author: Rippey, J.

text:
    City of New Rochelle, Respondent, v. Philip D. Burke et al., Appellants.
    Argued June 3, 1942;
    decided July 29, 1942.

      Albert Ritchie for appellants.
    The defendants did not, within the meaning of the plumbing code, engage in the business of plumbing, nor did they install, alter or repair any plumbing system in the city of New Rochelle, as charged in the complaint. (Palmer Adv. Service, Inc., v. Grinnell Co., 272 N. Y. 487; Bradley v. Town of Union, 164 App. Div. 565; Whitehouse v. Staten Island Water Co., 101 App. Div. 112; Pine Bluff Corp. v. Toney, 96 Ark. 345; Pocatello Water Co. v. Standley, 7 Idaho, 155; Birmingham Waterworks Co. v. Hermandez, 196 Ala. 438; People v. Osborne, 149 Misc. Rep. 676; People v. Reed, 276 N. Y. 5.

      Aaron Simmons, Corporation Counsel (John A. Bodmer of counsel), for respondent.
    The appellants, in laying the pipe for supplying water and connecting the same with the water main, engaged in the business of plumbing. (49 C. J. p. 1035; People ex rel. Lavier v. Hessler, 152 App. Div. 839; People ex rel. Stepski v. Harford, 286 N. Y. 477; Johnson v. City of New York, 274 N. Y. 411.)
   Rippey, J.

The defendants, the New Rochelle Water Company and Philip D. Burke, its foreman, were convicted in the Court of Special Sessions of the City of New Rochelle, of willfully and unlawfully engaging in the business of plumbing or of installing, altering of repairing a plumbing system without first obtaining a certificate of qualification, after examination, from the Examining Board of Plumbers of the City of New Rochelle in violation of section 1 of the Plumbing and Drainage Code of that city.

On July 2, 1941, upon application of the owner of property abutting on Halcyon Terrace, defendants installed within the territorial boundaries of the public street a service pipe forty-one feet long, tapped and connected the pipe with the water main of the water company in the center of that street, placed a stop on the other end of the pipe and left it there for the plumber to pick up from the property line to the house. None of the work was done nor was any pipe installed by defendants on the applicant’s premises. When defendants finished their work there was no connection between the water distribution system on applicant’s premises and the water company’s lateral. That connection was made by a plumber employed by applicant. So far it has been successfully maintained that the work done by defendants constituted the business of plumbing or the installation, alteration or repair of a plumbing system within the provisions of the Plumbing and Drainage Code. If so, it constituted a violation of the code since it was not done by licensed plumbers ( § 1).

“ Plumbing,” as defined by the code, “ is the art of installing in buildings or structures -the pipes, fixtures and other apparatus for the conveyance of water, gas and sewage” (§ 3, subd. 2). The defendants did no work, on the occasion in question, in any building. Subdivision 3 of section 3 of the code provides that “ The plumbing system ’ of a structure includes the water supply distributing pipes, the fixtures and fixture traps, the soil, waste and vent pipes, the house drain and house sewer, the storm water system, and the gas distributing pipes, together with their devices, appurtenances, and connections within the structure and adjacent premises.” To sustain the conviction, it becomes necessary to hold that the term “ structure ” as used in the ordinance includes the mains and service pipes or laterals of the water company located within the territorial limits of the streets adjacent to the real property of the applicant. It seems reasonably clear that to so construe the ordinance would lead to necessary conflict between clearly defined duties, obligations and privileges of the water company and those of the city of New Rochelle and its inhabitants, both private and statutory, and their several property interests and prerogatives in connection with the water distribution system of the city.

The New Rochelle Water Company is a public utility corporation organized and existing under chapter 737 of the Laws of 1873. Under such act, with the consent of the village of New Rochelle, it acquired authority to lay and maintain its pipes and hydrants in any street, highway or public place of New Rochelle. It thereupon established its water system and became bound by the conditions of its incorporation and by contract to supply the village of New Rochelle and the inhabitants thereof with pure and wholesome water (Village of Pelham Manor v. New Rochelle Water Co., 143 N. Y. 532, 536) and with necessary facilities within the public streets or on its own property for distribution. Since 1873 the duties and obligations of the water company have not been lessened and it has been and still is the sole source of water supply, first to the village and later to the city of New Rochelle and its inhabitants. The utility is subject to control of and regulation by the Public Service Commission of the State. (Pub. Serv. Law, art. 4-B, § 89-c; Cons. Laws, ch. 48.) On April 30, 1940, the Public Service Commission adopted rules and regulations relating to the installation of mains, services, facilities and extensions of water works corporations, effective July 1, 1940, which were binding upon the defendant utility. So far as material, those regulations made it mandatory upon any water works corporation to furnish, place, construct, operate and maintain at its own expense all mains, service pipes, service connections and other facilities within the territorial limits of any street that is used for highway purposes under the jurisdiction of the legislative body of any city as might be necessary to render water service requested by any owner or occupant of property abutting on any such street within seventy-five feet of any main maintained by it in such street. There is no law which requires or authorizes the water company to install service pipes or other facilities or to complete connections with its mains located in public streets on property privately owned at its own cost or otherwise. Over the public streets, the legislative body of the city has jurisdiction. They may not be dug up or interfered with by the water company or anyone else in a way affecting their structure or use or their relation to other authorized uses without the city’s consent. In the interest of the consumer’s health and welfare, the city has jurisdiction over the water distribution system on the consumer’s property in the matter of organization and construction where it has prescribed that the installation, alteration and repair of such system must be made according to definitely defined rules and regulations by duly qualified and licensed plumbers. Over that system neither the Public Service Commission nor the water company has assumed any jurisdiction.

A definite boundary line is established by law, by common practice, by necessity and in the interest of orderly procedure between the rights, duties, obligations and privileges of the water company on the one hand and those of the city and owners of private property and consumers on the other with reference to the installation and ownership of and jurisdiction over different parts of the general water distribution system. That line is the street property fine of the owner of property abutting on the street. (27 R. C. L., p. 1397.) The mains, fixtures, connections, laterals, service pipes and appurtenances within the franchise limit within the territorial boundaries of the street installed at the expense of the private water company are its property and constitute its water distribution system. The pipes, connections, fixtures and appurtenances on the lot owner’s property installed at his expense belong to and constitute his water distribution system and the distribution system referred to in the city ordinance over the installation, alteration and use of which, not the water company but, rather, the city has jurisdiction. Obviously there is not, nor was there ever intended to be, an overlapping of governmental jurisdictions, control by private property owners over public utility properties and franchises or by the public utilities over the private property of individuals. The structure ” referred to in the ordinance cannot have been intended reasonably to mean any property of the utility within the boundaries of the public streets nor can adjacent premises ” as used in the ordinance be construed to refer to any part of such streets. It would be unreasonable to construe it otherwise. Nothing in the words or purpose of the ordinance leads to a contrary construction. It takes plain and explicit language in a statute or ordinance to make the doing of a thing criminal where it would not be a crime except for the legislative act. (People v. Benc, 288 N. Y. 318.)

Under the ordinance as it must be read and construed, there is no evidence that defendants were engaged in the business of plumbing or that they installed, altered or repaired the plumbing system of the city.

After July 1, 1940, the water company used its own employees, who were not licensed plumbers, to lay all required service pipes and laterals and connect them with their mains. Since it was required to bear the expense, it did so in the interest of economy. The circumstance that it had previously employed licensed plumbers to do that work is not material to a decision of this case. The facts in People ex rel. Stepski v. Harford (286 N. Y. 477) presented no question here decided. Since we decide that the Plumbing and Drainage Code of the City of New Rochelle does not require that the work of laying a lateral in a public street and its connection therein with defendant’s water main be done by a licensed plumber, no question of the constitutionality of the ordinance is presented.

The judgments should be reversed, and the information dismissed.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Joseph Marino and Edward Zimmerman, Appellants.
    Argued June 4, 1942;
    decided July 29, 1942.

      Sydney Rosenthal and Benjamin J. Jacobson for Edward Zimmerman, appellant.
    The evidence falls short of establishing beyond a reasonable doubt that the defendant committed the crimes. (People v. Klvana, 241 N. Y. 481; People v. Feolo, 284 N. Y. 381; People v. Cassidy, 160 App. Div. 651; People v. Crum, 272 N. Y. 348; People v. Purtell, 243 N. Y. 273; People v. Seppi, 221 N. Y. 62; People v. Smith, 55 Hun, 606; People v. Jung Hing, 212 N. Y. 393; People v. Cassidy, 160 App. Div. 651.) Reversible error was committed in permitting the district attorney to read the testimony of one of the complainants taken before the grand jury. (People v. Walsh, 262 N. Y. 140; People v. Jung Hing, 212 N. Y. 393.) It was reversible error to permit the District Attorney in his summation to charge that the complaining witnesses had been tampered with as a reason for their failure to positively identify the defendants. (People v. Buzzi, 238 N. Y. 390; People v. Pignataro, 263 N. Y. 229.)

