author: Lewis, J.

text:
    Grombach Productions, Inc., Respondent, v. Fred M. Waring, Appellant.
    Argued October 16, 1944;
    decided December 30, 1944.

      . A. Walter Socoloio for appellant.
    I. Respondent, having voluntarily disclosed its idea, has no right of action against a subsequent user of the idea. Bristol v. E. L. A. Society, 132 N. Y. 264; Lueddecke v. Chevrolet Motor Co., 70 F. 2d 345; Fendler v. Morosco, 253 N. Y. 281; Williamson v. New York Central R. R. Co., 258 App. Div. 226; Rodriguez v. Western Union Tel. Co., 259 App. Div. 224, 285 N. Y. 667; Stone v. Liggett & Myers

      Tobacco Co., 260 App. Div. 450; Soule v. Bon Ami Co., 201 App. Div. 794; Stern v. Laemmle Music Co., 74 Misc. 262; Hamilton Mfg. Co. v. Tubbs Mfg. Co., 216 F. 401; Affiliated Enterprises v. Gruber, 86 F. 2d 958; Bowen v. Yankee Network, 46 F. Supp. 62; Miller v. Schloss, 218 N. Y. 400.) H. The trial court gave the jury no proper criterion by which to determine whether a contract implied in law exists. The jury’s verdict is therefore without foundation in law. (Clarke v. Schmidt, 210 N. Y. 211.) III. Since the jury specifically found that appellant made no consensual agreement with respondent, the alleged trade custom could not be the basis of a contract implied in law. (Stulsaft v. Mercer Tube & Mfg. Co., 288 N. Y. 255; Harris v. Tumbridge, 83 N. Y. 92; Walls et al. v. Bailey, 49 N. Y. 464; Vietor v. National City Bank, 200 App. Div. 557; Dobson v. Kuhnla, 66 Hun 627; Blank v. Marine Basin Co., Inc., 178 App. Div. 666; Higgins v. Moore, 34 N. Y. 417; O’Connor v. Bankers Trust Co., 159 Misc. 920, 253 App. Div. 714, 278 N. Y. 649; Johnson v. Winslow, 155 Misc. 170, 246 App. Div. 800, 272 N. Y. 467.)

      Stanley M. Lazarus and Max Schoengold for respondent.
    I. Plaintiff’s disclosure of the formula to the defendant was protected by the implied contract which came into existence under the custom in the industry. (Buckin v. Long Island R. R. Co., 286 N. Y. 146; Thomas v. First National Bank of Lisbon, 263 App. Div. 476; Cole v. Lord, 262 App. Div. 116; Healey v. Macy & Co., 277 N. Y. 681; Meech v. Smith, 7 Wend 315; Justice v. Lang et al., 52 N. Y. 323; Holcroft v. Barber, 1 Corr. & Kir. 4; Wilson v. Kymer, 1 M. & S. 157; Morgan v. Bavey, 6 H. & N. 265.) II. The trial court did not commit error in its charge. (Small v. Housman, 220 N. Y. 504; Sperry v. Union Railway Co., 129 App. Div. 594; Miller v. Schloss, 218 N. Y. 400; McManus v. Woolverton, 47 N. Y. St. Rep. 107, 138 N. Y. 648; Reando v. Mosplay, 90 Mo. 251; Manufacturers Trust Co. v. Gray, 278 N. Y. 380; Noyes v. Parker, 64 Vt. 379; County of Oneida v. First Citizens B. & T. Co. [Nos. 1, 2], 264 App. Div. 212; Sayer v. Wynkoop, 248 N. Y. 54; Seeber v. People’s Building Loan Assn., 36 App. Div. 312; Barney v. Fuller, 61 Hun 618, 133 N. Y. 605.)
   Lewis, J.

The plaintiff, Grombach Productions, Inc., is engaged in originating radio programs for sale to commercial advertisers. The defendant, Fred M. Waring, is an orchestra leader who produces and broadcasts commercially sponsored radio programs.

The plaintiff has been awarded a jury verdict at Trial Term upon a complaint which alleged in substance that the plaintiff originated an u idea ” for a broadcast, known as “ Your Song ” or “ Stop, Look and Listen,” in which the radio audience was to be solicited to write to the commercial sponsor the name of a song which associated itself with some experience in the writer’s life that could be recounted or dramatized by radio followed by the introduction of the song into the program; that after the plaintiff had communicated the idea to John O’Connor, an agent of the defendant, and without the plaintiff’s knowledge or consent and in violation of its proprietary rights therein, the defendant appropriated the idea and employed it in identical form in programs broadcast by him. Three causes of action are pleaded: The first alleges the appropriation and use by the defendant of the plaintiff’s idea ” without payment therefor; the second alleges the breach of an express contract to pay for such use; the third — with which we are particularly concerned upon this appeal — alleges that plaintiff submitted its plan to the defendant in conformity with a well-established custom “ in the field of advertising and more especially in the field of radio program production and creation that programs, ideas and schemes are submitted to advertising agencies and to radio program producers and radio artists for the purpose and with the intent of having such advertising agencies, producers or artists either engage the services of the person presenting said program for the purpose of producing the same or for the purpose of having such advertising agency obtain commercial sponsors for said program or for the purpose of having such producer or artist purchase such program on a commercial basis ’ ’; that in conformity with such custom the plaintiff submitted the program and idea known as Your Song ” to the defendant for the purpose of realizing financial profit from any use that might be made of it; that despite such custom and in violation thereof, the defendant adopted plaintiff’s idea but failed and refused to compensate the plaintiff, thereby causing, the plaintiff monetary damages sought herein.

At Trial Term the second cause of action, based upon an express contract, was withdrawn by the plaintiff at the close of its evidence. The two remaining causes of action were submitted to the jury on the theory that the first was based on a contract implied in fact and the third was based on a contract implied in law. The Trial Justice submitted to the jury two special questions: (1) Was there a contract implied in fact — which the jury answered “ no and (2) Was there a contract implied in law — which the jury answered “ yes.” Upon the latter answer the jury awarded to the plaintiff a verdict of $13,000 which, upon a stipulation by the plaintiff, the Trial Justice reduced to $6,500. The Appellate Division, one Justice dissenting, modified the judgment by reinstating the jury’s verdict.

In view of the jury’s finding as to the first cause of action — that no contract implied in fact had been proved — and the second cause of action alleging the breach of an express contract having been withdrawn, there remains for our consideration only the third cause of action which the trial court treated as one “ alleging a contract implied in law, based in part on the customs of the trade

The plaintiff does not claim that the “ idea” or formula known as “ Your Song” was ever communicated directly to the defendant. It appears from the testimony of the plaintiff’s president Grombach, that there were six occasions when, by telephone conversations with Waring’s agent O’Connor, he failed in his effort to arrange a luncheon meeting with the defendant at which he could bring to the defendant’s attention the idea or program which he claimed was well adapted for use by the defendant’s orchestra. In one of those telephone conversations, according to Grombach’s testimony, he “ explained the idea to [O’Connor] roughly over the phone.” He claims further that he later sent to O ’Connor a letter in which he stated — “ The attached might interest you and, by the way, don’t forget I’d like to talk to Fred and yourself about this vehicle I spoke to you about before.” Grombach also.testified that he enclosed in the letter a “ presentation ” — defined by him as “an outline of the idea together with a list of' the elements of the idea * * * ” — and that he spoke later to O’Connor who acknowledged receipt of the letter and the “ presentation.” The plaintiff, however, failed upon the trial to identify the “ presentation ”, which he claims to have sent to O’Connor and accordingly it was rejected as evidence in the case. The plaintiff charges that, after the communications claimed to have been had by its president Grombach with O’Connor, the defendant Waring appropriated plaintiff’s idea and used it in four broadcasts which he conducted in January, 1939.

When O’Connor was called as a witness for the defendant he denied receiving the letter which Grombach claims to have sent him. He recalled a telephone conversation in which Grombach asked for a luncheon engagement with the defendant because he (Grombach) had an idea,” but O’Connor denied that at any time Grombach told him of “ the nature or character of the idea. ’ ’

The defendant Waring denied that he appropriated the plaintiff’s “ idea ” or program. He testified that prior to the present suit he had received no knowledge or information as to the creation or production of the radio program idea claimed by the plaintiff in this action; that he had seen no script or presentation relating to the idea and had never talked to the plaintiff’s president Grombach with respect to such an idea. The defendant also testified that 0 ’Connor had never brought to his attention directly or indirectly “ the radio program idea created by the plaintiff in this action ” or any prospectus or presentation of such a program; that O’Connor never mentioned to him any communication between him (O’Connor) and the plaintiff corporation “ relative to program ideas,” nor did the defendant at any time authorize O’Connor to do any business with the plaintiff on his behalf.

The defendant admits that in four broadcasts in January, 1939, he used as a short interlude a formula, suggested by his own publicity technique expert, during the performance of which he urged his radio listeners to write him letters referring to some experience in which a song changed the course of the writer’s life. Concededly the formula for that interlude differed widely from the idea ” of which the plaintiff now claims to be the originator. It bore the title The Tune That Turned the ' Tide the letter writer did not participate in its rendition and its duration was only a few minutes as compared with the longer period required for the performance of the program which is' the subject of the present suit.

We may eliminate as a basis for the defendant’s liability the alleged breach of an express contract, because the plaintiff has withdrawn that charge. We may also eliminate as a basis for the defendant’s liability a contract implied in fact, because a jury has found that the plaintiff’s evidence failed to establish such a contract. That finding, however, has an important bearing upon our present problem. This court has said — A contract cannot be implied in fact where the facts are inconsistent with its existence; or against the declaration of the party to be charged; or where there is an express contract covering the subject-matter involved; or against the intention or understanding of the parties; or where an express promise would be contrary to law. The assent of the person to be charged is necessary and unless he has conducted himself in such a manner that his assent may fairly be inferred he has not contracted.” (Miller v. Schloss, 218 N. Y. 400, 406-7.) Applying to the case at bar the rule stated in the sentence last quoted above, which the Trial Justice read to the jury, we may infer from the jury’s finding — that no contract implied in fact existed —that the defendant did not assent to the unsolicited disclosure to him of the plaintiff’s idea ” and that the defendant did not conduct himself in a manner which imports his assent.

