr. Hofstatter testified: “ At the time of the appointment the duties were designated as attending meetings, rendering opinions to the board, and at that time also opinions to the town boards and town officials; defending all county officials in their capacity and work; that is all that I recall at the present time.” Who did the designating and how it was done is not stated. Even the witness cannot remember whether this statement included all bis duties. Oral directions or understandings or talk by supervisors with the attorney do not constitute prescribing the duties by local law.

In 1920 the defendant received $140.80 for the collection of taxes by supplementary proceedings against delinquent taxpayers. This was by resolution of the Board in 1917, reading as follows: “Resolved that the county attorney be allowed five per cent on any and all taxes collected from persons or property appearing on the delinquent list, prepared by the County Treasurer.” This was clearly extra compensation. The work was attorney work covered by the salary. Extra compensation of $584.74 in 1923 was paid for collecting $5,840 from the State of New York. This too was the ordinary legal services usually performed by an attorney. And the same is true regarding the fee of $750 paid in 1927 for litigation against the Knickerbocker Ice Company in the United States District Court. In 1927 and 1929 the Board passed the following resolution, August 2, 1927: “ Resolved that the Board proceed with the appointment of a County”Attorney for a term of two years dating from August 16th, 1927, at the annual salary of twenty-eight hundred dollars ($2,800.00), and dating from the 1st of January, 1928, five hundred ($500.00) Dollars additional for attending sessions of the Legislature and hearings of the Tax Department when necessary to properly serve the interest of the County and that for litigated matters and acquiring rights of way for State and County Highways, such additional compensation as may be allowed by the Board.” The resolution of August 5, 1929, is to the same effect.

Thereafter, the defendant as County Attorney was paid for acquiring approximately five hundred parcels of land for rights-of-way in the State and county, searching title to such parcels and general supervision of State and county highways the sum of $9,450 between the years 1923 and 1929. Twenty-five hundred dollars of this amount was received before the passage of these resolutions.

The question is squarely presented whether a County Attorney can thus be paid additional compensation over and above his salary for ordinary legal attorney work because the salary fixed is not an adequate compensation. The Board of Supervisors, by section 210 of the County Law, had the power to prescribe the duties of the County Attorney by a local law. Had they done this, he or any other lawyer could have been employed by the county, at fair compensation, to look after exceptional matters not included within the duties prescribed. Even this power has its limitations, for the prescribing of the duties by a local law may not be used as a subterfuge for paying additional compensation over and above a salary. In this case, however, the supervisors never prescribed or Hmited by any local law — which means a resolution put in the minutes —the duties of County Attorney. These resolutions of 1927 and 1929 failed to prescribe the duties that the attorney was to perform for his salary. We find in the minutes and resolutions and in the testimony that the salary was increased as heretofore stated because of the increase in work which took nearly all of the lawyer’s time. Two of the Supervisors called as witnesses gave an explanation for these resolutions. James J. Brown testified: We did not want to give him a higher figure of salary, but pay him as the extra work came along. We did not want to fix any amount of salary higher than the amount of salary; there might be lean years where he would be getting extra compensation.” And Supervisor Garner, as a witness, said: “ It was always understood he was to be paid extra compensation for the amount of work he did in highway matters.” The defendant himself testified: Yes, the question of the amount of the salary being sufficient to pay for the services which the county attorney was called upon to do was discussed, and it was determined, or at least it was said by all of the members of the Board that as the legal matters of the county were such that they could not contemplate what would have to be done in each year, both as to highways and other matters coming up which could not be foreseen, that they would prefer and that they would make the salary a reasonably small salary and pay additional compensation for such matters as came to the attention of the Board and were referred to the County Attorney, including all litigated matters and more particularly highway work.” In the early years as County Attorney the defendant had done highway work for his salary.

The county of Rockland was not obliged to appoint a County Attorney, but, when it did appoint Mr. Hofstatter, he became a public official whose salary, as fixed by the Board of Supervisors, covered the usual, ordinary attorney work done for a county, unless it was so special and extraordinary as to be taken out of the duties prescribed by the Board of Supervisors in their local law for which the salary was to be paid. That Mr. Hofstatter performed very valuable legal services which were worth all the extra compensation he received is not questioned, yet the provisions of the Constitution and of the County Law are quite clear and must be obeyed.

Previous decisions in this court have given this warning to county officials. In fact it has been said, if there be any doubt as to the legality of any payment, the doubt must be resolved in favor of the public. We do not have to go so far in this case because in our judgment there is no doubt of the illegality of these additional payments.

The salary of Mr. Hofstatter was fixed for the law work to be performed by him for the county. It was increased with increasing business and was by no means nominal.” So far as the minutes and resolutions of the Board of Supervisors of Rockland county show, and so far as we have any official action from them, the duties of County Attorney included supplementary proceedings, the collection of money when due to the county, the purchasing of property for roads or the handling of condemnation proceedings and ordinary litigation. For this work, which is the ordinary legal work of an attorney, the defendant wasjpaid a salary. The additional compensation for this class of work paid to the defendant prior to 1927 cannot be justified. The resolutions of 1927 and 1929 authorizing the defendant to charge extra for such services to be performed in the future were likewise illegal. His salary was to be paid him for all legal services, or at least the services usually rendered by an attorney, and this is the position we must take in the absence of any resolution or local law prescribing the duties of the County Attorney. These resolutions, therefore, were merely an attempt to add to the salary extra and additional compensation.

We have not overlooked many of the equities in the defendant’s favor: the work performed by him, the reasonableness of his charge and the informal methods or inducements leading up to and the receipt of compensation. But we have nothing to do with equities and informalities. The public have a right to be heard on these matters. They too have claims to be considered and these are found in the plain provisions of the Constitution and the laws to which we have called attention and which prohibit the public officer from accepting or receiving additional compensation, even though the work for which he is paid by a salary becomes unexpectedly onerous. The Board of Supervisors, by the Constitution, is likewise forbidden to grant any extra compensation to a public officer.

It is said that these resolutions of 1927 and 1929 spoke for the future and were not extra compensation for work done in the past. This is true, but is not the point. The fact is that the salary of $2,800 was given the defendant for legal services as County Attorney and, in the absence of any local law defining those services, was to include all the duties heretofore mentioned. The Board of Supervisors, in fixing the salary which paid for these services, could not say that he would also in future get additional compensation according to their discretion and judgment. This power has been taken away from them. The salary of a public official cannot be left in this indefinite and uncertain way. When we pause to think of the effect of such power we see at once that the constitutional limitations and the provisions of the Public Officers Law and the County Law could be easily nullified. A salary could be given for indefinite legal services and then extra compensation without limitation allowed for the ordinary work of such an official by simply saying in advance that it was to be done. The law does not permit any such evasion; the fixing of a salary would have no meaning.

As before stated, the courts have heretofore spoken upon these matters and what we have here written is simply a reiteration of that law which has been settled and determined in other cases. (People v. Sutherland, 207 N. Y. 22; Wadsworth v. Bd. of Supervisors, 217 N. Y. 484; Stetler v. McFarlane, 230 N. Y. 400; Cowan v. Mayor, 3 Hun, 632; People ex rel. Williams v. County Court, 105 App. Div. 1; People v. Neff, 121 App. Div. 44; Matter of Goldstein v. Berry, 232 App. Div. 583, 585.) The whole matter has been well summed up by Judge Dillon in his work on Municipal Corporations (Vol. 1 [5th ed.], § 426), as follows: “ Extra Compensation.— It is a well-settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties within the scope of the charter powers pertaining to the office are increased and not his salary. Whenever he considers the compensation inadequate, he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging or which may properly be attached to an office to lay the foundation for extra compensation, would introduce intolerable mischief. The rule, too, should be rigidly enforced.” (See, also, Worth v. City of Brooklyn, 34 App. Div. 223; James v. Duffy, 140 Ky. 604; County of Humboldt v. Stern, 136 Cal. 63; State ex rel. Younger v. Clausen, 111 Wash. 241; Kearney v. Bd. of State Auditors, 189 Mich. 666; Tracy v. Jackson County, 115 Iowa, 254; Evans v. City of Trenton, 24 N. J. L. 764; Moore v. Nation, 80 Kan. 672; Donahey v. State ex rel. Marshall, 101 Ohio St. 473; Bd. of County Commrs. of Creek County v. Bruce, 51 Okla. 541.)

The defendant also has received from the Board of Supervisors of Rockland county quite a sum of money for his expenses, and this has been challenged in this action, brought by a taxpayer to recover back from the defendant sums which he had no right to receive. The Public Officers Law (Cons. Laws, ch. 47, § 64) says: “ Payment of expenses of public officers. Every public officer who is not allowed any compensation for his services shall be paid his actual expenses necessarily incurred in the discharge of his official duties.”

