text:
    Spruce Hill Homes, Inc., Respondent, v. Charles La M. Brieant et al., Appellants.
    Argued March 2, 1942;
    decided June 4, 1942.

      Lawrence E. Bobker and Normington Schofield for appellants,
    The right of way by necessity being in existence at the time of the full covenant and warranty deed to the defendant Charles L. Brieant, the covenants of warranty against encumbrances and for quiet enjoyment were breached. This breach is, as a matter of law, actionable. (Pennock v. Goodrich, 104 Vt. 134; Carbonic Acid Gas Co. v. Geysers Gas Co., 72 App. Div. 304; Smith v. N. Y. C. R. R. Co., 235 App. Div. 262; Falcone v. Benjamin, 129 Misc. Rep. 143; Empire Bridge Co. v. Larkin Soap Co., 59 Misc. Rep. 46; 132 App. Div. 943; Huyck v. Andrews, 113 N. Y. 81.) The verified answers and defendants’ affidavits raise triable issues which necessitated denial of the motion for summary judgment. (Dwan v. Massarene, 199 App. Div. 872; Merry Realty Co. v. Shamokin & Hollis R. E. Co., 230 N. Y. 316; Sherwood v. Fincke Co., 196 App. Div. 97; Lassall v. Pati, 25 Misc. Rep. 561; 55 N. Y. Supp. 1084; Simon v. Neef, 160 App. Div. 46; Lathrop v. Godfrey, 3 Hun, 739; Livingston v. Bauchhens, 254 App. Div. 692; Huyck v. Andrews, 113 N. Y. 81; White v. Onondaga County Sav. Bank. 184 App, Div. 344; Scriver v. Smith, 100 N. Y. 471; Callanan v. Keenan, 224 N. Y. 503.)

      Leonard I. Schreiber and David H. Feldman for respondent.
    The easement by adverse possession was not in existence at the time of the grant to defendants. It, therefore, could not have constituted a breach of the grantor’s covenant against encumbrances. (Bushey v. Santiff, 86 Hun, 384; Parker v. Foote, 19 Wend. 309; Nicholls v. Wentworth, 100 N. Y. 455; Ward v. Warren, 82 N. Y. 265; Hammond v. Zehner, 21 N. Y. 118; Colburn v. Marsh, 68 Hun, 269.) An easement by operation of law, such as an easement by necessity, does not constitute a breach of the covenants contained in the deed to defendants. (Rea v. Minkler, 5 Lans. 196; Eller v. Moore, 48 App. Div. 403; Huyck v. Andrews, 113 N. Y. 81; Fritz v. Tompkins, 18 Misc. Rep. 514; 168 N. Y. 524; Outerbridge v. Phelps, 45 N. Y. Super. Ct. 555; Smith v. N. Y. C. R. R. Co., 235 App. Div. 262; Empire Bridge Co. v. Larkin Soap Co., 59 Misc. Rep. 46; 132 App. Div. 943; Reed v. Blum, 215 Mich. 247; Adams v. Marshall, 138 Mass. 228; Adams v. Conover, 87 N. Y. 422.)
   Per Curiam.

Plaintiff brought suit to foreclose a purchase money mortgage and, after answer and reply, moved for judgment pursuant to rule 113 of the Rules of Civil Practice and section 476 of the Civil Practice Act. We are concerned with the third affirmative defense and counterclaim which sets up a breach, by the predecessors in title of defendants, including plaintiff’s assignor, of covenants of quiet enjoyment and freedom from encumbrances by reason of the fact that there existed across the land at the time of conveyance a private right of way by necessity in favor of an adjoining owner. One Couch at one time owned both defendants’ land and that of the adjoining owner. He first conveyed to the adjoining owner, and thereby a way of necessity to a highway, in favor of the adjoining owner, across the land now owned by defendants, passed by the grant. (Brigham v. Smith, 4 Gray [Mass.], 297.) Such an easement constituted a violation of the covenants mentioned above whether or not the covenantee had knowledge of its existence. He was entitled to rely upon the covenants of his grantor. (Callanan v. Keenan, 224 N. Y. 503; Hymes v. Estey, 116 N. Y. 501, 507, 508; Huyck v. Andrews, 113 N. Y. 81, 85, 89-91; Pennock v. Goodrich, 104 Vt. 134.)

Triable issues are, therefore, presented with reference to the third affirmative defense and counterclaim.

The judgment of the Appellate Division should be modified by reversal of the order granting summary judgment as to the third affirmative defense and counterclaim, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Division.

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

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    Joseph B. Wiseman, Appellant, v. Ogden Phipps et al., as Executors of Ogden L. Mills, Deceased, Respondents.
    Argued April 21, 1942;
    decided June 4, 1942.

      Joseph A. McCabe for appellant.
    The grammatical construction of the will indicates an intent to have the phrase “ every domestic servant ” include employees working outside, as well as inside, the house. (Matter of Robinson, 203 N. Y. 380.) The term “ domestic servant ” includes employees working outside, as well as inside, the house. (Catto v. Plant, 106 Conn. 236; Matter of DeForest, 172 Misc. Rep. 515; Matter of Johnson, 156 Misc. Rep. 689; Matter of Howard, 63 Fed. Rep. 263.)

      Frederick E. Crane and William H. Hayes for respondents.
    The plaintiff was not a domestic servant. (Lafrinz v. Whitney, 233 N. Y. 107; Ogle v. Morgan, 1 DeG., M. & G. 359; Matter of Drax, 57 L. T. [N. S.] 475; Murphy v. Lawrence, 218 Mass. 39.)
   Lehman, Ch. J.

The plaintiff was employed by the defendant’s testator, Ogden L. Mills, as chauffeur from March, 1929, until the testator’s death in October, 1937. In the ninth clause of the will the testator provided: “ I give and bequeath to J. F. Clark, my gardener, Five thousand dollars ($5,000), and to every domestic servant not herein named who is in my employ at the time of my decease and who at that time has been in my employ continuously for seven (7) years or more, Two thousand, five hundred dollars ($2,500).”

The plaintiff, claiming that the description every domestic servant * * * in my employ ” was intended by the testator to include persons employed as chauffeurs, has brought this action to recover $2,500. The courts below have given to the description a narrower scope, confining it to persons employed as house servants in the testator’s home.

The words domestic, servants ” are not technical terms of art with rigid definite meaning. They are words in common use. Ordinarily they include at least those persons who serve the comfort and convenience of the employer or the employer’s household, and work in the house, subject to the directions or commands of the head of the household. The context in which the words are used may extend or restrict their intended scope. In some contexts words of similar import have been construed to include only those persons who live and perform their work in the employer’s home and are in full sense members of the household. (Lafrinz v. Whitney, 233 N. Y. 107; Ogle v. Morgan, 1 De G., M. & G. 359; Murphy v. Lawrence, 218 Mass. 39.) In other contexts they have been given broader scope. (Catto v. Plant, 106 Conn. 236; Matter of Howard, 63 Fed. Rep. 263.) When such words are used in a will we must endeavor to place ourselves, so far as we can, in the position of the testator and from that viewpoint seek the meaning which was in the mind of the testator when he used these words.

The testator, we are told, was trained in the law, a man of outstanding intelligence who filled with distinction important public positions, including the position of Secretary of the Treasury. He ' inherited great wealth. He maintained three homes and employed a large staff of house servants, chauffeurs and garage helpers, gardeners and farm laborers. Not only in the clause we have quoted, but also by specific bequest to some employees, the testator in his will made careful provision for those who served him. He employed three chauffeurs. Robert Keating was the testator’s personal chauffeur. To him the testator bequeathed an annuity of $1,200. The plaintiff had been the personal chauffeur of the testator’s father. The father, who died in 1929, had during his lifetime provided a home for the plaintiff at Staatsburg, where the father maintained a large country place. The plaintiff also received a bequest of $10,000 under the father’s will. He was employed after the father’s death as the personal chauffeur of the testator’s wife. He is not specifically mentioned in the testator’s will.

The testator and his family at times occupied the country home at Staatsburg, which testator’s father had previously occupied and where the plaintiff had a home. The principal homes of the testator and his wife were in New York city, where they had a house which they usually occupied from November to May each year, and at Woodbury on Long Island, where they occupied a country estate the remainder of the year. In New York city the plaintiff had quarters assigned to him in the private garage which the testator maintained. His employer did not regularly furnish him with meals there, but the testator’s wife would direct the plaintiff to “ eat ” in the house when that served her convenience. In Woodbury 'the plaintiff had a room in the servants’ quarters of the testator’s house and took his meals there in the house with the servants there employed.

The plaintiff’s work was not confined to specified days or specified hours. He had no definite days off. He was at all times subject to the directions and instructions of the testator’s wife, except that at times “ she would say that would be all for the day or all for the night.” It was his duty to drive the testator’s wife or other members of the family or guests as directed by the testator’s wife. His uncontradicted testimony is that my work was to do anything which I was told, which I did, taking packages, delivering notes, anything I was told I did,” but his work, nonetheless, was work as chauffeur.”

We do not attempt any general definition of the class properly described as “ domestic servants.” No single factor in the plaintiff’s employment serves to establish whether the testator intended that he should be included or excluded from the group of domestic servants for whom the testator made provision. We note, however, that the plaintiff worked solely under the directions of the testator or the testator’s wife; that he ministered directly to the convenience of the family and guests; that, like other servants, he was not employed for any fixed hours and that during a large part of the year he was a member of the testator’s household, living in the testator’s home. In our opinion these circumstances indicate clearly that it was the intention of the testator to include the plaintiff among the domestic servants ” who, after long service, were to benefit under the will. We express no opinion that others who did not live in the house, who served only indirectly the comfort and convenience of the family during the hours for which they were employed, who were not subject to the constant direction of the head of the household or a member of the family, would likewise share such benefit.

The judgments should be reversed and judgment directed in favor of the plaintiff in the sum of $2,500, with interest from July 16, 1938, together with costs in all courts to the appellant.

Loughran, Finch, Rippey, Conway and Desmond, JJ., concur; Lewis, J., dissents.

Judgment accordingly.


author: Finch, J.

text:
    Mary Inda, Individually and as Administratrix of the Estate of Albert Inda, Deceased, Appellant, v. Andrew P. Inda et al., Respondents.
    Argued April 22, 1942;
    decided June 11, 1942.

      Joseph H. Morey for appellant.
    The Banking Law (Cons. Laws, ch. 2), properly construed, provides that after the death of the depositor the form of such a deposit shall be conclusive evidence of the intention to vest title in the survivor, at the time of the death of the depositor, not at the time of the opening of the account. (Newman v. Dore, 275 N. Y. 371; Krause v. Krause, 285 N. Y. 27; Matter of Porianda, 256 N. Y. 423; Matter of Suter, 258 N. Y. 104; Matter of Juedel, 280 N. Y. 37; Marrow v. Moskowitz, 255 N. Y. 219; Matter of Tiffany, 179 N. Y. 455; Matter of Meyer, 209 N. Y. 386; People ex rel. Hallock v. Hennessy, 205 N. Y. 301.) Upon the facts found, the plaintiff was entitled to recover the two savings bank accounts under sections 18 and 83 of the Decedent Estate Law (Cons. Laws, ch. 13). (Newman v. Dore, 275 N. Y. 371; Krause v. Krause, 285 N. Y. 27; Rubin v. Myrub Realty Co., 244 App. Div. 541; Bodner v. Feit, 247 App. Div. 119.)

      Byron E. Letson and Daniel J. O’ Neil for Andrew P. Inda et al., respondents.
    The only limitation on the right of a husband who dies either testate or intestate after September 1, 1930, to transfer bis property during his lifetime, free from any claim of his wife, is that such transfer must be absolute and not Elusory. (Newman v. Dore, 275 N. Y. 371; Krause v. Krause, 285 N. Y. 27.)
   Finch, J.

This is an action originally brought by the widow individually and as administratrix of her husband, to recover for his estate, among other things, moneys in two savings banks. The theory of the plaintiff’s case is that such deposits constituted illusory transfers which were ineffective to deprive plaintiff of her expectant estate as widow and distributee in the estate of her husband under the applicable provisions of the Decedent Estate Law (Cons. Laws, ch. 13).

Plaintiff and Albert Inda were married February 12, 1890. Albert Inda died February 9, 1940, intestate, leaving him surviving plaintiff and their ten children. Defendant Andrew P. Inda is a son of Albert Inda, and Victoria J. Inda is Andrew’s wife.

The account in the Buffalo Savings Bank was opened in 1935 by the deposit by Albert Inda of his own money in the names of “ Wojciech Panowicz or Victoria J. Inda — Joint Account either or survivor may draw.” The account in the Erie County Savings Bank was opened in 1935 by the deposit by Albert Inda of his own money in the names of Wojciech Panowicz or Andrew P. Inda — pay to either or survivor of them.” Subsequently Albert Inda deposited other funds in these accounts.

The name Wojciech Panowicz ”Lwas a wholly fictitious name given to these savings banks by Albert Inda. Up to the time of his death Albert Inda retained the bank books representing these accounts and drew the interest thereon.

In addition to the above facts, the trial court has also found that Albert Inda never intended to divest himself of the ownership of these deposits during his lifetime, and that said deposits were illusory transfers of his property without substance or reality. The learned trial court further found that by reason of the provisions of the Banking Law (§ 239, subd. 3; Cons. Laws, ch. 2) plaintiff was not entitled to the moneys on deposit in these two savings banks, but that defendant Andrew P. Inda was entitled to recover one of said deposits and the defendant Victoria J. Inda the other. Incidentally the trial court found that, since this section of the Banking Law did not apply to deposits in the Liberty Bank of Buffalo because that institution is not a savings bank, plaintiff was entitled to recover a third joint account made in that bank. This item is not involved on this appeal.

There being no will in the case at bar, section 18 of the Decedent Estate Law has no application, as that section only applies when there is a will in existence. The question of law presented by this appeal, therefore, is whether the provisions of subdivision 3 of section 239 of the Banking Law, relating to joint deposits in savings banks, govern the case at bar.

Section 83 of the Decedent Estate Law provides the general rule for the distribution of the real and personal property of an intestate under which the widow would take unless the provisions of subdivision 3 of section 239 of the Banking Law, dealing with joint deposits in savings banks, are applicable. This latter section expressly preserves the form of deposit in the case at bar as a lawful and convenient method for the transmission of property. It provides that when a deposit is made in a savings bank in the form adopted by the intestate in this case, then this deposit and any additions thereto shall become the property of such persons as joint tenants and may be paid to either during the lifetime of both or to the survivor after the death of one. Further, the making of the deposit in this form, in the absence of fraud or undue influence, shall be conclusive evidence in any action or proceeding to which either the savings bank or the surviving depositor is a party, of the intention of both depositors to vest title to such deposit in the survivor.

We need not decide the question whether section 83 of the Decedent Estate Law gives a spouse rights comparable to those conferred by section 18 thereof. Even if we assume this to be so, the case is none the less governed by section 239 (subd. 3) of the Banking Law which is the statute specifically applicable to the savings bank deposits in the case at bar and enunciates the principle upon which the case must be decided in favor of the defendants. The finding of the trial judge that the intestate intended, in fact, to make only an illusory transfer, is immaterial. The legal effect of a full compliance with the terms of the statute is the creation of a joint tenancy. Therefore, as was pointed out in Newman v. Dore (275 N. Y. 371), the actual intent of the intestate makes no difference since all that the law requires by way of the creation of a joint tenancy has taken place.

It follows that the judgment appealed from should be affirmed, without costs.

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.


author: Rippey, J.

text:
    The People of the State of New York, Respondent, v. Emil Benc, Gus Hasrato and Shenk Realty and Construction Company, Appellants.

      Argued April 21, 1942;
    decided June 11, 1942.

      Frederick E. Crane and Bernard Trencher for appellants.
    The defendants did not maintain or operate a laundry for the general public within the meaning of the statute. (Willy v. Solvay Process Co., 215 N. Y. 584; Tompkin v. Hunter, 149 N. Y. 117; People v. Briggs, 193 N. Y. 457; Dieterich v. Fargo, 194 N. Y. 359; Wolfard v. Fisher, 48 Oreg. 479; Phillips v. Watson, 63 Iowa, 28; DeCamp v. Railroad, 47 N. J. L. 43; Anderson v. Fidelity & Casualty Co., 228 N. Y. 475; Madison Products Co. v. Coler, 242 N. Y. 467; Van Zandt v. Department of Labor, 223 App. Div. 478; People v. Powell, 280 Mich. 699; Cawker v. Meyer, 147 Wis. 320; People v. 34th Street Hotel Co., 160 Misc. Rep. 243; Effell Realty Corp. v. City of New York, 165 Misc. Rep. 176; 282 N. Y. 541.) The judgment of conviction is not supported by the evidence and is contrary to the evidence. (People v. McLaughlin, 150 N. Y. 365; Frazer v. Freeman, 43 N. Y. 566; Anderson v. Metropolitan Life Ins. Co., 128 Misc. Rep,. 144; People v. Moskowitz, 119 Misc. Rep. 837; People v. Taylor, 192 N. Y. 398.)

      William C. Chanler, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for respondent.
    The use of the machine by persons who came in from outside for the purpose of using it was proved beyond a reasonable doubt. The defendants having failed to show that such persons were tenants or employees of tenants, the conviction was rightly sustained. (Fleming v. People, 27 N. Y. 329; People v. Spina, 278 N. Y. 654; People v. Vandewater, 250 N. Y. 83; Heskell v. Auburn Light, Heat & Power Co., 209 N. Y. 86; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25.)
   Rippey, J.

The three defendants, Benc, Hasrato and Shenk Realty and Construction Company, have been convicted of maintaining a laundry without a license in violation of sections B32-167.0, B32-168.0 and B32-175.0 of article 23 of chapter 32 of the Administrative Code of the City of New York (L. 1937, ch. 929).

The premises upon which the laundry is alleged to have been maintained is a six-story, sixty-four family apartment house, of which Benc is the superintendent and the corporate defendant is the owner. Defendant Hasrato is the owner of a coin-operated Bendix Home Laundry machine which he installed in the basement of the apartment house in question under an arrangement whereby Shenk Realty and Construction Company was to receive ten per cent of the gross proceeds from the machine and Benc was to receive back any coins deposited by him in the machine. The machine is so constructed that upon the depositing of a dime in a coin slot thereon the controls are released so that they may be operated. The clothes to be washed are placed in a revolving cylinder through a door in front of the machine, soap is poured into an opening on the top of the machine and a dial is set which determines the length of time for each operation. A switch is then turned on to put the machine in motion. Thereupon water is automatically drawn in, the clothes are washed in suds, the soapy water is drawn off, two rinsing waters are successively injected and the water is removed from the clothes by rapid spinning of the cylinder. All of this occurs automatically without further help from the operator after a coin has been deposited and the dials set.

Section B32-167.0 of the Administrative Code provides that Whenever used in this article the word laundry ’ shall mean and include:

“ 1. Any place, which is used for the purpose of washing, drying, starching or ironing, for the general public, wearing apparel, household linens, or other washable fabrics, or a place used or maintained for the storage, collection or delivery of such articles for such service, or
“ 2. Any place maintained by a person dealing in laundry service either as an independent contractor or jobber, or any private laundry maintained or operated in connection with any hotel, restaurant" or public institution, whether for the tenants, customers or inmates of the same or otherwise, except a hospital or charitable institution where no charge is made for laundry services.” (Italics ours.)

Section B32-168.0 of the Administrative Code provides that “ It shall be unlawful for any person to establish, maintain, or operate a laundry without a license therefor ” and section B32-175.0 provides for punishment for “ Any person who shall engage in the business of, establish, maintain, conduct, carry on or operate a laundry without a license therefor *_ * *.”

Section B32-174.0 of the Code contains a specific exemption. It reads: “ The provisions of this article shall not apply to any female engaged in doing custom laundry work at her home for a regular family trade, nor to any room, rooms, or portion thereof, located in a tenement house or other dwelling, in which domestic laundry work is done by or for the occupants of such building exclusively.”