In Miller v. Schloss (supra, at p. 407) it was said that0a contract implied in law “ * * * is not a contract or promise at all. It is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it, and which ex aequo et tono belongs to another.” (See, also, 1 Williston on Contracts, [rev. ed.], § 3, p. 9.) Guided by that definition we have reached the conclusion that the Trial Justice erroneously permitted the jury to find the existence of a contract implied in law ‘ based in part on the customs of the trade,” as he expressed it. By that expedient the jury — after finding that there was no evidence of the defendant’s assent to the plaintiff’s unsolicited disclosure of its .idea — was permitted to substitute for such assent evidence of an alleged custom in the field of radio program production. That custom was described by the plaintiff’s president as follows: “ When someone submits the formula of a program to an agency, advertiser, network, or talent, the people to whom it is presented either are interested in that idea and take the idea and pay a reasonable value therefor, or make a deal with the person who produced the program based on that formula, or they do not do anything with it and forget about it. In other words, there is a relationship of trust there.” (It should be said that the sentence last quoted above was stricken out by the Trial Justice).

Such a custom — “ * * * cannot create a contract where there has been no agreement by the parties and none is implied by law; nor can it give validity to a contract which the law declares void.” (Stulsaft v. Mercer Tube & Mfg. Co., 288 N. Y. 255, 260.) In the present case no “ deal ” was made between the plaintiff and defendant. The jury has so found. And if we accept the testimony of the plaintiff’s president that he explained to O’Connor roughly over the phone ” the “ idea ” which he desired to bring to the defendant’s attention, that disclosure, as we have seen, came to O’Connor unsolicited either by him or by the defendant. Even though it be assumed that on a subsequent occasion the defendant Waring caused to be arranged and performed in a radio broadcast an interlude in which there were elements common to the plaintiff’s idea, the prior gratuitious, unsolicited disclosure allegedly made by the plaintiff’s presidént, unprotected by contract, does not create an enforcible contract implied in law. (Miller v. Schloss, supra, p. 407; Bristol v. E. L. A. Society, 132 N. Y. 264, 267; Rodriguez v. Western Union Telegraph Co., 259 App. Div. 224, 225, affd. 285 N. Y. 667.)

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

Lehman, Ch. J., Loughkan, Rippey, Conway, Desmond and Thachek, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Thacher, J.

license: Public Domain

text:
    In the Matter of the Claim of Mart E. Martin, Claimant, against Edward Plaut et al., Appellants. State Industrial Board, Respondent.
    Argued November 22, 1944;
    decided December 30, 1944.

      James 1. McGuire and George A. Garvey for appellants.
    Claimant failed to establish any accident arising out of or in the course of her employment. (Matter of Davidson v. Pansy Waist Co., 240 N. Y. 584; Matter of Lynch v. City of New York, 242 N. Y. 115; Matter of Giliotti v. Hoffman Catering Co., 246 N. Y. 279; Matter of Pisko v. Mintz, 262 N. Y. 176; Matter of Hall v. City of New York, 282 N. Y. 708; Matter of Priestley v. Hentz & Co., 258 N. Y. 618.)

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum of counsel), for respondent.
    The accidental injuries arose out of and in the course of the employment. (Matter of Hoffman
      v. New York Central R. R. Co., 290 N. Y. 277; Matter of Unger v. New York Sportwear Co., 268 N. Y. 651; Matter of Kefford v. Federal Reserve Bank, 246 App. Div. 660, 270 N. Y. 675; Matter of Giliotti v. Hoffman Catering Co., 246 N. Y. 279; Matter of Culver v. Sevilla Home for Children, 262 App. Div. 620, 266 App. Div. 705, 290 N. Y. 930; Matter of Dienske v. Tompkins, 280 N. Y. 524; Matter of Birch v. Budd, 256 App. Div. 53, 280 N. Y. 850; Matter of Underhill v. Keener, 258 N. Y. 543; Matter of Finnegan v. Biehn, 276 N. Y. 50; Matter of Lief v. A. Walzer & Son, 272 N. Y. 542; Matter of Wood v. Kings Park State Hospital, 266 App. Div. 804; Matter of Di Salvio v. The Menihan Co., 225 N. Y. 123; Matter of McInerney v. B. & S. R. R. Corp., 225 N. Y. 130; Matter of Domres v. Syracuse Safe Co., 240 N. Y. 611; Lauterbach v. Jarett, 189 App. Div. 303.)
   Thacher, J.

Claimant, employed as a cook, was injured when she fell as she turned suddenly to pick up some of her clothes while dressing one morning in a bedroom furnished in her employer’s home for her use. What caused her to fall she could not say unless it was the quickness of her movement. She had just left her bed and was dressing to go out and do her work. She was not conscious of having tripped over anything. Under the terms of her employment she slept and had her breakfast in the. home hut went out for lunch and dinner.

Upon these facts, which are not in dispute, we must determine whether her injuries were compensable under the Workmen’s Compensation Law and decision turns upon whether they arose “ out of and in the course of ” her employment as a domestic servant living in her master’s home. The facts being undisputed this is a question of. law. (Dennis v. A. J. White and Company [1917] A. C. 479 [House of Lords].)

It being part of her employment to sleep and to live in the household, it was in the natural course of her employment to arise and dress in order to commence her daily work. We have held that a cook employed in a hotel at a weekly wage with room and board was entitled to compensation for injuries suffered in a fall on the way from her bedroom to the bathroom early in the morning before she had commenced her work (Matter of Underhill v. Keener, 258 N. Y. 543); but a laundress employed upon similar terms in a hotel, who also enjoyed the privilege of using her employer’s laundry after hours to do her own laundry work, was denied compensation for accidental injuries suffered while doing such work after hours (Matter of Daly v. Bates & Roberts, 224 N. Y. 126); and in Matter of Hall v. City of New York (282 N. Y. 708), a nurse employed in a city-owned hospital, who was injured by falling in a tub in which she was bathing, was denied compensation. In the Daly case (supra), we held that the claimant’s employment did not require her presence in the laundry at the time she was injured and that the activities out of which her injuries arose were neither part of nor incidental to her employment. Examination of the record in that case discloses that the laundress received her injuries while she was employed by Bates & Boberts, proprietors of the Murray Hill Hotel, who were engaged in the operation of a power laundry in connection with such hotel, where she was employed to work during fixed hours of each day. It was customary for the employees in the laundry to do their own washing there in the evening and it was while she was engaged in doing her personal laundry after hours that the claimant sustained her injuries. The employment in that case obviously had little in common with domestic service in a private household.

In the Rail case (supra), it appeared that the nurse was “ not in service ” on the day when she fell in the tub while taking a bath. For these reasons it could not be said in the Daly case or in the Rail case that the injuries arose out of or in the course of the employment. That was not the situation in Matter of Giliotti v. Hoffman Catering Co. (246 N. Y. 279), nor in Matter of Underhill v. Keener (supra), which was decided upon the authority of the Giliotti case. In the Giliotti case the decedent was employed as a chef at a weekly wage with room and board. We said that his status was practically that of a domestic servant and that his sleeping on the premises in a room provided by his employer was an incident of his employment mutually beneficial to employer and employee and not a temporary suspension of it. A fire occurred on- the premises and the chef was suffocated in his sleep. His accidental death was held to be compensable. It is true he was not injured because he was engaged in some purely personal act, like taking a bath or doing his washing or changing his clothes, as was the claimant in this case, and we are urged to deny compensation because the accident here happened while claimant was dressing in the privacy of her own room.

Nothing could have been more personal than the call of nature in the Underhill case (supra), and yet that case was decided on the authority of the Giliotti case, where compensation was awarded. The statements in the Giliotti opinion, to the effect that the claimant was not injured while taking a bath or doing his washing or changing his clothes, are not rulings that injuries occurring at such times are not compensable, although such rulings were made in Matter of Davidson v. Pansy Waist Co., 240 N. Y. 584, and Matter of Daly v. Bates & Roberts (supra).

No doubt the personal quality'of the act causing injury may be important, and in many cases decisive, in determining that the injury did not arise out of and in the course of employment, for in almost every employment purely personal acts have no connection with the employment. This was .the situation in the Davidson case (supra), involving the employment of a traveling salesman who was injured by falling in a hotel bathroom. But in domestic service, where the servant lives in and is a part of the household, there are many activities incidental to the employment of a purely personal and private character, such as eating and sleeping and living under the master’s roof. Accidents in such employment are domestic. They happen anywhere in the house, not by reason of exposure to risks peculiarly inherent in the employment, but because of the ordinary risks of accidental injury which may happen to any of us at any time. Consequently, unusual accidents and uncommon injuries are rarely' connected with such employment. There is nothing unusual in falling in a bathtub. Anyone who bathes may do that and many do. Nor is any added risk of tripping or slipping in one’s room or out of it incurred by going into domestic service; but these are the risks connected with such service and if the servant lives and sleeps in the home of the master, accidental injuries incurred within the home, except under extraordinary circumstances involving injuries unconnected with any of the incidents of domestic service, may fairly be said to arise out of and in the course of such employment, whether the servant is engaged in getting dressed or in any other personal activity ' which is necessary to the performance of her duties.

We are not unmindful that there are statements in cases involving other employments which if applicable to domestic service would require denial of compensation in this case. See Matter of Davidson v. Pansy Waist Co. (supra), involving the employment of a traveling salesman; Matter of Pisko v. Mintz (262 N. Y. 176), where a janitor apparently set fire to his own bed. See, also, Matter of Commissioner of Taxation & Finance v. Brookshire Construction Co. (275 N. Y. 578) and Matter of Commissioner of Taxation & Finance v. Fure (264 N. Y. 678), where the employment of watchmen was involved and it must be said that the language of the opinions in the Davidson and Pisko cases does not distinguish between domestic service and the employments there involved. Indeed illustrations of injuries stated to be noncompensable refer in terms to domestic servants. In none of these cases, however, was compensation denied to a domestic servant, and Matter of Underhill v. Keener (supra), must still be regarded as a controlling precedent. Accordingly, we reject any statements in decisions dealing with other employments which may conflict with our decision here that the claimant’s injuries are compensable notwithstanding the fact that she was injured by a fall while putting on her clothes in the privacy of her own room, on the ground that such statements can have no application to domestic employment where the accident aróse as it did in this case. The reason for'this distinction is well stated in a California case (Employers’ etc. Corp. v. Indus. Acc. Com., 37 Cal. App. 2d, 567) where a claimant, employed as a cook in the private residence of her employer, was injured in her, own room while engaged in shortening a street dress and standing on a stool the more clearly to observe the hem of the dress in a mirror on the wall. She fell from the stool and the resulting injuries were held to have arisen out of and in the course of her employment as a domestic servant. The court said (at p. 574): “ A household servant is in a different category from most other employees. Normally she does not work, and this particular employee did not work, during definite hours. She is always on call. The employment requires her to live on the premises. She must be neat in dress and general appearance. It is necessarily contemplated by the employment that she must perform personal acts such as she was here performing while she is in her room on call. The same rule cannot be applied to such an employee that would be applied to an employee such as a stenographer who works set hours and whose employment would not necessarily contemplate sewing or other adjustment of clothes during working hours. In the case of domestic servants it is normally one of the implied terms of the employment that the employee may, -nd shall, perform such tasks. They are incidental to, and arise out of, the very nature of the particular employment.” The same distinction was recognized in Matter of Giliotti v. Hoffman Catering Co. (246 N. Y. 279, supra); Davidson & Co. v. M’Robb ([1918] A. C. 304 [House of Lords], see Lord Dunedin’s judgment, p. 321); and Codling v. Ridley (26 B. W. C. 0.3 [1933, Court of Appeal]).