The County Law (Cons. Laws, ch. 11, § 240), touching expenses, reads:

§ 240. County charges.— The following are county charges: * * *
“ 3. The compensation of the county officers, their subordinates and assistants, which are payable by the county; * * *.
“ 9. The moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation for such services is provided by law * * *.”

Where the County Attorney, paid a salary for his legal services, is at the same time carrying on his own private practice in his own law office, there are at least certain expenses and disbursements which he may justifiably charge to the county. The county is his client and we think the reasonable interpretation of these expense provisions of the law entitle the County Attorney to charge all the disbursements reasonably incurred in connection with the particular case or piece of business he is handling in the same way that an attorney for any other client might do. Ir this particular the appellant’s position is ■unreasonable. We cannot imagine that the Legislature intended that an official, obliged to make disbursements and incur expenses for the county, must take these out of his salary. Whatever necessary and reasonable disbursements this defendant made in,behalf of the county in connection with the handling of litigation or the conduct of the condemnation proceedings or any other matter, the county should and must repay.

However, the bills submitted to the county went way beyond any such items of expense or disbursements. They included a law library for his office. According to the statement submitted by the defendant’s Exhibit F, he had spent in ten years $1,611 for law books, which included in the year 1928 one item of $448.50. He charged up one-half of his office rent, the employment of his stenographer at thirty or thirty-five dollars a week, and a law clerk employed in his office at a salary. He also included traveling expenses, part of which was perfectly proper, such as carfare to Albany and back; but I find no justification in the law for charging mileage in traveling around in his automobile at fifteen cents a mile. (People ex rel. Hewitt v. Hoyland, 145 App. Div. 11.) Supervisor Brown testified: I think we used to allow Mr. Hofstatter eighteen or fifteen cents a mile for traveling expenses.” The trial justice found that in the proper prosecution of his work it would be necessary for the defendant to travel to distant points frequently, particularly to the City of Albany, to visit and confer with other officials and county attorneys on important legislation then pending; and that he would have to expend considerable money for traveling expenses and for the reasonable entertainment of attorneys and officials with whom he was constantly in conference.” Entertainment of lawyers is not a public expense.

The audit by the Supervisors of these bills during the period of ten years is not a bar to the plaintiff in this case to an inquiry into their legality. On their face many of them were not proper charges. The audit by the Board of Supervisors is not binding merely because it includes some legal items as well as illegal. The latter enable the audit to be attacked and the good separated from the bad. (People v. Sutherland, supra.) (See, also, People ex rel. Smith v. Clarke, 174 N. Y. 259, 263.)

Mr. Hofstatter, we are confident, believed his actions to be legal, especially as he was told to make the charges and incur the expense by members of the Board of Supervisors, but the Supervisors themselves were limited in the things they could pay out of the public treasury. While the Supervisors could have purchased, leased or otherwise acquired necessary real property for a county building or for the County Attorney (County Law, § 12, subd. 13), we do not think that this provision justifies the payment of the attorney’s office rent or any portion of it.

As there must be a new trial of this case, we shall not attempt to segregate the items of expense, because they are not sufficiently and definitely stated in the evidence. We shall follow the practice outlined in People v. Sutherland (207 N. Y. 22), and state generally the principles to be applied upon a rehearing of this case: First, the moneys received by the defendant for legal services as County Attorney over and above his salary as fixed by the Board of Supervisors was extra compensation, forbidden by the law, and must be returned to the county; second, the defendant is entitled to all the disbursements he made for the county in its legal matters, and these include such disbursements as a lawyer ordinarily would charge a client who had retained him at a yearly salary to do his legal work. This we think is reasonable and fair; beyond this, an amount paid becomes in reality extra compensation. If we may be more specific, we would say that disbursements would include telephone calls, postage, stationery required specially for the county, actual disbursements for traveling expenses, and we may even go so far as to say that a clerk employed entirely upon the county work, devoting bis whole time to it, and employed with the approval of the Board, would be such an item as might be charged to a private client, and could thus be charged to the county. Law books, office rent, and a proportion of the salary of law clerks and stenographers employed in the law office would not be proper charges.

In the change from the fee system to the salary, from the attorney employed by piece work to one employed as a public official, there are some times misunderstandings, honest misunderstandings, regarding the nature and duties of the work and the proper charges to be made. Statutes are not interpreted or understood until at a later date some court is obliged to lay down the law. Things move with more or less informality in certain communities, and the books are not always searched to ascertain the limitations of power; friend trusts to friend and custom and habit are stronger than acts of the Legislature. Yet when the question does arise, as to what may be done under the Constitution and the laws of this State, we must brush all these things aside and speak with an authority which looks to the welfare of the future as well as to the hardships of the past, and follow the clear directions of the constitutional and legislative injunctions binding upon courts as well as upon others.

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

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    The Osgood Company, Appellant, v. Clara M. Wilkinson, as Administratrix of the Estate of Clarence T. Wilkinson, Deceased, Respondent.
    (Argued May 28, 1934;
    decided July 3, 1934.)

      Frederick G. Mitchell, Ben T. Wiant and William P. Conley for appellant.

      Wortley B. Paul for respondent.
   Loughran, J.

Defendant’s intestate bought from plaintiff two excavating shovels and equipment under contracts of conditional sale. Down payments were made to plaintiff when the apparatus was delivered. Defendant’s intestate was to pay the balance of the price in installments evidenced by his promissory notes. The contracts provided that property in the goods was not to vest in the purchaser until the price was paid in full, and that if any default or breach be made hereunder by purchaser, all sums then owing shall forthwith become due and payable * * * and you [the seller] may retake all said property * * * retain all sums theretofore paid * * * remove said property to Marion, Ohio, or elsewhere, sell or otherwise dispose of the same * * * retain the full amount owing you * * * and recover from purchaser any deficiency; all without liability to account to purchaser in any way, except as to the excess, if any, remaining.”

After payment of more than twenty-five per cent of the price, defendant’s intestate, the buyer, defaulted. Plaintiff, the seller, thereupon retook the goods and resold them. In this action recovery is sought of the difference between the proceeds of the resale and the balance unpaid on the contracts. The case was submitted upon stipulated facts and the sole controversy here is whether under the law of Ohio, where the contracts were made and were to be performed, plaintiff is entitled to the relief sought.

Concededly, no statute bars a recovery by plaintiff, unless section 8570 of the Ohio General Code has that effect. That section, which pertains to conditional sales of personal property, reads in part as follows: “ Vendor may not retake possession without repaying certain part of price; exception. When such property, except machinery equipment and supplies for railroads and contractors, for manufacturing brick, cement and tiling, and for quarrying and mining purposes, is so sold * * * the person who sold * * * shall not take possession of such property, without tendering or refunding to the purchaser * * * the money so paid after deducting therefrom a reasonable compensation for the use of such property, which in no case shall exceed fifty per cent of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in the contract or not, unless such property has been broken, or actually damaged, when a reasonable compensation for such breakage or damage shall be allowed. But the vendor shall not be required to tender or refund any part of the amount so paid unless it exceeds twenty-five per cent of the contract price of the property.” No refund of the purchase price paid, or tender thereof, has been made by plaintiff, the seller.

The Trial Term held that section 8570 of the Ohio General Code applies only in the case of a conditional vendor who retakes the goods as bis own. It found as a fact that plaintiff retook the shovels and equipment, not to keep them, but for the purpose of increasing its security and that it resold them for the account of defendant’s intestate, the buyer. It also found as a fact that a deficiency judgment may be recovered at common law in Ohio by a conditional vendor after such seizure of the goods and resale for the buyer’s account. Judgment for plaintiff followed. The Appellate Division has reversed the judgment on the law and has dismissed the complaint. That court held that the statutory-requirement of tender or refund was to be fulfilled irrespective the purpose of a conditional vendor’s resumption of possession, and that at common law in Ohio a conditional vendor must elect either to retake the goods or to recover the unpaid price but may not have recourse to both remedies.

In the view we take of the case, it is unnecessary to consider the problem of statutory interpretation upon which the courts below have differed. The admitted text of the contracts is part of the pleadings. By both agreements defendant’s intestate is styled, C. T. Wilkinson, General Contractor, Buffalo, N. Y.,” and the shovels and equipment are described as machinery.” Section 8570 of the Ohio General Code excepts from the requirement of tender or refund the case of “ machinery equipment and supplies for * * * contractors.” Apparently the Ohio courts have not defined the scope of that exception. The question of construction is one of law. (Fitzpatrick v. International Ry. Co., 252 N. Y. 127, 138-140.) We think that the facts here established constitute a case within the exception made by the statute. (Arthur v. Parsons Co., 224 Fed. Rep. 47.)

