text:
    Theodore W. Seckendorff, Respondent, v. Halsey, Stuart & Co., Incorporated, Appellant, Impleaded with Others.

      (Argued May 13, 1932;
    decided July 19, 1932.)

      Edward K. Hanlon, Morton G. Bogue and James C. Stephens for appellant.
    The plaintiff failed to prove any agreement by the defendant-appellant. (Benedict v. Pell, 70 App. Div. 40; McVickar v. Roche, 74 App. Div. 397; Meltzer v. Flying Fame, Inc., 224 App. Div. 41; Rait v. Carpenter, 78 Misc. Rep. 385; Catholic Foreign Mission Society v. Oussani, 215 N. Y. 1; McIlrath v. Waterbury & Sons Co., 193 App. Div. 491.)

      George Gordon Battle, Benjamin F. Spellman, Ludlow S. Fowler and Pearson E. Neaman for respondent.
    The plaintiff established an agreement by defendant-appellant and the jury were justified in so finding. (Haynes v. Aldrich, 133 N. Y. 287; Farrel v. Woodward, 101 Misc. Rep. 560; Logan v. Davidson, 18 App. Div. 353; 162 N. Y. 624; Nassoiy v. Tomlinson, 148 N. Y. 326; Fuller v. Kemp, 138 N. Y. 231.)
   O’Brien, J.

Plaintiff was employed as a solicitor for financial advertisements on a New York newspaper and, although not engaged in the real estate business, he had acquired extensive knowledge relating to it in the city of Washington. He spent part of his time finding and originating business for Wall Street houses in return for compensation to be paid to him by them. He brought people into contact. Meeting Gustave Nassauer, a real estate operator, who sought financial assistance in a large undertaking, he arranged in Nassauer’s behalf to approach investment houses in New York for the purpose of obtaining aid in the acquisition by Nassauer of eight valuable parcels of real estate in Washington, five of which were owned by the Wardman interests and three by others. An inference of fact is permissible that plaintiff’s functions in this transaction did not consist in formulating fiscal devices but that his main efforts were directed toward producing business for some investment house which, for its advantage as well as his own, would be willing to make provision for obtaining funds for the organization of a corporation to promote the transfer and consolidation of these properties. In November, 1926, Nassauer and plaintiff called upon defendant Rogers Caldwell and Company, Inc., and, after some negotiation, that corporation arranged a plan for the consolidation of the interests in the Wardman and other properties and for financing them. The scheme related to “so called Wardman properties ” as later described by Rogers Caldwell and Company. On March 8, 1927, the project was thought to be favorably progressing and on that date Mr. Weber, the vice-president of Rogers Caldwell, wrote to plaintiff this letter:

“We are pleased to advise you that we, together with such associates as we may select, are interested in considering the proposed financing of the consolidation of so-called Wardman properties in Washington, D. C., which you brought to our attention.

“ In the event of our financing the same, we and our associates will pay you as an originating commission 1% of the par value of such securities of the consolidated company as we may purchase for distribution to the public, and 2% of any securities of the consolidated company we may receive as bonus for handling the transaction. The payments referred to are to be made to you upon termination of such syndicate as we and our associates may form.

“It is understood, however, that if the deal should not materialize or should we decide for any reason whatsoever not to proceed therewith, we shall not be liable to you for the payment of any commissions whatsoever.”

The vice-president of Rogers Caldwell, at plaintiff’s suggestion, conferred with defendant Halsey, Stuart and Company, Inc., which exhibited enough interest in the proposed plan so that it assigned one of its employees, Mr. Reeve, to examine and discuss it. His report was unfavorable, in the opinion of Halsey Stuart, and that house declined, under the plan as outlined at that time, to participate. That particular scheme was abandoned. Some months later, however, Halsey Stuart joined with others in a substituted plan, which, from the evidence, the jury could find was a substantial revival, but with unlike details, of the original one. Later Rogers Caldwell was admitted to participation. In it Nassauer bore no part. New parties became interested and proposals and acceptances relating to particular methods of financing the “ so-called Wardman properties ” varied during the interval extending from the time of plaintiff’s introduction of the business to Rogers Caldwell until consummation of the enterprise in September, 1928, by Halsey Stuart and these other defendants. The outcome of the deal was the purchase by Halsey, Stuart and Company of $11,000,000 first bonds in one and $2,500,000 debentures in another of the newly-organized Wardman corporations and the allotment by it to Rogers Caldwell of a one-eighth interest in its share. We think that there is some evidence which may be held to support the jury’s inference that the ultimate financing of this consolidation, which in form was not the same as originally proposed by Rogers Caldwell but in which by a vast preponderance Wardman properties were involved, essentially resulted, within a reasonable time, from plaintiff’s act in bringing the business to defendants, constitutes in general such an operation as was contemplated by the letter of March 8, 1927, and that Halsey Stuart, although finally participating in a larger degree than Rogers Caldwell; was an associate within the meaning of that letter. Tracing a connection between plaintiff’s introduction of the business and the termination of the entire transaction was for the jury’s consideration, and although it might have otherwise decided, its conclusion cannot be said as matter of law to have no basis. In the light of the evidence forming foundation for the verdict, that agreement must be deemed to uphold this judgment as against Rogers Caldwell. No appeal by that defendant is before us.

In respect to appellant Halsey, Stuart and Company, the court charged that plaintiff could recover against it only on proof that it agreed to pay the compensation-provided for in the letter of March 8. The question is whether any evidence tends to support the verdict importing this defendant’s acceptance or ratification of that agreement. Knowledge, without some manifestation of dissent, by Halsey Stuart of this document would furnish a basis for an inference of assent. There must be some evidence, however, that notice of the existence of this letter was brought to the attention of some one connected with Halsey Stuart who was empowered to act upon it or that in some other way the fact was known to it that plaintiff had this contract. We can find none which can warrant even an inference of such knowledge. Reeve, a subordinate employee of the corporation, saw and commented upon the letter but he was without authority to accede to its terms and there is not the slightest proof that any one else attached to appellant ever heard of it. Its vice-president denied positively that Reeve ever mentioned the matter to him and he testified that he never in his fife had seen plaintiff. This verdict can result only from conjecture.

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

Pound, Ch. J., Kellogg, Hubbs and Crouch, JJ., concur with O’Brien, J.; Crane and Lehman, JJ., concur in the result because there was no evidence to warrant a jury in finding that Halsey, Stuart & Co. put through the proposition originally submitted to them.

Judgments reversed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    In the Matter of Dr. Bloom Dentist, Inc., Respondent, against Michael J. Cruise, as Clerk of the City of New York, Appellant.

      (Submitted June 2, 1932;
    decided July 19, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and Benjamin Millstein of counsel), for appellant.
    The petitioner is bound by the rules of the Board of Regents with regard to dental advertising. (Matter of Lewis v. Harlem Dental Co., 189 App. Div. 359; Jacobus v. Jamestown Mantel Co., 211 N. Y. 154; Education Law, § 1313, subd. B, par. 4; Schwab v. Potter Co., 194 N. Y. 409; Hamilton v. Dillin, 21 Wall. 73.) The petitioner’s electric signs violate the rules of the Board of Regents with regard to dental advertising. (Metzroth v. City of New York, 241 N. Y. 470; McNulty v. Ludwig & Co., 153 App. Div. 206; World’s Dispensary Medical Assn. v. Collier, 86 Misc. Rep. 217; Ewald v. Medical Society, 144 App. Div. 82; Buffalo Assn. of Fire Underwriters v. Noxsel-Dimick Co., 141 Misc. Rep. 332.) The petitioner has no clear legal right to an order of mandamus. (Matter of Spanhake v. Teachers’ Retirement Board, 224 App. Div. 75; 249 N. Y. 605.)

      John J. Bennett, Jr., Attorney-General (Sol Ullman and Ernest E. Cole of counsel), for Board of Regents, amicus curiæ.

    The rules governing dental advertising were adopted for the purpose of maintaining proper professional standards and for the protection of the public against unscrupulous practitioners. (People v. Griswold, 213 N. Y. 92; Hannon v. Siegel-Cooper Co., 167 N. Y. 244; People v. Woodbury Dermatological Inst., 192 N. Y. 454; Matter of Lewis v. Woodbury Dental Parlors Co., 106 Misc. Rep. 78; Matter of Lewis v. Harlem Dental Co., 189 App. Div. 359; Matter of Co-operative Law Co., 198 N. Y. 484; Brooks v. State, 146 Ala. 153; Griffin v. Powers, 152 Tenn. 55; 275 U. S. 495; People v. Hewson, 224 N. Y. 136.) The power vested in the city clerk by the city charter authorizes him to refuse to issue a permit to erect a sign, if the sign would constitute a violation of law. (Matter of State of New York, 207 N. Y. 582; Matter of Thurber, 162 N. Y. 244; Jenkins v. Putnam, 106 N. Y. 272; Matter of Ormsby v. Bell, 218 N. Y. 216; People ex rel. Schwab v. Grant, 126 N. Y. 473; Matter of Barresi v. Biggs, 203 App. Div. 2; Matter of Davis v. Sexton, 211 App. Div. 233.)

      David Goldstein and Thomas G. Frost for respondent.
    Petitioner’s right to the issuance of an order of peremptory mandamus is governed exclusively by the provisions of section 215 of article 16 of chapter 23 of the Code of Ordinances of the City of New York. (Cooke v. State Nat. Bank, 52 N. Y. 106; Matter of Smith, 90 Hun, 577; People v. Gowasky, 244 N. Y. 451; People v. Supervisors of Otsego County, 51 N. Y. 406; Matter of O’Rourke, 30 N. Y. Supp. 375; City of Buffalo v. Kellner, 90 Misc. Rep. 416; People ex rel. Stevens v. Hayt, 66 N. Y. 606; Lang’s Creamery, Inc., v. City of Niagara Falls, 251 N. Y. 343; Matter of Picone v. Commissioners of Licenses, 241 N. Y. 157; Matter of Heeran v. Scully, 254 N. Y. 344; Matter of McCabe v. Voorhis, 243 N. Y. 411; Matter of Walker, 84 Misc. Rep. 118; Wilbur v. United States, 281 U. S. 218; State v. Chapman, 67 Ohio St. 1; People v. Walker, 247 N. Y. 331; People v. Perry, 13 Barb. 206; People v. Maher, 141 N. Y. 337; People v. Green, 50 How. Pr. 503.) The Board of Regents in the exercise of the limited police powers committed to them have no right to bar the use of illuminated signs on either ethical or aesthetic grounds. (City of St. Louis v. King, 126 S. W. Rep. 495; Matter of Mandel v. Board of Regents, 250 N. Y. 173; Czarra v. Medical Supervisors, 25 Dist. of Col. App. 443; Merkel v. Paschkes, 123 Misc. Rep. 203; Matter of Isenbarth v. Bartnett, 206 App. Div. 548; Commonwealth v. Boston Advertising Co., 88 Mass. 352; Wilmington v. Turk, 129 Atl. Rep. 519; Anderson v. Shackelford, 74 Fla. 36; Pittsburgh Poster Ad. Co. v. Swiss Valeborough, 70 Penn. Sup. Ct. 228; Illinois Life Ins. Co. v. Chicago, 244 Ill. App. 185; Bryan v. City of Chester, 212 Penn. St. 259; Haller Sign Works v. Physical Culture School, 249 Ill. 436; State v. Whitlock, 149 N. C. 542; Matter of Melita v. Nolan, 126 Misc. Rep. 347; City of Utica v. Hanna, 202 App. Div. 610; Dowsey v. Village of Kensington, 257 N. Y. 231; People v. State Tax Comm., 206 App. Div. 549; Bleinstein v. Donaldson Lithographing Co., 188 U. S. 239; Rhrstrat v. People, 185 Ill. 133; Bostock v. Sams, 95 Md. 400.)
   O’Brien, J.

The petition and the opposing affidavit both allege that respondent, which operates as a dentist, is a corporation. By judicial dictum, a corporation may not practice dentistry (Hannon v. Siegel-Cooper Co., 167 N. Y. 244, 246; Matter of Co-Operative Law Co., 198 N. Y. 479, 484), but the more recent legislative assumption seems to be the opposite (Education Law, Cons. Laws, ch. 16, § 1313, subd. B-4). The allegation that petitioner was duly incorporated to engage in the practice of dentistry prior to January 1, 1916, is not denied. For the purpose of this appeal, therefore, petitioner may be assumed to have been regularly organized, to have lawfully practiced and by such con'duct to have incurred no penalty as for a misdemeanor (Education Law, § 1313, subd. B-4). It made application to and received the approval of the Superintendent of Buildings and the Commissioner of Water Supply, Gas and Electricity for two electric advertising signs to be erected by it on a building situated at Third avenue and Forty-second street in New York city. The dimensions of one sign are six feet two inches square and of the other seven feet square. The photographs in the record show that on each sign are displayed in extremely large letters the words, Dr. Bloom Dentist.” Beneath that legend a minute scrutiny reveals, in diminutive type, the abbreviation Inc.” On one sign under the dimly discernible corporate insignia is the direction in large legible letters, “ Entrance on Third Ave.,” and on the other, in the same relative space, “ Entrance,” and the figure of a pointing hand. After approval by the two officials above mentioned, petitioner made application to the City Clerk for a permit, but was met by refusal. The ordinance under which the parties acted is section 215, chapter 23, article 16 of the Code of Ordinances of the City of New York which is thus expressed: “ All permits for illuminated signs shall be issued by the City Clerk, upon application therefor, approved by the Commissioner of Water Supply, Gas and Electricity and the Superintendent of Buildings in the case of electric signs.” Two questions are presented: Has petitioner shown a clear legal right to a permit? Is a mere ministerial duty cast by this ordinance upon the City Clerk to issue a permit or is he vested with some measure of discretion to refuse?

Section 51 of the Education Law confers upon the Regents of the University of the State of New York the power to supervise the practice of dentistry, and section 1313, subdivision B-4, thereof provides that legally incorporated dental corporations existing and in operation prior to January first, nineteen hundred and sixteen, may continue so operating and that their advertising shall be subject to the rules of the Regents.” Among the rules promulgated by the Regents and stated therein as considered to be unprofessional and objectionable in the practice of .dentistry are: “ 1. Any advertising statements of a character tending to deceive or mislead the public. * * * 4. Advertising by means of large display, glaring, illuminated or flickering light signs.”

The State’s power to establish reasonable standards for admission to practice a profession is undoubted. (Dent v. West Virginia, 129 U. S. 114; Douglas v. Noble, 261 U. S. 165; Graves v. Minnesota, 272 U. S. 425.) We conclude that reasonable supervision after admission is likewise a lawful exertion of sovereignty. Protection of the public against such deceit by practitioners as tends to mislead is in the nature of a defense against fraud and may be reckoned among the important functions of government. A corporation exhibiting a sign upon which is flaunted the name of an individual and below which is inscribed a corporate symbol in characters so inconspicuous as nearly to reach the point of concealment may be held to utter an advertising statement of a nature tending, at the least, to deceive or mislead the public. The form of type and other devices may bring about that result * * *. By such and other devices the advertisement is calculated to deceive the public.” (People v. Hewson, 224 N. Y. 136, 139.) In seeking and obtaining professional assistance of any kind each member of the public is entitled to know whether he deals with a corporation or an individual. When the corporate character of an organization practicing dentistry is hidden or when it can be detected only by a precise and detailed investigation there is always a strong tendency to deceive and mislead and in many instances actual deception results. Not only is the Board of Regents, as head of the educational system of the State, the statutory guardian of the policies of the State in relation to curbing deception or fraud by those subject to its supervision (Education Law, § 46), but its specific supervisory powers over the practice of dentistry (Id. § 51) enable it, within reasonable limits, to prescribe canons by which conduct deemed by it, in the exercise of fair judgment, to be unprofessional and objectionable may, in the interest of rescuing that profession from vulgar commercialism, be banned. Prohibition against the use of flamboyant signs by members of a profession cannot be said to be unreasonable. The question here is not whether petitioner’s contemplated violation of an equitable rule established by the highest body in the educational system of the State carries any penalty. It is whether in the act of such an attempted violation, petitioner possesses a clear legal right to demand that the judicial branch of government shall by order of mandamus thwart the Regents’ laudable endeavor to elevate professional standards among dentists. We think that no such right exists.

In issuing permits under section 215 of the municipal ordinance, the City Clerk is not intended invariably to act as an automaton. If a permit may lawfully be issued, he is the officer designated for that purpose. Here is an instance where the word “ shall ” ought not to be interpreted in a mandatory sense: (Matter of Thurber, 162 N. Y. 244; Matter of State of New York, 207 N. Y. 582.) Generally but not always the City Clerk’s duties are ministerial, yet surely he could not be compelled to perform an act which would result in crime, fraud or even public deception. He cannot be coerced into participating in transactions which are forbidden by law or by rules having the force of law. While his power to exercise discretion is extremely limited, he is not, on the facts before us, entirely without some measure of it.

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

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

Ordered accordingly.


author: O’Brien, J. Crane, J. (dissenting).

text:
    Metropolitan Life Insurance Company, Respondent, v. The Bank of United States, Appellant, Impleaded with Another.
    (Argued June 2, 1932;
    decided July 19, 1932.)

      Arthur Ofner, Warren C. Fielding, Charles F. Preusse and Carl J. Austrian for appellant.
    Whether the check was certified by mistake presented a clear question of fact for the determination of a jury. (Jordan v. National Shoe & Leather Bank, 74 N. Y. 467; Smith v. Eighth Ward Bank, 31 App. Div. 6; Meyers v. N. Y. County Nat. Bank, 36 App. Div. 482; People v. St. Nicholas Bank, 44 App. Div. 313; Crosby v. Bank of Niagara, 154 N. Y. Supp. 883; Smith v. Finkelstein, 162 App. Div. 128; Gale v. Frost Anderson Sales Co., 216 App. Div. 780; Bartholdi v. Hickson, 79 Misc. Rep. 245; Wirth v. Kahlenberg, 31 Misc. Rep. 803; Irving Bank v. Wetherald, 36 N. Y. 335; Brooklyn Trust Co. v. Toler, 65 Hun, 187; 138 N. Y. 675; Mt. Morris Bank v. Twenty-third Ward Bank, 172 N. Y. 244; National Park Bank v. Steele & Johnson Mfg. Co., 58 Hun, 81; Greenberg v. World Exchange Bank, 227 App. Div. 413; President & Directors of Manhattan Co. v. Tunick, 134 Misc. Rep. 863; Baldinger & Kupferman Mfg. Co. v. Manufacturers-Citizens’ Trust Co., 93 Misc. Rep. 94; Burkhalter v. Second Nat. Bank, 42 N. Y. 538; Bombas v. Fisher, 180 N. Y. Supp. 449; Seigel v. Kovinsky, 93 Misc. Rep. 541; 174 App. Div. 857; Mosel v. Frank Brewing Co., 2 App. Div. 93; Hathaway v. County of Delaware, 185 N. Y. 368.)

      Frederick C. Tanner and Thomas McCall for respondent.
    The right of a bank to enforce its liens upon the depositor’s funds cannot avail to the bank as a defense, after it has certified a check of the depositor in an action on the check. (National Bank of Newburgh v. Smith, 66 N. Y. 271; Reichert v. Spiess, 203 App. Div. 134.) When a bank certifies a check, the bank engages and represents that it has funds in its possession sufficient to meet the instrument and a legal obligation is created by the certification on the part of the bank to pay the check without regard to the condition of the depositor’s account. (Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301; Freeport Bank v. Viemeister, 227 App. Div. 457; President & Directors of Manhattan Co. v. Tunick, 134 Misc. Rep. 863.) Plaintiff has been prejudiced by its acceptance of the check in suit because of the certification thereof. (Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301.)
   O’Brien, J.

The complaint alleges that defendant Hotel Martinique, Inc., for a consideration, delivered to plaintiff a certified check drawn by the hotel company upon defendant the Bank of United States for $11,000, and that upon presentation the bank refused payment. Judgment is demanded for the amount of the check together with the protest fee and interest and costs. The answer of the bank alleges that the certification was made through error; that at the time the check was presented for certification, the hotel company’s account was held subject to a hen for a sum in excess of the amount of the check and that the certification clerk overlooked and failed to note the fact that a hold ” order had been placed against that account; that the bank immediately notified plaintiff of the mistake and that plaintiff has suffered no loss as a result of the erroneous certification. The answer of the hotel company alleges that the check was accepted by plaintiff in full settlement and discharge of the hotel’s obligation and that it has been wholly discharged. On motion by plaintiff for summary judgment, its president by affidavit alleges that, upon receipt of the check, credit was given by plaintiff to the Hotel Martinique for $11,000 and that plaintiff relied upon the bank’s certification. The bank’s opposing affidavits set forth that the hotel company had $21,000 on deposit but that it owed the bank $60,000 on a note resulting in an indebtedness of $39,000. Upon default in payment of the note, the bank caused the hotel’s account to be placed in a green jacket and marked “hold — refer all checks to Mr. Adamson,” and all employees were directed to take his instructions before honoring any checks. At that time the hotel also owed plaintiff an installment of interest on a mortgage and drew the check, which is the subject of this litigation, to plaintiff’s order for $11,000, and presented it to the bank for certification. The temporary certification clerk who received it, according to the affidavit of an assistant vice-president, misunderstood the information conveyed to him by the bookkeeper and, instead of obtaining Mr. Adamson’s instructions, certified the check. Immediately thereafter, according to the same affidavit, plaintiff was informed that this error had been committed and that on account of it the check would not be honored.

If the check was in fact certified by mistake and if plaintiff’s position was not in fact changed on the faith of the certification, the bank has an equitable defense (Irving Bank v. Wetherald, 36 N. Y. 335; Mt. Morris Bank v. 23rd Ward Bank, 172 N. Y. 244; Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301, 306), and this action as against it cannot be maintained. The allegations in the bank’s answer and in its opposing affidavit are sufficient to raise a substantial issue of fact in relation to error in certification. The impounding of the hotel’s account is susceptible of the inference of an attempt to assert a lien and the bank’s answer when fairly interpreted may be held to deny the existence of a balance in favor of the hotel company. The complaint embraces no averment of rebanee upon the certification to an extent warranting a legal conclusion of injury to plaintiff. Its president’s affidavit stating that it rebed upon the certification does not set forth the result of such rebanee other than that it gave credit to the hotel company. The answer by that defendant aheging a full settlement and discharge of its obligation to plaintiff requires proof. In its present form it may be regarded as a conclusion without facts to support it. If there was merely a book entry of payment, the settlement would constitute nothing more than a conditional one dependent upon the intent of the parties. A jury could infer that plaintiff accepted the check not as payment but as a means of payment which failed. The pleadings and affidavits do not prove that plaintiff has lost any right which it had against the hotel. The record before us presents issues for a jury and, therefore, summary judgment should not have been granted.

The judgments should be reversed and the motion for summary judgment denied, with costs in all courts.

Crane, J. (dissenting).

The Hotel Martinique, Inc., had sufficient balance with the Bank of United States to meet the check for $11,000, drawn to the order of the Metropolitan Life Insurance Company. The bank certified the check. At the time it had not appropriated the funds to any hen or indebtedness of its own. Had it paid the check — cashed it — the money could not have been recovered. Certification in business transactions to-day is equivalent to cashing a check, so long as the bank be solvent, i. e., the bank by its certificate agrees to keep the funds to pay the check and to pay it. (White v. Eiseman, 134 N. Y. 101, 107; Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301.)

Besides, the Hotel Martinique, Inc., with this certified check paid its indebtedness to the Metropolitan Life Insurance Company and received credit therefor. The debt was paid and discharged. Too late now for the bank to claim a mistake in certification when the insurance company received its promise in payment of the drawer’s obligation.

I am for affirmance.

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

Judgment accordingly.


author: Hubbs, J.

text:
    Ethel M. Colson, Appellant and Respondent, v. Naomi L. Pelgram et al., Respondents, and Charles R. Pelgram, 2d, et al., Respondents and Appellants.

      (Argued June 21, 1932;
    decided July 19, 1932.)

      Charles L. Craig for plaintiff, appellant and respondent.
    The will confers the power and imposes the duty upon the remaining trustee to name a successor to be appointed to fill the vacancy caused by the death of the co-trustee. (Surr. Ct. Act, § 168; People ex rel. Otsego County Board v. Board of Supervisors, 51 N. Y. 401; People ex rel. Conway v. Board of Supervisors, 68 N. Y. 116; Towler v. Towler, 142 N. Y. 371; Stanley v. Payne, 65 Misc. Rep. 77.)

      Colley E. Williams for Elizabeth F. Stone et al., defendants, respondents and appellants.
    The Supreme Court, upon a proper application and notice to the parties interested, has unlimited power to appoint a co-trustee to fill the vacancy. (Bronson v. Bronson, 48 How. Pr. 481; Ludwig v. Bungart, 48 App. Div. 613; Matter of Runk, 200 N. Y. 447; Lawrence v. Littlefield, 215 N. Y. 561; Matter of Tilden, 118 Misc. Rep. 729.) Exclusive jurisdiction to appoint a successor trustee is in the Supreme Court, Westchester county, where the Supreme Court’s jurisdiction was first invoked. (Bronson v. Bronson, 48 How. Pr. 481; Finlay v. Finlay, 240 N. Y. 429; Reise v. Graham, 122 App. Div. 312; Pond v. Harwood, 139 N. Y. 111; Schuehle v. Reiman, 86 N. Y. 270; Producers Royalty Co. v. Ottinger, 129 Misc. Rep. 694.)

      Herbert Noble for Charles R. Pelgram, 2d, et al., defendants, respondents and appellants.
    The Surrogate’s Court of New York county, and not the Supreme Court, Westchester county, or New York county, is the proper tribunal in which to seek the appointment of a co-trustee. (Matter of Smith, 120 App. Div. 199; Post v. Ingraham, 122 App. Div. 738; Evans v. Appell, 211 App. Div. 105; Borrowe v. Cashin, 31 App. Div. 172; 165 N. Y. 634; Moore v. De Groote, 158 App. Div. 828; Schley v. Donlin, 131 Misc. Rep. 208; Meeks v. Meeks, 51 Misc. Rep. 538; Matter of Runk, 200 N. Y. 447.)

      Harold R. Medina for Alfred E. Ommen, as trustee, respondent.

      Charles H. Street for Naomi L. Pelgram, respondent.
   Hubbs, J.

Under the last will of Eliza M. Pelgram, deceased, two individuals were named and appointed executors and trustees thereof. The will also provided that, in case of a vacancy, the surviving executor and trustee should name the successor to be appointed to fill the vacancy. One of the persons named as executor and trustee renounced the appointment, and the other named and caused to be appointed Caroline M. Fleming as co-trustee. Thereafter, the executor and trustee named in the will died, and the surviving trustee petitioned the Surrogate’s Court of New York county to appoint Alfred E. Ommen in his place and he was duly appointed.

Thereafter, Caroline M. Fleming died and Alfred E. Ommen continued for about two years to act alone. . He contended that it was discretionary with him whether a co-trustee should be appointed. He also believed that he had no power under the will to name a co-trustee. In November, 1929, the' defendants and appellants, Elizabeth Fleming Stone and Raoul Pelgram Fleming, beneficiaries under the will, duly commenced a proceeding in the Supreme Court, Westchester county, for the appointment of a successor trustee. They were then and now are residents of that county. All of the parties to this action were made parties to that proceeding and duly served with notice thereof. On December 17th, about eighteen days after the proceeding was started in Westchester county, the plaintiff commenced this action for a declaratory judgment in the Supreme Court, New York county. The parties to this action are the same as in the prior proceeding.

The plaintiff obtained an injunction pendente lite restraining the petitioners in the prior proceeding from proceeding further therein. The inj unction has been made permanent in the judgment in this action. The complaint therein prayed for a judgment declaring:

1. That Alfred E. Ommen, acting trustee, is vested with the power to name a successor trustee and that it is his duty to do so.

2. If it be decided that he is not vested with such power, then that jurisdiction to appoint a successor trustee is in the Surrogate’s Court of New York county.

3. That an injunction be granted restraining all defendants from prosecuting any action or proceeding for the appointment of a successor trustee.

The Appellate Division has decided that the Supreme Court has jurisdiction to appoint a successor trustee; that Alfred E. Ommen, the remaining trustee, has not the power to name a successor trustee and that two trustees are required. We are in full accord with the conclusion reached by the Appellate Division upon those questions.

It also affirmed the judgment of the Special Term in so far as it granted the injunction prayed for in the complaint and it named and appointed a successor trustee.

We have reached the conclusion that the complaint should have been dismissed upon the ground that at the time of the commencement of this action, there was pending a proceeding in the Supreme Court, Westchester county, between the same parties in which all of the questions properly involved herein could have been determined.

The prior proceeding was properly commenced in the Supreme Court, Westchester county. That was the place of residence of the petitioners therein. All of the parties to this action were duly served with process in that proceeding. All jurisdictional facts were alleged in the petition and the Supreme Court of that county had assumed jurisdiction by making proper orders in that proceeding. A successor trustee can be properly appointed in a proceeding commenced by petition. (Bronson v. Bronson, 48 How. Pr. 481; Finlay v. Finlay, 240 N. Y. 429.)

The answer of the defendants who were the petitioners in the prior proceeding set up the fact of the pendency of the prior proceeding and prayed that the complaint be dismissed. No substantial questions of fact were involved and the complaint should have been dismissed.

If the plaintiff were seeking a change of venue by commencing this action and procuring an injunction restraining the prosecution of the prior proceeding as indicated by the argument of plaintiff’s counsel, the practice is not justified. (Reis v. Graham, 122 App. Div. 312; Cheney v. Schuyler, 20 N. Y. Supp. 546.)

Under our system of jurisprudence it has long been held that an action in the same court between the same parties cannot be maintained to restrain the prosecution of another action in the same court unless it is manifest that full justice cannot be obtained in the first action and the relief which the plaintiff seeks in the second action cannot be obtained under a defense or counterclaim in the first action.

The reason for the rule is obvious. It is conducive to economy, and lack of friction between courts, saves labor and annoyance and leads to the orderly administration of justice. There should be one action only to settle the rights of the parties, when all rights can be properly determined in a single action. (Erie Ry. Co. v. Ramsey, 45 N. Y. 637; Savage v. Allen, 54 N. Y. 458; Pond v. Harwood, 139 N. Y. 111.)

It is also the general rule that where separate actions have been instituted between the same parties in reference to the same subject-matter in courts having concurrent jurisdiction the court which first obtains jurisdiction with adequate power to administer full justice should continue to exercise it. (Schuehle v. Reiman, 86 N. Y. 270; Garlock v. Vandevort, 128 N. Y. 374.)

We know of no principle which requires a different rule where the litigation is commenced by petition rather than by a summons. The reasons for the law governing actions applies with full force and no distinction has been made by the courts. (Perault v. Rand, 10 Hun, 222; People v. Wasson, 64 N. Y. 167; Kip v. N. Y. & Harlem R. R. Co., 6 Hun, 24; affd., 67 N. Y. 227; Garlock v. Vandevort, supra.)

That the Supreme Corut, acting under the broad powers conferred upon it by the Constitution (Const, art. VI, § 1), has jurisdiction in a proper case to enjoin the prosecution of a prior action or proceeding cannot be successfully questioned. (Erie Ry. Co. v. Ramsey, supra; Pond v. Harwood, supra.)

That power cannot, however, be arbitrarily exercised. It is only when facts appear which bring the case within the well-established rules for the administration of equity that the court is authorized to grant the extraordinary relief of injunction to prevent the prosecution of a prior action or proceeding in the same court.

It is elementary that courts should exercise the power to issue an injunction restraining the prosecution of a prior suit only in cases where the necessity therefor is clearly established.

The necessity for the exercise of such power which formerly existed under the old common-law practice has largely ceased to exist under the modern code practice under which equitable defenses may be interposed in law actions and jurisdiction is now only exercised under special circumstances to prevent a failure of justice. (4 Pomeroy’s Equity Jurisprudence [4th ed.], § 1370.)

In the case at bar no special circumstances exist which justified the granting of the injunction restraining the prosecution of the prior proceeding. All of the relief which the plaintiff seeks in this action can be awarded in the prior proceeding.

Before the court in the prior proceeding can appoint a succeeding trustee, it must determine whether the will vests that power in the remaining trustee; whether the will requires that two trustees act; whether the court has jurisdiction to make the appointment or whether that court and the Surrogate’s Court of New York county have concurrent jurisdiction, and, if so, whether it will exercise its discretion to assume jurisdiction. Those are the only questions involved in this action and they can all be properly determined in the prior proceeding.

“ The grant of a temporary injunction is usually discretionary; but not so with a decree allowing a perpetual stay.” (Pond v. Harwood, supra, at p. 117.)

Where there is an entire lack of legal justification for an action brought to secure an injunction staying a prior action, and such relief has been granted, the judgment should be reversed and the complaint dismissed. (Savage v. Allen, 59 Barb. 291; affd., 54 N. Y. 458; Wallack v. Society for Reformation of Juvenile Delinquents, 67 N. Y. 23.)

Rule 212 of the Rules of Civil Practice provides that a court may decline to pronounce a declaratory judgment in its discretion and leave the parties to obtain relief under existing forms of action. The discretion to be exercised is a judicial discretion. Under the facts in this case, the court should have declined to entertain jurisdiction for the reasons stated.

The judgments should be reversed and the complaint dismissed, with costs payable out of the estate to all parties who appeared separately and filed briefs.

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

Judgment accordingly.


author: Kellogg, J.

text:
    Angelina Iacono, as Administratrix of the Estate of Salvatore Iacono, Deceased, Respondent, v. Frank & Frank Contracting Co., Inc., et al., Appellants, Impleaded with Another.

      (Argued June 13, 1932;
    decided July 19, 1932.)

      Sidney Weitzer and Bernard G. Barton for appellants.
    A general contractor is not responsible for the negligent act of his subcontractor or subcontractors, and the fact the general contractor might have retained some limited power of general supervision for the purpose of seeing that the work was being properly done by the subcontractor or subcontractors according to the plans and specifications does not make the general contractor liable for the independent and negligent acts of the subcontractor or subcontractors. (Dudar v. Milef Realty Corp., 258 N. Y. 415; Moore v. Wills, 250 N. Y. 426; Hexamer v. Webb, 101 N. Y. 377; Herman v. City of Buffalo, 214 N. Y. 316; Schumer v. Catlin, 241 N. Y. 346; Corbett v. Scott, 243 N. Y. 66.) The trial court erred in denying the motion for a dismissal of the complaint as to defendants-appellants. (DeLee v. Pardy Construction Co., 249 N. Y. 103; Casperson v. LaSala Bros., 253 N. Y. 491; Hess v. Bernheimer & Schwartz Brewing Co., 219 N. Y. 415; Duggan v. National Constructors & Engineers, Inc., 223 App. Div. 163; Dudar v. Milef Realty Corp., 258 N. Y. 415; Moore v. Wills, Inc., 250 N. Y. 426; Klein v. East River Electric Light Co., 182 N. Y. 27; Griggs v. Day, 158 N. Y. 1; Matter of Totten, 179 N. Y. 112; Latini v. Zavodnick, 254 N. Y. 346.)

      Fred P. Harrington, Manley J. Greenwald and Henry S. Sellin for respondent.
    Plaintiff established a cause of action. (Labor Law, § 240, subd. 1; Boyle v. Robinson, 154 App. Div. 1; Kenny v. Hall Realty Co., 85 Misc. Rep. 439; DeLee v. Pardy Construction Co., 249 N. Y. 103; Caspersen v. La Sala Bros., 253 N. Y. 491; Hooey v. Airport Construction Co., 253 N. Y. 486; Dudar v. Milef Realty Co., 258 N. Y. 415; Mortensen v. Magoba Cons. Co., 248 N. Y. 577; McRickard v. Flint, 114 N. Y. 222; Amberg v. Kinley, 214 N. Y. 531; Schumer v. Caplin, 241 N. Y. 346.) Section 240 of the Labor Law applied to defendants-appellants. (Quigley v. Thatcher, 207 N. Y. 66; Bohnhoff v. Fischer, 210 N. Y. 172; DeLee v. Pardy Construction Co., 249 N. Y. 103; Hooey v. Airport Construction Corp., 253 N. Y. 486; Caspersen v. La Sala Bros., 253 N. Y. 491; Dudar v. Milef Realty Corp., 258 N. Y. 415; Mortensen v. Magoba Cons. Co., 248 N. Y. 577.)
   Kellogg, J.

The defendant Thirty-sixth Street and Eighth Avenue Corporation was the owner of premises upon which a twenty-eight story building was being erected. The defendant Frank & Frank Corporation, Inc., was the general contractor which had undertaken to construct the building. All the work had been performed, or was in the course of performance, through the agency of subcontractors. While the defendant owner “ had possession and control of the premises,” and the defendant contractor was represented upon the job by a construction superintendent, nevertheless, neither of the defendants had any laborers upon the premises, or performed any part of the work of construction.

A subcontractor, having in charge the construction of the concrete arches and cement floors, had procured the United Hoisting Co., Inc., to install a hod-hoist in the partly-erected building, that it might elevate material to the various floors. After its erection, and after the concrete subcontractor had finished its work, the hoist came into the possession of the plastering subcontractor, A. P. Grassi & Bros., Inc. The Grassi Company became lessee of the hoist under a contract which expressly provided: “After installation the entire control and operation of hoists, machinery and appliances connected therewith are under the absolute authority of the lessees.” The lessee paid a rental for the hoist which included the wages of the engineer who ran the hoist. The engineer was the servant of the Grassi Company.

The hoist was operated in a shaft which extended from the cellar to the twenty-fifth story. It consisted of a platform, about six feet square, which was unprotected at the sides by any partition or barrier. It was lifted and lowered by a cable fastened to a cross piece about six feet above the platform. The cable extended up the shaft to a pulley and then returned to a drum which was caused to revolve by an electric motor. The hoist was held in place by metal shoes, two pairs to a side, so placed as to form grooves through which vertical rails, extending along opposite sides of the shaft, might pass, as the hoist rose or fell.

Salvator Iacono, for whose death recovery is sought from these defendants, was an employee of the Grassi Company. While working at the foot of the hoist shaft, it became necessary for him to ascend to the twenty-fifth floor. It had been the custom of the men employed by Grassi to use the hod-hoist for this purpose, although notice forbidding the practice had been given by their employer. The engineer complied with Iacono’s request and operated the hoist to move him to the desired floor. On Iacono’s return .journey, at the nineteenth floor, the shoes on one side of the hoist slipped off the vertical rail, the hoist tilted to one side, and Iacono, slipping from the platform, fell to the bottom of the shaft and was killed.

The Grassi Company, at the time of the accident and prior thereto, was in exclusive possession, operation and control of the hoist. Neither of the defendants had caused its installation, or supplied it for the use of subcontractors; neither of them had ever possessed or operated it. Notice that the hoist was out of repair had never been given to either of the defendants. Grassi had been informed that the vertical rails were out of line and that the hoist shook excessively when run, but no such information had been communicated to the defendants. We know of no duty resting upon an owner or a general contractor to inspect the machinery and tools furnished by a subcontractor, which that contractor exclusively possesses and controls; nor of any duty, after an inspection disclosing defects, to make repair of a defective appliance. “ If the employer furnishes a ladder or a scaffold for the contractor’s employees to work on he must be careful to furnish a safe appliance (Huston v. Dobson, 138 App. Div. 810; Fuller v. Mulcahy & Gibson, 164 App. Div. 829), but if the contractor furnishes such apphances the employer does not thereby become responsible for their sufficiency. They are no part of the employer’s plant; failure to furnish them is not a defect in the employer’s plant.” (Per Pound, J., in Hess v. Bernheimer & Schwartz Brewing Co., 219 N. Y. 415, 418.) DeLee v. Pardy Construction Co. (249 N. Y. 103); Caspersen v. LaSala Bros. (253 N. Y. 491)); Hooey v. Airport Construction Co. (253 N. Y. 486); Dudar v. Milef Realty Corp. (258 N. Y. 415), relied upon by respondent, hold nothing to the contrary. They express the principle that an owner, acting as general contractor in the construction of a building, and exercising general control and superintendence, owes to the employees' of a subcontractor the duty of exercising reasonable care to make safe the places of work provided by him, and the ways and approaches to such places. Here we have a case, where the duty of inspecting and keeping safe apparatus and machinery, supplied to laborers by subcontractors employing them, has been cast upon the superintending owner and general contractor. The imposition of such a burden finds justification neither in principle nor authority.

Nor do we think that section 240 of the Labor Law (Cons. Laws, ch. 31) has application. That section reads in part: “A person employing or directing another to perform labor of any kind in the erection * * * of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, * * * hoists * * * and other mechanical contrivances which shall be so constructed, placed and operated so as to give proper protection to a person so employed or directed.” Concededly, neither defendant was a person employing ” another “ to perform labor,” for neither had any workman upon the job. Nor do we think that the Legislature, in using the phrase a person * * * directing another to perform labor,” had in mind an owner performing work through an independent contractor, or that it intended to impose liability upon such an owner for injuries arising from defective appliances supplied to his laborers by an independent contractor, as though the owner were a person “ directing” such laborers. Therefore, we think that the statute has no application.

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

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

Judgments reversed, etc.


text:
    Lillian A. Brill, Appellant, v. American Surety Company, Respondent.
    (Argued June 13, 1932;
    decided July 19, 1932.)

      Edward H. Wilson and John J. Kean for appellant.
    The defendant is liable on the undertaking. (Grafton v. U. S. Fidelity & Guarantee Co., 227 N. Y. 162; St. Johns College v. Ætna Indemnity Co., 201 N. Y. 335; Ulster County Savings Inst. v. Young, 161 N. Y. 23; Hill v. American Surety Co., 200 U. S. 197; Gillmore v. Equitable Surety Co., 228 App. Div. 188; Sachs v. American Surety Co., 72 App. Div. 60; 177 N. Y. 557; McElroy v. Mumford, 128 N. Y. 303; Goodwin v. Bunzl, 102 N. Y. 224; Haskell v. Fidelity & Casualty Co., 118 Misc. Rep. 410; 205 App. Div. 858; Batto v. Westmoreland Realty Co., 231 App. Div. 103; United Surety Co. v. Meenan, 211 N. Y. 39.)

      Benjamin Wiener, Herman Goldman, Elkan Turk and George L. Naught for respondent.
    The bond must be strictly construed and the intent of the obligations of the defendant must be gathered from the language used in the bond. (Dugand v. Indemnity Ins. Co., 203 N. Y. Supp. 541; 210 App. Div. 853; American Exchange v. Goubert, 210 N. Y. 421; Josephi v. Creston Co., 188 App. Div. 97; 230 N. Y. 549; Mossein v. Empire State, 117 App. Div. 820; Chicago Crayon Co. v. Slattery, 68 Misc. Rep. 148; Markoe v. American Surety Co., 44 App. Div. 285; 167 N. Y. 602.) The plaintiff is barred from maintaining the action for the reason that the Appellate Division and the Court of Appeals have not awarded any judgments for the increase in the city chamberlain’s fees and additional interest. (Lorillard v. Clyde, 122 N. Y. 41; Royal Line Fish Co. v. Central Fish Co., 159 App. Div. 151; Dahlstrom v. Gemunder, 198 N. Y. 449.)
   Kellogg, J.

Redondo Steamship Company brought an action against Kerr Steamship Company, Inc., Benjamin Harris, Irving Trust Company and others, to have determined the title to a fund of $41,267.18 deposited in the Irving Trust Company. The trust company procured an order to pay the money into court, and, pursuant to the order, paid the sum to the Chamberlain of the city of New York. The Special Term held that the plaintiff was entitled to the fund and that the Chamberlain should pay it over, less his legal fees. The defendants Kerr Company and Harris appealed to the Appellate Division and applied to that court for a stay pending the appeal. On the argument counsel made the objection to a stay that the plaintiff would lose the difference in interest between three per cent, payable by the city, and the legal six per cent rate; also that a law doubling the commissions of the Chamberlain would take effect on September first following and thus a stay would increase the charges against the fund. The stay was granted on condition that the defendants file an undertaking to secure, among other things, “ the payment by the appellants of any further sum awarded upon the appeal against these appellants by way of interest on any part of the judgment as well as any further sums awarded against these appellants by virtue of any increase in the rate of charge made pursuant to law by the Chamberlain of the City of New York.” Thereupon an undertaking of the defendant surety company was filed whereby that company undertook that the defendants in the action would pay any further sums not exceeding five hundred dollars which may be awarded against the appellants on said appeal by way of charges or fees of the said Chamberlain in excess of the charges which would have been legal under the rates for his charges in force on the date of said judgment ” and any further sums not exceeding $1,500 which may be awarded against appellants on said appeal by way of additional interest on any part of said judgment.” The judgment was affirmed on appeal. Thereafter this action was brought on the bond by the assignee of Redondo Steamship Company to recover the interest lost, and the additional charges paid to the Chamberlain in consequence of the delay occasioned by the appeal. The claim is opposed on the ground that no sums of money were " awarded ” on the appeal to cover interest lost or additional charges paid. So to read the undertaking is to deprive its words of any effect whatever, since, of course, the Appellate Division could not, upon the appeal, modify the judgment to include sums for interest lost and extra charges paid. Viewed in the light of the circumstances under which the undertaking was given, it seems entirely clear that it was an undertaking to indemnify the plaintiff in the action against a loss, in respect to the two items named, which the delay, occasioned by the stay, might actually cause.

The judgments should be reversed and judgment granted as demanded in .the complaint, with costs in all courts.

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

Judgments reversed, etc.


author: Pound, Ch. J.

text:
    In the Matter of Nicholas L. Leone, Appellant, against Harry J. Brewer et al., Constituting the Building Commission of the Town of Mamaroneck, Respondents.
    (Argued June 14, 1932;
    decided July 19, 1932.)

      Jonas J. Shapiro and Lawrence S. Greenbaum for appellant.
    The uncontradicted evidence, and the accepted findings establish that the 30 foot set-back provision deprives petitioner of all beneficial use of his property. As to him it is unconstitutional, and mandamus must issue. (Matter of Eaton v. Sweeny, 257 N. Y. 176; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73; Nectow v. Cambridge, 277 U. S. 183; Matter of Hecht-Dann Const. Co. v. Burden, 124 Misc. Rep. 632; Sundlun v. Zoning Board of Pawtucket, 50 R. I. 108; Anderson v. Jester, 206 Iowa, 452; State ex rel. Taylor v. Jacksonville, 133 So. Rep. 114; Matter of Jacobs, 98 N. Y. 98; Matter of Picone v. Comr. of Licenses, 241 N. Y. 157; Norton v. Shelby County, 118 U. S. 425; Gedney v. Marlton Realty Co., 258 N. Y. 355; Wulfsohn v. Burden, 241 N. Y. 288.) The Town Board, in the absence of a Board of Appeals, has no authority to vary the zoning ordinance; and the Appellate Division erred in denying mandamus on the ground that the Town Board could grant a variance. (Luechinger v. Eichhammer, 236 N. Y. 556; Martin v. Herzog, 228 N. Y. 164; Matter of McAneny v. Bd. of Estimate, 232 N. Y. 377; Federal Trade Comm. v. Raladam Co., 283 U. S. 643; Matter of Milligan, 4 Wall. 2; Schumaker v. Edgington, 152 Iowa, 596; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Richardson v. Young, 122 Tenn. 471; Snow v. Hudson, 56 Kan. 378; Keeney v. Jersey City, 47 N. J. L. 449; Bridges Son v. Kelly, 156 Ky. 96; Matter of Richmond Rys. v. Gilchrist, 225 App. Div. 371; Dowsey v. Village of Kensington, 257 N. Y. 221.)

      J. Henry Esser for respondents.
    The property owner, who claims to suffer an individual hardship, must deal first with the duly constituted local authorities, and seek recourse in the courts only after an arbitrary, capricious or unreasonable refusal of relief to which he is clearly entitled. (Dowsey v. Village of Kensington, 257 N. Y. 221; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of Larkin v. Schwab, 242 N. Y. 330; Rice v. Van Vranken, 132 Misc. Rep. 82; 255 N. Y. 541; People ex rel. Lynch v. Pierce, 149 App. Div. 286; People ex rel. Van Deren v. Moore, 78 App. Div. 28; People ex rel. Earwicker v. Dillon, 38 App. Div. 539; Matter of Kelly v. Van Wyck, 35 Misc. Rep. 210; People ex rel. Kelly v. Common Council, 77 N. Y. 503; Willerup v. Village of Hempstead, 120 Misc. Rep. 485; Fougera & Co. v. City of New York, 224 N. Y. 269.) The nullification which petitioner seeks is in fact a variance for which the Appellate Division properly relegated him to the local authorities. (Dowsey v. Village of Kensington, 257 N. Y. 221; Pub. Off. Law, § 30; Matter of Collins, 16 Misc. Rep. 598; Matter of Schultes, 33 App. Div. 524.)
   Pound, Ch. J.

The only question before the court is whether, on the undisputed facts, appellant has established a clear legal right to a permit from the Building Commission of the town of Mamaroneck to erect a dwelling on his lots in accordance with plans and specifications filed by him. The lots are corner lots in class A, residence district, forming a triangular piece of land where two streets intersect obliquely. The zoning ordinance of the town provides in relation thereto as follows:

“Art. III, Section 11. Set Back: No part of any building shall be built within 30 feet of any street fine, except that on corner lots such buildings may be set-back a less distance from the side street, upon the joint consent of the Board of Appeals and the Town Board.”

Although the Town Law (Cons. Laws, ch. 62, § 141-c, subd. 18-f) provides in part, such town board may appoint a board of appeals,” no board of appeals exists and, therefore, the joint consent of the board of appeals and the town board cannot be obtained. Appellant contends that the strict enforcement of the set-back provision would destroy the value of his lots for residence purposes; that the ordinance as applied to him is void for unconstitutionality and that he should have a permit to erect his dwelling house regardless of the zoning ordinance.

The validity of zoning ordinances has been well established.

There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of over-crowding, and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances.” (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, at p. 388.) (See, also, Gorieb v. Fox, 274 U. S. 603; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Town of Islip v. Summers C. & L. Co., 257 N. Y. 167.)

Reservation of authority to make exceptions in case the ordinance imposes a peculiar burden on a particular landowner is, however, proper and indeed necessary, if without such exception the owner is subjected to great and needless hardship, entirely disproportionate to the good which will result from a literal enforcement of the general rule.” (Gorieb v. Fox, supra, p. 607; Nectow v. Cambridge, 277 U. S. 183.) Such authority is reserved in the set-back ordinance before us but at present it cannot be exercised because of the non-existence of the board of appeals provided for by the Town Law. The appointment of the board may be compelled by mandamus. (People ex rel. Sears v. Tobey, 153 N. Y. 381, 389.) While this remedy may be awkward and dilatory, it is a remedy which is open to appellant. Neglect or refusal by the Town Board to act in the matter of providing machinery under a valid zoning ordinance to mitigate its harshness as applied to a particular case does not nullify the ordinance as thus applied.

The court may not assume the functions of the board and exercise an administrative non-judicial function in making an exception to the ordinance. In the first instance, the official body entrusted with that function must determine in such case the propriety and the extent of the variation.” (Dowsey v. Village of Kensington, 257 N. Y. 221, 229.) If the court should declare the restriction on appellant’s lots void, appellant may build his house wherever on bis lots he pleases and may thus destroy the scheme of the zoning ordinance. So long as another remedy is available the court should not go so far as to hold in this proceeding any part of the zoning ordinance void. If the local authorities when properly constituted and applied to, arbitrarily refuse relief, the courts may determine whether the petitioner has been illegally oppressed. (Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126, 136.)

This ruling is in accord with all our decisions. In Matter of Eaton v. Sweeny (257 N. Y. 176) the court afforded relief because the zoning ordinance, itself unduly harsh, did not make adequate provision for a variation of a use or for review of the action of the local authorities. In People ex rel. St. Albans-Springfield Corp. v. Connell (257 N. Y. 73) the proceedings were under section 719-a of the New York City Charter (Laws 1916, ch. 503, § 6) providing for review of a decision of the Board of Standards and Appeals by certiorari.

The order should be affirmed, with costs.

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

Order affirmed.


text:
    Rose Liebowitz, Respondent, v. Arrow Roofing Co., Inc., et al., Respondents, and Dillon-Parker Corporation, Appellant, Impleaded with Others.

      (Argued June 20, 1932;
    decided July 19, 1932.)

      Maurice B. Blumenthal and Max Corin for appellant.
    The trial court erred in excluding evidence as to the consideration for the mortgage, since, if there was no consideration, the mortgage would have no inception until its assignment from the mortgagee to plaintiff, ten days after the perfection of defendant-appellant’s equities. (Schafer v. Reilly, 50 N. Y. 61; Weiss v. Schildkraut, 116 Misc. Rep. 285.) The plaintiff took the mortgage subject to these equities in defendant-appellant, and is in no way aided by the recording acts. (Stevenson Brewing Co. v. Iba, 155 N. Y. 224; Briggs v. Langford, 107 N. Y. 680; Jermyn v. Searing, 170 App. Div. 707; Central Trust Co. v. West India Co., 169 N. Y. 314; Schafer v. Reilly, 50 N. Y. 61.)

      Michael H. Grae and Louis Baron for plaintiff-respondent.
    The plaintiff is a bona fide purchaser for value of the mortgage. (McCarthy v. Stanley, 151 App. Div. 358; Morris v. Tutthill, 72 N. Y. 575; Dinkelspiel v. Franklin, 7 Hun, 339.) The alleged equities of the defendant-appellant in the mortgage were extinguished by the assignment to the plaintiff, a purchaser in good faith and for value, notwithstanding the applicability of section 278 of the Debtor and Creditor Law. (Kommel v. Herb-Gner Const. Co., 256 N. Y. 333; Spicer v. First Nat. Bank, 55 App. Div. 172; Simpson v. Del Hoyo, 94 N. Y. 189; Wallach v. Schulze, 22 App. Div. 57.)
   Hubbs, J.

The defendants Roth and Weber were engaged in the roofing business as copartners under the name Arrow Roofing Company. Between December 1, 1928, and May 28, 1929, they became indebted to the appellant, Dillon-Parker Corporation.

The Dillon-Parker Corporation commenced two separate actions on account of such indebtedness, which actions resulted in judgments totaling $3,947.63, entered and docketed against the partners on April 15, 1930. By deed dated January 2, 1929, and recorded January 14, 1930, the defendants Roth and Weber conveyed to the defendant Arrow Roofing Company, Inc., the real property which is the subject of this action. The record does not disclose when the deed was acknowledged.

Arrow Roofing Company, Inc., was incorporated in 1927, and the defendants Roth and Weber were its sole stockholders. It does not appear that the corporation did any business before it took title to the real property in question. Subsequent thereto and at least as late as May, 1929, when they gave a note to the appellant, Dillon-Parker Corporation, the defendants Roth and Weber were doing business under the partnership name.

On the date of recording of the deed there was also recorded a bond and mortgage dated December 30, 1929, given by Arrow Roofing Company, Inc., to Arthur Buxenbaum as security for the sum of $5,000, which mortgage covered the premises so conveyed by the defendants Roth and Weber to Arrow Roofing Company, Inc. Buxenbaum transferred that mortgage to the plaintiff, the assignment being recorded on May 5, 1930. The plaintiff immediately entered into possession of the premises and two days thereafter instituted this action to foreclose the mortgage, the cause of action being based upon a default which occurred prior to the assignment to plaintiff. The appellant, Dillon-Parker Corporation, was made a party defendant. It answered, Setting up as a counterclaim that the property in question was originally owned by Roth and Weber, copartners, trading under the firm name of Arrow Roofing Company, against whom it had claims reduced to judgment April 15, 1930; that the transfer of all the assets of the copartnership, including the property in question, was fraudulent as to partnership creditors under sections 276 and 277 of the Debtor and Creditor Law (Cons. Laws, chap. 12) ; that the mortgage in question had no inception until its assignment on April 25, 1930, and that the plaintiff took the mortgage subject to the latent equities of appellant’s judgments. It demanded judgment that the deed, bond and mortgage and assignment thereof to plaintiff be declared fraudulent and void; that the bond and mortgage be canceled and discharged of record; that the title to the premises be adjudged to be in Roth and Weber, subject to the rights of valid incumbrances and of the appellant, Dillon-Parker Corporation, as a judgment creditor.

At the trial the court ruled that lack of consideration for the mortgage was immaterial and refused to permit the appellant, Dillon-Parker Corporation, to offer testimony upon that question. It also refused to receive evidence as to the consideration paid by the corporation for the deed to the property. When the real property was transferred to the corporation, it included office fixtures and other equipment of the partnership so that nothing was left to the partnership.

That the transfer of the real property to the corporation and the execution and delivery of the mortgage to Buxenbaum was in pursuance of a fraudulent scheme to defeat the rights of creditors of Roth and Weber is indicated by the record. It appears from the testimony of plaintiff’s husband, who procured the assignment of the mortgage to plaintiff and paid the consideration therefor, that plaintiff, when she took the assignment, had knowledge of the fact that the defendants Roth and Weber were in financial difficulties. Under such circumstances, to refuse to permit the appellant to examine as to consideration for the deed to the corporation and for the mortgage sought to be foreclosed was clearly error.

A conveyance made with actual intent to defraud either present or future creditors is fraudulent as to both, and a conveyance of partnership property where the partnership will be thereby rendered insolvent, is fraudulent as to partnership creditors, if without fair consideration, though made to a person not a partner. (Debtor and Creditor Law, §§ 276, 277.)

A creditor may have a fraudulent conveyance set aside as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such a purchaser.” (Id. § 278.)

It is well established that an assignee of a mortgage takes subject to the equities existing between the original parties and the defense of want of consideration for the mortgage is available against an assignee, although he is a bona fide purchaser. (Schafer v. Reilly, 50 N. Y. 61; Stevenson Brewing Co. v. Iba, 155 N. Y. 224; Greene v. Warnick, 64 N. Y. 220; Briggs v. Langford, 107 N. Y. 680; Kommel v. Herb-Gner Construction Co., Inc., 256 N. Y. 333.)

Fom a legal point of view, a mortgage has its inception from the time of its delivery for a legal consideration. (Schafer v. Reilly, supra; Verity v. Sternberger, 62 App. Div. 112; affd., 172 N. Y. 633; Kommel v. Herb-Gner Construction Co., Inc., supra.)

Since plaintiff was not, within the terms of the statute, a purchaser of the property conveyed and her interest in the mortgage was acquired subsequent to the entry of the judgments, she took subject to the equities then existing in favor of appellant.

Having made appellant a party in this action, equitable in. nature, plaintiff cannot be heard to say that appellant’s equitable interest may not be adjudicated.

Since the appellant was not permitted to offer testimony as to the consideration for the deed or mortgage, or to show the actual facts and circumstances surrounding the transactions, the judgment must be reversed.

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

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

Judgments reversed, etc.


author: Crane, J.

text:
    Kieren J. Ganly, an Infant, by John B. Ganly, His Guardian ad Litem, et al., Respondents, v. Steel Storage and Trucking Corporation, Appellant, Impleaded with Others.
    (Argued June 17, 1932;
    decided July 19, 1932.)

      F. M. Buermann and Barnett Cohen for appellant.
    There is no evidence warranting the finding that plaintiff is entitled to recover because the affirmative proof established as a matter of law that defendant-appellant was not guilty of any negligence. (Gibson v. Nassau Elec. R. R. Co., 185 App. Div. 320.)

      Abraham L. Sainer and Elmer F. Quinn for respondents.
    The evidence justifies the verdict that the defendant-appellant was guilty of negligence. (Fluker v. Ziegle, 201 N. Y. 40; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Callahan v. Terminal Cab Co., 259 N. Y. 112; Walker v. Bradt, 225 App. Div. 415; Danhauser v. Wallenstein, 169 N. Y. 205; Woicianowicz v. Philadelphia & R. Coal & Ice Co., 232 N. Y. 256; Wygand v. United Traction Co., 221 N. Y. 39; Dolfine v. Erie R. R. Co., 178 N. Y. 1; Ward v. Clark, 189 App. Div. 344; 232 N. Y. 195; Hoag v. N. Y. C. R. R. Co., 111 N. Y. 203; Terwilliger v. Long Island R. R. Co., 152 App. Div. 168; 209 N. Y. 522; Noakes v. N. Y. C. R. R. Co., 121 App. Div. 716; Feigin v. Malvin, 175 N. Y. Supp. 245.)
   Crane, J.

This is a street crossing accident case in which the plaintiff has recovered a verdict for personal injuries while riding on an automobile going in the wrong direction, contrary to street regulations. The defendant, whose driver was using the streets with reasonable care and following regulations, has been mulcted in damages on insufficient evidence.

On March 2, 1928, the plaintiff, a young man twenty years of age, was riding on the step of a Ford automobile wagon driven by the defendant Charles Svoboda, through One Hundred and Eleventh street in an easterly direction, contrary to traffic regulations. One Hundred and Eleventh street is a one-way street to the west toward the Hudson river, and Svoboda was driving east toward the East river, approaching Seventh avenue. Whatever excuse he might have had for going in this direction west of Seventh avenue, he had no excuse for crossing Seventh avenue, but should have turned to his right. Svoboda desired to go uptown, or in a northerly direction, and proceeded across Seventh avenue, turning to the left into traffic going north. He turned in front of the defendant’s approaching truck and the collision occurred which injured the plaintiff. Seventh avenue is divided into north and south traffic by a parkway of trees and shrubs running through the center of the street. Uptown vehicles use one side of Seventh avenue; downtown traffic the other. It was while the Ford car was turning around the corner of this parkway to the left into Seventh avenue that the collision took place.

The truck was in plain sight, but Svoboda swears he did not see it. Q. Did you see this other car crossing from your right? A. No, I did not. Q. The first time you knew about it was when you were hit? A. That, is right.” The truck driver had no reason to expect traffic from his left, or from the west, contrary to the- street regulations and the directions indicated by the arrow.” The defendant’s truck driver said he looked to the right toward the east but saw nothing approaching, as traffic had stopped. He did not expect anything from the west and had no reason to anticipate that Svoboda’s automobile would turn from the west into northerly traffic. Svoboda turned without stopping from One Hundred and Eleventh street into Seventh avenue to go north, when the defendant’s truck was not more than fifty or sixty feet from him, coming at reasonable speed. This is the case stated most strongly for the plaintiff, and does not justify a recovery. Svoboda, and not the defendant, was guilty of negligence. The accident was clearly the result of the Ford car proceeding in the wrong direction against traffic regulations, turning into Seventh avenue at a street corner where left turns were not permitted.

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

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

Judgments reversed, etc.


text:
    S. Sheldon Meyers, Appellant, v. Credit Lyonnais, Respondent.
    (Argued June 15, 1932;
    decided July 19, 1932.)

      Robert Szold, Irvine J. Shubert and Merwin D. Maier for appellant.
    An action by a non-resident plaintiff against a non-resident defendant on a cause of action which originally accrued outside the State is not barred by the six-year Statute of Limitations. It is tolled by section 19 of the Civil Practice Act. (Olcott v. Tioga R. R. Co., 20 N. Y. 210; National Surety Co. v. Ruffin, 242 N. Y. 413; Power v. Hathaway, 43 Barb. 214; Rathbun v. No. C. R. R. Co., 50 N. Y. 656; Boardman v. Lake Shore & M. S. R. Co., 84 N. Y. 157; Comey v. United Surety Co., 217 N. Y. 268.) The tolling provision has been applied in actions by nonresident plaintiffs upon foreign causes of action. (Connecticut Trust & Safe Deposit Co. v. Wead, 172 N. Y. 497; Plummer v. Lowenthal, 165 N. Y. Supp. 220; Ruggles v. Keeler, 3 Johns. 263; Power v. Hathaway, 43 Barb. 214; Gans v. Frank, 36 Barb. 320; Hixon v. Rodbourn, 67 App. Div. 424; Robeson v. Central R. R. Co., 76 Hun, 444; Mayer v. Friedman, 7 Hun, 218.)

      Edward H. Green, John C. Higgins and H. Zettler for respondent.
    When a suit on a foreign cause of action between non-residents is barred by section 48 of the Civil Practice Act, it may not be thereafter brought by virtue of section 19. The tolling provision is to be construed in its setting among the other parts of the Statute of Limitations and does not suspend, in favor of non-resident creditors, the running of the general six-year statute on a foreign cause of action. (National Surety Co. v. Ruffin, 242 N. Y. 413; Kirsch v. Lubin, 131 Misc. Rep. 700; 223 App. Div. 826; 248 N. Y. 645; 249 N. Y. 610; Garrison v. Newman, 222 App. Div. 498; Hale v. Lawrence, 21 N. J. L. 714; Robinson v. Oceanic Co., 112 N. Y. 315.)
   Hubbs, J.

The plaintiff is the assignee for collection only of a claim on contract which accrued in Russia in the year 1918 in favor of a Russian citizen against the defendant, a French bank having a branch in Petrograd.

The action was commenced in November, 1930, by an attachment of property of the defendant in this State. More than six years had expired after the cause of action accrued before it was assigned by the Russian citizen. The Statute of Limitations had not run against the cause of action in Russia or in France, the residence of the defendant. The defendant moved at Special Term, under rule 107, to dismiss the complaint on the ground that the action was barred by the six-year Statute of Limitations (Civ. Prac. Act, § 48). The motion was denied, but the Appellate Division reversed and made an order dismissing the complaint.

The question presented for determination is whether section 48 of the Civil Practice Act applies in an action by a non-resident plaintiff against a non-resident defendant when the cause of action accrued in a foreign jurisdiction more than six years before the commencement of the action. Section 48 of the Civil Practice Act, so far as applicable, reads: “Actions to be commenced within six years. The following actions must be commenced within six years after the cause of action has accrued.” If that provision of the statute stood alone, the claim would be barred. However, section 19 of the Civil Practice Act reads in part: “ Effect of defendant’s absence from state or residence under false name. If, when the cause of action accrues against a person, he is without the state, the action may be commenced, within the time limited therefor, after bis return into the state.”

It is the contention of respondent that the statute must be read as a whole, and in the light of the construction placed by the courts upon its various sections. It says that if the statute be so read, the defendant is entitled to a dismissal of the complaint as it must be held that the action is barred by the limitation contained in section 48, a limitation which defendant, although a non-resident, may plead as against plaintiff who is also a non-resident. It argues that section 48 is unaffected by the provisions of section 19 of the same act when set up as a bar to an action brought by a non-resident plaintiff. Section 13 of the Civil Practice Act has no application as the Statute of Limitations of Russia had not run against the cause of action in Russia when this action was commenced.

We believe that the question is no longer open in this court. Ever since the opinion of Kent, Ch. J., rendered in the case of Ruggles v. Keeler (3 Johns. 263), decided in 1808, it has been the accepted law of this State that where a non-resident sues' another non-resident in the courts of this State upon a claim which arose in a foreign jurisdiction, the non-resident defendant may not successfully plead our Statute of Limitations as a bar to the action.

The principle has been stated in the opinions of eminent judges and decided in numerous cases. It has been stated by text writers (3 Williston on Contracts, § 2007) and generally accepted by the profession as settled law. In the case of Ruggles v. Keeler the same situation existed as in this case. Both parties to that action were non-residents. The cause of action arose in a foreign jurisdiction (Connecticut) and the contention was advanced by the defendant that the claim was barred by our Statute of Limitations. The chief justice, after reviewing English decisions, decided that the defense was not available.

In Gans v. Frank (36 Barb. 320), in the New York General Term in 1862, the same conclusion was reached under a similar state of facts. The latter case was followed in 1864 by the case of Power v. Hathaway (43 Barb. 214), at the Monroe General Term.

The case of Mayer v. Friedman (7 Hun, 218), decided in 1876, held that a non-resident defendant could not successfully plead the statute. It does not appear whether the plaintiff was a non-resident.

Meanwhile, the case of Olcott v. Tioga R. R. Co(20 N. Y. 210) had been decided in 1859. In that case the plaintiff was a resident of this State and the defendant a non-resident corporation. This court decided that the defendant could not avail itself of our Statute of Limitations.

The opinion of Judge Denio, in stating the principle applicable, made no distinction between cases where the plaintiff was a resident and cases where the plaintiff was a non-resident. He quoted with approval from the opinion of the chief justice in Ruggles v. Keeler. In Power v. Hathaway the opinion in the Olcott case was treated as authority for the proposition that the same rule applied whether the plaintiff was a resident or nonresident. In Miller v. Brenham (7 Hun, 330; affd., 68 N. Y. 83) the defendant was a non-resident. It does not appear where the plaintiff resided. The action was on a judgment recovered in a court in the State of California, where the Statute of Limitation had run. The General Term said: In this State an action upon the judgment could only be barred by showing that the defendant had resided here the length of time required for that purpose by the terms of our statute,” citing Ruggles v. Keeler.

In the case of Connecticut Trust & Safe Deposit Co. v. Wead (172 N. Y. 497) the plaintiff and defendant were both non-residents. The question decided was that the r on-resident defendant could not plead the Statute of Limitations. The decision, on the facts, is absolutely controlling in this case. It is suggested, however, by the respondent that the case should not be given that effect, as it does not appear that the court’s attention was called to the fact that plaintiff was a non-resident. It cannot be presumed that Chief Judge Cullen, who wrote the opinion, overlooked or failed to appreciate that the plaintiff was a non-resident, especially in view of the fact that the plaintiff was a foreign banking corporation. That decision has been treated as passing upon the question involved in this case. (Plummer v. Lowenthal, 165 N. Y. Supp. 220 [Appellate Term].)

The courts of other States have treated the question as definitely settled in this State by the eases heretofore cited. (Mason, Chapin & Co. v. Union Mills Paper Co., 81 Md. 446; Hatch v. Spofford, 24 Conn. 432; Belden v. Blackman, 118 Mich. 448; Paine v. Drew, 44 N. H. 306, 314.)

In New Jersey, where the rule contended for by respondent prevails, the courts recognize the fact that the rule in this State was definitely decided the other way in Ruggles v. Keeler. (Beardsley v. Southmayd, 15 N. J. L. 171.)

It is earnestly urged by respondent that public policy now requires or at least justifies this court in now adopting the rule in force in New Jersey. Attention is called to the cases of National Surety Co. v. Ruffin (242 N. Y. 413) and Kirsch v. Lubin (131 Misc. Rep. 700; affd., 223 App. Div. 826; affd., 248 N. Y. 645) as pointing the way and it is suggested that those cases, by implication, have overruled the long fine of cases which have followed the decision in Ruggles v. Keeler. Those cases do not express any such intention and this court would not by implication overrule such a well-established important principle. Numerous amendments have been made to our Statute of Limitations since the decision in Ruggles v. Keeler, none of which, however, have the effect of changing the rule embodied in that decision. If the question were an open one in this court, the argument of respondent would require most serious consideration. In view of the history of the law on the subject in this State that argument must now be addressed to the Legislature. So far as the case of Garrison v. Newman (222 App. Div. 498) is in conflict, it is disapproved.

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

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

Judgment accordingly.