Speaking generally, Lord Chancellor Finlay in Dennis v. A. J. White and Company ([1917] A. C. 479 [House of Lords]), quoting Lord Pabmooe in Thom v. Sinclair ([1917] A. C. 127 [House of Lords]), said (at p. 482): “ The fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment.”

Thé order should be affirmed, with costs.

Lehman, Ch. J.,. Loughean, Rippey, Conway and Desmond, JJ., concurLewis, J., taking no part.

Order affirmed.


author: Lehman, Ch. J. Lewis, J.

text:
    East New York Savings Bank, Appellant, v. Alvin Hahn et al., Respondents, et al., Defendants.
    Argued November 27, 1944;
    decided December 30, 1944.

      John P. McGrath, Charles H. Heinlein and John J. Buckley for appellant.
    I. Moratorium legislation violates the contract clause of the Federal Constitution and will not be sustained by the courts unless it is justified by a serious emergency, temporary in character, requiring the invocation of this drastic remedy for the general welfare of all the people. (First Trust Joint Stock Land Bank of Chicago v. Arp, 283 N. W. 441; Jefferson Standard Life Ins. Co. v. Noble, 188 So. 289; Pouquette v. O’Brien, 100 P. 2d 979; First Trust Co. v. Smith, 277 N. W. 762; Farm Mortgage Holding Co. v. Miller, 57 P. 2d 35; Travelers Ins. Co. v. Marshall, 76 S. W. 2d 1007; Kaelin v. Michelson, 176 Misc. 536; Attala County v. Mississippi Tractor and Equipment Co., 162 Misc. 564; Klinke v. Samuels, 264 N. Y. 144; Home Bldg, & L. Assn. v. Blaisdell, 290 U. S. 398; Chastleton Corp. v. Sinclair, 264 U. S. 543.) II. The court may take judicial notice of the fact that the emergency is at an end. (Jefferson Standard Life Ins. Co. v. Noble, 188 So. 289; Pouquette v. O’Brien, 100 P. 979; First Trust Joint Stock Land Bank of Chicago v. Arp, 283 N. W. 441; Chastleton Corp. v. Sinclair, 264 U. S. 543.)

      George B. Fearon for Savings Banks Association of the State of New York, amicus curios, in support of appellant’s position.
    I. If the emergency is past, then the statute is unconstitutional and the foreclosure action may proceed to judgment. (Klinke v. Samuels, 264 N. Y. 144.) II. Whether the emergency still exists upon which depends the continued operation of a law designed to relieve the economic emergency, is always open to judicial inquiry. (Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398.) I'll. The declaration of the Legislature as to the existence of an emergency is entitled to great respect, but it is not conclusive, and- a law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases. (Chastleton Corp. v. Sinclair, 264 U. S. 543.) IV. The court should take judicial notice of the facts relating to economic conditions from January 1, 1933, to the present time. (Civ. Prac. Act, § 334-a; Jefferson Standard Life Ins. Co. v. Noble,
      185 Miss. 360; Pouquette v. O’Brien, 55 Ariz. 248; First Trust Joint Stock Land Bank v. Arp, 225 Iowa 1331; First Trust Company of Lincoln v. Smith, 134 Neb. 84; Farm Mortgage Holding Co. v. Miller, 57 P. 2d 35; Travelers Ins. Co. v. Marshall, 76 S. W. 2d 1007; Home Owners Corporation of Washington, D. C. v. Oleson, 3 N. W. 2d 880.)
    No appearance for respondents.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Herbert A. Einhorn of counsel), appearing pursuant to section 68 of the Executive Law.
    I. The legislative finding embodied in section 1 of chapter 93 of the Laws of 1943 was not arbitrary, unreasonable or without foundation in fact. (Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187; Maguire & Co. v. Lent & Lent, 277 N. Y. 694; Ssold v. Outlet Embroidery Supply Co., 274 N. Y. 271; Biddles, Inc., v. Enright, 239 N. Y. 354; People ex rel. Bryant v. Zimmerman, 241 N. Y. 405.) II. Appellant failed to establish beyond a reasonable doubt the unconstitutionality of chapter 93 of the Laws of 1943. (Matter of Buoneto v. Buoneto, 278 N. Y. 284; Atkins v. Herts Drivurself Stations, Inc., 237 App. Div. 31, 261 N. Y. 352, 291 U. S. 641; Matter of Fay, 291 N. Y. 198; Magurie & Co. v. Lent & Lent, 277 N. Y. 694; People ex rel. Cotte v. Gilbert, 226 N. Y. 103; People v. Nebbia, 262 N. Y. 259; Johnson v. City of New York, 274 N. Y. 411; Gardner v. Ginther, 232 App. Div. 296, 257 N. Y. 578.) III. The wisdom of the enactment of chapter 93 of the Laws of 1943 is not a matter for judicial inquiry. (Fearon v. Treanor, 272 N. Y. 268, 301 U. S. 667; Chamberlin, Inc., v. Andrews, 271 N. Y. 1; Pollock v. Farmers’ Loan and Trust Co., 157 U. S. 429; People ex rel. Bryant v. Zimmerman, 241 N. Y. 405; Standard Oil Co. v. Marysville, 279 U. S. 582.)

      1. Nathanson, George A. Boland and Seymour C. Simon for Slocum Realty Corporation, amicus curice.

    Plaintiff has failed to sustain the burden of proof as against (1) the legislative finding that conditions exist which warrant the continuance of mortgage protection, and (2) the presumption of constitutionality. (National Bank of Aitken v. Showell, 195 Minn. 273; Albert v. Milk Control Board, 200 N. E. 688; Chastleton Corp. v. Sinclair, 264 U. S. 543; People v. Nebbia, 262 N. Y. 259; Wright v. Vinton Branch, 57 Sup. Ct. 556; State v. Newark Milk Co., 118 N. J. Eq. 504; Rohrer v. Milk Control Board, 186 A. 336; German Alliance Ins. Co. v. Kansas, 233 U. S. 389; Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398; Mutual Bldg. & L. Assn. v. Moore, 232 Ala. 488.)
   Lehman, Ch. J.

The legislative declaration in chapter 793 of the Laws of 1933 that “ a serious public emergency, affecting and threatening the welfare, comfort and safety of the people of the state and resulting from the abnormal disruption in economic and financial processes, the abnormal credit and currency situation in the state and nation, the abnormal deflation of real property values and the curtailment of incomes by unemployment and other adverse conditions, exists ” did not create ” a legislative power to suspend or change the legal remedies of holders of bonds and mortgages. The existence of conditions affecting and threatening the welfare, comfort and safety of the people of the state ” may, however, furnish the occasion for the exercise of such power. (Home Bldg. & L. Assn. v. Blaisdell, 250 U. S. 398; Matter of People [Tit. & Mtge. Guar. Co.], 264 N. Y. 69, 94.) Concededly the existence of extraordinary conditions in 1933 as set forth in this legislative declaration and as confirmed by common knowledge, justified the extraordinary remedy that till July 1, 1934, no action should be brought to foreclose a mortgage for a default in the payment of principal. (Klinke v. Samuels, 264 N. Y. 144.) Each year thereafter the Legislature on similar findings decreed that the remedy provided in 1933 should remain in force for another year.

In 1943 the Legislature again declared that “ The serious public emergency which existed at the time of the enactment of * * * chapter seven hundred and ninety-three of the laws of nineteen hundred thirty-three * * * having continued, in the judgment of the Legislature, to the present time and still existing, the provisions of such chapters seven hundred and ninety-three of the laws of nineteen hundred thirty-three * * * shall * * * remain and be in full force and effect until July first, nineteen hundred forty-four * * (L. 1943, ch. 93.) The Legislature at the same time provided that an owner of mortgaged premises should not be entitled to claim the benefit of the suspension of the right to foreclose the mortgage unless he amortized the principal at the rate of one per cent per annum. The plaintiff challenges the finding of the Legislature that the “ serious public emergency ” which existed in 1933 still existed in 1943, and urges that the exercise of the power of the Legislature to provide an extraordinary remedy for extraordinary conditions which was justified in 1933 may not be invoiced in 1943 when the abnormal conditions of an earlier time have disappeared.

The Legislature has the responsibility of determining when extraordinary conditions exist “ threatening the welfare, comfort and safety of the people of the state ”. Within the limits of its powers as defined by the Constitution of the State and as limited by the Constitution of the United States, choice of the appropriate remedy for such conditions is then vested in the Legislature. When the legislative choice of a remedy is challenged on the ground that it transcends the limits placed by the Constitution of the State or the Constitution of the United States upon the power of the Legislature and that it impairs the obligation of a contract or deprives a person of his property without due process of law, the legislative finding that a threatening public emergency exists is not conclusive. Judicial inquiry is not precluded whether the remedy chosen is within the power of a State Legislature “ construed in harmony with the constitutional limitation on that power. ’ ’ (Matter of People [Tit. & Mtge. Guar. Co.], 264 N. Y. 69, 84) but upon such an inquiry the legislative findings are entitled to great weight . and the legislative remedy will not be stricken down unless its invalidity is clearly established.

