author: Lehman, J.

text:
    Stelles Markantonis et al., Respondents, v. Madlan Realty Corporation et al., Defendants, and Maylayne Corporation, Appellant. Maylayne Corporation, Appellant, v. Stelles Markantonis et al., Respondents.

      (Argued April 27, 1933;
    decided July 11, 1933.)

      Alexander S. Andrews for appellant.

      Jay Leo Rothschild and A. Arthur Giden for respondents.
   Lehman, J.

The plaintiffs in the first entitled action leased part of a building which was mortgaged to the Union Dime Savings Bank. The lease, by its terms, would expire in 1937. In April, 1932, the mortgagee brought an action to foreclose the mortgage. The plaintiffs were not parties to that action. A receiver was appointed, and upon his motion the plaintiffs were directed to attorn to him and to pay him a reasonable rental per month for the use and occupation of the premises. The tenants upon that application filed an affidavit stating that they had deposited with the landlord $25,000 to be held as security under the lease, and that their business had so decreased that they could not pay the stipulated rental which was more than the occupational value ” of the premises. The affidavit states “ we concede that by Rule 175 of the C. P. A. we may be compelled to attorn to the Receiver and to pay the reasonable value of the premises,” but the tenants -urged that the reasonable compensation to be paid for use and occupation should be fixed at $1,000 per month, or a little less than one-half the rental, and that since the application of the receiver constituted a disaffirmance of the lease, the security deposited should be repaid to them. An order was thereupon entered fixing the reasonable value of the use and occupation of the premises at the sum of $1,000 per month, as suggested by the tenants, and directing the tenants to pay this sum to the receiver as occupational rent. Promptly thereafter the tenants obtained leave to bring an action against the receiver to determine the Receiver’s rights in and to the sum of $25,000 deposited as security.” The parties defendant in that action were the receiver, the mortgagor, the mortgagee and a surety of the lessor. No others had any interest at that time in the deposit. Before judgment was entered in that action, a judgment of foreclosure and sale was entered in the foreclosure action, and a sale was had. The mortgagee Union Dime Savings Bank purchased the premises at that sale, and then conveyed the premises to Maylayne Corporation. The purchaser then sought to intervene in the action for the determination of the tenants’ right to the security. Its motion was denied. Then the purchaser brought a second action for rent under the lease against the tenants and for the delivery to it of the security.

Unless there has been some prior adjudication, binding upon the_ Maylayne Corporation, that the tenants’ lease is at an end, it seems clear that the Maylayne Corporation is entitled to enforce the provisions of the lease. The tenants were not parties to the foreclosure action. The sale could not terminate their lease. The purchaser at a foreclosure sale purchases all the right, interest and title of the mortgagor in the foreclosed premises, with all the mortgagor’s rights against tenants under leases which have not been terminated by foreclosure and sale. The tenants still remain liable for rent and the purchaser may maintain an action for such rent. (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285.)

A receiver appointed in a foreclosure action is entitled to receive all the rents and profits, which are an incident to ownership of the property, in advance of and pending a judgment by the court in the foreclosure action and a sale which transfers ownership to the purchaser. The court cannot, however, pending such transfer of ownership terminate the rights of the mortgagor under leases made by him, or the rights of tenants to the use and occupancy of the premises for a stipulated rental, so long as their lessor’s title has not been divested. That is true even where the tenants are parties to the action. (Prudence Co. v. 160 W. 73d St. Corp., 260 N. Y. 205.) A fortiori that is true where the tenants are not parties to the action.

At the time when the receiver applied to the court for an order to compel the tenants to attorn to and to pay him an occupational rent, the law on these points was not entirely clear. At Special Term, in accordance with a multitude of decisions in intermediate courts, orders were made compelling a tenant to pay “ occupational rent ” to a receiver where the tenant had paid a stipulated rental in advance or where the stipulated rental was less than the reasonable value of the use and occupation of the premises. We had indicated in Klasko Finance Corp. v. Belleaire Hotel Corp. (257 N. Y. 1, 4) that we did not approve these decisions, and in Prudence Co. v. 160 W. 73d St. Corp. (235 App. Div. 543; affd., supra) the Appellate Division accordingly held that, in spite of earlier precedents in that court, a person in possession of the mortgaged premises or part thereof under a contract made with the mortgagor could not be compelled to pay for such use and occupation any sum other than that stipulated in the contract. That decision was rendered within two weeks after the order made by Special Term in the present litigation, but no appeal was taken from that order.

Even so, the order was not conclusive upon any persons who were not parties to the application of the receiver. Certainly the receiver did not represent the landlord-mortgagor, and the landlord-mortgagor was not a party to that application. It had no right to be heard upon it, and could not take an appeal therefrom, and the court did not have any jurisdiction over a lease made by it. At least as to it the order requiring the tenants to pay an occupational rent was void. Therefore, even assuming that the application of the receiver constituted an attempt to disaffirm, the order of Special Term granting such application could not, as against the landlord, make such attempted disaffirmance valid.

In truth, however, I can see no ground for holding that even if the order were conclusive upon the landlord, it would constitute a disaffirmance of the lease. So far I have assumed both that the court had no power under our decision in the Prudence Company case to make an order fixing an occupational rent, and also that the application of the receiver and the order of the Special Term constituted a disaffirmance of the lease, in so far as that order was binding upon the parties to the application. I find no basis for either assumption. Even under our decision in the Prudence Company case the receiver would be entitled to the rents and profits which were an incident to ownership of the premises. We held only that a receiver could not require a person in occupation of the premises to pay to him any sum either for rent or for use and occupation, beyond such sums as were in their nature rents and profits of the premises to which the owner would have been entitled. It may be that where a tenant is required to pay for use and occupation a sum beyond the rents reserved in the lease to him, the necessary effect of an order requiring it to pay for such use and occupation is to free it from further obligation under its lease ” and constitutes a disaffirmance of the lease. (Monro- King and Gremmels Realty Corp. v. 9 Avenue-31 Street Corp., 233 App. Div. 401, 403.) That is not the case here, for the receiver has merely asked that the tenant be compelled to vacate the premises or to pay the reasonable value of the use and occupation of the premises, not exceeding the rent fixed in the lease, and the order permitted the continued occupation by the tenant of such premises for a sum less than one-half of the reserve rent. Here nothing has been done, or even attempted, which deprives the tenants of any rights which they possessed under the lease. Their right to occupation under the lease was recognized and they were required to pay for that use and occupation, but during the pendency of the action a favor was extended to them permitting them to remain in occupation for a sum less than the amount fixed in the lease. The sale under foreclosure judgment did not terminate leases made to tenants who were not parties to the foreclosure action, and the purchaser at such sale acquired the title and ownership previously vested in the mortgagor, including the same right to enforce the lease which the mortgagor previously had. (Metropolitan Life Ins. Co. v. Childs Co., supra.)

That, however, does not in itself determine the questions which the parties seek to present upon the present appeals. The courts below have rested their decision that the purchaser at the foreclosure sale acquired no rights under the lease, rather upon the adjudication that the lease was at an end, made in the action brought by the tenants for the recovery of the deposit under the lease, than upon the force and effect of the order made upon the application of the receiver appointed in the foreclosure action. Both mortgagor and mortgagee were parties to the action for the return of the security, and the judgment for the return of the deposit is, as to them, a conclusive adjudication, even though erroneous, that the lease was terminated. The question, then, is whether that adjudication is binding upon the Maylayne Corporation. Consideration of that question requires a careful analysis of the proceedings in that action. If the judgment in that action had been entered before the sale in the foreclosure action, I assume that Maylayne Corporation would never have acquired any rights to the deposit. Though no Us pendens was filed in the action for the deposit, a judgment that no valid lease was subsisting would have been binding upon the purchaser, at a subsequent foreclosure sale, at least where, as in this case, the purchaser was the mortgagee, and a party to the prior adjudication. The difficulty is that no judgment was entered in the action for the deposit at the time when the sale was held under a judgment of foreclosure which occurred on August 9th. Prior thereto, on July 26th, a motion was made by the tenants to strike out the answer of the mortgagee on the ground that there was no real defense to the complaint, and that motion was granted on the consent of the mortgagee and an order was entered on August 9th, the date of the sale. At the time the motion was made the mortgagee had no right to the deposit. It acquired that right, if at all, only by the subsequent purchase on the foreclosure sale. When the mortgagee purchased the property at the foreclosure sale, it acquired the title of the mortgagor, and the order striking out the answer of the mortgagee could certainly not affect the title of the mortgagor. On July 28th a similar motion had been made against the mortgagor, but that motion was granted only on August 18th, six days after the mortgagee had received a deed of the property. On August 18th the mortgagor had no right to the deposit; that had passed to the purchaser, and, therefore, the order striking out the mortgagor’s defense to the action for the deposit could not affect the title of the purchaser of the premises. On September 1st the Maylayne Corporation purchased the premises from the Union Dime Savings Bank and promptly moved to intervene in the action for the deposit, in which no judgment had at that time been entered. Maylayne Corporation was the only person then entitled to the deposit. There had been then no adjudication binding upon it that the lease was terminated, but a motion to intervene in an action is from its nature not a special proceeding but a step in a pending action and an order granting or denying such a motion is not appealable to this court without permission of the Appellate Division.