There remains the question of plaintiff’s right under the common law of Ohio. Apart from statute, the general rule is that by retaking the goods a conditional vendor elects to rescind the contract and may not thereafter sue for any unsatisfied portion of the price. (2 Williston on Sales [2d ed.], § 579; Ratchford v. Cayuga Co. Cold Storage & W. Co., 217 N. Y. 565, 569.) No Ohio case is cited which applies that rule. There are Ohio decisions which sanction the theory that a contract of conditional sale creates a lien which may be foreclosed in a suit in equity. The Ohio courts have not directly recognized the right of a conditional vendor to foreclose by retaking and resale rather than by an equitable action. It is said obiter in a Federal case that both inodes of foreclosure have been countenanced in Ohio. (Matter of Bettman-Johnson Co., 250 Fed. Rep. 657.)

The stipulation upon which the case was submitted empowered the court to determine the law of Ohio from any authoritative source. In accordance with that license, and upon the authorities cited, the Trial Term held that plaintiff’s retaking and resale of the shovels and equipment were in effect a foreclosure valid by the common law of Ohio and that plaintiff should have the deficiency-judgment specifically authorized by the contracts. The findings of the Trial Term have not been reversed and are not without support in the evidence.

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

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

Judgment accordingly.


author: Crouch, J.

text:
    Arthur Y. Dalziel, as Trustee in Bankruptcy of Selznick Distributing Corporation, Appellant, v. William L. Rosenfeld, Respondent.
    (Argued May 29, 1934;
    decided July 3, 1934.)

      Sam L. Cohen and Felix A. Fishman for appellant.

      Harris Berlack, Stanley H. Fuld and Frank Aranow for respondent.
   Crouch, J.

The plaintiff sued under section 15 of the Stock Corporation Law (Cons. Laws, ch. 59) to recover the amount of alleged preferential payments made by the bankrupt to the defendant.

At the close of the plaintiff’s case the complaint was dismissed upon the ground that the plaintiff had failed to make prima facie proof: (1) Upon the issue of notice or belief on the part of the defendant that the payments would effect a preference; and (2) upon the issue of plaintiff’s intent to give a preference to defendant.

The payments in question were made in 1924. As section 15 of the Stock Corporation Law then stood, recovery could be had when it was shown that the prohibited act occurred while the debtor corporation was insolvent or its insolvency was imminent; and that there was an intent thereby to give a preference. No proof of the creditor’s knowledge or state of mind was necessary.

In 1929 the section was amended (Laws of 1929, ch. 653) so as to protect the rights or interests of creditors acquired without notice or reasonable cause to believe that the act of the debtor would effect a preference.

In ruling on the first issue the courts below have held that the amendment of 1929 was retroactive and hence that the failure of the plaintiff to show notice or reasonable cause to believe on the part of the defendant that the payments would effect a preference was fatal.

We find no satisfactory legal reason to support that holding. The general rule is that statutes are to be construed as prospective only. It takes a clear expression of the legislative purpose to justify a retroactive application.” (Jacobus v. Colgate, 217 N. Y. 235, 240.)

If we look to the literal language of the amendment, we find reference only to rights or interests which may be acquired ”— words importing futurity as unmistakably as “ shall be ” (Sanford v. Bennett, 24 N. Y. 20) or as shall hereafter.” (Matter of D. & H. Canal Co., 129 N. Y. 105, 113.) If, going beyond the language used, we seek a reason for it, a consideration of the effect of retroactive operation furnishes such reason.

The purpose of section 15 as it stood prior to the amendment was to secure equality in the distribution of the assets of a failing corporation. (Hilton v. Ernst, 38 App. Div. 94; affd., 161 N. Y. 226.) That purpose seemed to require that no account be taken of the honesty or good faith of the creditor preferred; no transfer, except to a bona fide purchaser, was to be protected. It must be assumed that all creditors dealt with corporations upon the faith of that equality. To the extent that they acted upon that faith they acquired vested rights. If the amendment were to be construed retroactively, such rights would be impaired. Entirely apart from any question of constitutionality, no intent with such consequences will be imputed to the Legislature. (Addiss v. Selig, 264 N. Y. 274.) The purpose of the amendment, prospective merely, was to conform the statute “ to the conceptions underlying the Bankruptcy Act, better adapted no doubt to the fluidity of financial dealings.” (Matters v. Manufacturers’ Trust Co., 54 Fed. Rep. [2d] 1010, 1016.) (Cf. Bankruptcy Act, § 96-b; U. S. Code, tit. 11, ch. 6; § 96-b; 30 Stat. 562.)

Upon the second issue, also, we are disposed to think that the courts below were in error. As the record stood at the close of the plaintiff’s case, there was adequate evidence to warrant an inference of preferential intent. Without going into detail, it is reasonably clear that as early as March, 1924, the financial affairs of the corporation were in a serious condition — so serious that it seemed wise to its officers to set up what the respondent’s own brief refers to as a buffer corporation,” to which upon bankruptcy or insolvency its distribution business could be transferred. From that time on it could be found that matters progressed from bad to worse, with bankruptcy supervening in October, 1924 — which seems to have been about the anticipated date. If, during the months from May to October when the questioned payments were made, bankruptcy was not inevitable, it was at least the natural, probable and only forseeable end, or at least a jury could so find. Knowing so much, the officers of the corporation who made these payments also must have known what their effect would be. If the gods did not actually frown, their faces were at least inscrutable. But that was not enough. (Matters v. Manufacturers’ Trust Co., supra, p. 1014.)

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

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

Judgment reversed, etc.


text:
    In the Matter of the Estate of William J. Matheson, Deceased. Parke A. Galleher, Appellant; Willis D. Wood, as Executor of William J. Matheson, Deceased, Respondent.
    (Argued June 6, 1934;
    decided July 3, 1934.)

      I. Gainsburg and Joseph P. Segal for appellant.

      Stephen Callaghan, Howard O. Wood and Elliott W. Smith for respondent.
   Crouch, J.

A citation, issued out of the Surrogate’s Court of Suffolk county, was served personally upon the appellant in Washington, D. C. The appellant, appearing specially, contested the court’s jurisdiction over the subject-matter of the proceeding and over the person of the appellant.

The proceeding is under section 231-a of the Surrogate’s Court Act. The petition alleges that the executors retained the law firm of Wood, Cooke & Seitz to attend to all legal and tax matters arising out of the administration of the estate; that the firm was authorized to employ outside counsel; and that for all services rendered, including those by outside counsel, a stated amount should be paid to the firm. It is further alleged that the appellant, an attorney with offices in the Metropolitan Bank Building, Washington, D. C.,” was retained and rendered certain services before the Tax Unit for which he was paid; that thereafter he was retained to render further services upon an express agreement that he should be paid therefor a fixed and stated sum out of the agreed amount which the firm was to receive from the executors; that he rendered such services and was paid the agreed sum. It is then further alleged that on May 11, 1933, the appellant presented a bill for $187,456.57 for services claimed to have been rendered to the executors, and that the executors had rejected the claim. Whereupon, it is prayed that appellant’s compensation be fixed and determined.

The Surrogate vacated the issuance and service of the citation upon the ground that section 231-a did not apply to attorneys of other jurisdictions. The Appellate Division reversed the order of the Surrogate, reinstated the proceeding and certified to this court the following question: Did the Surrogate’s Court acquire jurisdiction to adjudicate the claim in this proceeding?”

Section 231-a was added to the Surrogate’s Court Act by chapter 526 of the Laws of 1923. It reads as follows:

Compensation of attorneys. At any time during the administration of an estate, and irrespective of the pendency of a particular proceeding, the surrogate shall have power to hear an application for and to fix and determine the compensation of an attorney for services rendered to an estate or to its representative, or to a devisee, legatee, distributee or any person interested therein; or in proceedings to compel the delivery of papers or funds in the hands of such attorney.
Such proceeding shall be instituted by petition of a representative of the estate, or a person interested, or an attorney who has rendered services. Notice of the application shall be given in such manner as the surrogate may direct. The surrogate may direct payment therefor from the estate generally or from the funds in the hands of the representative belonging to any legatee, devisee, distributee or person interested therein.”

Prior to the enactment of that section, the scope of authority of the Surrogate’s Court to deal with the compensation of attorneys had been pretty definitely marked out by judicial decision. When services had been rendered to a representative of an estate, their value could be fixed by a direct proceeding where there was a substitution of attorneys (Chatfield v. Hewlett, 2 Dem. 191; cf. 1 Jessup-Redfield on the Law and Practice in the Surrogates’ Courts [1930], § 153); where a lien was asserted (Matter of Regan, 167 N. Y. 338, 343; Matter of Smith, 111 App. Div. 23); and finally, even where there was a dispute unconnected with an asserted lien. (Matter of Shipman, 116 Misc. Rep. 405; affd., 200 App. Div. 896; affd., 234 N. Y. 499.) Whether those proceedings could be initiated by the representative or only by the attorney is not entirely clear. Ordinarily, the attorney seems to have been the moving party. Since the retainer was a contract only between the representative and the attorney, the determination of the value of the services went no further than to fix the amount which might properly come out of the funds of the estate. (Matter of Smith, supra.) The representative as an individual might conceivably be liable for more. (Matter of Gilman, 251 N. Y. 265, 271.) Where, however, disputes arose between an attorney and a client other than a representative, as for instance a devisee, legatee or other person interested in an estate, the Surrogate’s Court had no jurisdiction. Such disputes had to be settled in another court, with consequent delay in the winding up of the estate. It has been commonly understood that the present extended general jurisdiction of the Surrogate’s Court (See Surrogate’s Court Act, § 40) had back of it a purpose to make possible a unification in the Surrogate’s Court of all proceedings relating to decedents’ estates. While section 231-a is in part declaratory of existing law, it materially broadens that law and its enactment may fairly be presumed to have been dictated by the general purpose above referred to.