An extraordinary remedy which is appropriate and legitimate in an exigency resulting from abnormal conditions may be inappropriate and beyond the limits of the power of a State if temporary impairment of the obligation of a contract is continued after the exigency has passed. (Block v. Hirsh, 256 U. S. 135, 157.) When this court sustained the validity of limitations upon the remedies of the holder of a bond and mortgage created by chapter 793 of the Laws of 1933, we said, that “ such legislation, reasonably seeking only temporary relief, is not unconstitutional ”. (Klinke v. Samuels, supra; italics are new.) “ It is always open to judicial inquiry whether the exigency still exists upon which the continued operation of the law depends.” (Home Bldg. & L. Assn. v. Blaisdell, supra, p. 442.)

Doubtless such a judicial inquiry would disclose that many — perhaps all — of the adverse conditions created by the ‘ ‘ abnormal disruption in economic * * * processes ’ ’ which, as the Legislature found, existed in 1933 arid resulted in a “ public emergency,” disappeared before 1943. The Legislature did not, in 1943, find that these conditions still existed. It found only that the “ serious public emergency ” existing in 1933 and “ resulting ” from these conditions, still existed. In 1943 the fact that payrolls and savings bank deposits had increased in. almost unprecedented degree was a matter of common knowledge. The Legislature could not ignore the great changes in the economic situation. On the other hand, an accumulation of past due mortgages resulting from the ten-year-old ban upon actions to foreclose mortgages for default in the payment of principal might reasonably cause apprehension that a flood of foreclosure actions would follow removal of the ban and might itself justify a statute reasonably calculated to stem the impending flood. Reports which legislative committees made to the Legislature in 1938 and 1943 as well as a message of the Governor called to the attention of the Legislature also the fact that abnormal conditions incident to a war economy or resulting from other causes might still constitute a threat “ to the welfare, comfort and safety of the people of the state ” and might call for the exercise of the legislative power to provide am extraordinary remedy for extraordinary conditions.

The presumption is that the Legislature inquired and found ” that under the conditions then disclosed there was need for a continuance of the suspension, of the right of holders of bonds and mortgages to foreclose for default in the payment of the principal. (Szold v. Outlet Embroidery Supply Co., 274 N. Y. 271, 278.) It is entirely unimportant whether the conditions then existing have created a new emergency, as said by the Governor in his message, or have, as the Legislature said,, resulted in the continuance of an emergency itself created by conditions which have run their course. The question which the court must decide is whether the Legislature in the challenged statute has provided an appropriate remedy to tide over an exigency resulting from present conditions. We have said in an analogous case that: “ Whether an emergency exists or not, the test in each case is whether a situation exists which calls for the exercise of the reserved power of the state and whether the remedy adopted by the state is reasonable and legitimate.” (Matter of People [Tit. & Mtge. Guar. Co.], supra, p. 94.) We conclude that the challenged statute meets that test.

The judgment should be affirmed, with costs.

Lewis, J.

(dissenting). In this action to foreclose a mortgage on real property a challenge by a mortgagee to the constitutionality of the 1943 Mortgage Moratorium Law (L. 1943, ch. 93) has been denied at Special Term. The defendants-mortgagors, who offered no proof in opposition to the plaintiff’s case, have been awarded a judgment dismissing the complaint upon the ground that the evidence presented by the plaintiff-mortgagee failed to establish a cause of action.

Coming to us by direct appeal on constitutional grounds (Civ. Prac. Act, § 588, subd. 4) the case presents the question whether the undisputed facts of record afford a valid basis for the legislative finding upon which the challenged statute rests, viz., that the public emergency, -which existed in 1933 — at the time of the enactment of section 1077-a of the Civil Practice Act (L. 1933, ch. 793) — continued and still constituted a public emergency on March 11, 1943, when chapter 93 of the Laws of 1943 became a law.

By the 1933 Mortgage Moratorium Law (L. 1933, ch. 793) the Legislature declared “ * * * that a serious public emergency, affecting and threatening the welfare, comfort and safety of the people of the state and resulting from the abnormal disruption in economic and financial processes, the abnormal credit and currency situation in the state and nation, the abnormal deflation of real property values and the curtailment of incomes by unemployment and other adverse conditions, exists. Therefore, in the public interest, the necessity for legislative intervention by the enactment of the provisions hereinafter prescribed, and their application until July first, nineteen hundred thirty-four, is hereby declared as a matter of legislative determination.” Then follow the moratory provisions which, during the emergency thus declared, suspended the maintenance of certain foreclosure actions and related actions there defined.

Thereafter, in each of the ten succeeding years (except in one instance where the extension was- for two years [L. 1941, ch. 782, § 1]) the Legislature extended for a single year the moratory provisions of the 1933 Act, each renewal being based upon a finding that the serious public emergency declared to exist in 1933 had “ continued ” and was “ still existing.”

We come then to the statute here called into question (L. 1943, ch. 93) as to which it is important to note that, as in the nine preceding similar laws, the public emergency assigned as the reason for the mortgage moratorium legislation was not some new or different form of abnormality in economic and financial processes ” affecting public welfare within the State. ■ The reason for1 each succeeding enactment was the same and is typically expressed in the legislative finding within section 1 of chapter 93 of the Laws of 1943 with which we are now concerned and which provides in part: “ Section 1. The serious public emergency, which existed at the time of the enactment of sections ten hundred and seventy-seven-a * * * of the civil practice act as added by chapter seven hundred and ninety-three of the laws of nineteen hundred thirty-three * * * having continued, in the judgment of the legislature, to the present time and still existing, the provisions of such chapters * * * shall, notwithstanding any provision of such chapter, remain and be in full force and effect until July first, nineteen hundred forty-four * * *.” (Emphasis supplied.)

Although we hold in proper respect- the declaration by the Legislature that the same public emergency which called forth moratorium legislation in 1933 still existed in 1943, that declaration is not conclusive. “ It is ¿lways open to judicial inquiry whether the exigency still exists upon which the continued operation of the law depends.” (Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398, 442.) “ A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.” (Chastleton Corp. v. Sinclair [per Holmes, J.], 264 U. S. 543, 547-8.) In a prior case which dealt with emergency legislation the same jurist had written — “A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change.” (Block v. Hirsh, 256 U. S. 135, 157; see, also, Klinke v. Samuels, 264 N. Y. 144, 149; Matter of People [Tit. & Mtge. Guar. Co.], 264 N. Y. 69, 95-6.)

Here the basis of the appellant’s challenge to the 1943 Moratorium Law is the clause of the Federal Constitution (art. 1, § 10) which forbids enactment by a State of a law impairing a contract obligation. It is not denied that in the" public emergency which concededly existed in 1933 the moratorium legislation of that year was a valid exercise of the State’s essential reserved power and that the temporary suspension of foreclosure rights possessed by mortgagees was then apposite to emergency relief. “ The economic interests of the State may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts. * * * < the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power * * * is paramount to any rights under contracts between individuals.’ ” (Hughes, Ch. J., writing in Rome Bldg. & L. Assn. v. Blaisdell, supra, pp. 437, 439.) Accepting that rule as a statement of an appropriate and necessary principle of government, the appellant asserts that the exigency which fully warranted the enactment of the Moratorium Law of 1933 did not continue into the tenth year thereafter to afford a legal basis for the enactment of the 1943 statute. The appellant’s submission is that the invalidity of chapter 93 of the Laws of 1943 is established by the record before us which is said to contain undisputed proof that the' emergency of 1933 which concededly warranted the temporary suspension of the exercise by the appellant of its contract rights as a mortgagee, has not “ continued ” and was not “ still existing ” in 1943 when the Moratorium Law here in question became effective. If so, the judgment before us for review must be reversed. I pass to a consideration of the evidence.

Among the economic factors existing in 1933 which the Legislature found warranted the moratorium legislation of that year, was “ the curtailment of incomes by unemployment.” As to that factor the present record shows that between 1933 and 1943 there was in the State of New York an increase of 92%% in the number of wage earners employed and an increase of 266% in weekly payrolls. In 1933 the average weekly earnings of employees was $21.90; in 1943 that average had increased 103.7% to $44.68. In 1933 the actual number of workers employed in manufacturing was 323,071; in 1943 that number had increased to 735,265.

Other exigent factors found and declared by the Legislature to exist in 1933 were an “ abnormal disruption in economic and financial processes, the abnormal credit and currency situation in the state * * *.” The fact is within our judicial knowledge that the banks of the nation had been closed by a Federal Executive Order in 1933. In that year the Superintendent of Banks reported a shortage of currency in the State. At the close of that year his report stated — ‘ ‘ Attention was at once centered upon plans for the issuance of scrip. And on March 6, 1933, the Governor asked the Legislature for an act authorizing the creation of a State-wide corporation to serve this purpose. Such a bill was passed immediately and the plans for the issuance of scrip against bank deposits moved swiftly forward and were not abandoned until it was definitely known that the National Government was prepared to offer a solution.” That report speaks of conditions at or about the time of the “ bank holiday ” of 1933, nearly six months prior to the enactment of the 1933 Moratorium Law. The record shows however — on the question of improvement in general financial conditions within the State — that on December 31, 1935, the amount of demand and time deposits in all banks — in both commercial and savings banks — aggregated 13.2 billion dollars; on June 30, 1943, the total of those types of deposits had increased to 25.7 billion dollars, an increase of 95% and a maximum for all time. In 1933 the savings banks of the State lost 7.54% of their deposits; in 1943 the savings banks gained 8.57%. In 1933 savings bank depositors withdrew $392,000,000 more than they deposited; in 1943 the same type of depositors placed in savings banks $500,000,000 more than they withdrew. In 1933 the total amount of money in the nation was $45.49 per capita; in February, 1944, the amount of money in circulation was $151.22 per capita — an increase of more than three times the per capita figure of 1933. In 1933 the aggregate amount of money in circulation in the nation was $5,720,764,000; on February 29, 1944, that aggregate figure had increased to $20,823,568,000.

The Moratorium Law of 1933 also mentions as a factor prompting the legislation of that year the existence of an ‘ ‘ abnormal deflation of real property values ’ ’. Upon that subject the evidence is that between 1933 and 1944 there was a sharp decline in housing vacancies in the six largest cities of the State. It also appears that in those six cities for the year 1933 the average tax delinquency was 17.3% of the total taxes levied; in 1942 that average was 4.8%. There is evidence that on January 1, 1944, the savings banks of the State had available for new investment in real estate mortgages under section 235, paragraph 6 (d), of the Banking Law a sum in excess of one billion dollars. There is also the significant item of evidence that in 1943 the savings banks loaned on mortgages covering property outside the State — in Pennsylvania, New Jersey and Connecticut — approximately $100,000,000. Upon the same subject there is also testimony by experts that in the metropolitan area of New York City there was an active real estate market in 1943 and that in that year money was readily available to refinance mortgages on buildings constructed prior to 1931.