When Maylayne Corporation brought an independent action for rent and for the deposit given under the lease, a judgment had been entered adjudicating that the lease was at an end. Since, however, Maylayne Corporation was not bound by that adjudication, we can find no valid reason for the dismissal of the complaint. The courts below seem to have assumed that the purchaser at a foreclosure sale acquires the title of the mortgagee, "and that since the mortgagee had consented to the entry of an order striking out its answer in the action for a deposit, the mortgagee could not by buying in the property at the foreclosure sale obtain any rights under the lease. That does not follow, for the mortgagee acquired the title of the mortgagor when it bought in the property, and since the mortgagor at that time had a right to enforce the lease the mortgagee acquired the same right and transferred it to Maylayne Corporation. It follows that the appeal from the order denying leave to intervene should be dismissed with costs, and the orders affirming the dismissal of the complaint and the denial of a motion for an injunction pendente lite should be reversed with costs in all courts. The certified questions should be answered in the affirmative.

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

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Max Friedman, as Administrator of the Estate of Milton Friedman, Deceased, Respondent, v. The Board of Education of the City of New York, Appellant.
    (Argued June 12, 1933;
    decided July 11, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and Edward A. Gobel of counsel), for appellant.

      Edwin C. Morsch, Edwin B. Goddin and Arthur L. Rieder for respondent.
   Lehman, J.

Plaintiff’s intestate, a boy in his fifteenth year, was crushed while riding on the platform of an ash hoist or elevator in a school house in the city of New York. The question presented upon this appeal is whether the accident occurred through the negligence of the Board of Education in the performance of its statutory duties.

The accident occurred in the evening when the building was closed. The Board of Education employed or appointed a “ custodian engineer ” to keep the building warm and clean. He was required to keep up the furnace fires and to remove the ashes. The ash hoist was in bis charge. In the performance of his duties the custodian engineer ” had the right to employ assistants and helpers. A" man was so employed by the custodian éngineer,” and was required to reside in the building. After school hours, when the building was closed, he was the sole custodian of the building, and, as such, in charge of the building.

Plaintiff’s intestate was not a pupil of the school. He came there, after the building was closed, at the invitation of the hired custodian. While playing or, perhaps, while assisting that man, in his work of removing ash cans he sustained the injuries resulting in his death. It is said that the accident would not have occurred if the ash hoist had been equipped with a device generally used for the protection of those operating similar ash hoists.

Maintenance of the school buildings is a duty imposed by law upon the Board of Education. For injuries occasioned by negligence in the performance of its duties the Board of Education is hable. Though it must perform some of these duties through its agents, it cannot escape liability for negligence upon the plea that the doctrine of respondeat superior does not apply to it. A corporate responsibility is placed by law upon the Board for dereliction of duty imposed upon the Board, even though that duty be a continuing one, and in its performance requires the intervention of agents or employees. (Lessin v. Board of Education, 247 N. Y. 503.) If plaintiff’s intestate was lawfully upon the ash hoist and his death was due to negligence in failing to provide the ash hoist with proper equipment, then the plaintiff has established a cause of action.

No witness saw the accident. How it occurred rests upon doubtful inference. Perhaps it occurred through negligence by the boy himself. Assuming, for the moment, that nevertheless an inference might be drawn that the accident occurred because the Board of Education failed to exercise reasonable care in the maintenance of the hoist, the question remains whether the Board of Education owed any duty to the plaintiff’s intestate. Though the engineer custodian ” had the right to employ helpers, a helper so employed had no right, except perhaps in an emergency, to employ others to help him. Certainly there was no right in any person to employ children who might require special protection.

The Board of Education, at the hour of the accident, had excluded the public from the building. It had given no authority, express, implied or apparent, to invite or even permit others to come into the premises. Though plaintiff’s intestate and other boys may have been invited into the building by the custodian helper, there is nothing to show that the Board of Education had knowledge or notice that such invitations were being held out to boys. Not only was no permission or invitation extended by any person acting for the Board, but the boys had no reason to believe that the helper had a right to extend such permission or invitation. The defendant owed no duty to persons introduced, under such circumstances, into closed premises. It was bound to act with care towards all to whom it owed a duty of care. It had no reason to anticipate that when the school building was closed and locked, children would be permitted or invited to operate a cellar ash hoist by a custodian and the custodian acting for himself and without authority from it, and to them it owed no duty of care.

The situation was quite different in the case of Ferro v. Sinsheimer Estate, Inc. (256 N. Y. 398, 402), upon which the plaintiff relies. There the invitation was extended by the superintendent of the building invested by the defendant with general authority and full control of the building.” Here the invitation or permission was extended by a person in charge of the building only as custodian under a duty to exclude the public.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


text:
    Bertha St. Andrassy et al., Respondents, v. James D. Mooney, Appellant, Impleaded with Another.

      (Argued June 6, 1933;
    decided July 11, 1933.)

      James A. Nooney and Ralph O. L. Fay for appellant.

      L. H. Schleider and J. M. Cohen for respondents.
   Lehman, J.

The plaintiffs have recovered judgments for injuries suffered in a collision between a taxicab in which they were riding and an automobile owned by the defendant Mooney and driven by a chauffeur in his employ. The defendant Mooney does not on this appeal question that the evidence is sufficient to sustain a finding that the collision occurred through the negligence of his chauffeur, but urges that the chauffeur was driving the automobile without his employer’s authority or permission.

Proof of ownership is sufficient to establish prima facie that a custodian operating the car is engaged in the owner’s service. (Ferris v. Sterling, 214 N. Y. 249.) From such proof “ a presumption arises that it was in use for his benefit, and on his own account.” (Norris v. Kohler, 41 N. Y. 42, 44.) The presumption * * * however, remains only so long as there is no substantial evidence to the contrary.” (Potts v. Pardee, 220 N. Y. 431, 433.) Here the evidence shows conclusively that the accident occurred in the evening when the chauffeur was using the car to take his own friends for a drive. He was using the car for his own purposes. Under these circumstances, any inference that the car was in the use of the owner, for his benefit and on his account is excluded. Responsibility on the part of the defendant for the operation of his automobile here is, however, predicated, not on the ground of agency but upon the statutory liability of an owner of a motor vehicle for damages resulting from the negligent operation of his automobile by “ any person * * * operating the same with the permission, express or implied, of such owner.” (Vehicle and Traffic Law; Cons. Laws, ch. 71, § 59.)

We have held that since the enactment of the statute imposing this new liability upon the owner of a motor vehicle, the owner is presumptively responsible for the manner in which it is driven even though it appear that the vehicle was not being used in his service or for his business, for the inference of permission is not excluded. None the less, the presumption of such responsibility also disappears where upon all the evidence it appears that no permission was given. (Chaika v. Vandenberg, 252 N. Y. 101. Cf. Fluegel v. Coudert, 244 N. Y. 393.) The burden of proof is always on the plaintiffs. They have met that burden in the first instance by the presumption arising from proof of ownership. The operation of a motor vehicle without the consent of the owner is unlawful, and in the absence of explanation a logical inference of lawful operation with the owner’s consent may be drawn from the possession of the operator. The defendant destroys the inference and the presumption resting thereon when he shows the true facts. If the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury. If the jury discards that evidence then the presumption of responsibility still remains and justifies a finding against the defendant. (Orlando v. Pioneer B. T. Supply Co., 239 N. Y. 342.) Here the defendant, his wife and the chauffeur, who was discharged after the accident, have all testified that no consent was given, impliedly or expressly, and that at the time of the accident the chauffeur was using the motor vehicle unlawfully and in defiance of his employer’s commands. That testimony was not contradicted, but the trial judge nevertheless submitted to the jury the question of its credibility. The judgment can be sustained only if the jury could reasonably discard that testimony.

It is said that the testimony of the defendant and his wife is interested and discredited. Interested it may be, but we find no grounds upon which it may be discredited. It is probable, and the claim that it contains inconsistencies and improbabilities and contradictions, is without substance. Indeed, the surrounding circumstances speak forcefully in its support, and it is corroborated by the testimony of the discharged chauffeur — even though that testimony may not be itself conclusive. It is said that in his original answer, amended at the trial, the defendant admitted that the motor vehicle was being operated with the consent of the defendant at the time of the accident. If such admission was intentionally made, then the jury could reasonably discredit the testimony of the defendant and his witnesses. In fact the defendant admitted only the allegation of the complaint that “ on or about ” the date of the accident the chauffeur operated the automobile with the defendant’s consent. That allegation is concededly true. The dispute is only as to whether the chauffeur operated the automobile with like consent at the particular time on that date when the accident occurred, and that was denied by the defendant in his original answer, as well as at the trial.

The only conclusion that can be drawn reasonably from the uncontradicted evidence is that the chauffeur at the time of the accident operated the car unlawfully and without permission.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


text:
    In the Matter of Helene Smidt, Appellant, against Joseph V. McKee, as Acting Mayor of the City of New York, et al., Respondents.

      (Argued May 22, 1933;
    decided July 11, 1933.)

      Leslie D. Dawson and E. DeT. Bechtel for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Vine H. Smith and J. Joseph Lilly of counsel), for respondents.
   Lehman, J.

Prior to May, 1931, Lexington avenue from a point 100 feet south of Forty-first street to a point 100 feet north of Thirty-eighth street was included in a residence district upon the “ Use District Map which had been adopted in accordance with the provisions of the Greater New York Charter (Laws of 1901, ch. 466) and constituted part of the Building Zone Resolutions of the city. On May 22d, 1931, a motion was presented at a meeting of the Board of Estimate and Apportionment to change the map so as to bring this part of Lexington avenue within the boundaries of a retail district. The minutes of the meeting show that fifteen votes were cast in favor of the motion and one vote was cast against it, and the motion was then declared adopted. An abstract of the minutes was published in the City Record. On the face of the records it thus appears that the property affected may now be used for retail business.

Prior to the vote taken at the meeting of May 22d, 1931, all the requirements of the Charter and the Building Zone Resolutions of the city of New York, preliminary to action upon a resolution for the amendment of use district or resolution, had been, complied with. The petitioner and other owners of property immediately in the rear of the Lexington avenue- frontage had filed protests. The Board of Estimate and Apportionment could pass the resolution, in spite of such protests; but if protests were presented by the owners of twenty per centum or more of the frontage proposed to be altered, or by the owners of twenty per centum of the frontage immediately in the rear thereof, or by the owners of twenty per centum of the frontage directly opposite the frontage proposed to be altered’ such amendment shall not be passed except by a -unanimous vote of the board.” (Greater New York Charter, § 242-b, amd. L. 1924, ch. 295.)

The petitioner, claiming that the owners of more than twenty per centum of the frontage immediately in the rear ” of the frontage proposed to be altered had presented protests and that, therefore, the amendment could not be passed except by unanimous. vote, has asked for a peremptory order of mandamus to compel the correction of the minutes of the meeting so as to show that the amendment was not adopted. No issue of fact is raised to the allegations of the petition. There is, apparently, no dispute in regard to the number of protests which were presented. The only dispute is as to the meaning of the words “ frontage immediately in the rear ” of the frontage proposed to be altered.

The language of the statute, at least when applied to a situation where the proposed amendment is restricted to one end of a long block, is inexact; but the intention of the Legislature to create a single, exact standard by which the per centum of protests shall in all cases be measured is clear. The courts must construe the language of the statute creating that standard to resolve uncertainties; the courts cannot create varying standards of measurement even to meet conditions which perhaps the Legislature did not envisage, when the Legislature has provided that a single standard shall in all cases be used. The Legislature has provided that the frontage ” shall constitute a linear standard of measurement. In this and similar statutes the word frontage ” denotes the line of property on a street. It excludes as a standard both the area and the length of the interior lines of the property of protesting owners. Here there is no uncertainty or room for construction. Uncertainty arises only from doubt as to the length of street frontage which may be included in the frontage immediately in the rear ” of the “ frontage proposed to be altered.”

Argument may be made that “ frontage immediately in the rear ” includes only the frontage of the plot, in one ownership, which is contiguous to the property “ proposed to be altered ” even though such plot be only a strip a few inches or feet in width. Opposing argument may be made that the frontage included should be fixed, regardless of accident of ownership, by some other test. Several possible constructions have been suggested. Certainly the owners of the plots immediately outside of and adjoining the boundary line of the property which it is proposed should be altered, are the parties who will be most directly affected by such alteration. The Legislature may, reasonably, have intended that such alteration should be made only by unanimous vote over the protests of the owners of twenty per centum of the frontage of the property most directly affected. We conclude that the Legislature intended that the frontage of such plots, in single ownership, whether such frontage be large or small, should be included in the “ frontage immediately in the rear ” of the property proposed to be altered. Other construction by which part of such frontage might 1 be excluded or by which other frontage might be included rests upon more doubtful inference and would perhaps create undesirable complexities. We adopt the construction which excludes such doubts and complexities. We are told that under every possible construction which has been suggested, the owners of at least twenty per centum of the frontage have presented protests. Concededly that is true under the construction we give to the statute. Therefore, the proposed amendment could not be made without a unanimous vote and the minutes of the meeting of May 22, 1931, showing that the resolution was adopted, are erroneous.

Even though the minutes of the meeting are erroneous and no valid amendment of the Zoning Use Map or Zoning Resolution was validly adopted, we may not reverse the order of the courts below if there was room for the exercise of discretion in denying a mandamus order to correct the minutes. Neither the orders nor the opinion of the Appellate Division indicate that the denial was solely as matter of law and not partly in the exercise of discretion. The question then arises whether as matter of law the petitioner had a right to compel the correction of the erroneous minutes. “ When the material allegations of a petition for a writ are admitted, or not denied, and different inferences cannot be drawn therefrom, then only a question of law is presented and the decision is upon the merits and appealable to this court.” (People ex rel. Van Tine v. Purdy, 221 N. Y. 396, 400.)

At the outset it must be noted that the petitioner is not asking that an officer of the city shall be compelled to take action for the cessation of a non-conforming use. The remedy of mandamus may be withheld where the enforcement of a strict legal right would work unnecessary hardship.” (Matter of Warehousemen’s Association v. Cosgrove, 241 N. Y. 580.) Any party who has.acted upon the faith of the erroneous record should be given opportunity to be heard before the court compels official action against his property. (Matter of Green v. Miller, 249 N. Y. 88.) That is not the case here. The petitioner has proven that though the minutes of the Board show that a resolution amending the uses to which property within the district may be put, in fact no such resolution was adopted. The amendment not having been adopted, all property within the district is restricted to uses conforming to the original resolution. It does not appear that any property is now being put to any other use. If that, however, be the fact, then before a court of equity by mandamus or injunction compels the cessation of a non-conforming use, it must weigh the equities, and there might be room for drawing of different inferences and the exercise of discretion.

Here the petitioner asks only that the record may be corrected so as to show that the restrictions upon the use of the property have not been amended. The Board by erroneous entry in its minutes cannot render lawful what is in fact unlawful. The error merely serves to confuse public officers and others who may rely upon the minutes and to hamper proof of legal rights and enforcement of the law. Mandamus to compel correction of such error is an apt remedy. (People ex rel. Burroughs v. Brinkerhoff, 68 N. Y. 259; People ex rel. Nostrand v. Wilson, 119 N. Y. 515.) Correction of the minutes will not result in the creation of any new legal or equitable rights or in the destruction of any legal or equitable rights which may have been heretofore acquired by any person. It looks to future enforcement, without hindrance or confusion, of rights created by statute.

The question then is whether there is any substantial reason for a denial of the remedy of mandamus. (Ferris, Extraordinary Legal Remedies [1926], §§ 196 et seq.) “An order denying mandamus cannot rest in discretion when there are no disputed facts, when the law is with the petitioner and when there is no reasonable basis for holding that other remedies are adequate; and there is no element of hardship or laches or other unequitable conduct.” (Matter of Brennan v. Board of Education, 245 N. Y. 8, 16.) That is the case here. The petitioner, upon undisputed facts, has established that the law is with her. No other remedy would be adequate. She brought this proceeding promptly and has not been guilty of laches or other inequitable conduct. Fears that the mandamus would create hardship are, at least, premature, if not, indeed, without foundation. There is, as we have said, no proof that any property within the district is now devoted to a non-conforming use. If there be such property, and attempt be made to compel cessation from such use, the owners will still have their day in court to appeal to a benevolent discretion of the court. (Southern Leasing Co. v. Ludwig, 217 N. Y. 100.)

The order appealed from should be reversed, with costs in this court and in the Appellate Division, and the petition for a peremptory order of mandamus granted as prayed, with costs.

Pound, Ch. J., Crane, Kellogg and Crouch, JJ., concur; O’Brien, J., not voting; Hubbs, J., not sitting.

Ordered accordingly.


author: Lehman, J. Kellogg, J. (dissenting).

text:
    James Hutchison, as Trustee, Appellant, Impleaded with Another, v. Ethel A. Ross et al., Respondents. (Actions Nos. 1 and 2.)

      (Argued January 17, 1933;
    decided July 11, 1933.)

      Nathan L. Miller, H. Bartow Farr and Frank B. Ober for appellant.

      John W. Davis, George W. Martin, Richard S. Emmet, John E. Lockwood, Edwin F. Blair, Harrison Tweed,

      Robert L. Finley, Alanson W. Willcox and Bertram F. Willcox for respondents.
   Lehman, J.