For conviction for violation of the ordinance the prosecution relies upon testimony that four women, not tenants of the building, on separate occasions entered the basement of the apartment house, each with her own bundle of laundry, and used the machine under instruction of an elevator man who was employed by the owner. The women were sent there by their employers who operated public laundries or managed a union of laundry workers to obtain evidence of violation of the ordinance. Those and other witnesses testified that no signs were displayed calling attention to the presence of the machine in the building and that none of the defendants or their agents invited them to use the machine. On the contrary, prominently displayed on the wall directly over the machine was a card with large lettering bearing the notice: “ This washing machine is exclusively for the use of the occupants of this building for domestic laundry work. All other use is forbidden.” There is evidence that defendant Benc observed two of the women using the machine. There is no evidence that the corporate defendant or Hasrato had any knowledge or notice of any such use of the machine.

The defendants were not operating a laundry within the meaning of the ordinance. By its plain terms, the ordinance applied only to a place used for laundry purposes “ for the general public,” a place used or maintained for storage, collection or delivery of wearing apparel, household linens, or other washable fabrics for such purposes, a place maintained by an independent contractor or jobber dealing in laundry service or a private laundry maintained or operated in connection with a hotel, restaurant or public institution. There is no evidence that defendants were maintaining, conducting, carrying on or operating any such place or engaging in any . such business or doing public laundry by invitation by way of trade or for purposes of gain.

In finding the intent and purpose of the Laundry Licensing Ordinance (Administrative Code, art. 23, pp. 1123-1125) consideration must be given to all its provisions. Those provisions relating to the special requirements for the application for a license (§ B32-169.0) and the fee and bond required (§ B32-171.0) lend clear and convincing proof that the ordinance was not intended to apply and could not be properly applied to the situation disclosed by the evidence in this case since they clearly point only to a public laundry operated by a number of employees. The amount of the licensing fee and the amount of the bond required are based on the number of employees. The evidence here indicated only that the machine was installed for the exclusive use and accommodation of the tenants of the apartment house. Each tenant might operate the machine as he desired to do his own domestic washing by depositing the required coin in the machine. No operator was maintained by defendants nor was one required. The operation of the machine was entirely automatic, its operation being subject only to the will of the one desiring to use it.

Furthermore, under the express terms of the exemption above quoted the laundry work done in defendant's apartment house was at a place established for use by and for the occupants of the building exclusively.

Statutes which are penal in character must be narrowly and strictly construed and in manner not to embrace cases which do not clearly fall within their terms (People v. Briggs, 193 N. Y. 457; Dieterich v. Fargo, 194 N. Y. 359; People v. Wallace & Co., 282 N. Y. 417). “ Acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal ” (People v. Shakun, 251 N. Y. 107, 113). The evidence here clearly shows that the defendants were not within the purpose, intent and coverage of the ordinance.

The judgments should be reversed, and the complaints dismissed.

Lehman, Ch. J., Loughran, Finch, Lewis and Conway, JJ., concur; Desmond, J., dissents as to the defendant Benc, but concurs as to the other defendants.

Judgments reversed, etc.


text:
    John Bancroft, Jr., Respondent, v. Frances H. Bancroft, Appellant.

      Argued April 21, 1942;
    decided June 18, 1942.

      Horace S. Manges for appellant.
    The mere promise of the husband is not security for the performance of his own obligation. (Equitable Industrial Loan Society, Inc., v. Kelly, 124 Conn. 346; Storm v. Waddell, 2 Sandf. Ch. 494; Matter of Bernard, 177 Misc. Rep. 712.) The bond herein necessarily violates either section 154 of the Civil Practice Act or rule 25 of the Rules of Civil Practice. (Genauer v. Genauer, 134 Misc. Rep. 594.)

      Neil P. Cullom and Robert H. Mulreany for respondent.
    The statute does not specify the form or amount of the security to be furnished; those matters are left entirely to the discretion of the court at Special Term and that discretion was properly exercised in view of the circumstances. (Boyd v. Boyd, 252 N. Y. 422; Woodbridge v. First Nat. Bank, 166 N. Y. 238; People ex rel. Toms v. Board of Supervisors of Erie County, 199 N. Y. 150; Matter of Martin, 255 N. Y. 359; Matter of Loose, 167 Misc. Rep. 764; Ambruster v. Ambruster, 170 Misc. Rep. 387; Rostacher v. Rostacher, 172 Misc. Rep. 86; Cohen v. Cohen, 262 App. Div. 765; Frankel v. Frankel, 262 App. Div. 770.)
   Finch, J.

The special guardian appeals on behalf of defend- . ant, a mental incompetent, from such part of the judgment of annulment as fixes the security to be provided by plaintiff husband for the care and maintenance of defendant. The security fixed at Trial Term was approved upon appeal to the Appellate Division, with two justices dissenting.

Plaintiff, a non-resident, and defendant were married in 1915. Defendant was fifty-two years of age at the time of the trial. One of the two daughters is now of age and the other is in her twentieth year. In January, 1929, defendant was adjudged insane and is now in a private sanitarium. The trial court found that her condition is such that she should continue to receive care in this private institution for the rest of her life. At the present time defendant is maintained by the income from a trust fund established under the will of her deceased mother. This will provides for one-half of the estate to be held by trustees in trust for the use of defendant. If the income should prove insufficient, the principal may be invaded. The will also provides, however, that the whole or any part of the trust income or principal may, in the discretion of the trustees, be diverted from defendant’s use and applied to the support and education of the two children of defendant and plaintiff. The average annual cost of the maintenance of defendant is approximately $4,200. During each of the five years preceding the bringing of this action, the income of the trust has been in excess of that sum. Therefore, although plaintiff is a person of substantial means, having a net worth of over $250,000, he has not heretofore had to bear any of the expenses of maintaining his wife in the sanitarium.

The judgment of the trial court annulled the marriage of plaintiff to defendant on the ground of incurable insanity. It also made provision for payment by plaintiff of the expenses for the care and maintenance of defendant, should the income of defendant from the trust prove insufficient for that purpose. As security for the fulfilment of this obligation by plaintiff, it was:

“ ORDERED, ADJUDGED AND DECREED that the plaintiff shall file a personal bond in the sum of $20,000, as security for the payment by the plaintiff of any sums that may be necessary for the support and maintenance of the defendant during her life and that upon the death of the defendant, should said death antedate the death of the plaintiff, said bond shall be cancelled and returned to the plaintiff, his administrator and/or executors; and it is further
“ ORDERED, ADJUDGED AND DECREED that the said bond shall be filed and recorded in the office of the Clerk of the County of New York and that a certified copy thereof be filed with the Department of Mental Hygiene at its Albany office.”

From the above portion of the judgment defendant through her special guardian appealed to the Appellate Division and later to this court.

Subdivision 5 of section 7 of the Domestic Relations Law (Cons. Laws, ch. 14) compels security to be given and approved at the time of annulment in the following manner:

“ § 7. Voidable marriages. A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: * * *
“ 5. Has been incurably insane for a period of five years or more; provided, however, that if the marriage be annulled on the ground, of the insanity of the wife, the court, before rendering judgment, must exact security, to be approved by a judge of the court, for her suitable care and maintenance during life and shall order the filing and recording of the instrument creating such security in the office of the clerk of the county in which the action is brought and the filing of a certified copy thereof with the department of mental hygiene at its Albany office * *

Previous to 1928 a marriage could not be voided for insanity; (Hoadley v. Hoadley, 244 N. Y. 424.) This decision suggested the enactment of the above statute. The statute is intended to afford relief to the party who is sane and at the same time to require adequate security not only for the care and maintenance of the insane spouse but also to protect the state so that the woman shall not thereafter become a public charge.

The only question raised by this appeal is whether the mere written promise of plaintiff constitutes “ security ” in the sense contemplated by the statute.

Used in ordinary parlance, it is not too much to say that in a case where it is not contemplated that collateral be deposited, the implication of the word secured ” is that the financial aid of a third party must be obtained. (Storm v. Waddell, 2 Sandf. Ch. 494, 506; Bouvier’s Law Dictionary, [Baldwin’s Century Edition], pp. 1097, 1098.) In the case at bar the only security exacted by the court at Special Term was the mere promise of defendant’s husband. In other words, the court merely required plaintiff to make a written acknowledgment of what he was already legally obligated to do and what the non-security portion of the judgment bound him to do. In this non-security portion of the judgment the court had already decreed that plaintiff should care for and maintain defendant during her lifetime. Practically speaking, if the intent of the statute were only to require the naked promise of the husband to support his wife, the provision therein that the court, before rendering judgment, must exact security to be approved by the court, would be without meaning, since the mere promise of the husband cannot render more secure and more certain of performance the solemn obligation already imposed on him by law. That the Legislature used the term security ” which has a settled legal meaning and further provided that the security, when approved, must be filed and recorded in the office of the clerk of the county in which the action is brought and a certified copy filed with the Department of Mental Hygiene at Albany, would seem to indicate clearly that the Legislature had in mind an instrument of the general character provided for by analogous provisions of law.

For instance, section 154 of the Civil Practice Act, entitled “ security for infant or incompetent,” reads in part as follows: “ Where in the course of an action or proceeding security shall be required for protecting the interest of an infant, lunatic, idiot * * *, it shall be in the form of a bond of an approved surety company, or the bond of individuals * * * and approved as to form and the sufficiency of the sureties by the court * *

Rule 25 of the Rules of Civil Practice is another illustration of what the Legislature means by the term “ security.” Subdivision 4 thereof provides that a bond or undertaking, when not furnished by a fidelity or surety company, must be accompanied by the affidavit of the individual who executes it, stating that he is a resident of and a householder or a freeholder within the State, and is a person of the prescribed worth.

We do not mean to say that the form and requisites of the security to be furnished in the case at bar are governed either by section 154 or by rule 25. So to hold would circumscribe the discretion of the trial judge in a manner not warranted by the language either of subdivision 5 of section 7 of the Domestic Relations Law or of section 1140-a of the Civil Practice Act, by which latter section the court is given a continuing supervision over the parties. All that we decide is that the mere promise of a husband does not constitute “ security ” within the meaning of the statute.

The determination of the amount of security rests within the discretion of the court at Special Term, to be exercised in accordance with the evidence in a particular case, subject only to the limitation that the security exacted must be fit and suitable in accordance with such evidence.

The judgment of the Appellate Division and that of the Trial Term, so far as appealed from to the Appellate Division, should be reversed and the matter remitted to the trial court to fix security in accordance with this opinion, with costs in all courts to the defendant-appellant.

Loughran, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Rippey, J., dissent.

Judgment accordingly.


author: Per Curiam.

text:
    Michael Scudero, Respondent, v. Helen Campbell, Appellant.
    Submitted May 29, 1942;
    decided June 18, 1942.

      Clarence S. Zipp and Francis T. Lynch for appellant.
    Neither the tenant nor his invitees could recover for a defective condition of the demised premises. (Swords v. Edgar, 59 N. Y. 28; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; Lusk v. Peck, 132 App. Div. 426; 199 N. Y. 546; Junkermann v. Tilyou Realty Co., 213 N. Y. 404; Warner v. Lucey, 207 App. Div. 241; 238 N. Y. 638; Franklin v. Brown, 118 N. Y. 110; Jaffe v. Harteau, 56 N. Y. 398; Hirsch v. Radt, 228 N. Y. 100; Altz v. Leiberson, 233 N. Y. 16; Kilmer v. White, 254 N. Y. 64; Ahern v. Steele, 115 N. Y. 203; Campbell v. Holding Co., 251 N. Y. 446.)

      Benjamin Solovay and Julius Soloway for respondent.
   Per Curiam.

Plaintiff went to a one-family house owned by the deféndant to collect a bill from the occupant who was a monthly tenant. As he descended from the front stoop, one of its wooden steps gave way causing him to fall. For injuries so suffered, he had a recovery which has been affirmed.

The trial judge left it to the jury to say whether the defendant had control and, having control, was negligent.” We are to say whether there was evidence sufficient to carry the case to the jury on that issue. .

There was evidence that prior to the accident the steps in question had become “ all-rotted.” There was evidence that this condition was repaired by the defendant after the plaintiff was hurt and when the same tenant still occupied the premises. These circumstances were enough to countenance the verdict. “ When the defendant’s liability depends upon whether a landlord or his tenant was in control of premises * * * the acts of control of such a person are provable, and an act of repair done after the injury may chance to be such an act.” (2 Wigmore on Evidence [3d ed.], § 283, p. 158.)

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    In the Matter of Nathan Davis, Respondent, against Board of Education of the City of New York et al., Appellants.
    Argued May 28, 1942;
    decided June 18, 1942.

      William, C. Chanler, Corporation Counsel (Nicholas Bucci and Paxton Blair of counsel), for appellants.
    The amendments to the Education Law (Cons. Laws, ch. 16; L. 1942, chs. 728, 729, 730, 760) are applicable to this proceeding and require the reversal of the order below and the dismissal of the petition. (Matter of Jaffe v. Board of Education, 265 N. Y. 160; Matter of Friend v. Valentine, 285 N. Y. 853; Matter of Turel v. Delaney, 287 N. Y. 15; Matter of Bacon v. Huie, 287 N. Y. 813; Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494.)

      Nathan Davis, respondent, in person.
    The amendment to subdivision la of section 872 of the Education Law by the 1942 Legislature does not affect this proceeding. (Matter of Vanderwoude, 50 State Dept. Rep. 199.)
   Per Curiam.

We agree that under the provisions of the Education Law (Cons. Laws, ch. 16) then in force, the petitioner was entitled to the relief accorded to him by the order of the Appellate Division. After that order was made the Legislature, however, declared that these provisions shall be suspended and unenforceable * * * until July first, nineteen hundred forty-three,” and it gave temporary sanction to administrative action which until then was unlawful. (L. 1942, chs. 728, 729, 760.) So long as that sanction exists, the courts can give no directions for the enforcement of provisions of the statute which the Legislature has decreed shall be unenforceable. Accordingly the direction to the Board of Superintendents of the Board of Education “ forthwith to recommend persons on appropriate eligible lists for appointment to 21 vacant teaching positions now existing ” and the direction to the Board of Education “ forthwith to act upon such recommendations must be stricken from the order. The petition should not, however, be dismissed and the respondents should be directed to take appropriate steps to fill vacancies that may exist after July 1, 1943, from appropriate eligible lists in accordance with the provisions of the statutes then in force. Any of the parties hereto should have leave to apply upon motion at Special Term for further directions at the foot of the order.

The orders should be modified in accordance with this opinion and as So modified affirmed, without costs.

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

Ordered accordingly.


author:
Loughran, J.
      Finch, J.

text:
    Commission for Polish Relief, Ltd., Respondent, v. Banca Nationala a Rumaniei, Appellant. John J. McCloskey, Jr., as Sheriff of the City of New York, Respondent.

      Argued March 18, 1942;
    decided July 29, 1942.

      John W. Davis, William C. Cannon, Harold W. Bissell and Frederick C. Watson, appearing specially, for appellant.
    Under the executive order, in the absence of a license, the attempted levy upon the defendant’s deposit account did not and could not give the court any dispositive dominion over any right or interest of the defendant therein. (Commonwealth v. Imperial Woolen Co., 290 Penn. St. 526; Schalucky v. Field, 124 Ill. 617.) Inasmuch as the attempted levy upon the defendant’s deposit account failed to give the court any dispositive dominion over any right or interest of the defendant therein, no valid levy has been made and no jurisdiction has been acquired. (Fredrick v. Chicago Bearing Metal Co., 221 App. Div. 588; Sturcke v. Link, 26 N. Y. Supp. [2d] 748; Pennoyer v. Neff, 95 U. S. 714; Harris v. Balk, 198 U. S. 215; Security Sav. Bank v. California, 263 U. S. 282; Zuhlke v. Prudential Life Ins. Co., 244 App. Div. 549; Bollack v. Societe Generale, 177 Misc. Rep. 136; Penoyar v. Kelsey, 150 N. Y. 77; Sheehy v. Madison Square Garden Corp., 266 N. Y. 44; Columbia Bank v. Equitable Life Assur. Soc., 79 App. Div. 601; Reifman v. Warfield Co., 170 Misc. Rep. 8; McFadden v. Innes, 60 Misc. Rep. 543; 130 App. Div. 880; Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145; Judis v. Martin, 218 App. Div. 402.)

      Edwin P. Shattuck, Sydney Waldecker and George B. Francis for plaintiff, respondent.
    Appellant’s deposit accounts are attachable res. The executive order does not affect this status. The executive order merely provides a regulatory plan and operates exclusively in personam upon the banks. (United States v. Campbell, 5 Fed. Supp. 156; Hyatt v. Taylor, 42 N. Y. 258; Furey v. Town of Gravesend, 104 N. Y. 405; McKuskie v. Hendrickson, 128 N. Y. 555; United States v. Chase, 135 U. S. 255; Fasulo v. United States, 272 U. S. 620; United States v. Driscoll, 9 Fed. Supp. 454; City of East Cleveland v. Fidelity & Deposit Co., 5 Fed. Supp. 212.) The Supreme Court has adequate jurisdiction in rem under the attachments, and the levies have been executed in accordance with the provisions of the Civil Practice Act. (Warner v. Fourth Nat. Bank, 115 N. Y. 251; Simpson v. Jersey City Contracting Co., 165 N. Y. 193; McNeeley v. Welz, 166 N. Y. 124; Higgins v. McConnell, 130 N. Y. 482; General Motors Corp. v. Ver Linden, 199 App. Div. 375; Brown v. Morgan & Co., 177 Misc. Rep. 763; Birge-Forbes Co. v. Hege, 251 U. S. 317; Raftes v. Argyropulo, 123 Misc. Rep. 738; Castriotis v. Guaranty Trust Co., 229 N. Y. 74; Ajax Craftsmen, Inc., v. Whinston, 269 N. Y. 7; Coddington v. Gilbert, 5 Duer, 72; Clinton Trust v. Compania, 172 Misc. Rep. 148.)

      John V. Campbell and Sidney Posner for John J. McCloskey, Jr., as Sheriff of the city of New York, respondent.

      Francis M. Shea, Assistant Attorney-General, Mathias F. Correa, United States Attorney, Sidney J. Kaplan, Special Assistant to Attorney-General (Edward H. Foley, Jr., Bernard Bernstein, Ansel F. Luxford and Josiah E. Du Bois, Jr., of counsel), for United States of America, amicus curiæ.

    Title to the funds of the National Bank of Rumania held in blocked accounts in the State of New York cannot be transferred without the approval of the Secretary of the Treasury under the executive order. (Grogan v. Walker &

      Sons, 259 U. S. 80; Sturm v. Truly, 245 App. Div. 357; Barton v. Port Jackson Road Co., 17 Barb. 397; United States v. Dickerson, 310 U. S. 554; United States v. American Trucking Associations, Inc., 310 U. S. 534; Littlefield v. Clary, 66 Ga. 322; Bryan v. Menefee 21 Okla. 1; Bullen v. Wisconsin, 240 U. S. 625; Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294; Skeen v. Lynch, 48 Fed. Rep. [2d] 1044.) Unauthorized transfers of property in blocked accounts are invalid under General Ruling No. 12 made under the executive order. (British-American Tobacco Corp. v. Federal Reserve Bank, 104 Fed. Rep. [2d] 652; Koninklijke Lederfabriek Oisterwijk N. V. v. Chase Nat. Bank, 177 Misc. Rep. 186; Amstelbank N. V. v. Guaranty Trust Co., 177 Misc. Rep. 548; The Kensington, 183 U. S. 263; Norman v. Baltimore & Ohio R. R. Co., 294 U. S. 240; Blount v. Windley, 95 U. S. 173; Funkhouser v. Preston Co., 290 U. S. 163.) There has been a valid attachment authorized by the Secretary of the Treasury pursuant to the executive order. Castriotis v. Guaranty Trust Co., 229 N. Y. 74; Hanna v. Stedman, 230 N. Y. 326; National Park Bank v. Billings, 144 App. Div. 536; 203 N. Y. 556; Higgins v. McConnell, 130 N. Y. 482; Hamilton v. Drogo, 241 N. Y. 401; McNeeley v. Welz, 166 N. Y. 124.)
   Loughran, J.