Taking the facts as stated in the petition, it appears that the relationship of attorney and client existed between the appellant and the executors. The firm of Wood, Cooke & Seitz was expressly authorized to employ outside counsel. Its act was the act of the executors. While the petition is not explicit on the point, we infer that appellant was a non-resident of this State, had never been admitted here as an attorney, but had been admitted in the District of Columbia. Had he been a New York attorney, seeking to enforce his claim against the executors, there can be no doubt that the Surrogate’s Court would have had jurisdiction co-ordinate with that of the common-law courts, to try, with the assistance of a jury, if seasonably demanded (Surrogate’s Court Act, § 68), all issues of fact. Having jurisdiction fully to hear, try and determine that kind of dispute, we see no reason why the non-residence of the appellant and his non-admission as an attorney in the courts of this State should in any way affect that jurisdiction. As the law now stands, the authority of the Surrogate’s Court to act in such a dispute rests not at all upon its inherent control over its own officers. The proceeding now, whatever it may formerly have been, is not summary but plenary. Having the right thus to enforce his claim for compensation in the Surrogate’s Court, any attorney, whether admitted in this State or elsewhere, is subject to the correlative right of the executor to hale him into the same tribunal for a like purpose, if jurisdiction of his person can be had. The objection interposed to the jurisdiction over the subject-matter is without substance.

Not so, however, in respect to the objection to the jurisdiction over the person. Implicit in the proceeding as one plenary in its nature is the necessity for determining the personal rights and obligations of two parties to a contract. Whether the proceeding is commenced by the executor or by the attorney, it is in substance and effect an action to determine how much money is owing and should be paid by the one to the other. It is an action in personam which formerly must needs have been brought in a common-law court. That “ the surrogate may direct payment therefor from the estate generally ” (Surrogate’s Court Act, § 231-a) does not change the essence of the proceeding. That provision harks back to the older proceeding which allowed the executor indemnity from the estate for moneys of his own reasonably and necessarily paid out. _,The statute has merely unified the two proceedings; it has not changed the essential nature of either. It is still conceivable — as for instance where the retainer was for a stated sum — that the liability of the executor might be for a sum greater than the fair value of the services to the estate. Upon familiar principles applicable to proceedings in personam, process from the courts of this State, whether summons or citation, cannot run into a foreign jurisdiction. (Pennoyer v. Neff, 95 U. S. 714; Dimmerling v. Andrews, 236 N. Y. 43; de Meli v. de Meli, 120 N. Y. 485.)

We are of the opinion that no jurisdiction was obtained over the person of the appellant by the mere service of the citation upon him without the State.

The order of the Appellate Division should be reversed and that of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.

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

Ordered accordingly.


author: O’Brien, J.

text:
    Gordon S. P. Kleeberg, Appellant, v. Joseph N. Sipser, Respondent.

      (Argued May 25, 1934;
    decided July 3, 1934.)

      Harris Jay Griston and Lewis F. Glaser for appellant.

      M. James Spitzer and Lorenz Reich, Jr., for respondent.
   O’Brien, J.

The action is for libel and the complaint was dismissed upon the ground that it states no cause of action. Only a question of sufficiency of pleading is presented by this appeal.

Five alleged causes of action are set forth and they aver the following to be facts: Plaintiff is an attorney admitted to practice in this State and was retained by Louis Orlik, residing in London, to represent him here in certain business negotiations with his brother Alfred Orlik, a resident of New York. Defendant’s interest, if any, in these negotiations does not appear from the complaint. During their pendency, defendant addressed five messages by cable and letter to plaintiff’s client which are recited respectively in each of the five causes of action. The first reads: “ Interview with Kleeberg useless in spite of your recommendation to give me satisfaction Kleeberg apparently favours lawsuit and insists receiving copy of contract which Alfred’s lawyer refuses to give therefore I suggest you mailing promptly copy and your specific instructions to Kleeberg.” The second: I gained the impression that Kleeberg would rather see a fight that bring you and Alfred together * * *. It is obvious why Mr. Kleeberg wants to rehash the entire case. How can we consider K’s (meaning plaintiff’s) attitude impartial or as acting in good faith, when he threatens, because the contract was refused to him, that he will nova advise you do nothing else but fight Alfred? (meaning Alfred Orlik). Who cares about his threat, the fact is that he broke off negotiations instead of having made efforts to bring about an understanding to save you and Alfred further lawyer expenses. He could serve better in a quarrel between two brothers if he would be guided by the fair and just points at issue. Your letter of Sept. 28th, expresses the intention of a friendly attitude and I presume it is your object, or at least your desire, to come to an understanding, whilst it is my belief that the ugly attitude of Kleeberg towards me was neither appropriate nor in accordance with your intentions. In view of the fact Kleeberg did not act according to your wishes, I cabled you on Oct. 24th as follows: Interview with Kleeberg useless in spite of your recommendation to give me satisfaction Kleeberg apparently favors law suit and insists receiving copy of contract which Alfred’s lawyer refuses to give therefore I suggest you mailing promptly copy and your specific instructions to Kleeberg.” The third: Mr. Kleeberg attached a new condition, which you did not mention in your letter to him, that, in exchange for this clarification, he would require a certified cheque for the payment of the first note and also here I agreed. After all appeared ready for a settlement, Mr. Kleeberg changed his mind again, and informed me that he will advise you not to sign the clarification, that he will draw up a different document, which Alfred should or must accept. You know quite well that Kleeberg’s paper will not be acceptable to Alfred’s lawyer, and there is no doubt of Kleeberg’s object.” The fourth: Your instructions to Kleeberg proposing, modifying third paragraph of clarification should end all troubles and I also agreed immediate payment first note in exchange for such modified clarification but Kleeberg refuses carrying out your wishes. Klee-berg’s attitude will cause litigation and large lawyer expenses for everybody unless you instruct him carrying out your wishes.” The fifth: Can arrange immediate payment both notes in exchange for clarification however the third modified paragraph must be satisfactory to Alfred’s lawyer stop Kleeberg refuses signing this clarification and also refuses my mediation stop. If Kleeberg continues refusing carrying out your instruction you must appoint other representative and advise name.”

These utterances were published concerning plaintiff in his professional character as an attorney and not otherwise. If, on their face, they are susceptible in their ordinary meaning of such a construction as would tend to injure him in that capacity, they are libelous per se and the complaint, even in the absence of allegation of special damage, states a cause of action. (Sanderson v. Caldwell, 45 N. Y. 398; Purdy v. Rochester Printing Co., 96 N. Y. 372, 377; McNamara v. Goldan, 194 N. Y. 315; O’Connell v. Press Pub. Co., 214 N. Y. 352; Sydney v. MacFadden Newspaper Pub. Corp., 242 N. Y. 208; Ben-Oliel v. Press Pub. Co., 251 N. Y. 250, 252.) Inferences to be drawn by a jury from these publications do not depend upon extrinsic facts alleged in the complaint. Although the messages do not state in bald terms that plaintiff is an attorney, the internal evidence is such that no other reasonable interpretation can be placed upon the language. Who except an attorney can be inferred to advise ” and draw up a different document ” or prepare a paper ” for submission to the lawyer ” representing adverse interests, and who except an attorney would harbor a motive to impose further lawyer expenses ” and cause litigation and large lawyer expenses for everybody? ” Such is not the kind of language employed in describing the activities of a lay agent representing one in a capacity other than professional. The mere omission by a third party to inform a client of an attorney that his legal adviser is a member of the bar does not force a court or jury to refuse to draw palpable inferences.