John Kenneth Ross, a resident of Montreal, married in Toronto in 1902. In anticipation of their marriage the parties entered into an ante-nuptial agreement to regulate their property rights in accordance with the law of Quebec, where they intended to reside. They still do reside there. Under the civil law prevailing in that province, there is community of property between spouses, but the parties to a marriage may by ante-nuptial agreement provide that each shall continue to have separate property. They may also by such ante-nuptial agreement provide for gifts or trusts in favor of one or the other. After the marriage such provisions in an ante-nuptial agreement may not be abrogated, modified or enlarged. Neither husband nor wife may transfer to the other, directly or in trust, any substantial part of his or her fortune.

The ante-nuptial agreement made by Ross and his prospective wife provided that the property of each should be separate, and Ross agreed in addition to provide for the support of his wife and to establish either by deed or will a trust fund of $125,000 for the benefit of his wife and children. Since John Kenneth Boss was at that time a young man without personal fortune, though the only son of a very rich man, his father became a party to the ante-nuptial agreement and guaranteed a donation ” of $125,000 binding upon his estate.

The father of John Kenneth Boss died in 1913, leaving an estate of about $10,000,000 to his son. In 1916, during the World War, John Kenneth Boss, the son, decided that a provision of $125,000 for his family was insufficient, and he told his wife that he desired to provide for her more adequately by creating a trust fund of one million dollars, the income to be paid to his wife for life, and the principal to go to their two children upon her death. One D. M. C. Hogg, a Scotchman learned in the law of Scotland but perhaps not in the law of Quebec, had been the secretary and adviser of Boss’ father. Boss, the son, had continued to employ him in the same capacity. Boss directed Hogg to prepare or have prepared appropriate instruments to transfer to the Equitable Trust Company in the city of New York a fund of one million dollars, to be held in trust for his wife. Both father and son had kept bank deposits and had securities valued at more than half a million dollars in New York city, in the New York branch of the Bank of Montreal. Boss desired that such securities, with substitutions and additions sufficient to create a fund of one million dollars, should constitute the corpus of the trust estate.

Hogg, in accordance with what he deemed his instructions, prepared a trust deed or agreement. The trustee was to pay the income to Mrs. Boss during her life and after her death to divide the principal among the children of the marriage her surviving or their issue per stirpes or to make other disposition thereof in accordance with the provisions of the instrument. The instrument was submitted to the trust company for approval. After the trust company had agreed to act as trustee, the instrument was sent to Montreal, where Ross and his wife executed it before the American Consul General. The Equitable Trust Company had not yet signed the indenture, but did so after the indenture was sent to it. Then the Bank of Montreal in New York city, acting as agent for Ross, delivered the securities to the trustee. The trust deed contains a recital that: “ Whereas Mr. Ross has become possessed of ample means and is desirous of making suitable provision for Mrs. Ross in lieu of the provisions in her favor contained in said contract of marriage settlement, and Mrs. Ross is willing to renounce and revoke the provisions of said marriage settlement in her favor and to accept in lieu thereof the provisions for her benefit and support hereinafter contained in this agreement.” Mrs. Ross then expressly revoked all conditions or provisions contained in the contract of marriage and all benefits which might accrue to her under the marriage contract.

For about ten years the trustee carried out the provisions of the trust indenture. During that time no one questioned its validity. In 1926 Ross retained a Montreal barrister to draw up a will. He told the barrister of the provision he had already made for his family. The barrister promptly told Ross that the trust indenture was patently invalid under the law of Quebec, and so notified the trustee. By that time most of the estate which Ross had received from his father had been dissipated. Ross was deeply involved in speculations in oil stocks. He owed large sums to some Baltimore banks. He informed the Baltimore banks that the trust he had created was invalid, and in consideration of his promise to bring legal proceedings to have the trust set aside and to deliver the trust property to the banks as collateral, they agreed not only to extend the existing loans but to make new loans to Ross. He secured the signatures of his wife and children to written consents to revoke the trust. Ross then began an action to set aside the trust on the ground that it was void at its inception and a second action for the revocation of the trust upon the consent of the interested parties.

After the actions were commenced, a petition in bankruptcy was filed against the plaintiff and the trustee in bankruptcy was substituted in his place. The defendants in the first action assert that under the law of New York the conveyance is valid and should be enforced here. In the second action they assert that the signatures to the consents to revoke the trust were obtained by misrepresentations and that issue of the settlor’s children, born and unborn, have an interest in the trust. Both actions were tried together. They resulted in a judgment in favor of the plaintiff in the first action, and a judgment on the merits in favor of the defendants in the second action. Appropriate findings were made in each action. Upon appeal the Appellate Division reversed the judgment in the first action and upon new findings dismissed the complaint upon the merits. It affirmed the judgment in the second action.

The situs of personal property in a jurisdiction other than that where the owner of the property is domiciled has given rise to many difficulties and perplexities. The maxim “ mobilia sequuntur personam ” cannot always be carried to its logical conclusion. Practical considerations often stand in the way. Physical presence in one jurisdiction is a fact, the maxim is only a juristic formula which cannot destroy the fact. Within territorial limits, the jurisdiction of the courts of each state or nation is limited only by constitution or treaty. The courts of each jurisdiction determine all judicial questions by the law of that jurisdiction. When the owner of personal property authorizes its removal from his domicile or acquires property elsewhere, he must be deemed to know that his property comes under the protection of, and subject to the laws of the jurisdiction to which it has been removed, and that appeal may be made to the courts of that jurisdiction for the determination of conflicting rights in such property. The law of his domicile may be different from the law of the state or nation in which the personal property is placed. A conveyance of the property may be valid under the laws of one jurisdiction and void under the laws of the other jurisdiction. If the courts of each jurisdiction determine such questions according to their own law then transfers of property become complicated and restricted in effect. A title, valid here, may be lost when the property is removed to another jurisdiction. Such a situation would obviously be intolerable. Therefore the rule has become engrafted in the law of every jurisdiction that in some circumstances its courts must determine questions submitted to them by the rules of law applied in some other jurisdiction. To that extent foreign law is applied but as part of our own law. (See articles by Professor Beale, 23 Harvard Law Review, 260, and 45 Harvard Law Review, 969.) Though public policy and comity may be decisive in the determination of what law shall be applied in given circumstances “ it does not belong to the judges to recognise or to deny the rights which individuals may claim under it, at their pleasure or caprice; but, it having obtained the force of law by user and acquiescence, it belongs only to the political government of the State to change it whenever a change becomes desirable.” (Parsons v. Lyman, 20 N. Y. 103, 112.) Here, as in other branches of the law, there should be certainty of rule and uniformity of application, and we must look to the judicial decisions and legislative enactment for guidance.

The courts of the various jurisdictions have with substantial unanimity adopted certain rules. “ Capacity to make a valid conveyance of a chattel is determined by the law of the state where the chattel is situated at the time of conveyance.” (American Law Institute, Tentative Restatement, Conflict of Laws, § 275.) “ The essential validity of a conveyance of a chattel is determined by the law of the state where the chattel is situated at the time of the conveyance.” (§ 277.) In this State these rules have long been applied to the conveyance of tangible chattels. .More recently, we have indicated that the rule should be applied to negotiable paper instruments. ‘ Bills and notes were developed under the law merchant as convenient instrumentalities of trade and commerce. They pass from hand to hand by indorsement and delivery and properly are governed by the rule relating to the transfer of tangibles. The rule of international law, that the validity of a transfer of movable chattels must be governed by the law of the country in which the transfer takes place, applies to the transfer of checks or bills of exchange by indorsement.” (Weissman v. Banque de Bruxelles, 254 N. Y. 488, 494, opinion by Pound, J.)

For the same reasons the rule should be and generally is applied to other intangible personal property, at least when no one can get the benefits of ownership except through and by means of the paper ” which evidences such intangible property. (Disconto-Gesellschaft v. United States Steel Co., 267 U. S. 22, 28.) Intangible property, like shares of corporate stock or debts, may for practical purposes be merged and embodied in documents like stock certificates or bonds, which like bills and notes are “ instrumentalities of trade and commerce.” They pass from hand to hand and properly are governed by the rule relating to the transfer of tangibles.” (Cf. American Law Institute, Tentative Restatement, Conflict of Laws, §§ 53, 57, 281, 282.) Such documents and the personal property merged or embodied in them have, like tangible chattels, a situs apart from the domicile of the owners. Under the Constitution of the United States, such situs may be insufficient to empower the State, where such documents are situated, to impose a property tax on them, though the owner resides in a sister State of the Union. (Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; First Nat. Bank v. Maine, 284 U. S. 312.)