Commission for Polish Relief, Ltd., a domestic membership corporation, is the plaintiff. The defendant is Banca Nationala a Rumaniei, a foreign private banking corporation existing under the laws of the Kingdom of Rumania.

The material allegations of the unchallenged complaint are these: In October, 1939, Bank Poliski — a foreign private banking corporation existing under the laws of the Republic of Poland — delivered to the defendant at its principal office at Bucharest, Rumania, gold of the value of $3,060,704 which the defendant there received for safekeeping. In April, 1940, Bank Poliski transferred all its right to this gold to Polish Food Commission, Inc., a Delaware non-profit corporation. In May, 1940, Polish Food Commission, Inc., made demand for this gold upon the defendant and delivery thereof was refused. In December, 1940, the cause of action for such tortious conversion of this gold was assigned by Polish Food Commission, Inc., to the plaintiff.

This action was initiated in December, 1940, by issuance of the summons and of a warrant of attachment that had been granted to the plaintiff. On December 19, 1940, the warrant was levied-upon $4,000,000 of credits in deposit accounts maintained by the defendant at domestic banking houses in the city of New York. On January 14, 1941, the plaintiff obtained an order under which the summons was served by publication.

At that stage, the defendant moved for an order vacating the warrant of attachment, the levies thereof and the constructive service of process. This appearance of the defendant was made specially for the one purpose of invoking the following provisions of an Executive Order of the President of the United States:

“Section 1. All of- the following transactions are prohibited, except as specifically authorized by the Secretary of the Treasury by means of regulations, rulings, instructions, licenses, or otherwise, if * * * (ii) such transactions involve property in which any foreign country designated in this Order, or any national thereof, has at any time on or since the effective date of this Order had any interest of any nature whatsoever, direct or indirect:
A. All transfers of credit between any banking institution within the United States; and all transfers of credit between any banking institution within the United States and any banking institution outside the United States (including any principal, agent, home office, branch, or correspondent outside the United States, of a banking institution within the United States);
B. All payments by or to any banking institution within the United States; * * *
“ E. All transfers, withdrawals or exportations of, or dealings in, any evidences of indebtedness or evidences of ownership of property by any person within the United States; and
F. Any transaction for the purpose or which has the effect of evading or avoiding the foregoing prohibitions. * * *
“ Section 3. The term ‘ foreign country designated in this Order ’ means a foreign country included in the following schedule, and the term effective date of this Order ’ means with respect to any such foreign country, or any national thereof, the date specified in the following schedule: * * * (f) October 9, 1940 — Rumania * * * ” (Executive Order No. 8389 of 1940 as amended by No. 8565 of 1940).

As the defendant sees it, the Executive Order so far immobilized its deposit accounts in the New York banks as to render them wholly unattachable in the absence of a lifting license of the Secretary of the Treasury. In that view the court had no jurisdiction of the cause of action —for the plaintiff disclaimed any such allowance of liberty to proceed in rem, and there was lack also of personal service of the summons. This fundamental issue has been ruled in favor of the plaintiff in the courts below and is now before us on this appeal taken by the defendant pursuant to leave of the Appellate Division. The controversy has been presented to us in two parts.

(1) The first contest is upon the question of the aim and effect of the Executive Order. The Special Term said: “ There has been no seizure of the funds, but merely a restraint against their transfer or payment with the view of protecting the dominated nation or its nationals and American creditors.” (176 Misc. Rep. 1070.) So, the Appellate Division said: Clearly, the sole purpose of the Order was to prevent the funds of certain foreign nations, including Rumania, and their nationals, from falling into the hands of the aggressor Axis powers.” (262 App. Div. 543, 546.) As read by the Special Term the Executive Order leaves open the way to an assignment of the defendant’s claims against the banks that would carry the title.” (p. 1071.) The Appellate Division likewise conceived of the Order as a command which operates exclusively in personam upon the banks.” We hold a different opinion in respect of this question.

The Executive Order is a check upon trading with the enemy. Its prime purpose is to stop such uses of foreign property rights as might imperil national defense. The words of the Chief Executive of the nation must be taken to have deprived the defendant of power to transfer any interest in these blocked accounts except through the medium of assignment subject to a releasing of the credit by the Secretary of the Treasury.

(2) To the defendant this means that its claims against the New York banks were here non-leviable things. The point is put in this way: “ It may be conceded that a ‘ seizure subject to license ’ would not violate the Executive Order. The difficulty is that a .1 seizure subject to license ’ is no seizure whatever.”

In support of this contention, the defendant invokes Sheehy v. Madison Square Garden Corp. (266 N. Y. 44). We there said: “It is well settled that an indebtedness is not attachable unless it is absolutely payable at present or in the future, and not dependable upon any contingency (p. 47). In the Sheehy case, however, the asserted res was nothing but a right to earn money in the future. Attachment of a debt is obviously an impossibility when it is thus uncertain whether the garnishee will ever become indebted to the defendant in the action. (Cf. Civ. Prac. Act, § 916, subd. 3.) We have a manifestly different case here. Each of the New York banks owed to this defendant a debt which (as between the parties thereto) was payable on demand at the time of the levy. These actual liabilities were not transmuted into contingent obligations merely because the Executive Order had adventitiously put a stay upon them. (See Drake on Attachment [4th ed.], § 552.)

The Executive Order did not forbid attachment of the conceded interest of the defendant in the credits upon which the levies were made. For all we know, payment of the blocked accounts to the credit of this action can be permitted consistently with the purpose of thé Order. We are not to presuppose that this will inevitably be refused in the event of a judgment for the plaintiff. (Cf. Simpson v. Jersey City Contracting Co., 165 N. Y. 193, 200.) The lien of an attachment is always hypothetical in some degree. A “ seizure subject to license ” was, we think, sufficient for the purpose of jurisdiction in rem over the deposits in question. (See Higgins v. McConnell, 130 N. Y. 482; McNeeley v. Welz, 166 N. Y. 124, 128; Clements v. Doblin, 209 App. Div. 208; 239 N. Y. 526; Davis v. C. C. C. & St. L. Ry. Co., 217 U. S. 157, 174-179; Feuchtwanger v. Central Hanover Bank & Trust Co., 288 N. Y. 342, decided herewith.)

The dissenting opinion calls upon us to say a word more. As amicus curise, the government of the United States informs us of its decision that the levies of this attachment do not offend any national policy implied by the Executive Order. We do not presume to contradict this executive determination. (See United States v. Pink, 315 U. S. 203.)

The order should be affirmed, with costs. The question certified should be answered in the affirmative.

Finch, J.

(dissenting). The main issue is as to the purpose and effect of the Executive Order. The words of the Executive Order and, read as a whole, its plain purpose are to give to the Secretary of the Treasury such complete control over these frozen bank deposits as will enable him to prevent the acquisition or transfer of any rights whatsoever therein.

The Executive Order is designed for the purpose of affording the Secretary the means of preventing nations with which we are at war from utilizing in any manner such deposits. The entrance of the United States into the war, and more especially the declaration of war between the United States and Rumania, emphasizes this primary purpose. These freezing orders are used to give complete wartime control, and to effect a complete prohibition against trading by or with the enemy. To insure the effectiveness of such control, the Secretary of the Treasury is given the power to grant or refuse licenses. There is nothing to prevent the Secretary of the Treasury from consenting to any transfer of interest. In the absence, however, of a precedent consent by the Secretary of the Treasury, no interest whatsoever can be lawfully acquired in this property in view of the terms of the Executive Order. Otherwise not only the wording but the purpose of the freezing order is violated.

If I understand the difference of opinion in this court, it is that those opposed to the above view take the position that a transfer by attachment may be made conditioned upon a subsequent releasing of the deposits by the Secretary of the Treasury. Such a view affords a medium of trading in these blocked accounts. It is the view here taken that any construction of the Executive Order which would permit trading in these blocked deposits to any extent would immediately render them available for purposes inimical to the national interest. If no interest at all is acquired then the attachment must fail. In so far as an interest is acquirable, to that extent trading with the enemy is permitted and perhaps under certain circumstances protected by constitutional requirements. No transfer of title in the absence of a license is permitted by the wording of the Executive Order, whether the transfer be by means of assignment or attachment. The purpose of the Executive Order is not to freeze the deposits and permit a change of ownership subject to a license, but the purpose is to freeze deposits as now owned and still to be owned by blocked nationals. The important point is that the Executive Order freezes this deposit under the ownership of the National Bank of Rumania as a blocked national, and that this deposit cannot be divorced from that ownership without a prior release from the Secretary of the Treasury.

The States of this Union do not share in the power over external affairs. "When the United States, acting within its sphere of dealing with foreign nations, seeks enforcement of its policy by the courts, the policies of the States become irrelevant to judicial inquiry ( United States v. Pink, 315 U. S. 203).

In addition, the attempted levy by attachment in the absence of a license obtained from the Secretary of the Treasury, failed to give to the court any dispositive dominion over any interest of the defendant in the fund, and hence it follows that no valid levy has been made and no jurisdiction acquired (Pennoyer v. Neff, 95 U. S. 714, 727).

The very nature of an attachment is to hold the property attached until an execution may be available following the judgment rendered upon the trial. No effective levy can be made where the right which is sought to be attached is not a right in prsesenti or in futuro, but is merely a right based upon a contingency which may or may not happen in the future.

An authority in point is Sheehy v. Madison Square Garden Corporation (266 N. Y. 44), where payments were attempted to be attached under a contract contingent upon performance of service. Since the party to the contract who was to perform had rendered no service, he had no enforceable rights either in prsesenti or in futuro, and hence no attachment was possible.

In Herrmann & Grace v. City of New York (130 App. Div. 531, 535, affd. on opinion below, 199 N. Y. 600), where nothing was absolutely payable either in the present or in the future, it was held that no attachment could issue. So, in the case at bar, if the Executive Order has been correctly above interpreted, nothing is payable in .the present or in the future except upon a contingency which may never happen. While the foregoing authorities show no dispositive dominion possible over the res because no res ever came into being, and in the case at bar dispositive dominion is lacking because alienability is based upon a contingency which may never happen, yet the principle upon which attachment may not issue is the same in both instances. There is nothing in the statute of New York authorizing attachment and no authority which specifies any such possibilities or hopes as the subject of attachment. What the plaintiff is seeking here is a res sufficiently illusory not to fall within the all-inclusive prohibition of the Executive Order and at the same time to be sufficiently substantial to afford a basis for jurisdiction. In my opinion such inconsistency seeks the impossible. Hence within the authorities no attachment is possible.