      Sydney Rosenthal, Joseph A. Boccia and Joseph Contiguglia for Joseph Marino, appellant.
    The evidence falls short of estabHshing beyond a reasonable doubt that the defendant committed the crimes. (People v. Smith, 7 N. Y. Supp. 841; People v. Seppi, 221 N. Y. 62; People v. Klvana, 241 N. Y. 481; People v. Cassidy, 160 App. Div. 651; People v. Jung Hing, 212 N. Y. 393; People v. Montesanto, 236 N. Y. 396.) Reversible error was committed in permitting the district- attorney to read the testimony of one of the complainants taken before the grand jury. (People v. Walsh, 262 N. Y. 140; People v. Jung Hing, 212 N. Y. 393.) It was reversible error to permit the district attorney in his summation to charge that the complaining witnesses had been tampered with as a reason for their failure to positively identify the defendants. (People v. Buzzi, 238 N. Y. 390; People v. Pignataro, 263 N. Y. 229.)

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for respondent.
    The People’s evidence was legally sufficient to sustain the finding that the appellants were, in fact, two of the persons who committed the crimes for which they were convicted. (People v. Davino, 284 N. Y. 486.; People v. Burt, 51 App. Div. 106; 170 N. Y. 561; State v. Orlandi, 106 Vt. 165;
      People v. Franklin, 188 Pac. Rep. 607; People v. Becker, 215 N. Y. 126.) The District Attorney was properly permitted to read the testimony previously given by one of the complainants before the grand jury. (Code Crim. Proc., § 8-a.) Under the circumstances, the District Attorney’s reference to something which he invited the jury to infer had happened to affect the witnesses’ testimony, if improper, did not present error grave enough to require that the judgments be disturbed. (People v. Purtell, 243 N. Y. 273.)
   Lewis, J.

The two defendants Joseph Marino and Edward Zimmerman stand convicted of the crimes of assault in the first and second degrees. They were acquitted on eight other counts in the indictment which had charged them with abduction and rape in the first degree.

Omitting sordid details, we shall limit the recital of facts to those upon which rests the question whether, in a case involving uncertain proof of the identity of the two appellants as participants in the crime, a ruling by the trial court was reversible error which permitted the prosecuting attorney to read to the jury a substantial portion of the grand jury minutes.

About four o’clock in the morning of September 11, 1940, four men assaulted two women — the present complainants — who were homeward bound from an uptown restaurant in the city of New York. The assault occurred in an automobile which the complainants had been forced to enter. Of the four men who were present in the car when the assault was committed one was never apprehended. The remaining three defendants, Joseph Mineo and the two appellants, were taken into custody under the following circumstances: At about eight o’clock on the second evening following the assaults two city detectives, who had been assigned to investigate the case, accompanied the two complainants in an automobile to a point on Second avenue near the intersection of Seventy-sixth street. While the car was standing at the curb one of the complainants drew attention to a group of young men standing near a candy store on Seventy-sixth street. Pointing to one of the group she said “ I think there is one of them on the corner.” Leaving the complainants in the car the detectives approached the group of young men, eight in number, and directed them to enter the candy store. The complainants then followed, their purpose being to ascertain whether, among the eight men being held in the store, there might be any of their four assailants. When the complainants, who concededly were in a state of hysteria, were within the room where the men were gathered, they struck three of the men in the face with their handbags and promptly left the premises.

The three men thus singled out from the group have been tried on the indictment mentioned above. From the judgment of conviction the defendant Mineo, who concededly bore a prominent scar on his forehead, has not appealed. As to him the complainants were positive in their testimony which identified him as one of their assailants.

The present appellants, Marino and Zimmerman, appealed to the Appellate Division, which unanimously affirmed their convictions. The case is here for review by permission of a member of this court.

Neither of the appellants has previously been convicted of a crime. Each denies any connection with the assaults upon the complainants; each gave evidence which, if believed, established that he was at home when the assaults occurred, and each swore that he did not know and had never seen either of the complainants until the night when, with other men, he was ordered by detectives to go into a candy store on Seventy-sixth street and there was accused by the complainants in the manner already described.

There was evidence that after the appellants had been arrested one of the complainants told a detective at police headquarters to look at Marino’s arm which would be found scarred by wounds from a hypodermic needle. The evidence is not disputed, however, that when Marino was asked by the detective to bare his arms they showed no scars of any kind. One of the complainants also testified that in the course of the assault she had bitten “ as hard as [she] could ” the arm of the man who, according to her statement, “ resembled ” the appellant Zimmerman. But the proof is undisputed that Zimmerman’s arms bore no evidence whatever of having been bitten.

At the trial, which took place four months after the arrests, the prosecution sought to prove by the complainants the identification of the appellants, Marino and Zimmerman, as being two of the four men involved in the assaults. Upon this vital point in the case the complainants at no time stated positively that either Marino or Zimmerman was among those who participated in the assaults. After stating on direct examination that the more she saw of the defendants the less sure she was of their identity, one of the complainants was asked whether she would swear that the defendant Marino was one of her assailants. To that inquiry she answered — “I couldn’t swear. They look so much like them, but I couldn’t swear to it.” When the same complainant was examined as to her ability to identify the appellant Zimmerman, he was directed to stand before her at a distance of six feet and was moved into various positions to enable the witness to observe his face at front view and his left and right profiles. Then occurred the following examination: Q. Now, I am going to ask you, Mrs..................., is he, Edward Zimmerman, the defendant whom you have just looked at, one of the men who you say was in an automobile with you and your sister on the early morning hours of September 12th, 1940. That is all I am going to do. A. He looks very much like him, but I have got a doubt in mind. I could almost swear it is him. He is built like him and looks like him and everything, but I have got a doubt in mind. Q. You have got a doubt in your mind? A. I have. Q. You say the man who was with you was built like him? A. Built like him — the night I saw — first night I saw them dressed like the same man, built like him, looking like him, but when I see him in court, I sort of have a doubt. When I get out of the court and get thinking about it, then I am so sure. I am almost positive, but when I see him in court I kind of have a doubt in mind. I try to just keep thinking and thinking. It looks like him, and sometimes I am so sure it is him. Q. Sometimes you are not so sure, is that right? A. That is right. Q. Is that right? A. That’s right. Q. Eight now do you have a doubt in your mind as to whether he is the man? A. I have a doubt in mind. Q. You have a doubt in your mind? A. Yes, sir. * * * Q. All right. There is not any question now, though, that you have a doubt in your mind as to whether he is the man or not? Mr. Dugan: That is objected to as having been already answered. The court: Overruled. A. I have a doubt in mind he is not the man. * * * Q. Did you ever see the man who looked like the defendant Zimmerman before that night — yes or no? A. Never. Q. The answer is ‘ No ’? A. No.”

The other complainant, after being given the same opportunity to study at short range the face and profiles of the appellant Zimmerman, testified on the question of identity as follows: Q. Now, will you please look at the defendant, Edward Zimmerman, and note his profile, color of his hair, color of his eyes, shape of his nose and his mouth and his chin, and tell me is he the man that was in the car, who had intercourse with you on the night of September 12th, 1940 — yes or no? A. I am almost sure, but I am not positive. Q. Do you have a doubt about him? A. Yes, I have. Q. You looked at him on Friday when you were on the witness stand here? A. Yes. Q. You have been looking at him from time to time today while you have been on the witness stand? A. Yes, sir. Q. You still have your doubt as to whether he was the third man in that car? A. Yes, sir.”

When she was asked to identify the appellant, Marino, the same complainant testified: “ Q. Do you say, under oath, now, that Marino was the man who accosted you at 86th Street and Lexington Avenue? A. He looks very much like him. Q. Can you swear that he is the man? Mr. Dugan: I object to that as having already been answered, if your Honor please. The Court: I will allow it. A. No, I — Q. Can you swear that he is the man? A. I wouldn’t swear. Q. You have your doubt? A. Yes, sir.”

It is thus seen that the only witnesses who could have testified as to whether the appellants were guilty of the criminal offenses with which they were charged, were the two complainants. As witnesses upon the trial their testimony was given when each appellant was in their presence and when the circumstances were calculated to enable the complainants to exercise freely their powers of observation and reflection. However, as we have seen, when they were asked to supply the requisite proof which would identify the appellants as participants in the assaults, they gave answers in which there was marked equivocation coupled with a frank admission of doubt. In addition there was a refusal by each complainant to swear that the appellants were participants in the crime.

It was in this state of the record that the prosecuting attorney was permitted on redirect examination of one of the complainants — and in an apparent effort to strengthen her evidence on the question of identity — to draw her attention to testimony given by her before the grand jury. To that end there was read to that complainant in the presence of the trial jury extended excerpts from the grand jury minutes which related not only to the identity of the appellants but also to matters unrelated to that subject.

The appellants do not question the right of the prosecuting attorney under section 8-a of the Code of Criminal Procedure to confront a witness with any prior inconsistent testimony given before the grand jury. The point made is that here the testimony with which the complainant was confronted was in fact not inconsistent with her testimony given at the trial.