The question, therefore, is whether any of these publications which describe the attitude, motives and actions of an attorney at law bear on their face such implications of unprofessional conduct as tend to injure him in his profession. The message set forth in the first cause of action is not reasonably capable of such a construction. It indicates nothing more than an expression of the writer’s inability to convince an attorney of the correctness of his own position which is different from the position assumed by the attorney. When parties are unable to reconcile their differences, favoring a lawsuit to settle the controversy is not to an attorney’s discredit. Accordingly, we think that the dismissal of the first cause of action was proper. The other causes of action are, in our opinion, sufficiently pleaded. The language therein alleged could warrant an inference of fact that defendant intended to and did charge the attorney with fomenting litigation in that he preferred a fight ” rather than a conference which might lead to an amicable settlement, with lack of good faith as an attorney, with making a threat, with, breaking off negotiations instead of making efforts to bring about an understanding to save further lawyer’s expenses, with acting unfairly in a quarrel between brothers, with drawing up a document with the object of forcing its rejection by the attorney representing bis client’s brother, and with refusal to comply with his client’s wishes. This language is such that a jury could find that it amounts to an untrue charge of numerous infractions of elementary professional ethics and that it tended to bring gross discredit upon the attorney. These are questions of fact and there may be a substantial defense. We decide nothing on this appeal except the adequacy of the plaintiff’s pleading.

The judgment should be modified by reversing so much thereof as dismisses the second, third, fourth and fifth causes of action as alleged in the complaint and, as so modified, affirmed, with costs to the appellant in all courts. (See 265 N. Y. 510.)

Pound, Ch. J., Crane, Hubbs and Loughran, JJ., concur; Lehman and Crouch, JJ., dissent and vote to affirm.

Judgment accordingly.


author: Hubbs, J.

text:
    Feiber Realty Corporation et al., Appellants, v. Edward C. Abel, Respondent, Impleaded with Others.
    (Argued May 23, 1934;
    decided July 3, 1934.)

      Arthur Morris for appellant.

      Isidore Ginsberg for respondent.
   Hubbs, J.

On August 11, 1933, a jugdment of foreclosure and sale of real property was entered in favor of the plaintiffs-appellants and against the defendants, which specified a balance due the plaintiffs amounting to $18,500, with interest from August 3, 1933. The judgment was in the usual form, providing for the payment of taxes, assessments, water rates, specified referee’s fees and costs, and for application of the balance realized upon the sale upon the amount found due the plaintiffs-appellants. It also provided for payment of the deficiency by the defendant-respondent, Edward C. Abel.

A sale was held on September 6, 1933, and a report of sale was filed on September 27, 1933, showing a deficiency of $12,513.08. In the meantime, on August 28, 1933, subsequent to the entry of judgment and prior to the date of sale, section 1083-a of the Civil Practice Act became effective by the enactment of chapter 794 of the Laws of 1933 which declared that a public emergency required legislative intervention and provided as follows:

“ § 1083-a. Limitation upon deficiency judgments during emergency period. No judgment shall be granted for any residue of the debt remaining unsatisfied as prescribed by the preceding section where the mortgaged property shall be sold during the emergency, except as herein provided. Simultaneously with the making of a motion for an order confirming the sale or in any event within ninety days after the date of the sale, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action. Such notice shall be served personally or in such other manner as the court may direct. Upon such motion the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date of sale or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment. Such deficiency judgment shall be for an amount equal to the sum of the amount owing by the party liable as determined by the judgment with interest, plus the amount owing on all prior liens and encumbrances with interest, plus costs and disbursements of the action including the referee’s fee and disbursements, less the market value as determined by the court or the sale price of the property whichever shall be the higher. If no motion for a deficiency judgment shall be made as herein prescribed the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist.”

After filing of the referee’s report, the plaintiffs-appelIants by order to show cause, applied for an order (1) Confirming the referee’s report of sale; (2) confirming the deficiency as reported by said referee, or (3) in the alternative, if it be found that section 1083-a is applicable, for a judgment accordingly.

The defendant in opposition to said motion submitted an affidavit consenting to the granting of the motion in so far as the same was for the confirmation of the referee's report of sale, but objected to the deficiency judgment. The defendant made no cross-motion to vacate the deficiency judgment as entered. Various affidavits were submitted by both sides as to the value of the property. The court granted the motion to the extent of confirming the referee’s report of sale and sending the matter to a referee upon condition that the plaintiff consent to the vacating of the judgment previously entered, and denied the motion in all other respects if the plaintiff did not consent to the vacature ‘of the judgment, with leave to renew in conjunction with a motion to vacate the existing judgment.

The Appellate Division modified the order by providing that the plaintiff may go to an official referee to determine the amount of the deficiency under section 1083-a of the Civil Practice Act without prejudice to the right of the plaintiff for further review if it be ultimately determined that said section is not applicable, and as so modified affirmed the order of the Special Term, and granted leave to appeal to this court, (1) as to the applicability of said section to the facts at bar, and (2) as to the constitutionality thereof as to the facts at bar if by its terms it is applicable thereto.

Considering first the applicability of section 1083-a, it is necessary to determine what judgment is referred to in the opening sentence of the statute which reads in part: No judgment shall be granted for any residue of the debt remaining unsatisfied as prescribed by the preceding section where the mortgaged property shall be sold during the emergency."

Section 1083, the preceding section, reads as follows: “ § 1083. Judgment for deficiency. If a person who is liable to the plaintiff for the payment of the debt secured by the mortgage [is] made a defendant in the action, and has appeared or has been personally served with the summons, the final judgment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of the mortgaged property, and the application of the proceeds, pursuant to the directions contained therein.”

The judgment referred to in section 1083-a would, therefore, seem to be the final judgment referred to in section 1083, and the final judgment can be none other than the judgment of foreclosure and sale provided for under section 1082 of the Civil Practice Act. Section 1083, therefore, by its terms, specified a limitation upon the granting of final judgments in foreclosure actions during the emergency where the mortgaged property shall be sold during the emergency.

The language used does not evidence an intent to affect judgments granted prior to the effective date of the section. A judgment of foreclosure and sale is not only final by statutory definition but by the decisions of this court has been held to be final and an adjudication of all questions at issue. (Morris v. Morange, 38 N. Y. 172; Wager v. Link, 134 N. Y. 122.)

As was said in Morris v. Morange (supra, p. 173): The docket of the deficiency by the clerk is merely a clerical act in pursuance to the directions of the judgment entered,” and it has been further held that execution may be issued for a deficiency before confirmation of the report of the referee or the docketing of the deficiency judgment. (Moore v. Shaw, 15 Hun, 428; appeal dismissed, 77 N. Y. 512; Taylor v. Derrick, 64 Hun, 636; S. C., with opinion reported in 46 N. Y. St. Repr. 583.)

A construction of a statute which would give it a retroactive operation is not favored by the courts. In Walker v. Walker (155 N. Y. 77, 81) the court said: “ The general rule is that an original statute, or an amendment, will be construed as prospective only, unless the language clearly and plainly indicates a contrary purpose, and it will not be given a retroactive effect when it is capable of any other construction. * * *

There is nothing in the amendments under consideration to show that they were intended to have other than a prospective effect. But it is urged that as the statute was a remedial one, a different construction should obtain. While it has been held that remedial statutes may have a retroactive effect where it is clear that the legislature so intended, still, as there is in these amendments nothing to indicate any intent upon the part of the legislature that they should affect judgments already entered, they fall within the general rule, and not within any exception.”

The subject was recently considered by this court in the case of Addiss v. Selig (264 N. Y. 274), and the decisions upon the subject reviewed.

This being a final judgment, substantial rights were vested in the plaintiffs-appellants. (Livingston v. Livingston, 173 N. Y. 377.)

While the Legislature has control of remedies by which final judgment may be obtained, it cannot confiscate, recall or put again in jeopardy the rights and property established by judgments already obtained.” (Matter of Greene, 55 App. Div. 475; affd., 166 N. Y. 485, 492.)

While this is a remedial statute and should be liberally construed, it is in derogation of rights and remedies available to the obligee when the obligation in question was established. It can, under its terms, be so interpreted as not to deprive plaintiffs-appellants of rights vested under their judgment.

We believe that the purpose of the Legislature can be fulfilled without giving to the statute a retroactive effect. To apply the statute to the facts of this case, it would be necessary to give it a retroactive effect.

Since We hold the statute not applicable under the facts of this case, it is unnecessary to determine the second question presented for our consideration. We have, however, in the case of Klinke v. Samuels (264 N. Y. 144) held the statute to be constitutional under the facts therein considered.

The orders of the Special Term and of the Appellate Division should be modified by granting the motion of the plaintiffs to confirm the deficiency judgment herein and as so modified affirmed, with costs to appellants in all courts. The first question certified should be answered in the negative and the other question not answered.

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Alfonse Brengard, Appellant.

      (Argued May 28, 1934;
    decided July 3, 1934.)

      S. Frederick Placer and Charles N. Wysong for appellant.

      Elvin N. Edwards, District Attorney (Philip Huntington and Albert M. De Meo of counsel), for respondent.
   O’Brien, J.