Nevertheless the physical presence of such documents gives the State jurisdiction over them in other respects. (Burnet v. Brooks, 288 U. S. 378.) Judicial decisions affecting the situs of choses in action or intangible property not embodied or merged in a mercantile document are not in point. (Cf. Matter of Anziani, [1930] 1 Ch. 407, and Republica de Guatemela v. Nunez, [Court of Appeal, 1927] 1 K. B. 669.) We are dealing with a conveyance in trust of documents which in the market-place are treated as property and not merely evidence of property (Cf. Pierpoint v. Hoyt, 260 N. Y. 26), and consider no other question.

The rules that both the capacity to make a valid conveyance of tangible chattels and securities and the essential validity of such conveyance are determined by the law of the State where the chattel is situated at the time of the conveyance have been generally applied to conveyances inter vivos. They are not generally applied to passage of title by will or the intestacy of a decedent owner. With possible limitations, not relevant to the question here presented (Cf. Chamberlain v. Chamberlain, 43 N. Y. 424; Hope v. Brewer, 136 N. Y. 126; Cross v. United States Trust Co., 131 N. Y. 330), the rule is well established that the essential validity of a testamentary trust must be determined by the law of the decedent’s domicile, and the same rule often is applied to trusts established as part of a marriage settlement. The plaintiff urges that the same rule should be applied to a conveyance in trust inter vivos, especially where such trust is established for the benefit, of the wife and children of the settlor.

It cannot be gainsaid that there are expressions in the opinions of the courts of this State which support the plaintiff’s contentions. In considering the effect of these expressions, we must give due weight to the circumstances under which they were made. The paucity of old judicial decisions upon conveyances in trust inter vivos, compared with the number of decisions upon testamentary trusts, shows that conveyances in trust inter vivos were comparatively rare. Thus the possible importance of drawing distinctions between the rules applicable to testamentary trusts and trusts inter vivos, was not apparent or brought to the attention of the courts. Moreover the maxim “ mobilia sequuntur personam ” was more rigidly and uniformly applied in earlier days. The conflict between fact and maxim then seemed less important. Today the cotuts cannot close their eyes to the fact that trusts of personal property and securities are created by settlors during their lifetime for many purposes, and for the first time our court is called upon to decide directly the question whether conveyances in trust of securities made inter vivos shall be governed by the same rules as testamentary trusts or by the same rules as other conveyances inter vivos.

Analogy furnishes no satisfactory guide, for analogy in either case is imperfect and incomplete. Dicta in earlier opinions are certainly unreliable, because the rule announced is assumed rather than considered. Nevertheless the fact that the rule has been assumed is not without significance.

We have considered all the cases in this State, called to our attention, which deal with trusts inter vivos, even though space forbids complete analysis here. They have been painstakingly analysed in the valuable article by Professor Cavers (“ Trusts Inter Vivos and the Conflict of Laws, 44 Harvard Law Review, 161). In Sullivan v. Babcock (63 How. Pr. 120) the court, at Special Term, sustained a conveyance in trust of personal property in the State of New York on the ground that such conveyance was valid in New Jersey where the settlor resided and where the trust indenture was executed. The case was not appealed to this court and is significant mainly because the court apparently relied, as authority for the rule applied, exclusively on Story on Conflict of Laws, which asserts broadly “ that the laws of the owner’s domicil should in all cases determine the validity of every transfer, alienation, or disposition made by the owner, whether it be inter vivos, or post mortem.” (§ 383.) (Italics are ours.) In Townsend v. Allen (59 Hun, 622; affd., without opinion, 126 N. Y. 646) the court at General Term again assumed that this was the law, but there the decision was that the conveyance in trust was valid under the New York rules as well as under the rules of the settlor’s domicile. That was true also in Maynard v. Farmers Loan & Trust Co. (208 App. Div. 112), and this court in affirming the judgment (238 N. Y. 592), expressly indicated that affirmance was not based on the reasons given in the Appellate Division. Thus in the cases in this court which passed upon the validity of trusts inter vivos, we find no direct decision upon this question and little, if any, indication as to what rule should be followed.

There are, however, dicta in opinions in this court in cases dealing with testamentary trusts, which do indicate that, at least, at the time when these cases were decided this court would have applied the same rules to trusts inter vivos as to testamentary trusts. (Parsons v. Lyman, supra; Cross v. United States Trust Co., 131 N. Y. 330; Dammert v. Osborn, 140 N. Y. 30.) That is the construction which courts of other jurisdictions have placed upon these dicta. (Liberty Nat. Bank & Trust Co. v. New England Investors Shares, Inc., 25 Fed. Rep. [2d] 493; Swetland v. Swetland, 107 N. J. Eq. 504, affg. 105 N. J. Eq. 608.) None the less, now that we are called upon to decide that question, we must weigh other considerations not then apparent to the courts which seem to point logically to the need for differentiation between the rule to be applied to testamentary trusts and the rule to be applied to trusts inter vivos.

In all the affairs of life there has been a vast increase of mobility. Residence is growing less and less the focal point of existence and its practical effect is steadily diminishing. Men living in one jurisdiction often conduct their affairs in other jurisdictions, and keep their seeurities there. Trusts are created in business and financial centers by settlors residing elsewhere. A settlor, regardless of residence, cannot establish a trust to be administered here which offends our public policy. If we hold that a non-resident settlor may also not establish a trust of personal property here which offends the public policy of his domicile, we shackle both the non-resident settlor and the resident trustee. •

Our courts have sought whenever possible to sustain the validity even of testamentary trusts to be administered in a jurisdiction other than the domicile of the testator. (Cf. Chamberlain v. Chamberlain, 43 N. Y. 424; Hope v. Brewer, 136 N. Y. 126; Cross v. United States Trust Co., supra; Dammert v. Osborn, 140 N. Y. 30.) In regard to other conveyances or alienations of personal property situated here, they have steadfastly applied the law of the jurisdiction where the personal property is situated. The maxim that movable personal property follows its owner is restricted to the field within which the State, where that property is found, chooses to apply other laws than its own, and modern conditions have caused a limitation of that field to narrow bounds. That is true in other jurisdictions as well as here. Where a non-resident settlor establishes here a trust of personal property intending that the trust should be governed by the law of this jurisdiction, there is little reason why the courts should defeat his intention by applying the law of another jurisdiction. (Cf. Dicey on Conflict of Laws, [4th ed.] pp. 591 and 713.)

We balance the weight of such considerations against the weight of the dicta in old cases. We may throw in the balance also expressions of public policy by the Legislature of this State. It has provided that: “ Whenever a person being a citizen of the United States, or a citizen or a subject of a foreign country, wherever resident, creates a trust of personal property situated within this State at the time of the creation thereof, and declares in the instrument creating such trust that it shall be construed and regulated by the laws of this State, the validity and effect of such trust shall be determined by such laws.” (Pers. Prop. Law; Cons. Laws, ch. 41, § 12-a.) It is true that the statute was enacted long after the creation of the trust now the subject of this litigation and the validity of the trust must, probably, be determined by the law as it then existed. The statute does not change retroactively a well-established rule of law. It merely establishes a definite public policy in a field where the rules of law were still fluid and undefined. When the courts are called upon to define these rules even as of an earlier date, they cannot entirely disregard this public policy. (Cf. Dammert v. Osborn, supra.) The Legislature has made simpler the choice between possible rules even if it could not dictate such choice.

It is said that the statute establishes a public policy only where there is an express declaration of intention in the instrument that it shall be construed and regulated by the laws of this State. Here there is no express declaration of intention, but the intention is implied in every act and word of the parties. The statute makes express declaration of intention conclusive, but a construction which would deny effect to intention appearing by implication would be unreasonable. Indeed, since the statute in terms applies even to residents of this State, such construction would be almost impossible. It follows that the validity of a trust of personal property must be determined by the law of this State, when the property is situated here and the parties intended that it should be administered here in accordance with the laws of this State.

The instrument creating the trust is not, in form, merely an assignment of personal property upon specified trusts, nor is it merely an agreement between the settlor and the trustee. Mrs. Ross is a party to the instrument, and at least in form it constitutes, in addition to a deed or conveyance in trust,- an agreement between wife and husband whereby she consents to revoke any and all conditions or provisions for her benefit and support contained in the said contract of marriage settlement dated January 28th, 1902, and does for herself, her heirs, executors and administrators and assigns renounce any and all benefits which might accrue to her under the provision of said marriage settlement.

Though the validity of the conveyance in trust be determined by the law of the State of New York, there can be no doubt that the validity of the provisions of the agreement for the revocation of the contract of marriage settlement and for the renunciation of the benefits which might accrue to the defendant under the marriage settlement must be determined by the law of Quebec. There the parties were domiciled and there the marriage- contract was made and will be enforced. In the Province of Quebec these provisions of the agreement will be given no effect. The attempted renunication of the marriage settlement is a futile act, and the courts of this State are powerless to give it effect. The parties to the contract by appeal to our courts have subjected themselves to the jurisdiction of those courts, but the decrees of our courts have no extraterritorial effect and cannot alter the domiciliary marital status of parties not domiciled here, or direct the courts of the jurisdiction where the parties are domiciled in the enforcement of marital rights there;

There is, nevertheless, no rule of law which would preclude the courts of this State from determining in accordance with the rules of law of this jurisdiction, the validity of a conveyance of real or personal property contained in a bilateral agreement, even though the remainder of the agreement be governed by, and is void under, the law of another jurisdiction, provided the conveyance be separable from the other parts of the contract. Concededly that would be true if the conveyance were of real estate here. It is equally true of personal property situated witMn the jurisdiction of our courts. Here we are free to apply our law rather than the law of another jurisdiction.