We do not agree with the appellants that a comparison of the testimony given by the complainant before the grand jury with her testimony on the trial, on the subject of the identity of the appellants, was entirely free from inconsistency. We conclude, however, that the rights of the appellants were prejudiced when, during the examination of one of the complainants by the prosecuting attorney, there was read before the trial jury excerpts from the grand jury minutes which went far beyond the scope of questions relating to the identity of the appellants. Indeed, by the trial procedure thus pursued — the propriety of which was duly challenged by objections and motions made in behalf of the appellants — there was brought before the trial jury, as cumulative evidence, an alleged statement of facts which amounted to a complete version of the assaults as given to the grand jury by one of the complainants at a time when she was not confronted by either of the appellants and was not subjected to the revealing test of cross-examination. Such procedure went far beyond the rights accorded by section 8-a or section 393-b of the Code of Criminal Procedure. The prejudice resulting therefrom to the appellants was aggravated later by a statement made by the prosecuting attorney in the course of his summation. Referring to what he indicated to be a significant difference between the testimony given by one of the complainants before the grand jury, and her testimony given at the trial, the jury was told that “ * * * somebody did something and whoever did it didn’t do this case any good.” That statement cast suspicion upon the appellants. The jury may well have drawn the inference therefrom that an effort had been made by the appellants, or by someone in their behalf, to suppress evidence in the case or to coerce witnesses. Lacking, as it did, the support of any evidence in the case, the statement was wholly unwarranted and was prejudicial to the appellant’s rights. (People v. Buzzi, 238 N. Y. 390, 397; People v. Pignatoro, 263 N. Y. 229, 237.)

We cannot say that the errors to which reference has been made were unsubstantial. It follows that the judgments should be reversed and a new trial ordered.

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

Judgments reversed, etc.


author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. Isidore J. Winter and Irving Pepperbloom, Appellants.
    Argued April 29, 1942;
    decided July 29, 1942.

      Abraham S. Robinson for Irving Pepperbloom, appellant.
    The People failed to prove a conspiracy under the allegations of the information. (People v. Klipfel, 160 N. Y. 371; United States v. McConnell, 285 Fed. Rep. 164; United States v. Siebricht, 59 Fed. Rep. [2d] 976; Cooper v. United States, 91 Fed. Rep. [2d] 195; Telman v. United States, 67 Fed. Rep. [2d] 716; People v. Goldner, 70 Misc. Rep. 199; People v. Friedlander, 280 N. Y. 437; People v. Suffern, 267 N. Y. 115; People v. Courtney, 28 Hun, 589; People v. Kleinman, 252 App. Div. 149.) Proof tending to show violations of section 270-a of the Penal Law does not establish a conspiracy. (People v. Tavormina, 257 N. Y. 84; People v. Friedlander, 280 N. Y. 437; United States v. Falcone, 109 Fed. Rep. 579; 311 U. S. 205.) The appellant was not concerned in or a party to any conspiracy. (People v. Harris, 136 N. Y. 423; People v. Place, 157 N. Y. 584; United States v. Lancaster, 44 Fed. Rep. 896; People v. Razezicz, 206 N. Y. 249; United States v. Linde, 13 Fed. Rep. [2d] 59; United States v. Koch, 113 Fed. Rep. [2d] 982; People v. Friedlander, 280 N. Y. 437; Cooper v. United States, 91 Fed. Rep. [2d] 195.)

      William B. Moore and Edward G. Tarangioli for Isidore J. Winter, appellant.
    The evidence was insufficient as a matter of law to prove guilt of the crime charged in the information. ( United States v. Russell, 41 Fed. Rep. [2d] 852; Marcante v. United States, 49 Fed. Rep. [2d] 156; People v. Suffolk Contracting Co., 171 App. Div. 645; United States v. Falcone, 311 U. S. 205; Dickerson v. United States, 18 Fed. Rep. [2d] 887.) The defendant’s guilt of the crime of conspiracy cannot be proved by evidence of overt acts alone. (People v. Friedlander, 280 N. Y. 437; Bell v. United States, 2 Fed. Rep. [2d] 543; Lee v. United States, 106 Fed. Rep. [2d] 906; United States v. Falcone, 311 U. S. 205; DiBonaventura v. United States, 15 Fed. Rep. [2d] 494; United States v. Crimmins, 123 Fed. Rep. [2d] 271; Linde v. United States, 13 Fed. Rep. [2d] 59.) The testimony concerning acts and declarations of co-conspirators was incompetent to prove the guilt of the appellant. (United States v. Richards, 149 Fed. Rep. 443; Nibbelink v. United States, 66 Fed. Rep. [2d] 178; Dolan v. United States, 123 Fed. Rep. 52; Hauger v. United States, 173 Fed. Rep. 54; Thomas v.
      United States, 57 Fed. Rep. [2d] 1039; United States v. Nardone, 106 Fed. Rep. [2d] 41; Lent v. Shear, 160 N. Y. 462.)

      Frank S. Hogan, District Attorney (Eugene A. Leiman and Stanley H. Fuld of counsel), for respondent.
    The guilt of the appellants was proved beyond a reasonable doubt. (People v. Pizza, 238 N. Y. 622; People v. McCarthy, 250 N. Y. 358; People v. Sugarman, 248 N. Y. 255; People v. Luciano, 277 N. Y. 348; People v. Sweeney, 213 N. Y. 37; People v. Van Tassel, 156 N. Y. 561; People v. Miles, 123 App. Div. 862; 192 N. Y. 541; United States v. Manton, 107 Fed. Rep. [2d] 834; State v. Hayes, 127 Conn. 543; United States v. Kissel, 218 U. S. 601.) There was ample evidence corroborating the accomplice testimony that the appellants participated in the commission of the crime. (People v. Elliott, 106 N. Y. 288; People v. Ogle, 104 N. Y. 511; People v. Kress, 284 N. Y. 452; People v. Nitzberg, 287 N. Y. 183; People v. Goldstein, 285 N. Y. 376; People v. Cohen, 223 N. Y. 406; People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111; People v. Mills, 91 App. Div. 331; 178 N. Y. 274.)
   Desmond, J.

These two appellants, who are attorneys, have been convicted of conspiracy to violate section 270-a of the Penal Law, which section makes it unlawful to solicit, or procure through solicitation legal business.”

The information accused twenty-four defendants of having been members of a general conspiracy, the scheme of which was to obtain information regarding accidents occurring in New York City, to approach the parties injured in these accidents and to attempt to secure the signatures of the injured parties to retainer blanks, which retainers subsequently would be sold to attorneys or, which, by pre-arrangement had already been so sold to attorneys. The alleged conspirators were divided into three groups: two newspapermen, who secured the information in the first instance at police precincts; a number of runners,” who did the actual soliciting, and several attorneys, who, it is charged, handled and disposed of the claims by settlement or litigation.

The action was severed as to three of the runners ”; four other runners,” four attorneys and one of the two newspapermen pleaded guilty; the case against the other newspaperman was dismissed; one lawyer was acquitted. The remaining defendants were convicted. Four lawyers and two “ runners ” appealed to the .Appellate Division. The judgment against one of the lawyers was reversed and the information dismissed. As to the rest of the defendants, the judgments of conviction were affirmed. Only these two appellants, attorneys, have appealed to this court.

As against' these two appellants, the information levels the accusation that it was a part of the conspiracy that these two should regularly and systematically use certain other of the defendants to solicit and should regularly and systematically pay to other of the defendants certain sums of money * * *.” The only evidence we need consider is that which purports to prove the existence of the general conspiracy and the participation of these two appellants in that conspiracy. The proofs clearly show that the conspiracy itself was formed and that it functioned as alleged. Whether or not there was evidence to establish that these appellants were co-conspirators, is another question. The Appellate Division dissent was on the ground that such evidence did not appear to be sufficient to convict appellants of the conspiracy, though it would suffice to show them guilty of the substantive acts.

Without setting out the testimony at length, we say that it sufficiently shows that each of these appellants was acquainted with some of the runners ” involved in the general conspiracy and that each appellant was in some instances recommended as an attorney by certain of these runners.” In some of these cases one or the other of these appellants was retained, as a result of such recommendations by the runners.” The jury could readily have found that these recommendations were made at the request of appellants. But the problem remains whether this kind of proof shows connection of appellants with the conspiracy pleaded in the information. Of course, to sustain a conviction for conspiracy, we do not require evidence that a defendant took part in every act done in furtherance of the conspiracy, or that he was cognizant of every such act (People v. Miles, 123 App. Div. 862; affd. 192 N. Y. 541). Nevertheless, more must be shown than that he is guilty of the substantive act (People v. Friedlander, 280 N. Y. 437). The prosecutor points to this statement of law in People v. Van Tassel (156 N. Y. 561,564, 565): “ A conspiracy may be proved by circumstantial evidence, and parties performing disconnected overt acts, all contributing to the same result, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be confederators in the commission of the offense.” This very general language concerned a charge of subornation of perjury. In the conspiracy there under scrutiny, no benefit could have come to anyone until the particular end of the particular conspiracy had been attained. Thus, the very fact that a defendant had committed one of the overt acts, not explainable at all unless as done to progress the one particular conspiracy, was enough, in that case, to permit an inference that the overt act was in truth done for the purpose of the conspiracy. Indeed, no other inference was possible. We have no such case before us. Either or both these appellants may have solicited cases and employed others, on particular occasions, to do their soliciting for them. At least as to Pepper-bloom, there is direct proof that he did violate section 270-a of the Penal Law. As we have said before, the jury could rationally have inferred that appellant Winter had done likewise. But this is not at all the same thing as proving that they were participants in the general conspiracy charged against all the defendants. The situation is not unlike that described in Linde v. United States, (13 Fed. Rep [2d] 59). In that case the court held that the prooif which permitted an inference by the jury that defendants knew they were purchasing stolen cars, was not enough to permit the further inference that they were members of a conspiracy to introduce stolen cars into the State for the purpose of sale (see United States v. Crimmens, 123 Fed Rep. [2d] 271). A defendant’s guilt as to one crime is never enough to sustain his conviction on another. We do not find in this record any proof that either of these appellants knowingly participated in the conspiracy described in the information.

The judgments should be reversed and a new trial ordered.

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

Judgments reversed, etc.


author: Desmond, J. Finch, J.

text:
    The People of the State of New York, Respondent, v. Frank Davino, Appellant.
    Argued April 30, 1942;
    decided July 29, 1942.

      Harry G. Anderson, Samuel Bader and Leon Fischbein for appellant.
    The trial court committed reversible error in denying the defendant’s motion for a, mistrial after the court had found, with the concurrence of the district attorney, that a witness was mentally deranged and unworthy of belief. (People v. Robinson, 273 N. Y., 438; People v. Fielding, 158 N. Y. 542; People v. Conrow, 200 N. Y. 356.) The defendant’s guilt was not established beyond a reasonable doubt. (People v. Davino, 284 N. Y. 486.)

      William O’Dwyer, District Attorney (Henry J. Walsh of counsel), for respondent.
    The court correctly refused to declare a mistrial following the disclosures as to the mental irresponsibility of a witness. (People v. Barnes, 202 N. Y. 77; People v. Smith, 180

      N. Y. 125; People v. Rimieri, 180 N. Y. 163; People v. Priori, 164 N. Y. 459; People v. Dixon, 231 N. Y. 111.) The appellant’s guilt was proved beyond a reasonable doubt. (People v. Lytton, 257 N. Y. 310.)
   Desmond, J.

This defendant has, for a second time, been convicted of murder in the first degree, for the killing of Thomas J. Hitter, on October 31, 1938. We reversed the first conviction (284 N. Y. 486, 487). To quote the majority opinion on that appeal: “ The question for the jury was one of identity, which is always a difficult one.” The victim was a New York City fireman who had been sent, in his automobile, to a nearby bank to cash the salary checks, amounting to about $3,000, of the members of his fire company. When, on his return, he brought his car to a stop near the entrance of the engine house, another car pulled alongside. One of the two occupants of that car thrust a revolver into the fireman’s car and shot him. The assailant then jumped from the murder car, ran around to the right side of the victim’s car and shot the latter again, as his body tumbled out. The murderer took from the deceased an envelope containing the $3,000, ran back around the fireman’s car into his own, and fled.

Defendant took the stand at both trials, and each time claimed that at the time of the killing, he was at a gas station, where he said he had gone with one Ludwig to meet the latter’s stepfather. He told the jury that he had spent most of that day with Ludwig. Ludwig did not testify at the first trial, but on the second trial he appeared and denied so much of defendant’s testimony as placed the two men together at the gas station about the time of the killing. We will refer again to Ludwig.

At the first trial the proof relied upon to connect defendant with the crime, came from four witnesses. Three of them testified more or less positively that they recognized defendant as the man who killed Hitter. A fourth, fireman Coppola, did not see the shooting, but saw a man running from the back of Hitter’s car and identified defendant as that man. On the appeal from the first conviction, the only question was as to the sufficiency of these identifications to sustain the verdict. This court decided that they were insufficient, that “ the identity of the defendant as the person who committed the homicide was not in this case shown with sufficient certainty to preclude a reasonable possibility of mistake ” (284 N. Y. at p. 489, citing People v. Seppi, 221 N. Y. 62, 68). We must examine the record of the second trial, to see if there is in it sufficient additional credible testimony to make the required weight of evidence. We will not review, herein, the testimony of the four witnesses above referred to, who testified at both trials.

On the second trial the People offered the testimony of four additional witnesses. All of them were- convicts, brought from prison to testify. One of them, Stein, said that on the day of the murder he saw defendant, near the scene, riding in a car driven by another at high speed. Stein had previously denied that he knew anything about the crime at all, and he had never told anyone this story, of seeing defendant in the vicinity of the crime, till he wrote the prosecutor that he wanted to make this disclosure. The second of the new witnesses, Ludwig, was the man who, according to defendant, was with the latter most of the day of the crime, including the time of the killing. Ludwig did not testify at the first trial. At the second trial he said that he was not with defendant at the time the murder was committed, but that shortly before defendant was arrested, defendant met him (Ludwig) and asked him to say, if asked, that they were together at that time. Between the first and second trials, however, Ludwig approached a prison chaplain and gave the latter a positive, sworn statement in writing that defendant and he had been together at the time in question, and that defendant was, to Ludwig’s knowledge, absolutely innocent.

The two other new witnesses were Pascoe and Hoffman. Both testified that defendant had admitted the crime to them. Pascoe swore also that, some time before the crime, defendant had hidden, in Pascoe’s cellar, a revolver, which, the witness noticed, was missing two weeks before this murder. Pascoe, significantly we think, said that shortly after the date of the killing, defendant had borrowed a nickel from him — difficult to reconcile with defendant’s alleged theft of $3,000, just before. Pascoe, when questioned during the early investigations of the crime, had denied all knowledge of it. Hoffman, questioned at the trial about a robbery he himself had committed about the time of the alleged confession to him by defendant, fell into serious contradictions as to the time of the confession and of the robbery. We say without hesitation that the evidence given by all four of these witnesses was of unreliable character and from most questionable sources. No reasonable explanation appears for their failure to tell their stories sooner, or for their contradictions and evasions.

One other new witness, Mokotoff, appeared for the People on the second trial and gave most damaging testimony against defendant; according to him, defendant had positively admitted the killing. Some days later, during the trial and after defendant had been cross-examined on Mokotoff’s story, it was discovered that Mokotoff was mentally irresponsible and unworthy of belief. His testimony was then, on the district attorney’s motion, stricken from the record and the jury instructed by the court, in the strongest terms, to disregard it. We do not agree with appellant that the court committed error in failing, at that point, to grant his motion for a mistrial. The trial justice did the best he could to destroy the effect of this strong testimony given by a witness who never should have testified and who, of course, would not have been called had the prosecutor known of his mental condition. But that testimony, plausibly given, rested in the jury’s minds for the several days between its giving and the discovery that it had come from a man who was mentally deranged. The difficulty, or practical impossibility, of forgetting and disregarding this testimony is shown by incidents near the close of the trial when inadvertent references were made to this very testimony, so solemnly stricken out, theretofore. We see nothing in this matter of Mokotoff’s testimony that would in itself justify a reversal, but the incident was not without importance, when the rest of the testimony was so weak.

On the whole record our conclusion is that the evidence against defendant, with the new testimony added, is no stronger than before. As was pointed out in this court’s opinion on the first appeal, there is no proof here of flight or enrichment. We note again that one of the eye-witnesses testified, at both trials, that there was something wrong with the murderer’s foot so that he ran in a peculiar manner; there is nothing to show that this defendant had any such deformity or peculiarity of gait. Seven weeks elapsed between the crime and the time when defendant was arrested and identified by these witnesses. The first trial was held fifteen and a half months after the crime, the second, more than three years after the crime. Accurate identifications, after such delays, of a man seen only once in a moment of excitement, are difficult to make.

Unfortunate it will be if the men guilty of this heinous crime go unpunished. It would be much more unfortunate if a conviction were allowed to stand, in a case so full of doubt and uncertainty, on evidence that fails to meet the settled standards of our law.

The judgment of conviction should be reversed, and a new trial ordered.

Finch, J.

(dissenting). Upon a retrial, a jury of twelve men have for the second time resolved the facts in favor of the People. I had some doubt after the first trial whether the defendant was guilty beyond a reasonable doubt. Hence I voted to reverse and grant the new trial.

Upon the second trial there is the same evidence as upon the first trial, together with much additional evidence including the testimony of four additional witnesses. All of these witnesses were convicts brought from prison to testify. Arguments may also be made attacking the credibility of this testimony for other reasons. Such reasons are set out in the majority opinion. The court properly left to the jury the question whether they would believe or disbelieve any or all of this evidence. That was peculiarly a jury question, and that responsibility was for the jury. We cannot say as a matter of law that the jury was bound to disbelieve this evidence. Again a second jury of twelve men have found this defendant guilty. Upon this record there is ample evidence from which a jury could find defendant guilty beyond a reasonable doubt.

Appellant relies only upon one so-called error of law, namely, the failure of the trial judge to declare a mistrial following the disclosure as to the mental irresponsibility of the witness Mokotoff. In the first place, Mokotoff had never been adjudged mentally incompetent. An expert assigned to general sessions, who interviewed the witness, testified that in his opinion he was mentally irresponsible. By way of excessive caution, the Assistant District Attorney who tried the case then moved to strike out all the testimony of this witness. After the testimony of this witness was stricken from the record by the trial judge, the latter, in a most painstaking manner, instructed the jurors as a whole to cast out of their minds all the testimony of this witness which the judge himself had ordered stricken from the record, and the foreman in reply stated that it could and would be done. There was no error here, but if there were, we are directed to disregard it under the provisions of the Code of Criminal Procedure (§ 542) as not materially affecting the result, which is the guilt of this defendant as found by two juries.

The judgment of conviction should be affirmed.

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


author: Rippby, J.

text:
    Philip Zwirn, as Administrator of the Estate of Joe Jacobs, Deceased, Appellant, v. Dominick Galento, Respondent.

      Argued June 16, 1942;
    decided July 29, 1942.

      Aaron Edward Nowack and Abraham D. Strauss for appellant.
    A New York resident may, even if unlicensed by the New York State Athletic Commission, negotiate a contract in a foreign State, calling for a boxing exhibition in the foreign jurisdiction, and have access bo our courts to recover for services rendered in the foreign jurisdiction. (Griffith v. Wells, 3 Den. 226; Ruckman v. Bergholz, 37 N. J. L. 437; Christopherson & Kiaer, Inc., v. U. S. Navigation Co., 121 Misc. Rep. 778; Fosdick v. Investors Syndicate, 266 N. Y. 130; Rosasco Creameries, Inc., v. Cohen, 276 N. Y. 274; Carmine v. Murphy, 285 N. Y. 413; Furlong v. Johnston, 209 App. Div. 198; Bovino v. Berberian, 255 App. Div. 143; Mertz v. Mertz, 271 N. Y. 466; Johnson v. Dahlgren, 166 N. Y. 354; Pratt v. Short, 79 N. Y. 437; De Witt v. Brisbane, 16 N. Y. 511.) The contractual requirement that the parties appear and receive the approval of the New York State Boxing Athletic Commission is but a condition precedent which has, by the course of conduct of the parties, been waived. _ (Bonnot v. Grand Lodge, 229 Mo. App. 519; Clark v.
      West, 193 N. Y. 349; Wiley v. Inhabitants of Athol, 150 Mass. 426; Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313; People ex rel. McLaughlin v. Board of Police Commissioners, 174 N. Y. 450; Matter of Cooper, 93 N. Y. 507; Baird v. Mayor, 74 N. Y. 382; Kiernan v. Dutchess County Mut. Ins, Co., 150 N. Y. 190; Knarston v. Manhattan Life Ins. Co., 140 Cal. 57; N. Y. Tel. Co. v. Jamestown Tel. Corp., 282 N. Y. 365.)

      Julius B. Sucher and William A. Shea for respondent.
    The employment contracts are unenforceable. (Casarona v. Pace, 175 Misc. Rep. 269; Rosenfeld v. Jeffra, 165 Misc. Rep. 662; Griffith v. Wells, 3 Den. 226; Allen v. Brice, 165 Misc. Rep. 181; Johnston v. Dahlgren, 166 N. Y. 354; Schnaier v. Hotel Co., 82 App. Div. 25; Accetta v. Zupa, 54 App. Div. 33.) The alleged waiver of the contract condition may not be considered. (Wood Co. v. Horgan, 178 Misc. Rep. 385.)
   Rippby, J.

This action was brought by the administrator of

Joe Jacobs to recover for services rendered by Jacobs as manager of the prize-fighter, Tony Calentó. The amended complaint was dismissed under rule 106 of the Rules of Civil Practice on the ground that it failed to state facts sufficient to constitute a cause of action. The facts alleged with all inferences reasonably to be derived therefrom must be taken as true (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198).

Two causes of action are set up in the complaint, the first based upon a written contract made in the State of New York and dated March 20, 1939, to run for three years, the second upon a quantum meruit. Under the written contract, the defendant agreed exclusively to render extraordinary, exceptional and unique services to the manager in the State of New York and elsewhere in boxing contests, exhibitions of boxing and in training exercises whenever and wherever required by the manager, and the manager agreed to use his best efforts to secure remunerative boxing contests for defendant and to pay him sixty-six and two-thirds per cent of all sums of money derived by him for any such services rendered by defendant after deducting training expenses and railroad fares incurred by defendant and guaranteed that such percentage should, be not less than $5,000 per year.

It is further alleged that pursuant to said contract Jacobs procured in New Jersey a written contract in March, 1940, for a boxing exhibition to be held between defendant and one Max Baer at Roosevelt Field in Jersey City, N. J., on May 28, 1940. Jacobs died on the following April 24th. The complaint sets forth that after the death of Jacobs defendant was granted a postponement of the contest until July 2, 1940, that the defendant, under the agreement negotiated by Jacobs without further change, engaged in the contest on that date, and that, as a result of the services rendered, earned the sum of $33,571, plus additional unknown sums for radio and movie rights. Plaintiff seeks to recover one-third of these earnings.

The written contract between Jacobs and defendant contained the further provisions, (1) that the contract should not be valid until both parties should appear before the New York State Athletic Commission and receive its approval and (2) that it should become null and void if during its term the manager should not be duly licensed by that commission to act as such. In the complaint it is admitted that the parties to the contract did not appear before the New York State Athletic Commission and receive its approval and that Joe Jacobs was not duly licensed by the commission, but it is alleged that the parties entered upon performance of the contract and continued to act under the contract as well as under a previous contract similarly worded notwithstanding, Jacobs procuring engagements for the defendant and defendant taking part in them and receiving the benefits therefrom, and that by those and other alleged acts and a course of conduct the parties waived performance by Jacobs of those conditional provisions precedent, at least, so far as the services for which recovery is sought are concerned. Plaintiff also asserts in the complaint that, by acts and-conduct of defendant by which Jacobs was induced to procure the contract and render the services in question, defendant is estopped to rely upon failure to perform those provisions as conditions precedent to recovery. The courts below have held that plaintiff cannot recover since it affirmatively appears that the contract was of no effect in the absence of full performance of the conditions precedent and that performance thereof could not be waived since thé statutes governing boxing exhibitions and prize fighting were enacted to regulate a pastime affecting public morals, health and welfare.

Prize fighting and sparring exhibitions were made a crime under the Penal Law of the State of New York (Penal Law, § 1710). Prosecution was also permissible (§§ 1710, 1713) to the extent that a person, within the State, instigates, aids, encourages or does any act to further such acts without the State or leaves the State for the purpose of eluding the prohibited acts or to commit any act without the State which is prohibited or, being a resident of this State, does any act without the State which would be punishable by the applicable provisions of the Penal Law if done within the State. Jacobs was a resident of the State of New York. In the State of New Jersey, he negotiated a contract between a resident of the State of New Jersey and a resident of the State of California to be performed in the State of New Jersey. However, at the time that contract was negotiated, the negotiation and conduct of boxing matches, prize fights and sparring exhibitions were authorized within the State of New York under the supervision and regulation of the Athletic Commission and section 1710 of the Penal Law had no application to any such matches or exhibitions when so negotiated and conducted (L. 1920, ch. 912, as amd.; McKinney’s Unconsolidated Laws, Book 65, §§ 9101-9132). A license for a manager was required only to enable him to participate in a boxing, sparring or wrestling match or exhibition (§ 9107). Jacobs was not required to have a license to negotiate any contract for a match to be conducted in the future either within or without the State. He participated in no such match. He violated no law in negotiating the New Jersey contract. It could not have been the intent of the Legislature to prohibit the conduct of the match in New Jersey. Of course, it had no power to do so. There is no evidence as to the law of New Jersey. In the absence thereof it is presumed that it is the same as the common law of New York (International Text Book Co. v. Connelly, 206 N. Y. 188, 201) and not the same as-its statutory law (Cutler v. Wright, 22 N. Y. 472; First Nat. Bank v. National Broadway Bank, 156 N. Y. 459, 472; Miller v. Vanderlip, 285 N. Y. 116, 123). This is especially so where the statutory law imposes forfeitures and penalties (Harris v. White, 81 N. Y. 532, 544). The common law of New York placed no bar on the holding or conduct of such matches (Fitzsimmons v. New York State Athletic Commission, 146 N. Y. Supp. 117). The applicable statutes are thus in derogation of the common law and must be strictly construed (People v. Wallace & Co., 282 N. Y. 417). There was thus nothing illegal with the object of the New Jersey contract or with its negotiation.

The contract between Jacobs and Galento was valid in its origin, is valid on its face and had no illegal object. It was not made in violation of any statute nor with intent to evade or violate any statute. The alleged conditions precedent had no effect on the validity of the negotiation and performance of contracts for boxing exhibitions outside this State. A reasonable interpretation of the agreement leads to the conclusion that the parties intended the conditions with respect to approval and licensing to apply only to exhibitions held within New York State and that exhibitions held in other States were to be governed by the laws of those States. If there be two reasonable interpretations to an instrument, one making it illegal and the other legal, it is the duty of the courts to adopt the latter ” (Meyer v. Price, 250 N. Y. 370, 378). The law of New Jersey governs the performance of that contract in so far as it relates to exhibitions held within that State and defendant must show by way of defense that plaintiff cannot recover under the law of that State. This is not the case of a contract which calls for a single performance in a single place. The contract contemplated a series of performances in whatever States and places the manager might direct. Where a contract is, either expressly or impliedly, to be performed in any other place than that where made, the general rule is that it is to be presumed that the parties intended that the contract should be governed by the law of the place of performance (Story on Conflict of Laws [8th ed.], § 280; Andrews v. Pond, 13 Pet. [U.S.] 65; Dike v. Erie Ry. Co., 45 N. Y. 113, 116; 2 Beale on Conflict of Laws, § 355.1). If there were otherwise anything in the claim of respondent that plaintiff could not recover for non-performance by Jacobs of the alleged conditions precedent, those conditions of the contract with respect to approval and licensing could be waived by the parties, at least with respect to exhibitions held without the State (Clark v. West, 193 N. Y. 349). The complaint contains sufficient allegations of waiver.

The contract sued upon was not void as contrary to our public policy. It cannot be said that there has been any declaration of public policy with respect to prize fighting outside of the statutory enactments (People v. Hawkins, 157 N. Y. 1, 12). Those authorize prize fights and sparring exhibitions. They do not declare contracts with unlicensed managers void, nor were they put into effect to regulate prize fighting outside the State. If plaintiff could recover on this contract in New Jersey he should be allowed to recover here. As Judge Crane said in Benton v. Safe Deposit Bank (255 N. Y. 260, 267), where an agreement made and to be performed in Pennsylvania was sued on in this State: Unless there is something immoral or fundamentally unjust in the arrangement, there is no policy of our State which forbids the enforcement of contracts or agreements which are legal according to the law of the place of performance (citing cases).” There is nothing unjust or immoral in the contract before us, but injustice would result if defendant were allowed to retain the whole benefit of the New Jersey contract secured by plaintiff’s intestate and if plaintiff were denied the right to recover for services which plaintiff’s intestate rendered in obtaining that contract.

The . judgments should be reversed, with costs in all courts and the motion to dismiss the amended complaint denied.

Loughran, Finch, Lewis and Desmond, JJ., concur; Lehman, Ch. J., and Conway, J., dissent and vote to affirm.

Judgments reversed, etc.


author: Finch, J.

text:
    Hiya Christianson et al., Appellants, v. William D. Breen et al., as Executors of John J. Curtin, Deceased, et al., Respondents.

      Submitted June 18, 1942;
    decided July 29, 1942.

      L. H. Schleider and Maurice C. Rosenzweig for appellants.
    The plaintiff wife, being an invitee upon the premises of the defendants, it was incumbent upon them to warn her of the existence of an unguarded dumbwaiter shaft where the shaft door was unlocked and where there was no sign or other warning of the presence of the shaft. In any event, the defendants owed to plaintiff a safe place in which to do her work. (Glennon v. Star Co., 130 App. Div. 491; Schultis v. Waterbury Co., 152 App. Div. 416; Marks v. Nambil Realty Co., 245 N. Y. 256.) The defendants were negligent in maintaining a door which opened into a shaft, where the door was unlocked and there was no sign upon the door or other warning of the presence of the shaft. (Christensen v. Hannon, 230 N. Y. 205; McRickard v. Flint, 114 N. Y. 222; Urspring v. Winter Garden, 169 N. Y. Supp. 738; Glennon v. Star Co., 130 App. Div. 491; Stump v. Burns, 219 N. Y. 306.) Plaintiff was not guEty of contributory negligence. (Ernst v. Hudson River R. R. Co., 35 N. Y. 9; McRickard v. Flint, 114 N. Y. 222; Hyde v. Maison Hortense, Inc., 132 Misc. Rep. 399; 252 N. Y. 534; Christensen v. Hannon, 230 N. Y. 205.)

      James J. McLoughlin, Robert F. White and Thomas F. Harrigan for William D. Breen et al., as executors, respondents.
    The trial court properly dismissed the complaint. There was no evidence of neghgence. (DeSalvo v. Stanley-Mark-Strand Carp., 281 N. Y. 333.) The plaintiff wife was guilty of contributory negligence as a matter of law. (Hudson v. Church of Holy Trinity, 250 N. Y. 513; Brown v. Associated Operating Co., 165 App. Div. 702 ; 222 N. Y. 566; Pattison v. Livingston Amusement Co., 156 App. Div. 368;
      Rohrbacher v. Gillig, 203 N. Y. 413; Hilsenbeck v. Guhring, 131 N. Y. 674; Brenstein v. Mattson, 10 Daly 336; Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224; Czesznek v. Ruffy Corporation, 259 App. Div. 303; Weller v. Consolidated Gas Co., 198 N. Y. 98; Brugher v. Buchtenkirch, 167 N. Y. 153; Rowell v. Hutzler Lumber Co., 228 App. Div. 158; Dailey v. Distler, 115 App. Div. 102.)

      Michael J. Ryan for Katherine Breen, respondent.
    Defendant Katherine Breen did not own or control the premises, nor operate, control or maintain the dumbwaiter shaft, and would only be liable for acts of malfeasance. (Greco v. Levy, 257 App. Div. 209; 282 N. Y. 575; Murray v. Usher, 117 N. Y. 542.) The plaintiff wife was guilty of contributory negligence. (Hudson v. Church of Holy Trinity, 250 N. Y. 513; Hilsenbeck v. Guhring, 131 N. Y. 674; Rohrbacher v. Gillig, 203 N. Y. 414; Brugher v. Buchtenkirch, 167 N. Y. 153; Brown v. Associated Operating Co., 165 App. Div. 702; 222 N. Y. 566.)
   Finch, J.

In an action for damages for personal injuries based upon alleged negligence, the complaint was dismissed at the close of plaintiffs’ case upon the ground that no lack of care had been shown.

Plaintiffs were respectively maid and butler employed as domestics in the home of John J. Curtin. The premises were a one family private dwelling owned by Curtin, where he made his home with his sister, defendant Katherine Breen, and consisted of a cellar, a ground floor and four upper floors. The first floor contained an entrance hallway, a large billard and game room, a washroom which opened off the right wall of the billard room, a foyer and, beyond the foyer, the kitchen. The small foyer was the separating room between the two larger rooms, namely the billard room in the front and the kitchen in the rear. Opening off the same side of the foyer as the washroom did from the billiard room, was a door to a dumbwaiter or trunk carrier shaft.

Two days prior to the accident, plaintiffs had been engaged as domestics by defendant Breen, who had explained to them their duties and had shown them the layout of the house starting from the first floor and going to the fifth or top floor. Plaintiffs were specifically shown the washroom off the billiard room, and were told that they might use this washroom upon occasion so as to avoid the necessity of going to their private bath in their quarters on the top floor. The two doors, one of which opened into the washroom and the other of which opened into the dumbwaiter or trunk carrier, were not far apart and were exactly alike. Plaintiffs were not shown the dumbwaiter or trunk lift shaftway.

After an employment of two days, plaintiffs informed Mrs. Breen of their desire to leave. While preparing to leave, plaintiff Hiya started from the kitchen on the first floor with the intention of going to the washroom off the billiard room for the purpose of adjusting her hat before the mirror. This was the same washroom which had been shown to Hiya by Mrs. Breen on the day of her hiring and which Hiya had used on subsequent occasions. On the day in question, plaintiff Hiya passed from the kitchen into the foyer, but in her haste to leave, opened the door in the foyer leading into the dumbwaiter or trunk shaftway instead of the door in the billiard room leading into the washroom. Upon opening the door plaintiff reached into the darkness for the lighting fixture which she envisaged as being in the washroom, lost her balance and fell down the shaftway into the cellar of the building.

Defendant Curtin, now represented by his executors, conceded ownership and control of the premises. Defendant Breen denied ownership and control.

Taking up first the liability of defendant owner, no claim is made that defendants violated any statutory obligations. No claim is made that any such are applicable to this one family dwelling. Nor is there any claim that a lack of lighting was the proximate cause of the accident. From the above facts, however, a jury might find that due care was lacking by the owner in that two doors, exactly identical in appearance and located in the same side of the wall in adjoining rooms, in rather close proximity, were not identified by markings so as to differentiate one from the other, where both were kept unlocked, and where one led to a washroom and the other to an open shaftway. In addition, upon opening either door, neither the washroom nor the shaftway had any natural light from within and it was necessary to reach into the washroom in order to turn on the artificial light. Upon this record a jury could find evidence sufficient to make out a prima facie case of negligence which prevented a dismissal of the complaint at the close of plaintiffs’ case as against the one who was owner and in control of the premises (Stump v. Burns, 219 N. Y. 306; Hyde v. Maison Hortense, Inc., 132 Misc. Rep. 399; affd., 252 N. Y. 534).

Taking up the case of defendant Breen, there is evidence from which a jury could find that defendant Breen was the employer of plaintiffs. She engaged their services, instructed them as to their duties, and paid their salaries. It could be inferred that Mrs. Breen managed and controlled the household, and that her brother, Curtin, although the owner of the premises, merely boarded with her (Glennon v. Star Co., 130 App. Div. 491; Schultis v. Waterbury Co., 152 App. Div. 416; Brennan v. Gordon, 118 N. Y. 489; Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y. 398).

On the other hand, upon the new trial, it may be found that defendant Breen assumed to act, not as the employer, but merely as the agent of Curtin, in which case she would not be liable for mere acts of nonfeasance (Greco v. Levy, 257 App. Div. 209, affd., 282 N. Y. 575; Murray v. Usher, 117 N. Y. 542).

Furthermore a jury might find defendant Breen liable on the ground that there was evidence that she undertook to show plaintiffs about the house in connection with their duties of housework and, knowing of the unlocked and unmarked door leading to the shaftway opening from the floor level of the foyer, had failed to warn in an instance where a failure to warn might result in serious injury to either of them (see Kuelling v. Lean Mfg. Co., 183 N. Y. 78).

Upon the evidence produced, it cannot be said as a matter of law that plaintiff Hiya was guilty of contributory negligence (McRickard v. Flint, 114 N. Y. 222; Hyde v. Maison Hortense, Inc., supra; Christensen v. Hannon, 230 N. Y. 205).

It follows that the judgments should be reversed and a new trial granted, with costs to appellants to abide the event.

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

Judgments reversed, etc.


text:
    In the Matter of Electrolux Corporation, Respondent. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant.
    Argued June 8, 1942;
    decided July 29, 1942.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, W. Gerard Ryan and Francis R. Curran of counsel), for appellant.
    The lower court erred in reversing the determination since the conclusion that an employer-employee relationship existed is supported by substantial legal evidence and was, therefore, conclusive upon the court. (Matter of Chetney v. Manning Co., 273 N. Y. 82; Matter of Dubinsky v. Kofsky, 266 N. Y. 631; Matter of Konieczny v. Kresse Co., 234 App. Div. 517; Matter of Love v. Thatcher Mfg. Co., 251 App. Div. 47; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60; Matter of Morton, 284 N. Y. 167; Continental Oil Co. v. Jones, 113 Fed. Rep. [2d] 557; Groves v. Commissioner, 99 Fed. Rep. [2d] 179; Morsman v. Commissioner, 90 Fed. Rep. [2d] 18; Gregory v. Helvering, 293 U. S. 465; Matter of Gold v. Wooters, 233 App. Div. 883.)

      Harold L. Smith, William K. Dupre, Richard W. Hogue, Jr., and A. Ross Jones for respondent.
    The decision of the Appellate Division should be affirmed because the decision of the Appeal Board is not supported by any substantial evidence. (Matter of Morton, 284 N. Y. 167; Matter of Beach v. Velzy, 238 N. Y. 100; Strayer v. Gimbel Bros., 172 Wis. 76; Nicoll v. Sands, 131 N. Y. 19; Griffith v. Electrolux Corporation, 176 Va. 378; Schomp v. Fuller Brush Co., 124 N. J. L. 487; 126 N. J. L. 368; Matter of Levine v. Aluminum Cooking Utensil Co., 258 App. Div. 1023; 283 N. Y. 577; Matter of Alford v. Aluminum Cooking Utensil Co., 260 App. Div. 826; 286 N. Y. 651; Jenkins v. Moyse, 254 N. Y. 319; Howitt v. Hopkins, 219 App. Div. 653; 246 N. Y. 604.)
   Finch, J.

The question presented for decision upon this appeal is whether the decision of the Unemployment Insurance Appeal Board, which affirmed the decision of the referee that the salesmen of Electrolux Corporation are employees within the meaning of the unemployment insurance law (Labor Law, art. 18; Cons. Laws, ch. 31), is supported by substantial evidence and, therefore, conclusive upon the courts.

The appeal arises in a proceeding initiated by Electrolux Corporation to have • determined its liability under the unemployment insurance law to make contributions with respect to the earnings of its sales representatives. This proceeding has already been before this court upon a prior appeal (286 N. Y. 390), in which this court remitted the case to the Appellate Division for a decision upon the merits. The Appellate Division by a divided court has determined that respondent’s sales representatives are independent contractors as a matter of law, and that respondent, therefore, is1 not liable to make contributions based upon their earnings.

The Industrial Commissioner has also brought here for review adverse determinations of the Appellate Division in four proceedings initiated by individual claimants who had formerly been sales representatives for Electrolux. (See Matter of Geoghegan and Tenenbaum; Matter of Nowicki and Matter of Riggi, 289 N. Y.-, -,-, decided herewith.) These proceedings, with the exception of that involving claimant Tenenbaum, concededly raise the same question of law as that presented by this appeal. In the case of claimant Tenenbaum, however, respondent corporation raised upon the hearing before the referee the additional issue whether this claimant had been gainfully employed during the period when he was registered with his local board as totally unemployed. Since the proceeding had been commenced to determine solely the question of the coverage of this claimant by the provisions of the unemployment insurance law, the referee did not decide the additional issue raised by the respondent but referred this matter to the claimant’s local board for consideration. Respondent corporation contends that this additional issue must be passed upon here because, unless it is established that this claimant is in fact entitled to unemployment insurance benefits, his appeal presents only an academic question. This contention would appear to have been finally answered by this court upon the prior appeal in the principal case, when it held that a proceeding confined solely to the issue of coverage presents a question for review by the courts although no liability as to contributions has been fixed therein. There is no additional issue, therefore, to be passed upon in the case of claimant Tenenbaum.

The power of the courts to review the question here presented is, of course, very restricted in scope. Section 534 of thfe unemployment insurance law (Labor Law, art. 18, § 534) provides that: “ A decision of the appeal board shall be final on all questions of fact, and, unless appealed from, shall be final on all questions of law.”

Matter of Morton (284 N. Y. 167, 169) defined the function of the courts under this statute in the following words: “ The question to be reviewed by us is not whether claimant was an employee of respondent as a matter of fact, but whether upon the basis of the record before us we must decide as a matter of law that claimant was not an employee.”

The scope of judicial review of quasi-judicial administrative action was set forth in Matter of Stork Restaurant, Inc., v. Boland (282 N. Y. 256, 267), where we said “ where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the Board.”

Before July 1, 1938 respondent operated in New York State through a subsidiary, Electrolux, Inc. Respondent corporation confined itself to manufacturing vacuum cleaners at Old Greenwich, Connecticut, while the function of its subsidiary corporation was to market the product in this State. Electrolux, Inc., was concededly subject to the. unemployment insurance law of this State and made contributions into the Unemployment Insurance Fund based on the earnings of its salesmen. As of July 1, 1938, upon the dissolution of Electrolux, Inc., respondent corporation began to market its product directly within this State. Upon commencing selling operations, respondent corporation entered into new written contracts with its salesmen which were deliberately framed to take the latter outside of the provisions of the unemployment insurance law. These contracts, entered into with each of approximately 850 salesmen individually, are known as sales representatives agreements. Clause 9 thereof provides that, while respondent may from time to time suggest to the representative methods of handling and selling its product, the representative reserves the right to accept or reject such suggestions, with the exception of the terms, conditions and limitations contained in the agreement, and to conduct his business and devote such time thereto as he deems advisable and conducive to the best results. Printed settlement records are used for computation of the salesman’s weekly commissions and these contain the statement that representatives are independent contractors without being under limitation or requirement as to itineraries, volume of business, hours, selling methods, written or other reports, collection of accounts, investigation of complaints, adjustments, sales meetings, conferences or consultations. Furthermore, a group bonding plan is provided by-respondent in connection with the requirement that all its sales representatives be bonded. Representatives who file written applications for inclusion within the group plan describe themselves as “ independent contractor-consignees.” Finally, in the contracts entered into between respondent and the sales managers in charge of its branch offices, clause ten thereof provides that any instructions given by the sales managers to representatives shall be in an advisory capacity only and the manager is not to assume any direction or control over representatives which will change or appear to change their status as independent contractors.

While the nature of the relationship purporting to be created by the agreements described above is sufficiently plain, we must nevertheless, in accordance with Matter of Morton (supra), look to the actual practices of the parties. Upon this aspect of the case a great deal of evidence has been taken.

•In weighing this evidence one basic consideration is the sales methods used by respondent in marketing its product. Respondent does not rely upon national advertising in order to create a market, nor depend upon the ordinary retail outlets to distribute its product. It depends entirely upon the canvassing conducted by its representatives, both to publicize and to sell the vacuum cleaners it manufactures. Consequently it is a little difficult to believe the protestations of respondent that it has not the slightest interest, or wish to interfere, in the selling activities of its representatives. With this consideration in mind we proceed to an examination of the evidence in these cases solely to see if there is sufficient contained therein to support the findings of the Appeal Board, including the finding that respondent’s practices are not in accord with the terms of its sales representatives’ agreements.

Each neophyte salesman is given about one or two days’ instruction in the construction and operation of respondent’s vacuum cleaner. The salesman, if accepted, is then assigned to a particular group of sales representatives who are under the jurisdiction of a group leader or team captain. The latter has a monetary interest in the success of the" sales representatives assigned to.him because he receives an overriding commission upon each sale made by these men. Team captains, group leaders and the sales managers at branch offices attempt to attain a 100 per cent attendance at meetings conducted every morning at which the salesmen are indoctrinated with the selling method approved by the company. Attendance is often checked at these meetings and if a particular salesman fails to attend, the group leader may write or telephone him to inquire the reason for his absence. Moreover, so-called “ clinics ” are held at regular intervals which are designed further to standardize the representatives’ selling methods into the approved pattern. Respondent is quite successful- in securing a large attendance at both the morning meetings and the “ clinics.”

Each salesman is assigned to a particular territory and furnished with a complete vacuum cleaner with which to make his demonstrations to prospective customers. While no quota is set up, there are public awards for proficiency. These prize contests are a device developed by respondent not only to promote competition among the men but also to enlist the sympathy of prospective customers so as to expedite sales. Moreover, respondent issues a good deal of literature to its representatives in which it instructs them in its approved selling methods. An example is the so-called Dig More Dirt ” demonstration. In this pamphlet the salesman is instructed with the minutest detail in the method he is to use in approaching a prospective customer. Each step in the demonstration is set forth both in writing and pictorially. Each movement the salesman is to make and the precise words he is to say, right down to the moment when he is to ask for a glass of water, are set out for him, and he is reminded that a successful salesman follows the suggested methods meticulously. According to statements taken from respondent’s own literature, the great majority of its salesmen do accept the so-called suggestions and carry them out literally.

More than the mere selling approach of its salesmen is controlled by respondent company. It is prescribed that, when an order is obtained, the salesman must secure a signed contract upon a form furnished by the company. The sale must be either for cash or upon monthly installments not to exceed one year. All sales upon credit are subject to the approval of respondent, and the salesman must obtain from the customer references which are turned into the branch office. All sales are checked by a so-called verifier ” who visits the customer in order to ascertain that the sale is bonafide. Trade-in allowances for old vacuum cleaners are allowed in accordance with a schedule drawn up by the company.

The salesmen are paid once a week, and are required to file weekly settlement records upon which their commissions are computed. Thus respondent company is enabled to keep a pretty close check upon their success or failure.

Again, more than mere moral suasion is employed to regiment the activities of these sales representatives. Lack of success has its penalties. The sample vacuum cleaner may be taken away from a man after two weeks of non-success. His contract with respondent is terminable without cause upon thirty-days’ notice.

In addition, we have the testimony of witnesses from respondent’s own personnel who stated that they could see no difference in the nature of their duties before July 1, 1938, when they were concededly employees, and afterwards. A team captain testified that the making of the new contract did not in any way change the relationship between respondent and its team captains.

We thus have a case where “ on the one side there is an intimacy of control and on the other á fullness of submission that imports the presence of a £ sovereign ’ * * *.” (Matter of Glielmi v. Netherland Dairy Co., 254 N.Y. 60,63). There, in dealing with a similar problem we said: If he [the salesman] fails to work it [the route] diligently, he knows that there will be an end of his employment as surely as if he were working for a stated wage.”

Consequently we cannot escape the conclusion that there was substantial legal evidence to support the finding of the Appeal Board in the five cases at bar, that respondent’s sales representatives are in fact employees. . From the foregoing facts, especially the right to terminate the contract upon short notice, it may be inferred that respondent has erected a system of moral sanctions and indirect compulsion which effectively regiment the activities of its representatives into a pattern desired by respondent of minute and detailed control. Under these circumstances, the expressed desires of the employer, though couched in terms of suggestion, are quite as effective as outright commands. It cannot be said upon this evidence that the Appeal Board did not, as a matter of law, correctly interpret the evidence before it.

It follows that the order of the Appellate Division should be reversed and the decision of the Unemployment Insurance Appeal Board confirmed, without costs.

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

Ordered accordingly.


text:
    In the Matter of the Claim of Joseph H. Carroll. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; New York Military Academy, Respondent. In the Matter of New York Military Academy, Respondent. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant.

      Argued June 9, 1942;
    decided July 29, 1942.

      John J. Bennett, Jr., Attorney-General {Henry Epstein, W. Gerard Ryan and Francis R. Curran of counsel), for appellant.
    Respondent is not entitled to exemption, since it is a stock corporation organized for profit. (Matter of Beekman, 232 N. Y. 365; Matter of De Peyster, 210 N. Y. 216; Matter of Kennedy, 240 App. Div. 20; 264 N. Y. 691; Helvering v. Coleman-Gilbert, 296 U. S. 369; People ex rel. Wall & H. St. R. Co. v. Miller, 181 N. Y. 328; Matter of Mohawk Mills Assn., 260 App. Div. 433; People ex rel. Rye Country Day School v. Schmidt, 266 N. Y. 196.) The net earnings of the academy inure to the benefit of private shareholders or individuals. (Lawrence-Smith School, Inc., v. City of New York, 166 Misc. Rep. 856; 255 App. Div. 762; 280 N. Y. 805; Matter of Manlius School v. Adams, 143 Misc. Rep. 459; 232 App. Div. 869; 257 N. Y. 549; Palmolive Oil Co. v. Conway, 43 Fed. Rep. [2d] 226; 56 Fed. Rep. [2d] 83; 287 U. S. 601.)

      George T. Barker, Theodore L. Harrison and J. Donald Rawlings for respondent.
    It is not material that the academy was authorized to issue shares of capital stock. (Matter of Manlius School v. Adams, 143 Misc. Rep. 459; 232 App. Div. 869; 257 N. Y. 549.) No part of the net earnings of the academy inures to the benefit of any private shareholder or individual. (Hirsch v. Weiner, 116 Misc. Rep. 312.)
   Rippey, J.

Two proceedings were instituted before the Industrial Commissioner under the New York State unemployment insurance law (Labor Law, art. 18; Cons. Laws, ch. 31). The first proceeding was brought by Joseph H. Carroll, a former employee of the New York Military Academy, who claims benefits under the unemployment insurance law. A second contemporaneous proceeding •was instituted by the New York Military Academy for a hearing in the matter of its alleged liability for contributions under that law. In connection with both proceedings it is the claim of the New York Military Academy that it is not an employer within the meaning of section 502 (subd. 3, par. d) of the Labor Law and consequently is not subject to contributions to the unemployment insurance fund as provided for in article 18 of the Labor Law.

Section 502 (subd. 3, par. d) of the Labor Law, so far as here material, provides that “ any corporation * * * operated exclusively for religious, charitable, scientific, literary or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual, shall not be employers subject to this article.” The Academy concedes that it has employed and does employ some forty persons outside of its faculty. The Industrial Commissioner concedes that the Academy is a corporation organized and operated exclusively for educational purposes. The question presented for determination is whether any part of the net earnings of the New York Military Academy inures to the benefit of any private shareholder or individual within the meaning of the statute.

Individuals who were then operating a military school for boys at Cornwall-on-Hudson applied to the Regents of the University of the State of New York in February, 1889, for incorporation of the school under the name of the New York Military Academy and named as its first trustees, in the application, the owner of the property and certain military officers and teachers who were then connected with the school. They asserted that the capital stock was to be $40,000, divided into shares of $100 each, and that subscriptions to said capital stock had been procured in the amount of $6,400. A later statement filed in connection with the application shows that additional subscriptions had been made and paid in full to the amount of $6,500. A provisional charter was granted on May 8, 1890, and that was made permanent on June 21, 1893. Later, the charter was amended to provide that its board of trustees should be a self-perpetuating body empowered to increase or decrease its membership and from time to time to fix the terms of office and the number of the trustees who should govern the institution. The Academy has since operated under a standard curriculum of secondary education as a college preparatory and advanced military training school for boys.

The New York Military Academy Realty Company was organized in 1910 under the Business Corporations Law (Cons. Laws, ch. 4) by trustees and others interested in the operation of the Military Academy and thereupon acquired title to all the real property and equipment formerly owned and used by the school. The capital stock was all subscribed for by a trustee of the Academy, its superintendent and another connected with it. The Academy trustee became its president and the then superintendent of the Academy became its secretary and treasurer. Both were directors of the corporation. It has upwards of eighty stockholders, many of whom have been stockholders since its organization.

The operations of the Military Academy were conducted after the incorporation of the realty company under written leases, the last of which was made in 1926 for a term of twenty years with a provision for a renewal upon the same terms for a further term of twenty years. Under these leases it was provided that it should pay annually to the realty company for the use of all the physical property and equipment necessary for its operation and owned by the realty company the net receipts from its operations arising after all expenses thereof had been paid. Those net receipts received by the realty company from the Military Academy were annually paid out by the former to its stockholders by way of dividends except for a part thereof retained for reserve and surplus account. The realty company had no property except that leased to the Academy and conducted no business except that "connected with the property so leased. The evidence establishes that certain of the trustees of the Academy were officers and/or directors and/or stockholders of the realty company since its organization. By interlocking directorates and management the realty company was able to control the expenses which the Academy paid out of its gross earnings and thereby was enabled to procure from the time of its organization until 1940, inclusive, the entire net earnings of the Military Academy, aggregating $1,240,549.59, as rental for the property so leased. Out of the surplus arising after the payment of dividends to its stockholders the realty company, as it was required to do by the terms of its lease, made additions and repairs to the plant of the school from time to time and increased its investment in plant and equipment to approximately $1,000,000.

The Unemployment Insurance Appeal Board found, upon the foregoing and other pertinent testimony, that the relationship and. business transactions between the academy and the realty company, its officers, directors, trustees and stockholders, provided for and effected the syphoning off of the profits of the Academy through the realty company for the benefit of the stockholders of the latter. That was a question of fact (Matter of Manlius School v. Adams, 257 N. Y. 549; Lawrence-Smith School, Inc., v. City of New York, 280 N. Y. 805). There is substantial evidence to sustain the findings of the Appeal Board and in view of that circumstance the Appellate Division was without power to reverse (Labor Law, § 534; Cf. Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459). The Appeal Board, upon sufficient evidence, found and correctly held that such stockholders were individuals ” and that the Military Academy was an employer ” within the meaning and under the provisions of the Labor Law and not subject to exemption from contributions thereunder.

The orders of the Appellate Division should be reversed and the decisions of the Unemployment Insurance Appeal Board confirmed, with costs in this court and in the Appellate Division.

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

Ordered accordingly.