On July 22, 1928, John Kennedy was shot and on July 13, 1932, he died. He was a uniformed officer attached to the police force of Nassau county and, while patrolling alone in a police car at midnight, he discovered an unoccupied automobile parked in a secluded rural lane. In the course of his investigation concerning this car he was shot by some person whom he never identified. On October 2, 1933, the defendant Brengard was jointly indicted with William French, each aiding and abetting the other,” for murder in the first degree. On a joint trial, French was convicted ,of murder in the second degree and Brengard in the first degree. Only Brengard’s appeal is before us. Many points for reversal are urged and we have carefully considered all of them. Three merit discussion.

Is the evidence sufficient to prove beyond a reasonable doubt that Brengard is the person who shot or aided and abetted in shooting Kennedy and, if his identity be established, is the proof sufficiently strong to show deliberation and premeditation? The parked car which the policeman found in the woods was the property of Brengard. His hat lay a few feet from the car. The bullet which entered Kennedy’s body was shot from a revolver owned by Brengard. A day or two after the shooting, as he admitted, he filed certain identifying numbers from this weapon and hid it in a chicken coop at his home. He did not take the stand as a witness, but in statements made to the authorities he denied that he was present at the scene of the assault and at first denied that French had ever been out in his car but later asserted as an explanation for the presence of his car and his hat in the woods where Kennedy had been shot and the fact that it was his revolver with which the assault had been committed, that he had loaned his car to French for the purpose of visiting friends and that his hat and revolver were in it at the time. He stated that on the night of the assault he had been training for a prize fight at a gymnasium but no witness came forward at the trial to testify to such a fact. His parents and a friendly neighbor, however, did swear that he was at home when the shooting occurred but their credibility was for the jury. In reply to the question, asked by a police officer, why French should accuse him of the shooting, as French had done in his presence, he answered that French associated with some people who might want to get even with him. From this evidence the jury was justified in drawing inferences beyond a reasonable doubt that Brengard was present at the time of the attack and that the hand which discharged the weapon was the hand of the owner. That he shot with intent to kill is supported by requisite evidence. He had formerly been a member of the State police and, as such, he was accustomed to the use of firearms. The bullet which bit Kennedy penetrated the abdomen and fiver and lodged in the spinal column. In the selection of this part of the anatomy as a target, a skilled pistol shot may be concluded to have intended to inflict a fatal wound. Considering the elements of deliberation and premeditation, the fact that Kennedy and his police car were so located as to impede or prevent the departure of defendant’s car is of great significance, presents a question for the jury and constitutes a foundation for the conclusion that the owner of this car, parked at dead of night in a densely wooded locality, deliberately shot an officer of the law as part of a plan to escape. (People v. Morse, 196 N. Y. 306.) The weapon which was used and the character of the wound which was inflicted considered with the later conduct of defendant, which the jury might view as inconsistent with innocence, forms a basis for the inference of premeditation and deliberation. (People v. Schmidt, 168 N. Y. 568.)

Was Kennedy’s death the result of the bullet wound as the producing cause? The death certificate states the cause of death as cardiac failure due to embolism, and the contributing cause, among others, as “ bullet wound.” One of the physicians who attended Kennedy testified: (C The producing cause of death was the gunshot wound in the spinal column. The contributing causes were chronic pyonephritis, or pus in the kidneys, accompanied by osteomyelitis of the bone matter, with terminal embolism. * * * The primary cause is your bullet wound of the back. The minute that bullet struck his back he started to die then and that is just the last thing that happened.” This physician’s allusion to the last thing that happened has reference to embolism as the terminal cause of death. At the time of his injury, Kennedy was twenty-three years of age, six feet four inches in height and weighed two hundred and ten or two hundred and twenty pounds. Subsequent to the infliction of his gunshot wound he lost more than one hundred pounds in weight. His right leg was completely paralyzed by the shot in his spinal column and the left leg ninety-five per cent paralyzed; he totally lost control of the bladder and the rectum. In June, 1929, the bullet was removed from his spine and in April, 1932, his right leg was amputated. In July, 1932, he died. Even without expert opinion evidence, the jury could decline to entertain any reasonable doubt that it was the bullet wound which caused his death.

The most important issue of law, one which has never been decided by this court, relates to the question whether an indictment for murder will lie when death occurs, as it did in this case, more than a year and a day after the assault. At common law it would not he (Holdsworth’s History of English Law, vol. 3, p. 315; Stephen’s History of the Criminal Law, vol. 1, p. 247; vol. 3, p. 8), but the Appellate Division in the Second Department has recently decided that the ancient rule has been abrogated by statute. (People v. Legeri, 239 App. Div. 47.) Decisions in other States hold differently. (Hardin v. State, 4 Tex. Cr. App. 355; State v. Dailey, 191 Ind. 678; State v. Orrell, 12 N. C. 139; State v. Anderson, 4 Nev. 265; People v. Murphy, 39 Cal. 52.) Some of the early statutes of this State bestowed partial recognition upon the common-law rule and at the same time departed in some respects from it. By chapter 22 of the Laws of 1787 willful killing by poison was deemed premeditated murder. No reference occurs in that statute to the time elapsing between the administration of poison and the death of the victim. By the same statute the infliction of death by stabbing, under certain circumstances, constituted willful murder, if the victim died within six months. By chapter 29 of the Laws of 1813 the penalty for the crime of killing by poison was modified so that it was punishable by imprisonment for a term not exceeding fourteen years if death did not ensue within a year and a day. These statutes were repealed in 1828. By article I, section 16, of the Constitution of this State the common law continues in force subject to such alteration as the Legislature shall make. Tendering full acknowledgment to the general doctrine that statutes enacted in derogation of the common law must be strictly construed, we think that the Legislature has most substantially and essentially altered the former law relating to murder when death ensues after the lapse of a year and a day. Chapter 266 of the Laws of 1857 directed a Commission to prepare a Penal Code for submission to the Legislature and provided that such Code must define all crimes for which persons can be punished. Section 2, as submitted by the Field Commission and adopted by the Legislature, enacted that no act shall be deemed criminal except as prescribed by the Code. This mandate is repeated in section 22 of the Penal Law. In its Preliminary Note, dated December, 1864, to the proposed Code, the Commission expressed “ the desire to render each definition, as far as possible, cotnplete in itself and independent,” and observed that the Code “ relates chiefly to the enumeration and definition of crimes, and the designation of the kind and measure of punishment to be inflicted for each.” Among the leading objects of the Commissioners, so they stated, was “ to bring within the compass of a single volume the whole body of the law of crimes and punishments in force within this State. The existing statute law of crimes, though comprehensive, does not abrogate rules of the common law making criminal maiiy acts which are untouched by statute. * * * As long as the criminality of acts is left to depend upon the uncertain definitions or conflicting authorities of the common law, uncertainty must pervade our criminal jurisprudence.” Most particularly and emphatically, the Commission subjoined the following note to the proposed section 241 which defined the crime of murder: This section is founded on 2 Rev. Stat., 657, § 5. The definitions of the four grades of homicide given in the Revised Statutes, though drawn with care, and resulting, when attentively considered, in an accurate demarcation, are yet obscured and embarrassed with references to each other, and to the rules of the common law. The Commissioners have, in subsequent sections, recommended a modification of the law of manslaughter, distinguishing it into two degrees only, instead of four. In other respects, whenever they have departed, in these definitions of homicide, from the phraseology of the Revised Statutes, it has chiefly been in order to render each definition independent and sufficient in itself.” When the object of the Commission was so clearly expressed as to demonstrate a fixed intent to construct in detail a complete definition of each crime so that no part of the entire fabric of the law of crimes could be left to judicial reconstruction, the omission by the Legislature of any reference to a year and a day from the definition of murder (Penal Code, § 241; Penal Law, § 1044 et seq.) must be deemed to have resulted from a set purpose. The design of the Penal Code and the Penal Law was to make definitions of crime as nearly certain as possible and, in the execution of this plan for clarity, the abolition of all common-law crimes was accomplished not alone for the advantage, of those individuals who might be charged with offenses but also for the benefit of the people of the State. The bar, the courts, society in general, as well as each private person, were to be specifically informed concerning acts which are criminal and the nature and degrees of particular crimes as defined. (People v. Knapp, 206 N. Y. 373, 380; People v. Ingber, 248 N. Y. 302, 307.) Killing is not common-law murder unless the victim dies within a year and a day. According to common-law definition, time is one of the elements. Since the crime of murder as defined with exactitude in the Penal Law does not include any limitation as to time, for a court to introduce a limitation would result in a plain defiance of section 21 of this act which directs that it be construed according to the fair import of [its] terms.” An indictment will, therefore, he against one who commits murder, even though death does not result within the arbitrary span of time which was fixed by the common law. The question whether the act constitutes murder is necessarily one of fact. An obscure or a merely probable connection between an assault and death will, as in" every case of alleged crime, require acquittal of the charge of any degree of homicide. The proximate relationship must, of course, be clearly proved beyond a reasonable doubt. A duty rests upon the trial judge so to instruct the jury and, in the absence of such instruction or in the event of failure of the necessary proof, a similar duty would rest upon a court of review to reverse a judgment of conviction.