The difficulty in this case is that on the face of the contract the conveyance in trust seems to have been made, at least partly, in consideration of the revocation of the provisions of the marriage contract and according to the recitals “ in lieu of the provisions * * * contained in said contract of marriage settlement.” Though an executed deed or conveyance in trust requires no consideration (Stiébel v. Grosberg, 202 N. Y. 266), yet if made for a promised consideration which fails, the conveyance may be revoked. Though apparently that question has never heretofore been presented to any court, it would seem clear that a conveyance valid under the law of New York, might be unenforceable and subject to rescission if the consideration fails because the laws of Quebec effectually preclude the enjoyment of the promised consideration. Upon the face of the agreement the wife’s renunciation is the consideration for the husband’s conveyance in trust. Invalidity in either, it is said, renders the other unenforceable or subject to rescission.

The Appellate Division has, however, found that the defendant Mrs. Ross never knowingly consented to revoke any of the conditions or provisions for her benefit contained in the said marriage settlement, and never knowingly renounced any benefit which might accrue to her thereunder ” and that no consent to revoke, or agreement to renounce, or renunciation, by the defendant Ethel Adine Ross * * * was intended to induce, or did induce, the plaintiff Ross to transfer the securities ” included in the trust. The evidence on this point was elicited from the parties themselves. It could not be directly contradicted, and is sufficient to sustain the findings even though perhaps not sufficient to justify a reformation of the written agreement. It does not appear, and the court has not found, that the plaintiff Ross did not understand that the agreement included a consent to revoke or an agreement to renounce or renunciation by the wife, even though such consent or renunciation was neither intended to induce, or did induce ” the transfer of the securities and it does not appear, and the court has not.found, that the defendant, his wife, did not know the contents of the agreement she signed, even if she did not understand its effect. No reformation was prayed for in the pleadings and no reformation was decreed by the court. The force of the findings must be limited accordingly.

The plaintiff maintains that so limited they are irrelevant and immaterial. That raises a novel question. Deeply imbedded in the judicial decisions of every common-law jurisdiction is the rule that the terms of a written agreement cannot be varied by parol and that in construing the agreement “ it is not the real intent but the intent expressed or apparent in the writing which is sought.” (2 Williston on Contracts, § 610.) Thus, except for the purpose of having a contract reformed, a party to a written agreement may not assert its validity and at the same time deny that the writing embodies the actual contractual rights and obligations which the parties intended to make. The written agreement defines conclusively the contractual rights and obligations of the parties. It does nothing more. Recitals, even recitals of consideration, unless intended themselves to embody a contractual right or obligation, may be contradicted. “ The consideration of a written instrument is always open to inquiry, and a party may show that the design and object of the agreement was different from what the language, if alone considered, would indicate.” (Baird v. Baird, 145 N. Y. 659, 664; Cf. Juilliard v. Chaffee, 92 N. Y. 529.) The principle precludes denial, limitation or extension of a contractual right embodied in a writing. It extends no further. (McCrea v. Pairmount, 16 Wend. 460.) Here there is no such attempt. The plaintiff seeks to destroy the agreement as written, the defendant seeks to uphold it. The renunciation is ineffective because it could take effect only in Quebec, and under the law of that jurisdiction it is void. The conveyance in trust takes effect here and is valid under the laws of this State; though, perhaps, subject to rescission if the consideration has failed. The defendant has not asked the court to reform the agreement so as to show that she did not renounce the benefit of the provisions of the marriage contract, and the court has not of its own motion granted such relief. If the renunciation were valid, then there could be no claim of failure of consideration. If void, then reformation could not change the contractual rights of the parties to the agreement. What the wife claims and what the court has found is that she did not understand that she was giving up any rights under the marriage settlement, and that the husband was not induced to make the conveyance for the anticipated consideration of a valid renunciation. The courts of New York may enforce the conveyance as made by the plaintiff Ross in accordance with the laws of New York. They leave to the courts of Quebec the validity or invalidity of the renunciation of the defendant his wife. They refuse to rescind the conveyance for" failure of consideration because conveyance and renunciation were not made in exchange for each other and are not interdependent, and thus there is no basis for the equitable remedy of rescission. In so doing they permit no alteration of the obligations of either party as defined by the contract. At most there is contradiction of the parts of the agreement which, like recitals, are not contractual in form or essence.

The decisive consideration on this branch of the case is not whether the defendant intended to renounce the benefit of the marriage contract but whether the failure of such intention requires the court to apply the law of another jurisdiction to the conveyance of property situated here or creates an equitable right in the plaintiff to rescind the conveyance. The parties undoubtedly intended that the law of this jurisdiction should be applied to the conveyance in trust; though they must have intended that the- validity of the renunciation should be determined by the courts of their domicile according to the domiciliary law, for no other court could have jurisdiction over the contract of marriage settlement. The plaintiff has no right to set aside the conveyance in trust on the equitable ground of unjust enrichment, for it appears that the renunciation was not the inducement for the conveyance in trust. Indeed, when we note that the remaindermen under the trust conveyance were not even parties to the agreement between husband and wife, it may well be doubted whether the trust agreement could be set aside as to them for failure of consideration. Finally, it is to be noted that the plaintiff has not asked for rescission.

In the second action brought to revoke the trust with the alleged written consent of all the interested parties, the plaintiff, indeed, describes the instrument creating the trust only as a “ trust deed.” Interesting questions are raised in that action as to whether unborn or infant parties may not have an interest in the trust. We do not reach those questions, for the courts below have found that the consents which have been signed by the wife and children were obtained by misrepresentation. The trier of the fact, on the evidence produced, might reasonably have refused to make such findings. We cannot say that there is no evidence to sustain them. The doctrine that those who negligently sign an instrument without reading it may be estopped or precluded from showing that in fact they never assented to its terms (Pimpinello v. Swift & Co., 253 N. Y. 159) does not apply here.

The judgment in each action should be affirmed, with costs.

Kellogg, J. (dissenting).