In the cases relied upon to sustain the attachment, the levy was upon property, realization upon which was not dependent upon any contingencies which might prevent the property from ever being alienable.

In so far as the brief submitted by the United States may be read as consenting to a transfer, it was written before war was declared between the United States and Rumania.

It follows that the order appealed from should be reversed, the levies and the order for service by publication and the service made pursuant thereto, vacated, and the certified question answered in the negative, with one bill of costs to the respondents.

Lehman, Ch. J., Lewis and Desmond, JJ., concur with Loughran, J.; Finch, J., dissents in opinion in which Rippey and Conway, JJ., concur.

Order affirmed, etc.


author: Loughran, J. Finch, J.

text:
    Maurice Feuchtwanger, Respondent, v. Central Hanover Bank and Trust Company, Appellant, Impleaded with Another.
    Argued May 26, 1942;
    decided July 29, 1942.

      Francis S. Bensel, Hersey Egginton and W. Frederick Knecht for appellant.
    No jurisdiction was acquired over Banque Jordaan through service of the summons by publication. (Pennoyer v. Neff, 95 U. S. 714; Risley v. Phenix Bank, 83 N. Y. 318; O’Donoghue v. Boies, 159 N. Y. 87; Hanna v. Stedman, 230 N. Y. 326; Bald

      win’s Bank v. Smith, 215 N. Y. 76; Matter of Cavin v. Gleason, 105 N. Y. 256; Schoenholz v. New York Life Ins. Co., 197 App. Div. 91; 234 N. Y. 24; Von Hesse v. Mackaye, 55 Hun, 365; Gore v. Pennsylvania R. R. Co., 144 Misc. Rep. 639; 236 App. Div. 881; Dimmerling v. Andrews, 236 N. Y. 43.)

      Mahlon B. Doing and Alexis C. Coudert for respondent.
    Jurisdiction has been obtained over Banque Jordaan by service of the summons by publication pursuant to the provisions of subdivision 6 of section 232 of the Civil Practice Act. A debt represented by a bank account in a local bank is specific personal property within the meaning of the statute and is sufficient to support jurisdiction in rem. (Keys v. Leopold, 241 N. Y. 189; Matter of Morrell, 154 Misc. Rep. 356; Day v. Roth, 18 N. Y. 448; Newton v. Porter, 69 N. Y. 133; Van Alen v. American Nat. Bank, 52 N. Y. 1; United Nat. Bank v. Weatherby, 70 App. Div. 279; Importers & Traders Nat. Bank v. Peters, 123 N. Y. 272; Security Sav. Bank v. California, 263 U. S. 282; Morgan v. Mutual Benefit Life Ins. Co., 189 N. Y. 447; Holmes v. Camp, 219 N. Y. 359; Chesley v. Morton, 9 App. Div. 461.) The action to enforce an equitable lien in the nature of a resulting trust, is one in rem or quasi in rem within the meaning of subdivision 6 of section 232 of the Civil Practice Act. (Garfein v. McInnis, 248 N. Y. 261; Morgan v. Mutual Benefit Life Ins. Co., 189 N. Y. 447; Pennoyer v. Neff, 95 U. S. 714; Crozier v. United States Steel Corp., 144 Misc. Rep. 727.)
   Loughran, J.

The plaintiff Maurice Feuchtwanger is a citizen of France and a resident of the State of New York. He has an affirmed judgment against the two defendants — Central Hanover Bank and Trust Company (a New York bank) and Banque Jordaan S. A. (a banking concern at Paris, France). The Central Hanover is the single appellant here.

In May, 1939, Feuchtwanger purchased at Montreal, Canada, $81,500 of United States Federal Reserve Notes, through a brokerage house at Amsterdam, Holland. Later in the same year, the Amsterdam brokers on his direction delivered these notes to the Bank of Montreal with instructions to hold them “ for account of Banque Jordaan, Paris, in favor of Maurice Feuchtwanger.” The notes were so held by the Bank of Montreal until January 11, 1940,. when — without Feuchtwanger’s knowledge or-consent — Banque Jordaan caused them to be transmitted for deposit to its credit at the Central Hanover where the amount thereof was entered to the credit of a deposit account which Banque Jordaan there maintained.

Feuchtwanger learned of this in -October, 1940. He was then indebted to Banque Jordaan in the sum of $16,500. Conceding this obligation, he made demand upon both banks that the Central Hanover keep for him $65,000 of the larger balance it held for the account of Banque Jordaan. When that demand was refused, he brought this suit.

The nature of the cause of action will appear as we turn in a moment to the directions of the judgment granted below. Service upon Banque Jordaan was made by publication. A warrant of attachment was not applied for. The Central Hanover appeared alone. As respects Banque Jordaan, the judgment is one by default. The material directions thereof are as follows:

’ “Ordered, adjudged and decreed that Sixty-five thousand ($65,000) Dollars of the sum now on deposit with the defendant Central Hanover Bank and Trust Company, in the name of the defendant Banque Jordaan, S. A., is the property of plaintiff Maurice Feuchtwanger, and that the same be, and hereby is, impressed with a trust in behalf of the plaintiff Maurice Feuchtwanger; and it is further
“ Ordered, adjudged and decreed that the defendant Central Hanover Bank and Trust Company, upon the issuance of a license by the Treasury Department of the United States, pursuant to Executive Order Number 6560, dated January 15th, 1934, as amended,- transfer Sixty-five thousand ($65,000) Dollars of the sum now on deposit with it in the name of Banque Jordaan, S. A., from the said account standing in the name of Banque Jordaan, • S. A., to the credit of, and in the name of, the plaintiff Maurice Feuchtwanger, and that the said defendant Central Hanover Bank and Trust Company hold the said sum of Sixty-five thousand ($65,000) Dollars, for the benefit of, and to the credit of, the plaintiff Maurice Feuchtwanger, in an account in the name of the plaintiff, Maurice Feuchtwanger, subject to withdrawal by the plaintiff Maurice Feuchtwanger, as permitted by the provisions of Executive Order Number 6560, dated January 15th, 1934, as amended.”

The parties have been silent respecting the effect thus accorded to the Executive Order of the President of the United States. The main difference between them is as to whether the case was a proper one for exercise of the faculty of jurisdiction in rem by way of constructive service of process upon the absent Banque Jordaan. We see no reason for doubt on that score.

The Civil Practice Act provides: An order directing the service of a summons upon a defendant, by publication, may be made in either of the following cases. * * * 6. Where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in or hen upon specific real or personal property within the state.” (§ 232.) The interest of Banque Jordaan in the $65,000 of credits from which it has been excluded by this judgment was clearly personal property within this State and subject to its dominion. (Security Sav. Bank v. California, 263 U. S. 282, 285.) This very judgment shows that such an intangible res is so far capable of explicit designation as to be “ specific personal property ” within the meaning of section 232. (See Redfield v. Critchley, 277 N. Y. 336; Holmes v. Camp, 219 N. Y. 359; Morgan v. Mutual Benefit Life Ins. Co., 189 N. Y. 447.) At no time here in issue did the deposit account of Bancfue Jordaan with the Central Hanover fall below $81,500 — the amount that was added thereto by the wrongful deposit of Feuchtwanger’s Federal Reserve.Notes. Under these circumstances, the trust created for him by this judgment is entirely valid. (See Importers & Traders’ Nat. Bank v. Peters, 123 N. Y. 272; Blair v. Hill, 50 App. Div. 33.)

The judgment should be affirmed, with costs.

Finch, J.

(concurring). I concur since, as noted in the opinion, no question has been raised respecting the effect to be accorded to the Executive Order of the President of the United States. Also, there is present no attempt by attachment or otherwise to effect a transfer of title of the original owner of the claim. (See opinions in Commission for Polish Relief, Ltd., v. Banca Nationala a Rumaniei, decided herewith, 288 N. Y. 332.)

Lehman, Ch. J., Rippey, Lewis and Desmond, JJ., concur with Loughran, J.; Finch, J., concurs in separate opinion in which Conway, J., concurs.

Judgment affirmed. '

      See Commission for Polish Relief, Ltd. v. Banca Nationala a Rumaniei, 288 N. Y. 332, decided herewith.


author: Desmond, J. Rippey, J.

text:
    In the Matter of 436 West 34th Street Corporation, Appellant, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent.
    Argued April 28, 1942;
    decided July 29, 1942.

      Morway Picket for appellant.
    The city’s utility tax law is unconstitutional, arbitrary and discriminatory and violates article I, sections 6 and 11, of the State Constitution, to the extent that petitioner is subjected to the incidence of the tax therein specified. (New York Rapid Transit Corp. v. City of New York, 303 U. S. 573; Matter of Vanderbilt, 281 N. Y. 297; Merchants Refrigerating Co. v. Taylor, 275. N. Y. 113; New York Steam Corp. v. City of New York, 268 N. Y. 137; New York Rapid Transit Corp. v. City of New York, 275 N. Y. 258; 303 U. S. 573; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495; Southwestern Oil Co. v. Texas, 217 U. S. 114.)

      William C. Chanler, Corporation Counsel (Sol Charles Levine, Arthur A. Segall, Edmund B. Hennefeld and Raymond Herzog of counsel), for respondent.
    Local Law No. 80 of 1940, which imposes the tax prospectively on the receipts from sales of electricity by submeterers to ultimate consumers, but exempts sales by public utility corporations to submeterers, is based on a proper tax classification and involves no denial of equal protection or due process. (Central Savings Bank v. City of New York, 280 N. Y. 9; Bell’s Gap Railroad Co. v. Pennsylvania, 134 U. S. 232; N. Y. Rapid Transit Corp. v. City of New York, 303 U. S. 573; Southern Boulevard R. Co. v. City of New York, 86 Fed. Rep. [2d] 633; Madden v. Kentucky, 309 U. S. 83.)
   Desmond, J.