The judgment of conviction should be affirmed.

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

Judgment affirmed.


text:
    In the Matter of Ira Haupt et al., Copartners under the Firm Name of Ira Haupt & Co., Appellants, against Morris Rose, Respondent.

      (Submitted May 21, 1934;
    decided July 3, 1934.)

      Harold F. Levin and S. Harry Eilenberg for appellants.

      Harry T. Zucker and Sydney J. Schwartz for respondent.
   Crouch, J.

As part of the contract between Haupt & Co., stockbrokers, and Rose, a customer, there was a provision that any controversy between them should be determined by arbitration. On June 29, 1933, Haupt & Co. demanded that a controversy which had arisen should be submitted to arbitration. Upon failure of Rose to proceed in accordance with the demand, a motion was made for an order directing arbitration and staying the trial of an action theretofore commenced by Rose against Haupt & Co. The motion was denied at Special Term and the order was affirmed by the Appellate Division. The ground for denial was that Haupt & Co. had waived their right to insist upon arbitration by electing to proceed at law. The point seems to be that when Rose invited Haupt & Co. to litigate the controversy by action, Haupt & Co. first accepted the invitation, and then by this motion attempted to repudiate it. The question is one of election. The controversy arose early in 1932. Rose made a demand which was refused by Haupt & Co. Then followed some talk about compromise. Thus was consumed upwards of a year. Thereafter the sequence of events was as follows: The summons and complaint in Rose v. Haupt & Co. were served on April 5, 1933. On April 24, 1933, the parties entered into a stipulation extending the time of Haupt & Co. to move or answer. On May 5, 1933, Haupt & Co. moved to dismiss the complaint and in the alternative separately to state and number. This motion, returnable on May 10, 1933, was adjourned to May 17, 1933, and on that day submitted for decision. On May 30, 1933, the decision was handed down, denying the motion to dismiss the complaint, but granting the motion separately to state and number. On June 28, 1933, Rose served an amended complaint separately stating and numbering his alleged causes of action. On the following day Haupt & Co. made the demand for arbitration, and on July 5, 1933, moved under the Arbitration Law (Cons. Laws, ch. 72).

We are unable to see that there was such delay in acting or such -unequivocal act by Haupt & Co. as to constitute an election and waiver. Rose claimed to be the aggrieved party; the offensive lay with him. By tradition a defendant may ordinarily let a sleeping dog he until he is in danger of being bitten; though he may play with the danger too long. (Nagy v. Arcas Brass & Iron Co., 242 N. Y. 97.) When Rose served his complaint, Haupt & Co. was entitled to have its sufficiency tested and, in any event, to have it framed as required by law before an imperative duty arose to make an election. The choice of tribunal at that point rested with Haupt & Co. By its answer it might accept or decline the invitation tendered by Rose. In Matter of Zimmerman v. Cohen (236 N. Y. 15) the invitation was held to have been accepted because no right to arbitrate was asserted by the answer or otherwise, and because for a period of two years thereafter steps in the ordinary manner were taken in the action. In Matter of Hosiery Mfrs. Corp. v. Goldston (238 N. Y. 22) the right to arbitrate was asserted by answer, followed by an application under the Arbitration Law; thereby, it was held, the plaintiff’s invitation had been declined. Here Haupt & Co., following the service of the amended complaint, moved promptly and before its time to answer expired. The only election made by Haupt & Co. was to proceed by arbitration.

The orders should be reversed and the motion granted, with costs in all courts.

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

Orders reversed, etc.


author: Crane, J.

text:
    In the Matter of Mildred V. Everson, Appellant, against Order of the Eastern Star of the State of New York, Respondent.
    (Argued May 20, 1934;
    decided July 3, 1934.)

      Louis S. Posner for appellant.

      Edward L. Steckler for respondent.
   Crane, J.

The Order of the Eastern Star is a fraternal organization. It consists of a large number of chapters throughout the State, the central governing body being the grand chapter, constituted of the grand matron and other grand officers, representatives and delegates from the various chapters. The grand chapter meets annually in October. In the intervals between the annual three-day sessions of the grand chapter the grand matron is virtually in supreme command. The constitution says she is “to exercise all Executive and Judicial functions of the Grand Chapter when it is not in session.”

The grand matron, Most Worthy Amy Bishop Crocker, in her annual report for 1928-1929 criticised certain members. On motion this portion of the report was deleted as transcribed. A later motion was made “ that the minutes as transcribed be adopted and included in the proceedings.” So much confusion apparently was taking place in the meeting, caused by both these motions, that it is impossible to determine from the record whether the later motion was carried.

When the printed book of the proceedings of the 1929 grand chapter session appeared it contained the criticisms of the Grand Matron Crocker; they had not been deleted. The newly elected grand matron, Maud R. Sturges, in August of 1930 had ordered 4,000 copies printed of the stenographic minutes of the 1929 proceedings. This she had full authority to do and if there be any blame for errors or mistakes it is entirely hers. The Commercial Press of Elmira, N. Y., did the printing at a cost of $4,570.77 which was concededly a legal charge against the order. To the amount of the bill there was no objection; that the order was bound to pay it as an authorized debt is admitted; that the officers were charged with the duty of certifying to its correctness and validity is apparent.

Mildred V. Everson, the petitioner-appellant, had at one time been grand matron of this Order of the Eastern Star. When in 1929 Maud R. Sturges was elected grand matron, the petitioner Mildred V. Everson was appointed chairman of the printing committee. Her term of office expired with the annual convention in 1930. Sometime after the end of her term, she certified to the correctness of the bill of the Commercial Press; that is, she certified that the bill was due, that it was a legal charge on the order and that it should or must be paid. The printer could not get its money without her signature unless it resorted to the courts of law, as it had in fact done. The constitution, section 27, article I, provides: Expenditures on account of the Grand Chapter shall be made only by consent or ■authority of the Grand Chapter, and payment of any bill for printing shall not be made until it is approved by a majority of the printing committee.”

All these matters up to this point are not in question. Complaint is made that the petitioner should not have certified the bill because the matter which the printer was ordered to print contained some criticisms of a few members. The printer had nothing to do with this; it printed according to order, and as the order came from one in authority the cost was a legal obligation. How in honor or in performance of their duties could the printing committee have refused to approve this bill; it could not be paid by the treasurer without the approval of the committee. The fault lay with the grand matron, not the printing committee. If she ordered incorrect minutes to be printed she alone is responsible. The printing committee approved after the order was given; the placing of the order did not need its approval; the committee were to certify to the legal validity of the bill not to the accuracy or truthfulness of the minutes printed.

For this participation in the payment of an honest debt Mildred V. Everson has been suspended from the order for a year and fined two hundred and" fifty dollars.

The charges made against her in writing and served as required by the constitution specify that at the annual session of the grand chapter held in 1929 it was resolved to delete all personalities from the minutes as contained in the report of the grand matron, Amy Bishop Crocker; that contrary to this resolution a certain book was printed by the Commercial Press containing the deleted matter; that Maud B. Sturges, the grand matron, authorized this printing and gave the order for it, and that the bill was approved by the grand matron, Mildred V. Everson and Anna Beed Farrington, the printing committee; that the bill was paid after suit had been commenced in the Supreme Court of New York State; that Mildred V. Everson in approving the bill constituted a ratification of the printing and an admission that the Commercial Press had performed its duty and was entitled to $4,570.77 and the order obligated to pay it.

After a trial or hearing as provided by the rules of the order an appeal was taken from the decision of suspension and fine to the commissioners of appeal.” They could not justify the reasons given by the trial commissioners or find that the charges specified were sustained or, if sustained, were sufficient but did abide by the result on grounds of their own given as “ In substance, she violated the spirit and letter of the said section by certifying to the Grand Chapter that the obligation incurred by Mau,d E. Sturges was a legal and proper obligation with respect to the relationship between Maud E. Sturges as agent and the Grand Chapter as Principal. This we held to be detrimental to the best interest of the Order, and an Eastern Star offense.”

In the first place, no such offense was specified or charged nor was this the finding of the trial commission. The offense charged was creating an obligation with respect to the relationship of the creditor, the Commercial Press. The appeal commissioners conceded that Maud E. Sturges was the general agent of the grand chapter of the order and found as follows: Consequently, it is clear that the obligation of the Grand Chapter for the services performed by the Commercial Press became a valid and binding debt from the Grand Chapter to the said Commercial Press upon the completion of the printing and distribution of the said transcript in accordance with the instructions of the said general agent, Maud R. Sturges. It follows, therefore, that the trial commission were in error when they stated in their decision that the subsequent approval of the invoice by the defendant-appellant caused the Order to pay the sum of $4,570.77 with interest. The approval by the defendant-appellant in no way affected the obligation of the Grand Chapter to Commercial Press.” With this finding the charges against petitioner should have been dismissed, The creation of this obligation was the charge specified, not the approval of the grand matron’s action in printing the full instead of the deleted minutes nor her conduct as grand matron in respect to her relationship to the order. Even in these membership bodies a member cannot be charged with one offense and tried for another without his consent or acquiesence. (Matter of Haebler v. N. Y. Produce Exchange, 149 N. Y, 414, 428; People ex rel. Johnson v. N. Y. Produce Exchange, 149 N. Y. 401; Polin v. Kaplan, 257 N. Y. 277, 282; Young v. Eames, 78 App. Div. 229; 181 N. Y. 542; Richards v. Morison, 229 Mass. 458.)

And secondly, taking the reasons assigned by the appeal commissioners, we cannot see that the printing committee, in approving a printing bill concededly due, and which could not be paid by the treasurer without such approval, in so doing sanctioned the attacks contained in the minutes. This is distorting the duties and acts of such committee under the constitution — drawing them out a little bit too fine for all purposes except possibly internal friction and disputes. The position of the respondent is plainly stated in its brief: By refusing to approve the bills she could have expressed her disapproval of the broadcasting of scandalous attacks on fellow members, By approving the bill she approved the attacks,” The constitution and rules of the order justify no such conclusion.

The grand matron ordered the printing of the minutes; she had full authority in the matter; the printing bill was a legal obligation of the order which it was bound legally and morally to pay and could not without the signatures of the printing committee. Would they have been justified in refusing to sanction the payment of the debt? We say no.”

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

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

Ordered accordingly.


text:
    George V. Grainger, as Trustee under the Will of Nanette Weber, Deceased, Appellant and Respondent, v. Hedwig Engel et al., Defendants, and The Chase National Bank of the City of New York, as Trustee, et al., Respondents and Appellants.
    (Submitted May 25, 1934;
    decided July 3, 1934.)

      George V. Grainger, in person, for plaintiff, appellant and respondent.

      Harrison Tweed, Howell D. Boyd and Wilber Stammler for the Chase National Bank of the City of New York, defendant, respondent and appellant.

      Harold Pomerantz for Ottilie H. Lohmann, defendant, respondent.
   Crane, J.

Nanette Weber died in November, 1911, leaving a will in which after malting a few money bequests provided in the eighth paragraph as follows:

" Eighth. I give, devise and bequeath to my friends, William. Engel, Harry E. Simmons and Lewis S. Goebel, Jr., my house and lot of land No. 189 Bedford Avenue, Borough of Brooklyn, City of New York, in trust, nevertheless to take charge of the same, collect the rents, issues and profits thereof, and out of the same to pay all interest on mortgages, taxes, assessments, insurance premiums, water rates and all such sums as may be necessary to keep the buildings in proper condition and repair, and such sums as may become necessary to comply with any and all orders of the Tenement House Department, Building Department, or any other Municipal Departments of the City of New York, in respect to any of the buildings and upon the further trust to pay to my sister Henrietta Brenner nee Seybold of Cannstatt, Wurtemberg, a yearly annuity of two thousand (2,000) marks, payable in four instalments of five hundred (500.) marks each, in January, April, July and October in each year, and to be sent to her by United States Money Order. And upon the further trust immediately after the death of my said sister to pay over the whole of the said net income, rents, issues and profits to my daughter Emily Laura Hoffbauer monthly during the minority of her daughter Ottilie Hoffbauer. And immediately after the said Ottilie Hoffbauer shall arrive at the age of twenty-one years to convey the said house and lot of land to my said daughter Emily Laura Hoffbauer and her daughter Otillie Hoffbauer in equal shares. Should either of them be deceased at the time of my death or before the final division of my estate then the share which would have gone to the one so being deceased if living shall go to the survivor of them.”

The trustees named in this paragraph have been succeeded by the plaintiff, who has taken possession of the trust property and is exercising all the duties and functions pertaining to that position.

When this will was executed Henrietta Brenner, the beneficiary, was sixty-four years of age, and the granddaughter Ottilie was aged six years. Now Ottilie has arrived of age and Henrietta Brenner, the grand aunt, is still living.

In our interpretation of this will the testatrix appointed trustees to take title to and possession of 189 Bedford avenue, Brooklyn, N. Y., to collect the rents thereof and out of them to pay to her sister Henrietta Brenner a yearly annuity of two thousand, marks, payable in four installments of five hundred marks each in January, April, July and October in each year and to be sent to her by United States money order. This trust and trust duty continues during the lifetime of Henrietta; it does not terminate upon the maturity of the granddaughter Ottilie.

This is the one question apparently which was litigated in this action. The defendants claimed below and still maintain that when Ottilie arrived at twenty-one the trust terminated and the title vested in Emily Laura Hoffbauer and her daughter Ottilie charged, however, with the payment to Henrietta of her yearly annuity. The testatrix did not so state; on the contrary, she declared it to be her intention that the trustees she named were to take the property, collect the rents and pay her sister therefrom until Henrietta died. We see no justification for changing this plain provision. The sentence in the eighth paragraph beginning, "And immediately after the said Ottilie Hoffbauer shall arrive at the age of twenty-one years to convey,” etc., must be read in connection with the other portions of the paragraph. It is evident, considering the age of Henrietta at the time the will was made, sixty-four, and the age of Ottilie, six, that the testatrix expected in the usual course of events that by the time the granddaughter became twenty-one, Henrietta would have passed away. Such, however, is not the case, but the unexpected cannot change the will. When Henrietta does die, the title will pass to the mother and daughter by the termination of the trust.

The only remaining question before us is the nature of the actiomwhich the plaintiff has brought. Emily Laura Hoffbauer, the daughter of the testatrix, has mortgaged her interest in the estate, which mortgage has passed to the Chase National Bank of the City of New York. The latter, as defendant here, immediately took the position which it now maintains that the trust terminated when Ottilie reached twenty-one and that title to 189 Bedford avenue is now in Emily. For this reason the substituted trustee brought this action to settle his title and duties. Was he through or did he continue as trustee?

After alleging all the facts the plaintiff in his prayer for relief asked that it be adjudged that the mortgage did not affect the rights and interests of the trustee nor his interests in 189 Bedford avenue and that those rights remain as if the mortgage had not been made. He somewhat complicated the situation by asking that the Register of Kings county be directed to mark the records as not affecting his interests or title in the said property. The trial judge as well as all parties treated this action as one asking for a declaratory judgment for a construction of the will and a determination of the respective rights of the plaintiff and the mortgage assignee. The answer of the Chase National Bank stated in the thirteenth paragraph that the will would have to be construed by the court and in the fifteenth paragraph set forth the construction which it claimed to be the right one, viz., that when Ottilie Hoffbauer attained twenty-one, title vested immediately in Emily Laura Hoffbauer and Ottilie Hoffbauer, share and share alike as tenants in common. Also by this defendant’s proposed finding of fact it asked the court to find in accordance with this allegation in the fifteenth paragraph of its answer.

Thus it is clear that the action was brought for a declaratory judgment, was considered such by all the parties and was submitted to the court for its construction of the will. Accordingly the judgment of the trial court was as follows:

Judgment.
^ i|t ij?
Ordered, adjudged and decreed, that the directions to the Trustees to convey after Ottilie Hoffbauer Lohmann (formerly Ottilie Hoffbauer) shall have arrived at the age of twenty-one years, imports futurity not only with respect to the payment of income but also with respect to the devise over, and that the rights and interests of Emily L. Hoffbauer and Ottilie Hoffbauer Lohmann (formerly Ottilie Hoffbauer) under paragraph 8th of the Last Will and Testament of Nanette Weber, deceased, were and are contingent and survivorship at the time of the death of Henrietta Brenner is an essential condition to the vesting of .the corpus or principal of such Trust Estate, * * *.”

The Appellate Division considered the suit as an attack upon the validity of the mortgage and as if the plaintiff had asked to have it declared void for any purpose. The memorandum opinion states that the mortgage is good whether the interest of Emily be vested or contingent, as even a contingent interest in real estate may be mortgaged; the mortgage was, therefore, no concern of the plaintiff and his action to have it canceled as a cloud upon his title must be dismissed. No one questioned Emily’s right to mortgage her interest even it it were contingent; what all the parties went into court for was to have the will construed and get a decision as to whether Emily’s interest was vested or contingent, whether the trustee’s title continued until Henrietta’s death, at which time it would be conveyed to and vest in mother and daughter or the survivor. This the court determined at the specific request of the parties, as above stated. We think the Appellate Division was mistaken as to the nature and purpose of the action.

The parties have stipulated to waive costs in this court and to bear equally the printing disbursements. We adopt and abide by their agreement.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

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

Judgment accordingly.