The Moratorium Law of 1943, like the nine similar statutes which preceded it, was temporary in operation. It was limited to the exigency which called it forth and which the Legislature expressly declared to be the emergency of 1933, “ continued ” and “ still existing ” in 1943. The operation of the Moratorium Law of 1943 could not validly outlast the emergency which prompted its enactment. It could not be so extended as to suspend the contract rights of the appellant-mortgagee beyond that emergency. (See Home Bldg. & L. Assn. v. Blaisdell, supra, p. 447.) The undisputed evidence to which reference has been made leads me to conclude that the emergency which caused the enactment of the Moratorium Law of 1933 was not still existing ” on March 11,1943, when chapter 93 of the Laws of 1943 became a law. To adjudicate otherwise upon the evidence before us would be in disharmony with the constitutional limitation which the appellant rightly invokes. Necessarily the power to declare a law unconstitutional is always exercised with reluctance; but the duty to do so, in a proper case, cannot be declined, and must be discharged in accordance with the deliberate judgment of the tribunal in which the validity of the enactment-is directly drawn in question.” (Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 554.)

Accordingly I dissent and vote for reversal and the direction of judgment of foreclosure and sale in favor of the plaintiff.

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

Judgment affirmed.


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    Lawrence Construction Corporation et al., Respondents, v. State of New York, Appellant.
    (Claims Nos. 24710 and 24711.)
    Argued October 18, 1944;
    decided December 30, 1944.

      Nathaniel L. Goldstein, Attorney-General {Gerald J. Carey and Orrin G. Judd of counsel), for appellant.
    I. For respondents to recover for damages to their buildings and improvements they must show that their buildings were built at the then legally established grade. (Sauer v. City of New York, 180 N. Y. 27, 206 U. S. 536; Triest v. City of New York, 193 N. Y. 525; People ex rel. Architects' Offices, Inc., v. Ormond, 201 App. Div. 787; People ex rel. Rothschild v. Muh, 101 App. Div. 423; Matter of Mellilo v. Kracke, 261 App. Div. 631; People ex rel. Sciarillo v. Hennessy, 152 App. Div. 944, 206 N. Y. 740; People ex rel. Weiser v. Tucker, 175 App. Div. 976, 220 N. Y. 594; People ex rel. Flaxman v. Hennessy, 74 Misc. 166, 149 App. Div. 952.) II. The adoption by the Transit Commission of the final order of March 13, 1930, and the general plan accompanying said order, was the establishment of a legal grade by lawful authority within the meaning of section 951 of the Greater New York Charter (L. 1901, ch. 466, as amd.). (Matter of McKinney v. McGoldrick, 243 App. Div. 210; People v. Kerr, 27 N. Y. 188; Platter of Mellilo v. Kracke, 261 App. Div. 631.) III. The inclusion of damage to land in the measure of damage applied by the Court of Claims is incorrect. (McCabe v. City of New York, 213 N. Y. 468; Matter of Ryan, 291 N. Y. 376; Queeno v. State, 255 App. Div. 941.)

      Bertram Boardman for respondents.
    I. The established grade of the street abutting claimants’ property was legally raised after the erection of claimants ’ buildings and structures. (Matter of Mayor [Briggs Avenue], 84 App. Div. 312; Matter of City of New York (Saratoga Avenue], 226 N. Y. 128; Matter of City of New York [Northern Blvd.], 281 N. Y. 48.) II. The Transit Commission had not changed the legally established grade of the street at the time of the erection of the structures on claimants’property. III. The Trial Court correctly awarded damages measured by the difference in the fair market value of the claimants’ property before and after the change of grade. (Mirro v. State of New York, 172 Misc. 963; People ex rel. Crane v. Ormond, 221 N. Y. 283.)
   Lehman, Ch. J.

Lawrence Construction Corporation in August, 1935, purchased a parcel of land on 80th Street in Glendale, Borough of Queens, New York City, and immediately began the construction of five houses in accordance with plans, which were filed in the Department of Buildings of the City of New York, by an architect, retained by Lawrence Construction Corporation, and which were approved by the Department on September 4, 1935. These plans showed that the houses would be built in conformity with the grades of 80th Street as shown on an official map which had been adopted by the Board of Estimate and Apportionment and approved by the Mayor in 1929 and which was filed in the Topographical Bureau of the President of the Borough of Queens on March 4,1930. The grades shown on that map were the physical grades of 80th Street.

In March, 1936, the Transit Commission began work upon the elimination of a grade crossing of the Long Island Railroad in Glendale, pursuant to the provisions of the New York City Grade Crossing Elimination Act (L. 1928, ch. 677) and pursuant to the provisions of chapter 936 of the Laws of 1935. The elimination of the grade crossing resulted in a drastic change of grade of the roadway on 80th Street. In March, 1930, more than five years before Lawrence Construction Corporation acquired the land and began the construction of houses on that land, in conformity with the grades shown on the map which had been approved by the Board of Estimate and Apportionment, the Transit Commission made an order denominated by it as “ Einal Order and Determination ” which provides that it is “ Ordered and Determined that the crossings at grade of the tracks of the Montauk Division of the Long Island Railroad Company with Cooper Avenue (Central Avenue) and Dry Harbor Road (80th Street), Glendale, in the Borough of Queens, shall be eliminated substantially in accordance with the plan revised as of March 5, 1930, admitted in evidence as Commission’s Exhibit No. 16.” The plan, referred to, consisted of a one-page map showing street plans and profiles of the proposed elimination and by means of such profiles it was possible to determine the drastic change of grade at each point on 80th Street which would result from the elimination of the railroad crossing at grade in accordance with the plan. The construction of the houses on 80th Street was stopped when the work of elimination began. At that time one house had been completed and the others partially completed. The owners are entitled to damages resulting from the change of grade of. the street if the houses were built and the land improved in conformity with the grade of the street ‘ established by lawful authority ’ ’ (Greater New York Charter, § 951; L. 1901, ch. 466).

The Charter provided that the official map or plan of the city “is to be deemed final and conclusive with respect to the location, width and grades of the streets shown thereon, so far as such location, width and grades have been heretofore duly adopted, except as herein otherwise provided. ” (§438.) “The board of estimate and apportionment is authorized' and empowered, whenever and as often as it may deem it for the public interest so to do * * * to change the grade of existing streets shown upon such map or plan ” (§ 442). “ The-map or plan of The City of New York * * * showing the streets and parks within The City of New York * # * shall be kept, one copy thereof in the office of the corporation counsel and one copy thereof, so far as the same shall apply to any one borough, in the office of the borough president of such borough. Whenever the map or plan of The City of New York * * * shall be changed, and whenever the grade of any street shown thereon shall be changed, the board of estimate and apportionment shall forthwith cause the maps and profiles, showing, such change in the map or plan of The City of New York, or in the grade of a street or streets shown thereon, to be certified by the secretary of said board and filed as follows; * * * one copy thereof, so far as the same shall apply to any one borough, in the office of the president of such borough.” (§ 443.)

It is not disputed that the grade of 80th Street as shown on the map filed on March 4, 1930, in the office of the President of the Borough of Queens was at that time, the grade “ established by lawful authority ” pursuant to the provisions of the Greater New York Charter and that the map was “ final and conclusive ”. It is also undisputed that in 1935, when Lawrence Construction Corporation built upon its land, the Board of Estimate and Apportionment had not changed the grades so established and had not adopted any new map or caused to be filed any map showing changes in such grades. There can, then, be no doubt that Lawrence Construction Corporation built upon its property in conformity with the grade of 80th Street “ established by lawful authority ” unless prior to September 1935 the Transit Commission, acting under authority conferred upon it by statute, changed the grade of 80th Street as shown on the official map and “ established. ” new grades within the meaning of that term as used in section 951 of the Greater New York Charter.

Authority to change a grade shown on the official map or plan is conferred by the Greater New York Charter only upon the Board of Estimate and Apportionment. No such authority has been conferred upon the Transit Commission in express terms by any statute; but, as Judge Lewis points out, the New York City Grade Crossing Elimination Act provides that “ in so far as any provision of this act is in conflict with any provision of the Greater New York charter, such provision of this act shall prevail ” (§ 15); and we are told that, because the Act evinces a legislative intention to grant to the Commission plenary or exclusive power within the defined field, we must read into the New York City Grade Crossing Elimination Act by necessary implication a grant to the Transit Commission of authority to change the grade of a city street and to establish new grades by a grade crossing “ elimination order ” which in accordance with section 2, subdivision 5, of that Act, determines the manner in which such elimination shall be made including a determination as to the alteration to be made in such crossing, its approaches, the method of crossing, the character of the structure and approaches * * *.”

A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration. A power not expressly granted by statute is implied only where it is so essential to the exercise of some power expressly conferred as plainly to appear to have been within the intention of the legislature. The implied power must be necessary, not merely convenient, and the intention of the legislature must-be free from doubt.” (Peo. ex rel. City of Olean v. W. N. Y. & P. T. Co., 214 N. Y. 526, 529.) The claim of the State that in the grant of an express power to-make the “ elimination order ” defined in section 2 of the statute, the Legislature intended to include an implied power to change the official map or plan of the city and to “ establish ” new grades on streets shown on that map wholly fails, in our opinion, to meet that test.