The Comptroller of the City of New York has made a determination that this appellant is subject to the provisions of New. York City Local Law No. 80 of 1940 (Local Laws 1940, p. 365), and so liable to the payment of a utility tax to the city. Petitioner owns an apartment house in New York City. Its leases with its tenants require the tenants to purchase from petitioner such electric current as they require. Petitioner buys current from Consolidated Edison Company, of New York, Inc., uses some of it for its own requirements as landlord of the building, and distributes and sells the rest of it to the tenants. The Consolidated Edison Company delivers all this current to its master meter ” in petitioner’s building; so much of it as is used by a tenant is transmitted to the tenant’s apartment from the- master meter through wires owned by the landlord, and recorded on one of 130 separate meters, owned by the landlord. The tenant pays the landlord for the current he uses at the same retail ” rate which the tenant would pay the Consolidated Edison Company if he dealt directly with the latter. This arrangement so works out mathematically that the landlord receives more from the tenant, for power used by the tenant, than the landlord pays Consolidated Edison Company for the same amount of current at wholesale ” fates. The landlord’s charges to its tenants for sub-metered current are billed separately from, and not included in, the rent.

The 1934 City of New York Utility Tax Law (Local Law No. 21, 1934, published as No. 22) defined a utility ” to include any person subject to the supervision of the department of public service, and every person, whether or not subject to such supervision who should “ engage in the business of furnishing or selling to other persons gas, electricity,” etc. (Local Laws, 1934, p. 152, as amd. Local Law No.-2 of 1935.) In Matter of 320 West 37th Street, Inc., v. McGoldrick, (281 N. Y. 132), we construed this Local Law (and similar Local Laws of 1935, 1936 and 1937) to apply only to persons actually engaged in the public utility business, as commonly understood. Landlords, we said, who resold current through sub-metering, but only as an incident to their ownership and operation of real property, were not included within the described coverage. Later we made a similar ruling, in Matter of 339 Central Park West, Inc., v. Graves (284 N. Y. 691), as to the State Utility Tax Law (L. 1937, ch. 321; Tax Law, § 186-a; Cons. Laws, ch. 60) which, as it then stood, and so far as is here important, applied to the same persons as did the local laws mentioned above. (See Matter of Lacidem Realty Corp. v. Graves, 288 N. Y. 354, decided herewith.)

The city of New York thereupon took steps so to rewrite its statute as to make these landlords liable for this utility tax. Local Law No. 80 of 1940 of the City of New York imposed the tax on an additional category of persons, described as vendors of utility services.” A “ vendor ” is defined by the new Local Law as anyone who, though not subject to the supervision of the department of public service, furnishes or sells electricity, gas, etc., “ regardless of whether such furnishing, selling or operation constitutes the main activity of such person or is merely incidental thereto.” These vendors,” so defined, are required by the statute to pay the tax, not on their whole gross income, as public service corporations must, but on the gross receipts of their submetering activities, only. Duplication of tax is avoided by exempting public service corporations from paying tax on moneys derived by them from sales to vendors of utility services for resale.

There cannot, of course, be any doubt that this Local Law, as so amended in 1940, was intended to cover everyone selling or reselling electric current, within the city of New York. Appellant does not dispute the applicability to it, in terms, of Local Law No 80 of 1940, but it presses upon us a claim that the statute, so applied, is unconstitutional.

Appellant’s position is that this tax violates the “ due process ” and • “ equal protection ” clauses of the State Constitution (art. 1, §§ 6, 11). The argument, simply stated, is that this appellant is not a public utility, has none of the characteristics of a public utility, and so cannot be made subject to a special tax upon utilities. But the city is not taxing appellant as a public utility. It has made its utility tax, so called, applicable to not one, but two, classes of persons: First, those engaged in the regular business of selling or furnishing publicly, gas, electricity, etc., and second, all those, called “ vendors ” in the statute, who sell or furnish those services, even though such sales and furnishings are incidental to other principal businesses. Plainly, this does not constitute an arbitrary or discriminatory lumping together into one class, for purposes of taxation, of essentially different subjects of taxation. All those made subject to this tax deliver electric, gas and similar services to the public, for a price. It is unnecessary to point out that the city could legally have levied an entirely separate tax on sub-metering. That it has chosen to list that tax in the same statute with a tax on regular public utility corporations is no argument against its validity. The effect of the combined coverages of this city statute is that every seller of electricity, at retail, pays the same tax, at the same rate and on the same base. Such taxing provisions cannot be said to be based on fictions or on arbitrary or unreasonable assumptions of fact (see Matter of Vanderbilt, 281 N. Y. 297, 314). The classifications here under review show no sign of hostile or oppressive discrimination. It is perfectly well settled that a tax does not offend against the equal protection clause simply because it reaches some businesses and allows the escape of others that might have been covered in (Matter of Schulte, Inc., v. Graves, 242 App. Div. 724; affd., 266 N. Y. 592). The question of constitutional validity disappears when it cannot be said that no state of facts reasonably justifying the classifications can be conceived (see Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232; New York Rapid Transit Corp. v. City of New York, 303 U. S. 573).

Appellant here relies largely upon certain language in this court’s opinion in Matter of Merchants Refrigerating Co. v. Taylor (275 N. Y. 113), and our later comments on that case, in Matter of 320 W. 37th St., Inc., v. McGoldrick (supra). In the Merchants Refrigerating case we decided that the city’s Utility Tax Law was invalid in so far as it taxed the corporation on its receipts from that part of its business which consisted of sales of refrigeration to stores occupied by its tenants in its storage warehouses. (Local Law No. 2 of 1935 laid the tax on sales of refrigeration as well as of gas, electricity, etc.) In analyzing this Merchants Refrigerating decision we must remember that we were there passing on a determination of taxability which classed refrigeration companies with gas and electric companies under the all-inclusive definition of utility,” even though the refrigeration was produced on the company’s own premises and the part sold to its tenants was only the surplus over its own needs. The Merchants Refrigerating decision is, plainly, based on the meaning of the phrase engage in the business of furnishing or selling * * * refrigeration.” (Local Law, No. 2, of 1935.) The company was “ engaged ” in such “ business ” only as incidental to its extensive warehousing business, and the statute did not then, as it does now, attempt to set up and cover separately another class, called “ vendors,” who sell such services, as incidental to other businesses. To take a warehouse company, with small incidental sales of refrigeration, and tax its whole receipts just like the gross receipts of the regular public utility companies, would have gone so far beyond the reasonable intendment of a statute which, as it then stood, purported to tax only “ utilities,” that this court refused to find such a purpose in the language of the Local Law.

This court, in the Merchants Refrigerating case, did mention favorably, although it did not directly pass on, the contention of the taxpayer that the statute, if construed so as to cover its operations, would be arbitrary and discriminatory. But this contention ran mainly against the effort of the city to tax the company’s entire receipts, only a little of which came from the sale of refrigeration. The effort to tax the whole income because this small proportion thereof bore some relation to what might be called a utility ” business, was held to be unreasonable and discriminatory. When, later on, we came to discuss the Merchants Refrigerating case in Matter of 320 West 37th St., Inc., v. McGoldrick (supra), we rejected the argument that the apartment house owner, simply because it has the benefit ” of the Consolidated Edison Company’s underlying franchise, was taxable as a “ utility ” under the Local Law. We did not say or suggest that a submetering landlord’s receipts from the sale of current could not validly be made subject, under proper classification, to the same tax paid by utility companies on their receipts from the sale of current. There is a substantial measure of similarity between the two operations so taxed, and so the general rule, requiring, within reason, equal treatment for all similarly situated, has not been violated. We point out that this court, in the Merchants Refrigerating case, did sustain the imposition of the tax on so much of the company’s receipts as come from that branch of its refrigerating business which had some of the characteristics of a “ utility ” business, i. e., its sale of refrigeration by transmission through pipes laid in the streets, under a franchise from the city.

It follows that the Comptroller was correct in his determination that this appellant must pay this tax on its receipts from the sale to its tenants of submetered electric current.

The order should be affirmed, with costs.

Rippey, J.

(dissenting). The petitioner paid the tax imposed by the city of New York under Local Law No. 80 of 1940, amounting to five dollars and eighty-eight cents for August and September, 1940, under protest in writing, and brought this proceeding under article 78 of the Civil Practice Act to review the determination of the Comptroller, which denied petitioner’s application for a refund. The Appellate Division unanimously confirmed, without opinion, the determination of the Comptroller, and petitioner comes here under subdivision 1 of section 588 of the Civil Practice Act upon constitutional grounds.

The petitioner in this proceeding is a domestic stock corporation and the owner of premises known as 436-440 West Thirty-fourth street, an apartment house located in the borough of Manhattan, and is engaged exclusively in the ownership and operation of those premises. Incidental to its ownership it supplies the tenants of the building with electric current which it purchases from the Consolidated Edison Company of New York, Inc., pursuant to a schedule of rates issued by that company with the approval of the Public Service Commission. Through a city-wide servicing organization, the Electric Meter Corporation, it submeters the electricity and separately bills each tenant for the amount he uses at the rates used by the Consolidated Edison Company for its retail sales. It thus makes a profit on the resale of the electricity. The billing is entirely separate from the rent or any other charges that may be made to the tenants. All of the electric wiring in connection with the service and the submeters belong to the petitioner and are located exclusively within petitioner’s property. Concededly, the business so conducted is purely incidental to the real estate business of the petitioner. No use is made of the city streets and no permit is granted or required from the city or the State. The petitioner claims that it is not a vendor of public services, that it sells the electric current to its tenants as a private commodity and service distinct and separate from any utility characteristics. The petitioner is not subject in the conduct of its business to supervision by the Public Service Commission of the State or to supervision by any local department or agency, nor does it have the benefit of supervision of any such agency nor possess any of the' advantages or characteristics of public utilities. Our decision here must be controlled by Matter of 320 West 37th Street, Inc., v. McGoldrick (281 N. Y. 132) where the facts are identically parallel and by Matter of Merchants Refrigerating Co. v. Taylor (275 N. Y. 113) where the applicable underlying principles stated are decisive.

The tax here exacted was imposed under Local Law No. 80 of 1940 as specifically enacted to overcome, if possible, the effect of our decisions in the Taylor case and in Matter of 320 West 37th Street, Inc. That law still defines utility ” as including. Every person subject to the supervision of either division of the department of public service.” Here we have seen that this petitioner is not subject to the supervision thereof. That law defines the words Vendor of utility services ” as follows: Every person not subject to the supervision of either division of the department of public service who furnishes or sells gas, electricity, steam, water, refrigeration, telephony and /or telegraphy, or furnishes or sells gas, electric, steam, water, refrigeration, telephone or telegraph service, or who operates omnibuses, (whether or not such operation is on the public streets); regardless of whether such furnishing, selling or operation constitutes the main activity of such person or is merely incidental thereto.” It is asserted that it has specificcally included this petitioner and others similarly situated within the class who must pay the tax by removing the limitation to those who are subject to the supervision of either division of the Department of Public Service and by the provision, at the end of the paragraph, which makes the vendor liable regardless of whether the furnishing of the electricity is its main activity or only incidental thereto.

The petitioner alleges and it is conceded by respondent that landlords renting space, power and light, and/or water, and/or steam, included at a fixed rental per month are not subject to the incidence of the tax specified in Local Law No. 80 of 1940. The mere fact that there has been added to the previous utility tax laws the provision that it is applicable to the vendor of electricity regardless of whether the sale" constitutes its main activity or is merely incidental thereto does not change the principles which are decisive of the case at bar. Whatever else may be said, the tax is a utility tax, yet the services performed rest upon none of the attributes of a public utility business. . The business of petitioner possesses none of the characteristics of other utilities. It is not subject to the protective features of the Public Service Law (Cons. Laws, ch. 48) nor is it under the supervision of public authority; it is not itself dependent for operation upon any public franchise and it possesses no advantages over general business which is exempt from the tax. Under identical circumstances we have held in the Taylor case (275 N. Y. 113) that a similar local law was unconstitutional. Taxes are not imposed upon fictions but only-in reason (Matter of Vanderbilt, 281 N. Y. 297, 314).

Since by construction the Local Law cannot apply to the tax which it imposes or, if otherwise considered, it would be unconstitutional, the possibility that it averts double taxation or that it attempts to make a vendor ” as well as a distributor liable for the tax becomes immaterial.

The order appealed from should be reversed and the determination of the Comptroller annulled, with costs in all courts.

Lehman, Ch. J., Loughran and Finch, JJ., concur with Desmond, J.; Rippey, J., dissents in opinion in which Lewis and Conway, JJ., concur.

' Order affirmed.


text:
    In the Matter of Lacidem Realty Corporation, Respondent, against Mark Graves et al., Constituting the State Tax Commission, Appellants.
    Argued April 28, 1942;
    decided July 29, 1942.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden, Wendell P. Brown, John C. Crary, Jr., and Milton Kaplan of counsel), for appellants.
    Section 186-a of the Tax Law (Cons. Laws, ch. 60), as amended by chapter 137 of the Laws of 1941, does not violate the due process or equal protection clauses of the State Constitution. (Matter of Schulte, Inc., v. Graves, 242 App. Div. 724 ; 266 N. Y. 592; Southwestern Oil Co. v. Texas, 217 U. S. 114.) The retroactive provision of chapter 137 of the Laws of New York of 1941 is constitutional and valid. (Welch v. Henry, 305 U. S. 134; People ex rel. Best & Co. v. Graves, 265 N. Y. 431; Phillips v. Dime Trust & Safe Deposit Co., 284 U. S. 160; People ex rel. Beck v. Graves, 280 N. Y. 405; People ex rel. Pierson v. Lynch, 263 N. Y. 533; People ex rel. Cohn v. Graves, 271 N. Y. 353; 300 U. S. 308; United Stales v. Heinszen & Co., 206 U. S. 370; Rafferty v. Smith, Bell & Co., 257 U. S. 226; Wagner v. Baltimore, 239 U. S. 207; Seattle v. Kelleher, 195 U. S. 351.)

      Morway Picket and Harold J. Treanor for respondent.
    Section 186-a of the Tax Law, as re-enacted by chapter 137 of the Laws of 1941, violates sections 6 and 11 of article I of the State Constitution. (Matter of Vanderbilt, 281 N. Y. 297; People ex rel. New York Edison Co. v. Pub. Serv. Comm., 191 App. Div. 237; 230 N. Y. 574; Merchants Refrigerating Co. v. Taylor, 275 N. Y. 113; New York Steam Corp. v. City of New York, 268 N. Y. 137; New York Rapid Transit Corp. v. City of New York, 275 N. Y. 258; 303 U. S. 573; Sixty-seventh S. M., Inc., v. Bd. of P. U. Comm's., 106 N. J. L. 45; 107 N. J. L. 386; City of Princeton v. Princeton Electric Light Co., 166 Ky. 730; Crawford Electric Co.
      v. Knox County Power Co., 110 Me. 285; State v. Baker, 320 Mo. 1146; Matter of 320 West 37th Street, Inc., 281 N. Y; 132; Matter of 339 Central Park West, Inc., v. Graves, 260 App. Div. 265; 284 N. Y. 687; Matter of Ridgefield Refrigeration Service, Inc., v. McGoldrick, 259 App. Div. 802 ; 284 N. Y. 642.) Chapter 137 of the Laws of 1941 exceeds the period of permissible constitutional retroactivity. (People ex rel. Beck v. Graves, 280 N. Y. 405; Nichols v. Coolidge, 274 U. S. 531; Blodgett v. Holden, 275 U. S. 142; Untermyer v. Anderson, 276 U. S. 440; Coolidge v. Long, 282 U. S. 582; Helvering v. Helmholz, 296 U. S. 93; White v. Poor, 296 U. S. 98.) •
   Desmond, J.

In Matter of 436 W. 34th Street Corporation v. McGoldrick, 288 N. Y. 346, decided herewith, we have construed New York City Local Law No. 80 of 1940, to impose the City’s utility tax on a landlord’s receipts from his incidental business activity of sub-metering electric current to his tenants. So construed, that Local Law is not, we have held, unconstitutional. In the present case we have for review the annulling, by the Appellate Division, Third Department, of a determination of the State Tax Commission that such receipts of a landlord from such sub-metering operations, are taxable under section 186-a of the Tax Law (Cons. Laws, ch. 60), as amended in 1941. As applied to this respondent landlord’s sales of sub-metered electric current to the tenants of his professional building,”- there is no substantial difference between the taxing provisions of the Local Law passed on in Matter of 436 W. 34th Street Corporation v. McGoldrick (supra) and section 186-a of the Tax Law. Although the Local Law separately describes as “ vendors ” those who sell electricity as an incident to other businesses, and the State statute uses no such terminology, nevertheless the 1941 amendments to the State statute, like the 1940 additions to the Local Law, tax, in clear language, every person “ who sells gas, electricity * * *, regardless of whether such activities are the main business of such person or are only incidental thereto * * (L. 1941, ch. 137, § 2.) The language of the 1941 amendments to section 186-a and the elaborate Declaration of Legislative Intent ” which serves as a preamble to the amendments, makes it certain that the.sub-metering receipts of landlords,like this petitioner-respondent, are made taxable.

We have, however, in this case another question not presented by Matter of 436 W. 34th Street Corporation v. McGoldrick (supra). When the Legislature in 1941 amended section 186-a of the Tax Law in the manner above described, it was not content to bring sub-meterers within the fold for the future; it attempted to atone for past omissions by making the new provisions retroactive to 1937. This it sought to accomplish through a declaration that the 1941 amendments were to have the same force and effect as if enacted on May 7, 1937, the date when the original State utility tax law (L. 1937, ch. 321) first took effect. Under the circumstances we hold that this provision for full retroactivity is so harsh and oppressive as to transgress the constitutional limitation.” (Welch v. Henry, 305 U. S. 134, 147.) We do not think this is a case where adequate forewarning ” answers the question.

“ Whether a statute which by its express terms is retroactive will be sustained is usually a question of degree.” (People ex rel. Beck v. Graves, 280 N. Y. 405, 409.) The situation here is sufficiently like that in People ex rel. Beck v. Graves (supra) to require a similar result. The provisions of the 1941 amendments which make the newly-levied tax retroactive, all the way back to the birth of the utility tax, are invalid. There must be put to use, therefore, the saving clause of the 1941 amendments, which clause, looking to possible invalidity of the retroactive , features, says that, in the event of a finding of such invalidity, the tax shall be applicable to recent transactions since January first, nineteen hundred forty ” ( as to taxing “ prior but recent ” transactions, see Cooper v. United States, 280 U. S. 409, 411). This limited retroactivity is not so oppressive as to be unconstitutional.

The order of the Appellate Division should be modified and the determination of the State Tax Commission reinstated insofar as it involves taxes on transactions since January 1, 1940, otherwise such determination of the Tax Commission should be annulled, without costs.

The order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

Rippey, J.

(dissenting). In Matter of 339 Central Park West, Inc., v. Graves (284 N. Y. 691) we held that petitioner was not a utility in the sense of section 186-a of the Tax Law (L. 1937, ch. 321, as amd.) and, consequently, was not liable for the tax sought to be imposed under that section of the Tax Law upon a vendor of electricity to the tenants of its building. There is nothing in the underlying decisive facts in that case which distinguishes it from those in the case at bar.

By an amendment to that section as it existed in 1938 the Legislature, in 1941 (L. 1941, ch. 137), attempted to enlarge its definition of “ utility ” to embrace within the class subject to the incidence of the tax those sub-metering electricity and to apply it to that class retroactively to the date of the enactment of the original law in 1937 imposing the emergency tax on the furnishing of utility services.

The provision of the amendment by which attempt is made to apply the tax retroactively is unreasonable, arbitrary, capricious and unjust in violation of the due process clauses of the State and Federal Constitutions (People ex rel. Beck v. Graves, 280 N. Y. 405). The attempt to include all vendors of electricity by mere definition within the class subject to the tax without regard to the fact that the intent and purpose of the act is to tax public utilities only cannot succeed (Matter of 339 Central Park West, Inc., v. Graves, supra).

The order should be affirmed, with costs.

Lehman, Ch. J., Loughran and Finch, JJ., concur with Desmond, J.; Rippey, J., dissents in opinion in which Lewis and Conway, JJ., concur.

Ordered accordingly.