The trust instrument is self-styled an Agreement ” to which the plaintiff John K. L. Ross is party of the first part,” his wife, the defendant Ethel Adine Ross, is party of the second part,” and the defendant the Equitable Trust Company of New York is party of the third part.” It recites that John K. L. Ross and Ethel Adine Ross, on or about the 28th day of January, 1902, entered into a certain contract of marriage settlement, whereby certain provisions were made for the benefit and support of Mrs. Ross. It further recites that Mr. Ross has become possessed of ample means and is desirous of making suitable provision for Mrs. Ross in lieu of the provisions in her favor contained in said contract of marriage settlement ” and that Mrs. Ross is willing “ to renounce and revoke ” the provisions of said marriage settlement in her favor and “ to accept in lieu thereof ” the provisions for her benefit “ in this agreement.” The instrument then provides: “ That in consideration of the sum of One Dollar ($1.00) lawful money of the United States, to her in hand paid by Mr. Ross, and other valuable considerations, receipt whereof is hereby acknowledged, Mrs. Ross does hereby consent to revoke any and all conditions or provisions for her benefit and support contained in the said contract of marriage settlement dated January 28, 1902, and does for herself, her heirs, executors, administrators and assigns renounce any and ah benefits which might accrue to her under the provisions of said marriage settlement.” In consideration of the foregoing, Mr. Ross hereby gives, assigns, transfers, and sets over unto the said trustee all of the securities described in Schedule A ’ hereto annexed, which is hereby made a part hereof.” The instrument was executed by Mrs. Ross, Mr. Ross and the Equitable Trust Company. We thus have the expression of present performance of a jural act by Mrs. Ross and the expression of performance of a similar act by Mr. Ross. Mrs. Ross “ does hereby consent to revoke any and all conditions or provisions for her benefit and support contained in the said contract of marriage settlement dated January 28th, 1902.” She does presently renounce ‘ any and all benefits which might accrue to her under provisions of said marriage settlement.” Mr. Ross expresses a present transfer to the Equitable Trust Company of all the securities enumerated in Schedule A. Mrs. Ross could no more avoid her present renunciation, were it a legal act, by claiming that she never read the document, than could Mr. Ross avoid the effect of his present transfer by a similar assertion. It is universally the law that the signer of an instrument is bound by its express terms whether aware of its contents or otherwise. It is thus stated by Professor Wigmore: “ Where a jural act is executed by signing a specific and complete document, the second party has a right to treat the signed contents as representing the terms of the act. The principle of reasonable consequences plainly requires this result. That the signer did not intend to execute such terms is immaterial; and whether the lack of intent was due to a failure to read it over, or to some other cause, is immaterial. In other words, his individual innocent mistake or deliberate secret dissent cannot be shown. Such may be taken to be the general rule.” (5 Wigmore on Evidence, § 2415.) Ordinarily, the signer of a deed or other instrument, expressive of a jural act, is conclusively bound thereby. That his mind never gave assent to the terms expressed is not material.” (Pimpinello v. Swift & Co., 253 N. Y. 159, 162.) If any other rule prevailed, not a deed in any clerk’s office, not a note in any bank would conclude the signer; a mere statement by him that he did not read them before he signed might be sufficient to deny to them all force. The only instance in which the signer may escape is expressed by us to be as follows: If the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him by the other party, or even by a stranger, unless the signer be negligent, the writing is void.” (Pimpinello v. Swift & Co., supra, p. 163.) In support of the proposition we cited Cleary v. Municipal Elec. Light Co. (19 N. Y. Supp. 951; affd., 139 N. Y. 643); Wilcox v. American Tel. & Tel. Co. (176 N. Y. 115); Smith v. Ryan (191 N. Y. 452); Whipple v. Brown Bros. Co. (225 N. Y. 237); Thoroughgood’s Case (2 Coke, 9); Shutter’s Case (12 Coke, 90); Foster v. Mackinnon ([L. R.] 4 C. P. 704); Trambly v. Ricard (130 Mass. 259). Mrs. Ross does not claim that she was ignorant or blind or that the contents of the document were misrepresented. Did she make such a claim, and were she successful, the measure of the relief to be accorded her would be a rescission of the document, precisely the relief which the plaintiff now seeks. We thus have a document, conclusive upon all the parties signing, expressing an exchange, presently made, of an act of one party for the act of another party. That an exchange was intended, that the performance of the one act by one party was conditional upon the performance of another act by the other party is clearly stated. The new trust conveyance is expressed to be in lieu of the provisions in her favor contained in said contract of marriage settlement.” Mrs. Ross agrees to accept in lieu of the marriage contract the provisions of the new agreement. It has been said that it is sheer folly to think that the renunciation of an interest in a trust fund of $125,000 can be intended as a quid pro quo for the gift of an interest in a trust fund of $1,000,000. There are two answers thereto. In the first place, the adequacy of a consideration is never a question for the courts. Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one.” (Williston on Contracts, § 824.) In the second place, if the renunciation fails of effectiveness, the new trust will operate, not to confer upon the wife an additional interest in $875,000 of trust securities, but in a new fund of $1,000,000 without deductions, which would be more than the settlor ever intended to establish as the aggregate fund to be enjoyed by his wife. Concededly, the validity of any modification of the marriage settlement must be judged by the law of the marital domicile. Concededly, under the laws of Quebec, the renunciation will have no effect. Therefore, if the new trust be upheld, in Quebec the beneficiary of the early settlement may continue to enjoy the benefit of a fund of $125,000, while in New York she may enjoy an interest in a trust fund in $1,000,000. Thus, if the majority of this court be right, the result of the conflict of laws in the two jurisdictions will be that Mrs. Ross will have an interest in an aggregate fund of trust moneys amounting to $1,125,000, when the settlor, by word or deed, never indicated his volition that the aggregate sum should exceed $1,000,000. To the extent of the additional sum, not her husband, but the courts, dealing with his property contrary to his expressed intention, will have been her benefactors.

For these reasons, without going into the merits of the question whether the laws of this State or the laws of Canada should be applied herein, which I think extremely doubtful, I dissent from the decision to be made by the court.

Pound, Ch. J., Crane, O’Brien and Hubbs, JJ., concur with Lehman, J.; Kellogg, J., dissents in opinion in which Crouch, J., concurs.

Judgments affirmed. (See 262 N. Y. 643.)


author: Per Curiam,.

text:
    In the Matter of Helen H. Pine, Appellant, against Ellis T. Terry, as Treasurer of Suffolk County, Respondent.
    (Argued October 5, 1933;
    decided October 17, 1933.)

      Branch P. Kerfoot for appellant.

      J. Harry Saxstien for respondent.
   Per Curiam,.

Section 152 of the Tax Law (Cons. Laws, ch. 60), as amended in 1930, governs the amount of money to be paid to redeem the petitioner’s property from the sale for taxes. The special act, section 45 of chapter 152 of the Laws of 1929, amending chapter 311 of the Laws of 1920, has been expressly modified by the later law. When the Legislature thus expressly states what shall be done in Suffolk county — naming the county — to redeem from tax sales, it makes little difference whether we call it a general or a special act; it is the law as declared by the Legislature.

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. (See 262 N. Y. 703.)

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

Ordered accordingly.


author: Per Curiam.

text:
    In the Matter of the Accounting of the United States Trust Company of New York, as Executor of Hannah M. Lydig, Deceased. Julia D. McIlvaine et al., Appellants; United States Trust Company of New York, as Executor of Hannah M. Lydig, Deceased, et al., Respondents.
    (Submitted October 9, 1933;
    decided October 17, 1933.)

      Armin H. Mittlemann for motions.

      Henry B. Closson opposed.
   Per Curiam.

This motion is made to substitute Armin H. Mittlemann as attorney for James Eckford DeKay upon this appeal in place and instead of Henry B. Closson who has acted for DeKay as his attorney in the Surrogate’s Court, in the Appellate Division, and in this court on the application for leave to appeal.

The affidavits submitted in behalf of Mr. Closson show that DeKáy owes him for his services and that he has a lien both upon the papers and upon the cause of action or the proceeds thereof for his services.

A client has an absolute right to discharge his attorney with or without cause at any time so that we must grant the motion for substitution and make the order accordingly. This order of substitution, however, is without prejudice to or interference with any hen which Mr. Closson has both upon the papers of the chent in this or any other cause and upon the cause of action or the proceeds thereof.

The rights of attorney and chent are fully explained in the case of Robinson v. Rogers (237 N. Y. 467). (See, also, Matter of Badger, 9 Fed. Rep. [2d] 560; Matter of Krooks, 257 N. Y. 329.)

A motion to compel an attorney to turn over papers to a substituted attorney must be made in the court of original jurisdiction and not in this court. (People ex rel. Hoffman v. Board of Education, 141 N. Y. 86; Matter of Hollins, 197 N. Y. 361.)

Motion for substitution of attorney granted.

Motion to compel attorney to turn over papers denied, without costs.


text:
    The People of the State of New York, Respondent, v. Lloyd Price, Appellant. The People of the State of New York, Respondent, v. Edward Grimaldi, Appellant, Impleaded with Others.

      (Submitted October 2 and 9, 1933;
    decided October 17, 1933.)

      Samuel S. Leibowitz and George Rosling for first motion.

      Philip J. Jones and Moe Levy opposed.

      Louis E. Drago and William A. Bacher for second motion.
    No one opposed.
   Per Curiam.

The anomolous motions in the above cases to confirm the assignment of counsel made by the County Court of Kings county and authorize them nunc pro tunc to prosecute the appeals, require a brief statement for the guidance of the courts below regarding counsel in criminal cases.

Under both our Federal and State Constitutions, a defendant has the right to defend in person or by counsel of his own choosing. (U. S. Const. 6th Amendt.; State Const, art. I, § 6.) Where, therefore, a defendant appears by his own attorney, there is no power in the court to assign counsel at any stage of the proceedings. Even prior to section 308 of the Code of Criminal Procedure, there was inherent power in the courts to assign counsel to defend a prisoner who was without an attorney and unable to employ one. There has been no time in the governmental history of this state when the court lacked the power to assign counsel for the defense of indigent persons charged with crime (People ex rel. Saunders v. Board of Supervisors, 1 Sheld. 517); and it has been a part of the obligation assumed by counsel upon their admission to the bar to defend poor prisoners upon assignment by the court. Until the passage of the statute now under consideration [Code Crim. Pro. § 308], such service was rendered by counsel so assigned without pecuniary compensation, and such service, however onerous, created no legal liability against the county in favor of the person rendering the same.” (People ex rel. Acritelli v. Grout, 87 App. Div. 193; affd. on prevailing opinion below, 177 N. Y. 587.)

The section of the Code of Criminal Procedure referred to (Laws of 1897, ch. 427) allows compensation to counsel assigned in a case where the offense charged in the indictment is punishable by death. The section has been frequently amended. The allowance is made by the trial court for services upon the trial and an additional allowance by the Court of Appeals for services upon the appeal. No such allowance, however, shall be made unless an affidavit is filed with the clerk of the court by or on behalf of the defendant showing that he is wholly destitute of means. No time is specified for filing this affidavit other than it must precede the allowance of compensation.

There is no different procedure for the assignment of counsel in a case of murder in the first degree than in any other case. The difference lies wholly in the fact that in the former the State assumes the responsibility of paying counsel for the defense. Where, therefore, a defendant upon arraignment or at any other stage of the proceeding (People ex rel. Perry v. Berry, 250 N. Y. 452), appears without counsel and desires the aid of counsel the court must assign an attorney to defend him. If, however, the defendant desires to defend himself or has an attorney, the court has no right to make an assignment.

Under our system of appeal, there must be a point at which, for some purposes, the jurisdiction of one court ends and the other begins. (Squire v. McDonald, 138 N. Y. 554.) The duty of counsel assigned to defend the prisoner charged with murder in the first degree will not end with the judgment of conviction; it will be his duty also to take the necessary appeal within the thirty days fixed by statute. (Code Crim. Pro. § 521.)

The jurisdiction of this court begins with the notice of appeal. Any application thereafter for the substitution or change of counsel or for the assignment of counsel must be made to this court. The occasions have not been frequent where this court has been obliged to assign counsel as the practice has been somewhat uniform of recognizing the counsel who were assigned by the trial courts and who have willingly continued in the prosecution of their work on appeal to this court. Occasionally the lawyer has dropped out and on application of the defendant we have been obliged to assign other counsel. This court has full control over the case after appeal and has removed assigned counsel for neglect or delay, and assigned other attorneys. (People v. Nelson, 188 N. Y. 234.)

Applying these few fundamental principles to the facts appearing in these motions, we find that Lloyd Price was defended on the trial by Philip J. Jones and Moe Levy, employed by him and his mother. After conviction and sentence they served the notice of appeal to this court within the proper time and apparently were willing to continue their services. On an affidavit by the defendant that he was without means to pay counsel, the trial court immediately assigned the petitioners herein, Samuel S. Leibowitz and George Rosling. They have now made a motion that this court recognize their assignment, and that this order of the County Court be confirmed and they be authorized nunc pro tunc to prosecute the appeal.

We cannot grant this motion. Until it fully and clearly appears that the attorneys, Philip J. Jones and Moe Levy, who appeared for the defendant upon the trial, had voluntarily withdrawn from the case, the County Court had no authority to assign other counsel. The motion is, therefore, denied.

Upon the application of the district attorney, however, the argument of the case is postponed until the third Monday of the November, 1933, term. Jones and Levy appearing as attorneys for the defendant in this court by their notice of appeal any application for the assignment or change of counsel must be made here.

In the case of People v. Edward Grimaldi the facts are that Louis E. Drago was retained by the defendant to appear for him on the trial of the indictment for murder in the first degree. After the judgment of conviction and sentence, the defendant presented an affidavit stating that he had exhausted his resources in paying his counsel and that he had no further funds. He prayed the assignment of counsel. The court assigned the trial counsel, Louis E. Drago, who thereupon prepared and served a notice of appeal as required by section 521 of the Code of Criminal Procedure. If counsel for sufficient reason withdraw from the case the trial court has power to assign counsel for the purpose of taking the appeal. Time moves quickly and the law provides, as has been stated, a very limited period within which an appeal must be taken. From the very necessity of the case, if for no other reason, the trial court has the power to assign counsel after judgment to perfect the defendant’s appeal, all the other necessary facts appearing. Drago, the retained attorney, has taken the appeal. This is proper and regular. His assignment is not now in question as the matter of compensation is not before us. The appeal and his appearance here are in harmony with the procedure in other cases. At least there is no conflict between retained and assigned counsel. Assigned with Drago was one William A. Bacher, who joins in this motion, as he did in the notice of appeal.

We see no reason why these attorneys should not continue to represent the defendant on appeal and deny their application for an order confirming the action of the County Court solely because it is unnecessary in view of the usual practice in these matters.

If any change in counsel be desired application can always be made to this court as we again call attention to our power to assign counsel to represent a defendant on appeal in this court where the facts and circumstances make its exercise appropriate.

Motions denied.


author: Crane, J.

text:
    In the Matter of Edgar J. Latter, Respondent, against The Board of Elections of the City of New York, Appellant.
    (Argued October 20, 1933;
    decided October 24, 1933.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Russel Lord Tarbox of counsel), for appellant.

      Abraham S. Gilbert for respondent.
   Crane, J.

The petitioner, Edgar J. Lauer, and his four associates were nominated on the evening of October 2nd for justices of the Supreme Court in the First Judicial District. The last day for filing certificates of party nomination, pursuant to subdivision 5 of section 140 of the Election Law (Cons. Laws, ch. 17), was October 3rd. The certificate in this case was not filed until shortly after noon of October 4th. The Board of Elections refused to receive it, and upon application of the petitioner, the Special Term made an order directing its acceptance and filing.

This order has been unanimously affirmed by the Appellate Division. If the provisions of the Election Law referred to are so mandatory that no excuse whatever may be accepted for failure to file a certificate of nomination on or before the day designated, then the order of the court below is wrong and must be reversed. On the other hand, if, in the exercise of judicial discretion, the Supreme Court may, for just and reasonable cause, permit the certificate to be filed, even though a little late, then the order of the Appellate Division must not be disturbed by this court, as we do not review discretionary orders unless they be arbitrary. The Appellate Division has allowed this appeal from its order which states that the Special Term order has been affirmed as matter of law and in the exercise of discretion.

The Election Law, by express provision as well as by judicial interpretation, has not fixed fatal finality to the last day for filing certificates of nominations. There may be slips or errors or mistakes which in all reason and justice should be corrected in order that the election may be fair and the will of all the electors ascertained. The Election Law should not be so interpreted as to defeat the very object of its enactment, which was to insure fair elections, an equal chance and opportunity for every one to express his choice at the polls. It also seeks to give the parties and independent nominators equal facilities to present their candidates and issues a reasonable length of time before election day.

So that no unforeseen occurrence should upset this scheme of the law, section 330 of the Election Law provides that the Supreme Court, or any justice thereof, may determine any question arising in respect to the nomination of any candidate and make such order as justice may require. An accident may happen whereby a nominating certificate could not be filed on or before the last day. To reject such a certificate might make the election one-sided, with no party nomination in opposition. To determine what would be the right thing to do under such circumstances, power must be placed somewhere, and the Legislature has said that the Supreme Court is to determine what justice requires in such a case. If the courts cannot be trusted to exercise such power carefully, with guarded discretion, and in the interests of all the electorate, who can be trusted?

The Special Term had before it the fact that, in a convention duly called, the petitioner and his four associates were nominated for justices of the Supreme Court in the First Judicial District. After the convention, the minutes were written out, signed by the officers and the proper certificate of nomination made and executed, ready to be filed with the Board of Elections. It should have been sent there at once, but men do not always do what they should do or exercise the best judgment. The young secretary of the Republican county committee, fresh in his new duties, was told at the Hotel Pennsylvania, by an official or employee of the Board of Elections, who had been with the Board in a secretarial capacity since October, 1928, that he would take the certificate, and that giving it to him was the same as fifing it with the Board of Elections. In this he was mistaken. The delivery of the certificate to this subordinate away from the office of the Board of Elections did not constitute the filing called for by the law. (Albany Builders’ Supply Co. v. Eastern Bridge & Structural Co., 235 N. Y. 432, and Sweeney v. City of New York, 225 N. Y. 271.) (But see Matter of Norton, 34 App. Div. 79; appeal dismissed, 158 N. Y. 130.) The certificate, as heretofore stated, was not filed until noon of October the 4th, or, half a day too late.

Under circumstances very similar, this court held in Matter of Darling (189 N. Y. 570) that the Supreme Court might relieve from certain accidents and mistakes causing delay in the fifing of nominating certificates. The section clothing the Supreme Court with this power was then section 56 of the Election Law, now embodied in section 330, above referred to. In that case, as appears from the facts stated in the opinion of the Appellate Division (121 App. Div. 656), one Darling had been nominated for justice of the Municipal Court. October 11th, 1907, was the last day on which to file his certificate of nomination. The minutes of the convention were filed in time, together with a certificate naming another candidate who had been nominated. No certificate, however, was filed for Darling until October 18th, when an application was made to the Board of Elections that the certificate of nomination of said Darling should then be filed nunc pro tunc as of October 11th. Although the lower courts, because of this delay of a week, denied Darling’s application for mandamus, yet this court, in affirming, said, that if the Supreme Court had decided the other way and had thought best to grant Darling’s application to compel the Board to accept his certificate, this court would likewise have affirmed such action. The point is that this court then determined that the Legislature had given to the Supreme Court, by the provisions of the Election Law referred to, the power to relieve from a mistake or accident leading to a delay in the filing of a certificate in time, when to grant such relief would cause no disruption of the election machinery or interfere in any way with other requirements under the law. To grant or deny relief was a matter of discretion with the Supreme Court.

The delay here was caused through a mistake in believing that a certificate given to a subordinate of the Board of Elections at the Hotel Pennsylvania was a filing with the Board. These circumstances and the very short delay in presenting the certificate at the proper office moved the cotut to exercise its discretion, and with its decision we have no desire to interfere.

The order appealed from should be affirmed, without costs.

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

Order affirmed.