Whether such an order of the Commission made in 1930 “ established ” new grades though no work under such order was begun for six years thereafter, is the fundamental question in this case. The statute provides that after such an order is made and served on the railroad “ plans, specifications and estimates of the cost of * * * elimination ” must be prepared by the railroad and approved by the Commission before the work of elimination of a grade crossing may be begun or contracts for such work may be made. Until that time the Transit Commission is under no duty to proceed with the elimination of the crossing as determined by its ‘ ‘ elimination order. ’ ’ It might rescind or disregard that order, or it might change the method of eliminating the crossing as there “ determined.” So far as appears in the record no further action of any kind was taken by the Commission in connection with the proposed elimination until after Lawrence Construction Corporation had begun to build upon its land in accordance with the existing grades of the street. True, at that time the owner had knowledge that the Transit Commission in 1930 made a “ Final Order and Determination ” that a railroad, crossing 80th Street at grade “ shall be eliminated substantially in accordance ” with a plan annexed to that order and the owner was informed at that time that “ radical changes in the street grade etc. are contemplated ” in connection with the proposed elimination. (Italics throughout this opinion are ours.) Such knowledge or notice seems to us irrelevant upon this appeal. As Judge Lewis points out, “ our inquiry goes to the question — what was the lawfully established grade of 80th Street in 1935 when the buildings upon claimants ’ properties were erected.” If the “ elimination order ” of 1930 “ established ” new grades, then, regardless of whether or not he had actual knowledge of the “elimination order,” an abutting owner who thereafter builds upon his land in conformity with the superseded grade of the street as shown on the Official map of the city and not in conformity with the newly “ established grade,” can recover no damages in the event that the elimination order is subsequently carried out and the newly “ established ” grade is made the physical grade of the street. On the other hand if the “ elimination order ” of 1930 did not “ establish ” a new grade, an abutting owner who built in conformity with the existing grade of the street would, under the statute, be entitled to damages caused by subsequent change of grade, though he may have known that such a change was planned and even imminent.

In our inqury of what was the “ lawfully established ” grade of 80th Street in September, 1935, we should constantly keep in mind that concededly the existing grade, as shown on the map approved by the Board of Estimate and Apportionment and by the Mayor in 1929 was still the established grade unless a new grade was “ established ” by the “ elimination order ” of 1930. That order, we repeat, provided for the elimination of a railroad crossing at grade in “ substantial ” conformity with the plan annexed to the order, but after service of the elimination order upon the railroad corporation the railroad corporation is required to prepare plans, specifications and estimates of cost of such elimination which must be approved by the Commission before work on such elimination can begin or contracts for such work be made. (§ 2, subd. 6.) During all that time the Transit Commission could, if it chose, change the plan or method of such elimination — indeed, in conjunction with the railroad corporation it could change the plan even during the progress of the work. (§2, subd. 9.)

We may point out here that before the Transit Commission took any further official action towards carrying out its Final Order and Determination ” of March 13, 1930, the Legislature had enacted a statute (L. 1935, ch. 936) conferring new powers upon the Transit Commission which enabled it to adopt a program of grade crossing elimination to be paid for in whole or in part by Federal funds. It is, at least, doubtful whether otherwise the elimination of the railroad crossing at grade though “ finally ” determined and ordered by the Transit Commission in 1930 would have been carried out. The order made by the Commission on December 4,1935, which directs that the work of eliminating the 80th Street crossing be performed, recites that “ pursuant to Chapter 936 of the Laws of 1935 ” it has adopted a program of grade crossing elimination including the elimination of the 80th Street crossing to be paid for in whole or in part by the Federal funds known as the Works Program Grade Crossing Funds ”, and expressly approves the plans prepared by the railroad corporation after service of the Final Order and Determination ” which it is now said “ established ” in 1930 a new grade, of 80th Street. The plan so prepared which was approved by the order of 1935 differs, it is true, only in minor details from the plan annexed to the order of 1930 but there can be no doubt that the Transit Commission had power to approve plans prepared by the railroad differing in more important respects from the plan annexed to the order of 1930; nor can there be doubt that under the provisions of the statute the work of eliminating the grade crossing must be performed in conformity with the grade shown on the plans prepared by the railroad company and approved by the Transit Commission in 3935 even if such grade were different from the grade which, it is said, had been established in 1930.

A legislative pronouncement that an elimination order ” of the Commission “ establishes ” a new grade of a street — even though the elimination order and consequent physical change of grade might never, be carried out or might be carried out in modified form — would place an owner of property abutting on the street in a parlous position, as this case strikingly illustrates. If the owner of property on 80th Street built upon his property, after the order of March, 1930, was made, in conformity with the grade shown on the plan annexed to that order, the building would be useless until the time when the change of grade shown in that plan was carried out — though perhaps that time might never come. On the other hand if the elimination of the railroad crossing at grade should thereafter be carried out in accordance with the plan annexed to the ‘ ‘ elimination order ” or rather in accordance with plans thereafter prepared by the railroad company and approved by the Transit Commission, the hapless owner who had meanwhile improved his land in accordance with existing grades, as shown on the official map of the city, could recover no damages. The Legislature has not in express terms provided that an order or determination of the Transit Commission, otherwise without effect until implemented by a further order, or determination, should have the immediate effect of “ establishing ” a new grade on the street, thus making it practically impossible for the unfortunate owner to improve his land until .the. proposed elimination of the railroad crossing at grade was actually carried out. We find no ground for the conclusion that the Legislature intended to so provide by implication.- Certainly such an intention is far from being “ free from doubt.”

We are told that unless the Legislature so intended, a “ determination ” by the Transit Commission to eliminate a railroad crossing at grade in accordance with plans approved by it might be delayed or even defeated by failure of the City to 6 ‘ establish ’ ’ new grades in accordance with those plans. The answer to that contention is that even without any action by the City the work of elimination and of physical change of grade could proceed — just as it did proceed in this case and in other cases. So long as it remains uncertain whether the work of elimination will be performed in accordance with the method or plan adopted by the Commission in an “ elimination order ” pursuant to section 2, subdivision 5, of the statute and until the Commission has approved the plans, specifications and estimates of cost prepared by the railroad company, pursuant to subdivision 6 of the same statute, and is about to initiate the work, argument, certainly not without force, may be made that an owner should be free to improve his land in conformity with the existing grade of the street.

We are told, too, that the Transit Commission and the City have “ as a matter of practical construction ” treated the action taken by the Transit Commission in March, 1930, as the establishment of a new grade on 80th Street. This court has said that the practical construction of a statute by those fqr whom the law was enacted or by public officers whose duty it is to enforce it, acquiesced in by all for a long period of time, is of great importance in its interpretation in a case of serious ambiguity ”, (Grimmer v. Tenement House Department, 205 N. Y. 549). (Italics are new.) Here there is no serious ambiguity ” and no acquiescence by all in a practical construction made by a public officer. The testimony of the engineer of the Commission to which reference is made in the opinion of Judge Lewis is only that after the order of March 13, 1930, was made it was “ a closed proposition, as far as the Transit Commission was concerned, with regard to the manner in which this elimination would be carried out.” The same witness also testified, however, that “ prior to the beginning of construction work or prior to the awarding of the contract ” the Transit Commission would have the right to revise its plan ” and the record demonstrates conclusively that in fact the Commission did not regard the matter as a “ closed proposition ’ ’ until by its order of December, 1935, it approved plans which the railroad corporation was required to prepare after the order of March, 1930, was made. The legend on the map adopted by the Board of Estimate in October, 1940, four years after the claims in the case were filed and more than a year after the trial of these claims was begun, was placed on the map by some undisclosed person and is equivocal in form. No weight could attach to such a practical construction ” even if the statute were ambiguous.

We need not now decide when a change of grade is established by lawful authority ” within section 951 of the Greater New York Charter in such a case as this, nor whether such changes are established only when shown upon the City map or upon plans prepared and submitted by the - railroad and approved by - the Commission, or by authorized physical establishment. It is enough to say in this case that the new grade was not established by lawful authority when the landowner built upon his land. The statute should be read and given effect as it is written and the judgment should be affirmed.

The judgment should be affirmed, with costs.

Lewis, J.

(dissenting). The Greater New York Charter contains a provision (§ 951; and see Administrative Code, § 307a-3.0) which denies the City’s liability for a change in the established grade of a street — “ except as herein provided ”. That exception refers to the following provision, one phrase of which is important to the controversy now before us: “ § 951. An abutting owner who has built upon or otherwise improved his property in conformity with the grade of any street or avenue established by lawful authority, and such grade is changed after such buildings or improvement have been erected * * * shall be entitled to damages for such change of grade. * * *(Emphasis supplied.)

The claimant Lawrence Construction Corporation owned unim- . proved land abutting upon 80th Street in Glendale, Long Island. In August, 1935, it retained a surveyor to stake out ” five lots upon each of which it contemplated erecting a house. In executing that commission the surveyor inquired at the Topograhical Bureau of the Borough of Queens for data which would give the “ grade detail ” of 80th Street. The surveyor then learned and promptly reported to the corporate claimant’s architect “ that a grade crossing elimination was to take place at 80th Street on the Long Island Railroad and that * * * the grade crossing might be built within a year.” Thereafter the surveyor delivered to the claimant a blue print survey upon which appeared the legend — “Note: This property begins about 130 feet south of the Long Island Railroad. A grade crossing elimination project may cause destructive changes in grade. Please investigate at the office of the Transit Commission before beginning the erection of houses.” There is a finding by the Court of Claims, affirmed by the Appellate Division,— “ That at the request of the corporation [claimant] dated September 4, 1935, Savacool [the surveyor] removed the said note from the survey on September 7, 1935. That the corporation made this request because it believed that temporary building money could not be borrowed if the lender saw the note.” There is also evidence, incorporated in the finding, that the claimant corporation received on August 30, 1935, from the Topographical Bureau of the Borough of Queens a letter in which was the statement — “ The elimination of the grade crossing at 80th Street on the Montauk Division of the Long Island Railroad has been ordered by the Transit Commission and plans have been prepared for this work by the engineers of the Railroad. It would be to your advantage to inspect those plans at the office of Mr. Selmer of the Transit Commission, 270 Madison Avenue, Manhattan, before starting to build, as radical changes in the street grades, etc. are contemplated.” Despite information thus received by the corporate claimant it proceeded thereafter in 1935 to erect five houses at the then existing physical grade of 80th Street without regard for the change of that grade as to which it had been forewarned.

The project to separate the existing physical grade of 80th Street and the grade of the intersecting tracks of Long Island Railroad commenced March 10, 1936 — fifteen days after the claimants Kammerling had acquired from the corporate claimant one of the properties here involved. Upon the completion of the elimination project which brought about a radical change in the grade of 80th Street in front of the claimant’s properties, the present claims against the State were filed for alleged damages thereby sustained. Each claim is predicated upon section 951 of the Greater New York Charter which, as we have seen, permits the recovery of damages by an abutting owner for a change of street grade only in the event he has improved his property in conformity with a grade “ established by lawful authority ” and such grade is changed after such improvements. Liability in the first instance for property damage thus incurred is imposed by statute upon the State. (L. 1928, ch. 677, § 7.)

Accordingly, our inquiry goes to the question — what was the lawfully established grade of 80th Street in 1935 when the buildings upon claimants’ properties were erected? The judgments awarded to the claimants by the Court of Claims and affirmed by the Appellate Division rest upon the ruling that no new street grade was established by lawful authority to supersede the physical grade of 80th Street with which the corporate claimant had conformed its building operations in 1935. Resisting the judgments herein the State’s submission is that at the time the claimants’ properties were improved in 1935 they were not conformed-to a new grade which previously had been legally established by action of the Transit Commission.

As we consider the legal effectiveness of action taken by the Transit Commission, we look first to the scope of the Commission’s authority, The Legislature has denominated chapter 677 of the Laws of 1928 as the “ New York city grade crossing-elimination act.” (§1.) The title to that act makes clear a legislative intent thereby “ to provide for the elimination of existing highway-railroad crossings at grade within the jurisdiction of the transit commission and to repeal inconsistent acts * * * and superseding certain provisions of the Greater New York Charter.” The statute itself (§ 15) provides that — “ Insofar as any provision of this act is in conflict with any provision of the Greater New York Charter, such provision of this act shall prevail.” That the Legislature intended to give to the Transit Commission exclusive jurisdiction within the defined field is made clear by subdivision 1 of section 2 which provdes: “Notwithstanding any inconsistent provisions of article three of the railroad law or of any other law, general or special, all existing highway-railroad crossings at grade within the jurisdiction of the transit commission shall he eliminated in the manner prescribed by this act ”. With greater particularity subdivision 5 of section 2 of the Act empowers the Commission by its order and after a hearing upon such notice as the commission shall deem reasonable,” to designate the crossings to be eliminated and by such order to determine ‘ the manner in which such elimination shall be made including a determination as to the alteration to be made in such crossing, its approaches, the method of crossing, the character of the structure and approaches, * * *.” (Italics supplied.) Other provisions of the statute relating to what is there designated as an “ enlarged plan ” (§5, subds. 5, 6) are not here involved.

There is undisputed evidence that prior to its approval of the project to eliminate the railroad grade crossing on 80th Street the Transit Commission, acting within its statutory powers and on due notice, held public hearings at which various people in the locality, the railroad and the city of New York and the various engineers ” attended and offered testimony bearing upon 11 the best manner and way of carrying out this elimination.” Thereafter, on March 13, 1930, the Transit Commission by “ Final Order and Determination ” directed the elimination of the Long Island Railroad grade crossing at 80th Street in the manner set forth on a general plan which showed the old grades at 80th Street and the new grades of that street adopted by the Commission as a part of the elimination. Copies of the order of March 13, 1930, with the general plan for the elimination were served on the Board of Estimate of the City of New York and on the President of the Borough of Queens and the elimination was carried out in 1936 in accord with that plan. A certified copy of the elimination plan which, with other data, defined a change in the grade of 80th Street, was filed in the Topographical Bureau of Queens and, concededly, came to the knowlclge of the owner of the subject premises in 1935 prior to the improvements made thereon.

It is also noteworthy that as a matter of practical construction the action taken by the Transit Commission by its order of March 13, 1930, was treated as having established a new grade of 80th Street. There was undisputed evidence to that effect by the Commission’s engineer in charge of grade crossing elimination. There was also received in evidence as a part of the claimants’ proof a map adopted October 31, 1940, by the Board of Estimate of the City of New York which bears the title “ Map No. 2734 showing a change in street grades heretofore established on 80th Street from Purmanville Avenue to 78th Avenue in the second ward.” (Italics new.) The map — which shows the street grade of 80th Street as established by the Transit Commission order of March 13, 1930 — bears the following legend: “ The grades shown hereon within the area affected by the grade crossing elimination are existing grades established pursuant to an order and determination of the Transit Commission and the adoption of this map serves to incorporate such existing grades upon the city map.” (Italics supplied.)

These considerations have led me to conclude that a new grade of 80th Street, as fixed by the Transit Commission’s order of March 13, 1930, was “ established by lawful authority,” within the provisions of section 951 of the Greater New York Charter before improvements were made upon the claimants’ premises. (See People ex rel. Weiser v. Tucker, 175 App. Div. 976, affd. 220 N. Y. 594; People ex rel. Architects’ Offices, Inc., v. Ormond, 201 App. Div. 787, 792, affd. 234 N. Y. 549; Mirro v. State of New York, 260 App. Div. 525, 526, affd. 285 N. Y. 678.) It follows that the State is absolved from liability under section 951 of the Greater New York Charter and Laws of 1928, chapter 677, section 7.

Accordingly, I dissent and vote to reverse the judgments and to dismiss the claims, with costs.

Lotjghran, Rippey, Conway, Desmond and Thacher, JJ., concur with Lehman, Ch. J.; Lewis, J., dissents in opinion.

Judgment affirmed.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Edwin R. Anthony, Appellant.
    Argued October 17, 1944;
    decided December 30, 1944.

      Charles J. Duncan for appellant.
    Pregnancy is not corroboration of the testimony of the tiomplaining witness in a prosecution for rape and the trial court erred in charging that it is. (People v. Doyle, 158 App. Div. 37; People v. Whitson, 195 App. Div. 910, 234 N. Y. 517; People v. Haischer, 81 App. Div. 559.)

      Earle J. Wiley, District Attorney (Robert T. Murray of counsel), for respondent.
    The court did not err in charging that pregnancy in connection with other evidence may be considered as proof of the crime. (People v. De Nigris, 157 App. Div. 798; People v. Downs, 236 N. Y. 306.)
   Per Curiam.

The questions for the determination of the jury were close ones. The case must be reversed because of an error in the instructions to the jury. The crime charged was rape in the first degree. It was established that the complainant, aged fourteen years at the time of the alleged commission of the crime, had become pregnant. The court was requested to charge by defendant’s counsel: “ I ask your Honor to charge that the pregnancy of the complainant is no corroboration of the crime charged here. The Court: I refuse to charge it in those words. I will charge that they are to consider it together with all the other evidence in the case. Defendant excepts. [Counsel] : I ask your Honor to charge that pregnancy is no corroboration of the crime charged here. The Court: I decline to so charge. Defendant excepts. The Court: As it stands, by itself, it is no corroboration, but in connection with other evidence, they may consider it. [Counsel]: I except to your Honor’s qualification.’’

In People v. Whitson (234 N. Y. 517), we reversed a conviction upon the dissenting opinion of Cochean, J., reported in 195 App. Div. 910, 911. In that opinion, it was said: “ It has been many times held that pregnancy or birth of a child constitutes no corroboration of the complaining witness as to the guilt of a defendant. It is of course highly satisfactory evidence of the guilt of someone but it does not tend to connect a defendant with the commission of the crime. (People v. Cole, 134 App. Div. 759; People v. Taleisnik, 225 N. Y. 489, 493; People v. Robertson, 88 App. Div. 198; People v. Shaw, 158 id. 146; People v. Bills, 129 id. 798; People v. Farina, 134 id. 110, 113.) ” We repeated, that in People v. Croes (285 N. Y. 279, 282), pointing out, in a case where the crime charged was rape in the second degree, that the pregnancy of the complainant was proof that a crime had been committed by someone but did not constitute “ other evidence ” of defendant’s guilt, required by Penal Law, section 2013, to support the testimony of the complainant. (See, also, Armstrong v. People, 70 N. Y. 38, 43 ; People v. Flaherty, 27 App. Div. 535, 536, 545, 546, reversed on other grounds, 162 N. Y. 532.) We pass upon no other question.

The judgments should be reversed and a new trial ordered.

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

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Houston White, Appellant.
    Argued April 12, 1944;
    decided June 8, 1944.

      Robert S. Garson for appellant.

      Frank S. Hogan, District Attorney (Stanley H. Fuld and Alan J. Elliot of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Georges Bollack, Appellant, v. Société Générale pour Favoriser le Developpement du Commerce et de L’Industrie en France, Respondent.
    Argued May 16, 1944;
    decided June 8, 1944.

      Joseph B. Kelley and Ann Nollen for appellant.

      Harold W. Bissell and William C. Gannon for respondent.
   Order affirmed, without costs, and question certified answered in the negative on the ground that the issues are of such nature and scope as to indicate the propriety of a trial thereof. No opinion.

Concur: Lehman, Ch. J., Loughran, Lewis, Conway, Desmond and Thacher, JJ. Taking no part: Rippey, J.


text:
    In the Matter of the Arbitration Between Derma Engineering Corporation, Respondent, and John A. Johnson Contracting Corporation, Appellant.
    Argued May 17, 1944;
    decided June 8, 1944.

      Emanuel Harris and Max E. Greenberg for appellant.

      Irwin J. Sikawitt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Lewis, Conway, Desmond and Thacher, JJ, Taking no part: Rippey, J.


text:
    Mount Vernon Trust Company, Appellant, v. Federal Reserve Bank of New York, Respondent.
    Argued May 16, 1944;
    decided June 8, 1944.

      Frank PL. Connelly, Jr., for appellant.

      Samuel B. Steioart, Jr., and Louis A. Perkins for respondent.
   Judgment affirmed,with costs; no opinion.

. Concur: Lehman, Ch. J., Lo.tjghran, Lewis, Conway, Desmond and Thacher, JJ. Taking no part: Rippey, J.


text:
    Maria Bensaude et al., Respondents, v. Flomarcy Company Incorporated et al., Respondents, and The City of New York, Appellant.
    Argued May 17, 1944;
    decided June 8, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Murray Sendler and James Rail Prothero of counsel), for appellant.

      Irving 1. Goldsmith, Monroe Collenburg and Jos. L. Roesch for Flomarcy Company Incorporated and another, defendants-respondents.

      Sidney J. Feltenstein for plaintiffs, respondents.
   Appeal as against the codefendants dismissed with costs; otherwise judgment affirmed, with costs. No opinion.

Concur: Lehman, Ch. J., Lotjghran, Lewis, Conway and Desmond, JJ. Taking no part: Rippey and Thacher, JJ.


text:
    Leopold Mannaberg, Respondent, v. Theodore W. Herbst et al., Appellants.
    Argued May 16, 1944;
    decided June 8, 1944.

      D. F. McGlinchey for appellants.

      Gustave B. Garfield for respondent.
   Order affirmed, with costs. First question certified answered in the affirmative. Other questions certified answered in the negative. No opinion.

Concur: Lehman, Ch. J., Loughban, Lewis, Conway, Desmond and Thacheb, JJ. Taking no part: Rippey, J.


text:
    Beckwith Havens, Appellant, v. Rochester Ropes, Inc., Respondent.
    Argued May 17, 1944;
    decided June 8, 1944.

      Neilson Olcott, John H. Jackson, John D. Graves and David F. Edwards for appellant. ' •

      Hugh G. Bergen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis, Conway, Desmond and Thacher, JJ. Taking no part: Rippey, J.


text:
    The People of the State of New York ex rel. Lawrence Investing Company, Respondent, against Frank C. Bowers et al., Constituting the Board of Review of the Town of Eastchester, et al., Appellants.
    Submitted June 5, 1944;
    decided June 8, 1944.

      Ralph A. McClelland for motion.
    No one opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Gordon Cooke and Winston A. Sealy, Appellants.
    Submitted May 15, 1944;
    decided June 8, 1944.

      Harry G. Anderson for motion.

      Thomas Cradock Hughes, Acting District Attorney (Henry J. Walsh of counsel), opposed.
   Motion for reargument denied.

Appeal from order of May 3, 1944, dismissed.


text:
    Edith D. Mott, Appellant, v. Glen Cove Trust Company, as Trustee, et al., Respondents, et al., Defendants.
    Submitted May 22, 1944;
    decided June 8, 1944.

      William J. Beglin for motion.
    No one opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Vincent Keane, Appellant.
    Submitted June 5, 1944;
    decided June 8, 1944.

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for motion to dismiss appeal.

      Vincent Keane, appellant in person, for motion for enlargement of time.
   Motion to dismiss appeal denied.

Motion for enlargement of time granted and case set down for argument during second week of first autumn, 1944, session.


text:
    Thomas H. McGrail, Appellant, v. Equitable Life Assurance Society of the United States, Respondent.
    Submitted May 22, 1944;
    decided June 8, 1944.
   Motion by respondent for reargument denied, with ten dollars costs and necessary printing disbursements. (-See 292 N. Y. 419.)


text:
    The People of the State of New York, Respondent, v. James J. Jacovacci, Appellant.
    Submitted June 5, 1944;
    decided June 8, 1944.

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for motion to dismiss appeal.

      Michael F. Pinto for motion for enlargement of time.
   Motion to dismiss appeal denied.

Motion for enlargement of time granted, and case set down for argument during second week of first autumn, 1944, session.


text:
    National Cellulose Corporation, Appellant and Respondent, v. State of New York, Respondent and Appellant.
    (Claim No. 22256.)
    Submitted May 22, 1944;
    decided June 8, 1944.
   Motion by defendant-respondent and appellant for reargument denied, with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 438.)


text:
    Alexander J. Ross, Appellant, v. Francis Preston et al., as Administrators with the Will Annexed of the Estate of William H. Schmidt, Deceased, Respondents.
    Submitted May 22, 1944;
    decided June 8, 1944.
   Motion by appellant for reargument denied, with ten dollars costs and necessary printing disbursements. (See 292 N. Y. 433.)


text:
    Lee Adelson et al., Respondents, v. George Dreyman et al., Appellants, et al., Defendants. Lewis Ginsburg, Appellant and Respondent. (Action No. 1.) In the Matter of Lewis Ginsburg, Appellant. Samuel Adelson et al., Respondents. (Proceeding No. 1.)
    Submitted May 22, 1944;
    decided June 8, 1944.

      Lewis Ginsburg for motion.

      Moses H. Rothman opposed.
   Motion for leave to appeal and for a stay dismissed, with ten dollars costs and necessary printing disbursements on the ground that neither order finally determines an action or special proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Gordon Cooke and Winston A. Sealy, Appellants.
    Submitted June 5, 1944;
    decided June 8, 1944.

      Harry G. Anderson for motion.

      Thomas Cradoch Hughes, Acting District Attorney (Henry J. Walsh of counsel), opposed.
   Motion for reargument denied.

Appeal from order of June 2,1944, dismissed.


text:
    William J. O’Neil, Respondent, v. Brooklyn Savings Bank, Appellant.
    Argued April 3, 1944;
    decided June 14, 1944.

      Sedgwick Snedeker for appellant.

      Joseph V. Lane, Jr., Vincent Keane and Louis W. Dawson for Mutual Life Insurance Company of New York, amicus curiae, in support of appellant’s position.

      Robert R. Bruce and John J. Boyle, for Realty Advisory Board on Labor Relations, Incorporated, amicus curiae, in support of appellant’s position.

      Max R. Simon for respondent.
   Judgment affirmed, with costs, without prejudice to an application in the trial court for reasonable attorney’s fee for services rendered upon an appeal.

We do not pass on the question whether the counsel fee heretofore granted is subject to increase for services rendered upon an appeal.

Two questions involving the construction of the Fair Labor Standards Act of 1938 and a question under the Federal Constitution were duly presented and necessarily passed upon by this court. The defendant contended:

1. That an action may not be maintained under section (b) of the Act by an employee solely for the recovery of liquidated damages when it is admitted that all overtime compensation was voluntarily paid in full by the employer prior to the institution of suit.

2. That the release of all further claims and damages under the Fair Labor Standards Act executed by the employee and delivered to his employer at the time he received payment of all overtime compensation due him under the Act is a good defense to an action subsequently brought by such employee solely to recover liquidated damages.

3. That the imposition of liquidated damages deprives an employer of property without due process of law in violation of' the Fifth Amendment of the Constitution of the United States.

This court held against the defendant on each of these three contentions and unanimously affirmed a judgment in favor of the plaintiff.

Concur: Lehman, Ch. J., Loughran, Lewis, Conway, Desmond and Thacher, JJ. Rippey, J., taking no part.


text:
    Mark D. Rafailovich, Appellant, v. Victor J. Sudman et al., Individually and as Copartners under the Name of Black Diamond Steamship Co., Respondents.
    Argued May 17, 1944;
    decided June 14, 1944.

      John W. Crandall for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    In the Matter of Stephen Manko, Respondent, against City of Buffalo et al., Appellants.
    Argued May 19, 1944;
    decided June 14, 1944.

      Andrew P. Ronan, Corporation Counsel (Gerald J. Shields of counsel), for appellant.

      Thomas J. McKenna for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Toby Schechter, Appellant, v. Victor Schechter, Respondent.
    Submitted May 23, 1944;
    decided June 14, 1944.

      Charles Rothenberg for appellant.

      Nathaniel M. Gallin, Jerome Weinstein and Benjamin D. Jackman for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher. JJ.


text:
    In the Matter of New York State Labor Relations Board, Respondent, against Maurice Hudson, as President of Local Union No. 891, etc., et al., Respondents. John Black, Jr., et al., Appellants.
    Argued May 17, 1944;
    decided June 14, 1944.

      Mark F. Hughes, Alfred J. Callahan and Hugh P. Mullen for appellants.

      Daniel Kornblum and Betty K. Phillipoff for petitioner-respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippby, Lewis, Conway, Desmond and Thachbb, JJ.


text:
    Thomas Corrigan, Respondent, v. Long Island Railroad Company, Appellant.
    Argued May 23, 1944;
    decided June 14, 1944.

      Ralph E. Hemstreet and Louis J. Carruthers for appellant. Milton Turk for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Rippey, Conway, Desmond and

Thacher, JJ. Lehman, Ch. J., and Lewis, J., dissent and vote for a new trial.


text:
    Eva B. Stewart, Appellant, v. Penn Mutual Life Insurance Company, Respondent.
    Argued May 24, 1944;
    decided June 14, 1944.

      Elijah W. Holt for appellant.

      Boy P. Ohlin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thachbr, JJ.


text:
    In the Matter of the Liquidation of Lawyers Title and Guaranty Company (160 East 48th St., New York City). The Sidney S. Prince Foundation, Inc., on Behalf of Itself and Other Certificate Holders Similarly Situated, Respondent; Chase National Bank of the City of New York, Appellant, and Henry Weiner, as Trustee, Respondent.
    Counsel appeared June 5, 1944;
    decided June 14, 1944.

      William M. Evarts, A. Donald MacKinnon and Grant Gilmore for appellant.

      Lawrence 8. Greenbaum, Jonas J. Shapiro, Theodore 8. Jaffin and Monroe R. Lazere for The Sidney S. Prince Foundation, Inc., respondent.
   Appeal dismissed, without costs.


text:
    In the Matter of Lawyers Title and Guaranty Company (20-24-Van Dam St. & 233-245 Spring St., New York City). Alfred J. Callahan, as Trustee, et al., Respondent; Rector, Church Wardens and Vestrymen of Trinity Church in the City of New York et al., Appellants.
    Counsel appeared June 5, 1944;
    decided June 14, 1944.

      William M. Evarts, A. Donald MacKinnon and Gra/nt Gilmore ■for Chase National Bank of City of New York, appellant.

      John C. Banser for Alfred J. Callahan, as trustee, respondent.

      Laivrenpe S. Greenbaum, Anton Gronich, Theodore S. Jaffin and Monroe iR. Lazere for Anton Gronich, as surviving trustee under the will of Benjamin Hirsch, deceased, respondent.
   Appeal dismissed, without costs.


text:
    Herman L. Bitterman, Respondent, v. Louis Schulman, Appellant.
    Argued May 22, 1944;
    decided June 14, 1944.

      Frederick E. Crane, Edward V. Conwell and Nathan H. Stone for appellant.

      Meyer Altermcm and Louis V. Rivera for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman. Ch. J., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Samuel Zirn, Appellant, v. Clifton N. Bradley et al., Defendants, and Boudinot Atterbury, Defendant-Respondent.
    Argued May 23, 1944;
    decided June 14, 1944.

      Adolph Feldblum for appellant.

      Neil P. Cullom and Henry W. Steingarten for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch, J., Loughran, Rippey, Lewis, Conway and Desmond, JJ. Taking no part: Thacher, J.


text:
    Central Hanover Bank and Trust Company, Appellant, v. Roslyn Estates, Inc., et al., Respondents.
    Argued May 16, 1944;
    decided June 14, 1944.

      Francis 8. Bensel and W. Frederick Knecht for appellant.

      Edmund W. Van Voorhis and Joseph 8. Catalano for respondents.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Lehman, Ch. j., Loughban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ..