author: DesmoNd, J.

text:
    The People of the State of New York, Respondent, v. Santo Bretagna and William Rosenberg, Appellants.
    Argued December 1, 1948;
    decided January 13, 1949.

      Harry G. Anderson for Santo Bretagna, appellant.
    The admission in evidence of the alleged confession of defendant was illegal and in violation of defendant’s constitutional rights under the United States and New York State Constitutions. (Pierce v. Creecy, 210 U. S. 387; People v. Alex, 265 N. Y. 192; People v. Mummiani, 258 N. Y. 394; People v. Valletutti, 297 N. Y. 226; People v. Barboto, 254 N. Y. 170; People v. Weiner, 248 N. Y. 118.)

      Abraham J. Gellinoff, Matthew H. Brandenburg and Alfred Norich for William Rosenberg, appellant.
    I. Appellant Rosenberg’s guilt was not established beyond a reasonable doubt. II. The trial court erred in refusing to charge that the testimony as to the alleged confession by appellant was not direct evidence of the commission of the crime by him, and in refusing to charge concerning the law of circumstantial evidence. (Pease v. Smith, 61 N. Y. 477; People v. Conroy, 287 N. Y. 201; State v. Griger,
      46 S. W. 2d 537 [Mo.]; State v. Huff, 184 S. W. 2d 447 [Mo.]; 1917D L. R. A. 591; 40 A. L. R. 566; C. J. S., Criminal Law, § 816, p. 1422; Damas v. People, 62 Col. 418; Mitchell v. People, 76 Col. 346; Ghisum v. State, 50 S. W. 2d 321.)

      Frank S. Hogan, District Attorney (Whitman Knapp and Eugene A. Leiman of counsel), for respondent.
    I. Guilt was established beyond a reasonable doubt. II. Bretagna’s confession was properly received in evidence. (People v. Mummiani, 258 N. Y. 394; People v. Lonergan, 294 N. Y. 942, 972, 326 U. S. 772.) III. The refusal to charge on the subject of circumstantial evidence was proper. (Sullivan v. United States, 32 P. 2d 992; Ossendorf v. United States, 272 F. 257; Mitchell v. People, 76 Col. 346; Moore v.- State, 193 Ga. 877; People v. Costello, 320 Ill. 79; Evans v. State, 199 Ind. 55; Long v. State, 77 Okla. Cr. 174; Commontvealth v. Blanchard, 345 Pa. 289; Hill v. State, 133 Tex. Cr. Rep. 92; People v. Almodovar, 291 N. Y. 628; People v. roy, 287 N. Y. 201.)
   DesmoNd, J.

These defendants, tried together, were convicted of murder in the first degree and sentenced to death, for the killing of Benjamin Weiner, in New York City, on January 13, 1948. We conclude that the trial was properly conducted and that the jury was justified, on the proof before it, in finding both defendants guilty. We affirm the convictions hut write this opinion to comment on a point of law argued by appellant Rosenberg only.

In addition to certain circumstantial and corroboratory testimony, the People put in evidence, as against Rosenberg, his confession made to police officers and an assistant district attorney. The Trial Judge, after charging the jury that the voluntary character and truth of that extrajudicial admission had to be established beyond a reasonable doubt, declined to give certain additional instructions requested by counsel. Those requests were as follows:

1. There is no direct evidence in this case of the commission of the crime by defendant Rosenberg.

2. The People’s evidence of the alleged commission of the crime by defendant Rosenberg is solely circumstantial.

“ 3. The Court is requested to charge on the law of circumstantial evidence.

4. The testimony as to the alleged confession by Eosenberg is not direct evidence of the commission of the crime by him, but is merely proof of a circumstance, namely, that he admitted the commission of the crime. ’ ’

This court does not seem ever to have answered, in so many words, the question posed by the above-quoted requests, that is, as to whether a confession, made out of court but proven on the trial, is circumstantial or direct evidence. However, our affirm-ances in People v. Conroy (287 N. Y. 201) and People v. Almodovar (291 N. Y. 628) when read with the trial records and briefs on appeal in those cases, necessarily mean that such confessions are not circumstantial evidence (our reference in the Conroy Per Curiam opinion, supra, to an inadvertent misstatement by the trial court that the case was not one of circumstantial evidence, did not mean that the confession was circumstantial evidence, but that the case actually contained much other proof of. a circumstantial character).

Certain cases in other courts, and some of the text writers, say that confessions are direct evidence or “in the nature of direct evidence ” (see Kinard v. State, 19 Ga. App. 624; Pressley v. State, 201 Ga. 267, 270; Mitchell v. State, 76 Col. 346, 348, 350; People v. Costello, 320 Ill. 79, 108; Evans v. State, 199 Ind. 55, 63; Sullivan v. United States, 32 F. 2d 992, 994; Under-hilPs Criminal Evidence [4th ed.], § 4; 22 C. J. S., Criminal Law, §§ 530, 816, subd. a). No decisions are found taking the opposite position (see 40 A. L. E. 571-573; 1917D L. E. A. 595).

This court, following Bouvier’s definitions, has, in Pease v. Smith (61 N. Y. 477, 484-485) defined direct and circumstantial evidence as follows: “ Evidence is direct and positive when the very facts in dispute are communicated by those who have the actual knowledge of them by means of their senses. * * * Circumstantial evidence is the proof of collateral facts, and differs from direct and positive proofs in that it never proves directly the fact in question.’ ” In other words, direct or positive evidence, as the term is commonly used, means statements by witnesses, directly probative of one or more of the principal, or “ res gestee ” facts of the case, while circumstantial evidence puts before the tribunal facts which, alone or with others, are in some degree but indirectly, probative of one or more of those principal, or “ res gestae ” facts, and from which one or more of those principal facts may properly be inferred. Speaking most strictly, we would have to say that proof of an extrajudicial confession of guilt is not evidence at all, but a disclosure to the jury of an admission which renders other proof of guilt unnecessary (People v. Hennessey, 15 Wend. 147, 152), since it is an acknowledgment by the defendant, in express terms, of the fact of guilt. But, while it is thus not scientifically correct to call a confession “ direct evidence ”, nonetheless a confession is, of course, competent on the question of guilt; and confessions have, traditionally, been spoken of, and treated as, evidence (see People v. Valletutti, and cases cited, 297 N. Y. 226, 232), the reason for their reception being ‘ the great probability that a party would not admit or state anything against himself or his own interest unless it were true ” (Cook v. Barr, 44 N. Y. 156, 158). Since, if properly proved under the appropriate rules and accepted by the court and jury, it goes toward establishing not facts from which guilt may be inferred, but guilt itself, a confession of guilt by a defendant in a criminal cause, is not circumstantial evidence. Furthermore, the accepted rules (see People v. Weiss, 290 N. Y. 160, 163) as to the kind and strength of circumstantial evidence required to support a conviction for crime, have no logical application to confessions (see Morgan, Admissions and Hearsay Rule, 30 Yale L. J., 356-357).

Of course, an extrajudicial admission by a defendant, not amounting to a confession because not directly acknowledging guilt, but including inculpatory acts from which a jury may or may not infer guilt, is circumstantial, not direct evidence.

LoughraN, Ch. J., Lewis, CoNWay, Dye and Fuld, JJ., concur.

Judgments of conviction affirmed.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    In the Matter of Roger K. Humphrey, Respondent, against State Insurance Fund, Appellant, et al., Respondents.
    Argued November 18, 1948;
    decided January 13, 1949.

      Bernard Katzen, General Attorney (William E. Stieglitz of counsel), for State Insurance Fund, appellant.
    I. The Appellate Division was in error both on the law and on the facts. (Matter of Greenfield v. Moses, 169 Mise. 389, 257 App. Div. 809; Matter of Jones v. Wilcox, 80 App. Div. 167; Matter of Bchadler v. Graves, 258 App. Div. 451, 282 N. T. 716; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Bridgman v. Gosse, 157 Mise. 8, 246 App. Div. 632, 271N. Y. 535; Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256.) II. The very nature of respondent’s job required that he keep himself acquainted with the procedures adopted by the Workmen’s Compensation Board and he may not justify his failure to acquaint himself with one such procedure for over two years because he was not personally handed a copy of the procedure by his superior officers. III. At most only a preponderance of evidence is required even in the case of removal of a veteran and that has been met in the case at bar. (Matter of Miller v. Kttng, 291 N. Y. 65; Matter of Laurence v.
      Gaffney, 272 App. Div. 609.) IY. There is direct evidence, including respondent’s own admissions, that.the memorandum was delivered to him and that he had knowledge of its contents, to overcome respondent’s denial.

      Thomas J. McKenna for respondent.
    I. The records and exhibits failed to disclose sufficient evidence that would appeal to a person of reasonable mind to sustain the charges, nor was there substantial evidence or that quantum of proof which would satisfy any fair-minded person of the employee’s guilt. {People ex rel. Western Union Tel. Co. v. Public Service Comm., 192 App. Div. 748, 230 N. Y. 95; Salmon v. Rochester & Lake Ontario Water Co., 120 Mise. 131; Matter of Bender v. Board of Regents, 262 App. Div. 627.) II. The charges were at most trivial or technical, showing a mere error of judgment without bad faith or evil purpose. (Matter of Griffin v. Thompson, 202 N. Y. 104.)
   Fuld, J.

The State Insurance Fund, a State instrumentality established by the Workmen’s Compensation Law (art. 6), is a workmen’s compensation insurance carrier. As such, in addition to insuring employers against the liability imposed upon them by the compensation law, it is a self-insurer of its own employees. A “ due regard to the requirements of its [the fund’s] business affairs and its obligations ” (Workmen’s Compensation Law, § 82, subd. 2) as well as the obvious possibility of collusion, undue influence and divided loyalties, suggested the inadvisability of permitting claims by fund employees to be processed and defended in the ordinary manner. Accordingly, a special procedure was adopted in 1945, which required that (1) the hearing be conducted by a special referee of the Workmen’s Compensation Board; (2) a special representative with at least the status of ‘ ‘ Division Head ’ ’ be assigned by the State Insurance Fund to represent it and protect its interests at the hearing; (3) an impartial specialist be designated by the board to conduct the medical examination of the employee-claimant; and (4) the record of the hearing be submitted for determination on the merits to a special panel of the board. A memorandum setting forth the regulation and outlining the practice to be followed was sent to the various district offices throughout the State.

The petitioner, Boger Humphrey, for many years in the employ of the fund, was the associate claims examiner in charge of the claims unit in the Buffalo office. Second only in rank and responsibility to the district manager, John J. Keating, he passed upon claims filed in that area, supervised the personnel, and assigned the work to he done. Some months after the initiation of the special procedure, Humphrey filed a claim for compensation on his own behalf, asserting that he had suffered a compensable injury to his arm while moving filing cabinets. The claim remained dormant for about a year; at the end of that time Humphrey proceeded to process it, precisely, except in one respect, as though it were a claim asserted by a non-fund employee.

The first hearing was held before a special referee designated by the hoard. One of Humphrey’s subordinates represented the State Insurance Fund. • After routine questioning by the referee alone, and solely to establish that the injury came within the purview of the compensation law, that official adjourned the hearing to allow for Humphrey’s medical examination by an impartial specialist. The specialist designated was a physician frequently retained by Humphrey, on behalf of the fund, to examine claimants in cases brought against fund-insured employers. He examined Humphrey, made his report and sent his bill to the fund’s office in Buffalo, where Humphrey’s subordinates, still handling the matter, approved both report and bill. Two months later, in March, 1947, a further hearing was held, and again one of Humphrey’s assistants. appeared on behalf of the fund. Contrary to the prescribed procedure, which called for a special referee, a regular referee presided and proceeded to hear and determine the claim. He ruled the injury compensable, found a 25% disability and, not apprised by either Humphrey or his subordinate that he was required to submit the record to the board for determination by a special panel, made an award upon his own initiative for $1,950. Humphrey thereupon immediately requested his subordinates, as a favor to him, to put through the award with speed and dispatch. And, indeed, no time was lost; on the very same day that the notice of award was received, the' claim was approved by the Buffalo office and a request for payment sent to New York, and, though it was most uncommon practice, the amount specified included ten weeks’ future compensation in addition to tlie compensation already accrued.

It was not until tliat request for payment reached the New York City office that any one in a position of responsibility had the slightest inkling that the fund’s associate claims examiner had prosecuted a compensation claim against the fund. Following discovery of the matter, the fund initiated a preliminary investigation and the Workmen’s Compensation Board reviewed the case. The result was that the award was disapproved, and charges preferred against Humphrey. It was charged in substance that he had persistently failed and refused to advise his superiors of the pendency of his case and that he had failed and refused to follow or adhere to prescribed procedure, to his own advantage and benefit. After an extensive hearing, at which he was represented by counsel, the fund found Humphrey guilty. He was demoted, removed as head of the claims division of the Buffalo office.

The Appellate Division reversed, its order reciting — in apparent forgetfulness of the limitations upon its powers (see Matter of Miller v. Kling, 291 N. Y. 65, 69) — that the determination of the fund was annulled on the law and the facts ”.

The special regulation for handling claims by fund employees was, contrary to petitioner’s contention, entirely legal and permissible. Quite apart from other considerations, it is clear that section 83 of the Workmen’s Compensation Law — providing in part that the fund shall adopt rules for the conduct of [its] business” — obviously sanctions special rules dealing with matters not provided for by the broad terms of the statute. either in conflict with the provisions of the compensation law or inconsistent with its design and purpose would undoubtedly be invalid, but the regulation before us did not so offend. It neither impaired the rights of claimants seeking compensation nor curtailed the powers of the Workmen’s Compensation Board. It simply related to the conduct of the fund’s business, its internal management. Aimed at avoiding the possibility of double-dealing and collusion on the part of employees, the regulation was highly salutary, the procedure eminently reasonable.

It is, of course, of no moment that not all of the evidence pointed to petitioner’s guilt or conclusively established it. In a proceeding such, as this, brought under article 78 of the Civil Practice Act, the record may be examined only to ascertain whether there is “ substantial evidence ” to justify the administrative determination. (See Matter of Miller v. Kling, supra, p. 69; Matter of Friedel v. Board of Regents, 296 N. Y. 347, 352; Matter of Stanton v. Valentine, 293 N. Y. 836.) In other words — and the rule is settled beyond all cavil — once the administrative body, after proper hearing, has made a determination, the court, lacking power to review “ on the facts ”, may annul it “ for errors of law only ”. (Matter of Miller v. Kling, supra, p. 69; see, also, Matter of Epstein v. Board of Regents, 295 N. Y. 154, 157; Matter of Friedel v. Board of Regents, supra, p. 352.)

With the problem thus narrowed, 'our decision is clear. A copy of the memorandum advising of the modified procedure was earmarked for Humphrey, and Mr. Keating testified that, after he or his secretary had delivered it, he had discussed its contents with him. In addition, Humphrey actually admitted in the course of the hearing that he was aware of the directive’s substance. He had known, he acknowledged, that “ there was a memorandum sent he had discussed the matter with Mr. Keating; and he had instructed his subordinates concerning the procedure to be followed where fund employees were claimants. Indeed, he went so far as to admit that he ‘ ‘ knew there was some deviation from ” the prescribed system in the handling of his case.

Clearly, as even this brief resumé makes evident, the record contains substantial support for the fund’s determination. Petitioner’s own self-interest and divided loyalty were apparent and, on the evidence before it, the fund was fully warranted in concluding that the prescribed practice not only dictated the procedure to be followed but stamped as improper the course pursued by petitioner.

The order of the Appellate Division should be reversed and the determination of the State Insurance Fund confirmed, with costs in this court and in the Appellate Division.

Loughran, Ch. J., Lewis, Conway, Desmond and Dye, JJ., concur.

Order reversed, etc.


author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Charles Abel, Sam Donde and Perry Aldan, Appellants.
    Argued November 16, 1948;
    decided January 13, 1949.

      Ellsworth Baker for Charles Abel and Sam Donde, appellants.
    Tbe trial court erred in bolding that statements made by one defendant in tbe presence of tbe other defendant were binding upon both and could be received in evidence. (People v. Rutig-liano, 261 N. Y. 103; People v; Cascone, 185 N. Y. 317; People v. Lewis, 238 N. Y. 1; People v. Willett, 92 N. Y. 29; People v. Koerner, 154 N. Y. 355; People v. Gonrow, 200 N. Y. 357; People v. Kennedy, 164 N. Y. 449; People v. Smith, 172 N. Y. 210; People v. Marendi, 213 N. Y. 600; People v. Pignataro, 263 N. Y. 229; People v. Luft, 259 App. Div. 222.)

      George H. Rosen for Perry Aldan, appellant.
    The admission in evidence of testimony that the defendants refused to speak and to answer questions of police officers while they were under arrest, was prejudicial and contrary to law. (People v. Rutig-liano, 261 N. Y. 103; People v. Dolce, 261 N. Y. 108; People v. Pignataro, 263 N. Y. 229; People v. Marendi, 213 N. Y. 600; People v. Mlecsko, 298 N. Y. 153.)

      Ren Newberg, District Attorney, for respondent.
    Admission in evidence of'statements of conversation of the defendants made in each other’s presence was not prejudicial and contrary to law.
   Lewis, J.

The three defendants stand convicted under an indictment by a Grand Jury of the County of Sullivan which accused them of grand larceny, first degree (Penal Law, § 1294, subd. 1). A bill of particulars filed by the District Attorney (Code Crim. Pro., § 295-g) alleges “ that the defendants acting together and in concert did take from the person of one Nicholas George Kondos at or about three o’clock in the morning, the sum of ninety ($90.) dollars in United States Currency.”

The three defendants were tried together. Upon that trial — during which no one of the defendants either confessed to the crime charged or took the stand as a witness in his own behalf — the People called as a witness a sergeant of the State Police who testified that after the defendants Aldan and Abel had been taken into custody they were questioned by him as to their whereabouts on the night when the crime was committed. As to questions he addressed to the defendant Aldan the witness stated on direct examination “ I questioned Aldan about where he had been the night before — he refused to answer ’ ’. And at a later point in his direct examination the witness stated — “ After they [the defendants Aldan and Abel] were returned to Perndale, we attempted to take statements from them as to their activity and they refused to answer all questions, and stated ‘ they had to protect themselves, and if they talked, they might be in trouble.’ ” (Emphasis supplied.)

When the testimony quoted above was challenged by motions to strike the same from the record, the Trial Judge ruled — “ I think the witness has a right to say what conversation he had with either or any of these defendants and it can only be used against the defendants who were present at the time of the conversation.”

We think that ruling transgressed a principle now firmly established in the law of this State that “ a person in custody accused of a crime is under no duty to speak and that his silence should not be counted as giving assent.” (People v. Pignataro, 263 N. Y. 229, 236; and, see, People v. Rutigliano, 261 N. Y. 103, 105-107; People v. Dolce, 261 N. Y. 108, 109; People v. Marendi, 213 N. Y. 600, 613; People v. Mleczko, 298 N. Y. 153, 159-160.) A statement of that rule, which has peculiar application to the circumstances disclosed by the record before us, was made by Chief Judge Pound writing for this court in People v. Rutigliano (supra, p. 107): “ No cautious person, when in custody, accused of crime would care to enter into a discussion of his guilt or innocence with his captors and co-defendants, when what he said might be used against him. # ⅜ ⅜ ⅛ then under no duty to speak and his silence should not be counted as giving assent to what he hears. If he had counsel, he would doubtless be advised not to talk. If he had not, he should not be prejudiced thereby.”

The record makes it clear that the defendant Donde was not present when the sergeant questioned the defendants Aldan and Abel. That fact prompted the Trial Judge to instruct the jury that the sergeant’s testimony — descriptive of what occurred during his examination of Aldan and Abel, in the absence of Donde — was not to be considered against the latter. However, we cannot say upon this record that the rights of the defendant Donde before the jury were not prejudiced thereby. On that phase of the case our concern is made more acute by the fact that counsel for Donde was one of those who moved to strike from the record that portion of the sergeant’s testimony which related to “ the refusal of these two defendants [Aldan and Abel] to answer questions ”.

Believing, as we do, that the evidentiary ruling mentioned above was a material error which prejudiced the rights of the defendants Aldan and Abel, and may well have had an adverse effect upon the rights of the defendant Donde before the jury, we conclude that as to each defendant the judgment should be reversed and a new trial ordered.

Loughran, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur.

Judgments reversed, etc.


text:
    Theodore F. Whitmarsh, Appellant and Respondent, v. William E. Farnell, Respondent and Appellant.
    Argued October 21, 1948;
    decided January 13, 1949.

      Irving L. Kalish and Sydney A. Luria for landlord, appellant and respondent.
    I. The provisions of the city rent law (Administrative Code, § XJ41-7.0) are not applicable to the instant case where a final order was granted and a warrant issued prior to September 17, 1947, the effective date of the law. (Matter of v. McLaughlin, 297 N. Y. 419; People ex rel. Ragland Realty Go. v. Fagan, 194 App. Div. 185, 230 N. Y. 653; Matter of Mounting & Finishing Go. v. McGoldrick, 294 N. Y. 104; Red

      Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1.) II. By virtue of the provisions of section 1446 of the Civil Practice Act, the Appellate Division, in affirming the orders of the Appellate Term, may not grant a further stay of execution of the warrant in the absence of an injunction suit for such relief. III. There is no legal requirement for the service of a thirty-day notice upon tenant as a condition precedent to the institution of dispossess proceedings. (Beal Property Law, § 232-a; Stern v. Equitable Trust Go., 208 App. Div. 13, 238 N. Y. 267; Klipack v. Raymar Novelties, Inc., 273 App. Div. 54; 1239 Madison Ave. Corp. v. Neuiburger, 208 App. Div. 87; Lewittes & Sons v. Spiel-marm, 190 Mise. 35; Shelton Bldg. Corp. v. Baggett, 188 Mise. 709; Curtin v. Porter, 133 Mise. 707; 130 West 57 Corp. v. Hyman, 188 Mise. 92; Eecht Co. v. Kuerner, 188 Mise. 519; Tripodi v. Rudershausen, 186 Mise. 363.)

      L. Reyner Samet and Charles S. Port for tenant, respondent and appellant.
    I. This proceeding was still pending on the effective date of the New York City Bent Control-. Law because the warrant to dispossess had not been executed and the tenant was still in possession of the apartment. Accordingly, this proceeding came within the express provision of those laws prohibiting evictions in “ pending ” proceedings. The Appellate Division properly stayed execution of the warrant. (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Wegman v. Childs, 41 N. Y. 159; Mulstein Co. v. City of New York, 213 N. Y. 308; People ex rel. Rayland Realty Co. v. Pagan, 194 App. Div. 185, 230 N. Y. 653; Matter of Cohen v. Starke, 269 App. Div. 256; People ex rel. H. D. H. Realty Corp. v. Murphy, 194 App. Div. 530, 230 N. Y. 654; Manhattan Co. v. Commissioner, 297 U. S. 129; Miller v. United States, 294 U. S. 435; Dun &. Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Socony-Vacuum Oil Co. v. City of New York, 247 App. Div. 163,272 N. Y. 668.) II. The landlord’s failure to serve a thirty-day notice to quit required a dismissal of the petition. The term of the lease having expired in 1946, the tenancy was thereafter of indefinite duration, and a notice to quit was necessary under section 232-a of the Beal Property Law. (Witherbee, Sherman & Co. v. Wykes, 159 App. Div. 24; Lamed v. Hudson, 60 N. Y. 102; Reeder v. Sayre, 70 N. Y. 180; People ex rel. Botsford v. Darling, 47 N. Y. 666; Pugsley v Aikin, 11 N. Y. 494; Eungerford v. Wagoner, 5 App. Div. 590; Hand v. Knaul, 116 Mise. 714; Banks v. Garter, 7 Daly 417; Anderson v. Prindle, 23 Wend. 616; Stern v. Equitable Trust Go., 238 N. Y. 267.)
   Lewis, J.

By this summary proceeding the plaintiff, as a landlord, seeks to evict the defendant, as a tenant, from a fifth-floor apartment in a building in New York City known as 103 East 75th Street in the borough of Manhattan.

The tenant has occupied the apartment involved since 1938, under a succession of leases the last of which expired September 30,1946. Prior to the date last mentioned the managing agents of the building by a process of reorganization had “ re-cooperated ” the building, during which process the defendant had declined an opportunity afforded him to purchase the apartment he occupies. Following the defendant’s declination of such offer a proprietary lease of the apartment was acquired by the present plaintiff who made the purchase to secure living quarters for his family. In the meantime, prior to the expiration of the defendant’s last lease, he received from the managing agents a written notice that his lease would not be renewed by the new owner and that if the defendant should remain in possession after October 1, 1946, he would do so as a statutory tenant subject to such legal rights as would accrue to him and the owner in the circumstances. On September 2, 1947 — ten days after the present plaintiff had acquired his proprietary lease — he instituted the present proceeding in the Municipal Court of the City of New York by service upon the defendant of a precept and petition.

The trial resulted, on September 11, 1947, in a final order in the landlord’s favor and a direction by the court that a dispossess warrant be issued forthwith but that execution thereof be stayed for thirty days. It happened, however, that on September 10, 1947 — the day when this proceeding was tried in Municipal Court — the city council and the hoard of estimate of the City of New York enacted Local Law No. 66 (1947) which became effective September 17, 1947, upon approval by the Mayor and added section U41-7.0 to chapter 41 of the Administrative Code of the City of New York. Thereafter, on February 3, 1948, there became effective chapter 4 of the Laws of 1948 by its terms, “ legalized and validated ” Local Law No. 66 (1947) and other related local laws.

After declaring that a “ shortage of apartments ” in New York City had created an emergency which made action by local law necessary to prevent disruptive practices producing threats to health, safety and general welfare, Local Law No. 66 (1947), commonly known as the New York City Rent Control Law, imposed certain restrictions upon a landlord’s right to evict a tenant from an apartment. Of those restrictions the following are relevant to our problem (Administrative Code, § U41-7.0, subds. c, d, h, o):

“ c. Evictions. Except for non-payment of rent, no tenant shall be removed from any apartment by action or proceeding to evict or to recover possession, by exclusion from possession, or otherwise, unless the commission [temporary city housing . rent commission created pursuant to section U41-6.0] shall certify that one or more of the following grounds for such exclusion or eviction exists:

⅜ # #

“ (2) Subject to the provisions of subdivisions h and i of this section, the landlord seeks in good faith to recover possession of such apartment for his immediate and personal use and occupancy as housing accommodations; * * *.

d. Eviction certificate; application required. Prior to the institution of any summary proceedings or any other action or proceeding to evict a tenant or to recover possession of an apartment, except for non-payment of rent, the person instituting such action or proceeding shall file in triplicate with the commission, a verified application for a certificate of eviction. Such application shall contain a detailed statement of the facts upon which such action or proceeding is based. The commission shall promptly transmit a copy of such application to the department of housing and buildings and the department of health, which departments shall promptly furnish the commission with such information or reports as the commission shall require concerning the premises and the tenants thereof, described in the application filed pursuant to this subdivision.

“ The commission shall, as promptly as is practicable, render its determination granting or denying a certificate of eviction under subdivision c of this section and shall promptly notify the person filing such application for sneli certificate, of sncli determination. * * *

h. Evictions; sale of apartments in buildings or structures. No landlord, seller or purchaser, of any apartment in any building or structure or of any stock or other evidence of interest in such apartment shall remove a tenant from such apartment by action to evict or to recover possession, by exclusion from possession or otherwise, on the ground that he seeks to recover possession of such apartment for the immediate and personal use and occupancy as housing accommodations by such landlord or purchaser.

The provisions of this subdivision shall not apply to (1) # * * (2) Any sale or contract of sale of any apartment in any building or structure or of any stock or other evidence of interest in an apartment in any building or structure in which eighty per cent or more of the tenants occupying such building or structure have purchased or have contracted to purchase the apartments occupied by them or have purchased or have contracted to purchase any stock or other evidence of interest in the apartments occupied by them at the time of the fifing by the landlord or by any other person entitled to file of any application for a certificate of eviction. * * *

“ o. Application and duration. The provisions of this section shall apply to all pending and future eviction proceedings and shall terminate on September 30,1948, unless it is sooner determined by local law that the emergency no longer exists.” (Emphasis supplied.)

On September 23, 1947, the defendant-tenant applied in Municipal Court for an order vacating the final order which had issued in this proceeding on September 11, 1947 — the execution of the warrant thereunder having been stayed. That application was based in part on the contention that the enactment of Local Law No. 66 on September 10, 1947, and its approval by the Mayor on September 17, 1947, in legal effect served to prohibit the eviction of the defendant-tenant and requires that the petition herein he dismissed upon the ground that this proceeding was pending on September 11, 1947 — on which date the warrant to dispossess had been issued hut had not been executed. On October 2, 1947, an application by the defendant-tenant to vacate the final order issued by the Municipal Court was denied.

The defendant-tenant then appealed to the Appellate Term by leave of that court, the appeal being (1) from the final order issued by Municipal Court on September 11, 1947, and (2) from the order of Municipal Court denying the defendant-appellant’s motion to vacate the final order. The Appellate Term, one Justice dissenting, affirmed the final order of Municipal Court and by a separate order dismissed the appeal from the order denying the defendant’s motion to vacate the final order. The Appellate Term then granted leave to the defendant to appeal to the Appellate Division where the order of the Appellate Term was affirmed — ‘ ‘ but execution of the warrant of eviction [was] stayed, without prejudice, however, to such proceedings as the landlord may be advised to take in accordance with the provisions of the city rent control law.” (The Presiding Justice dissented “ insofar as execution is stayed.”) (273 App. Div. 584, 590.) The Appellate Division order also affirmed the order of the Appellate Term dismissing the appeal from the Municipal Court order denying the tenant’s motion to vacate, the firm.] order.

The plaintiff-landlord appeals to this court by leave of the Appellate Division, on three certified questions, from so much of the order of that court as provides for a stay of execution of the warrant of eviction issued in his favor in this proceeding. The defendant-tenant appeals by leave of the Appellate Division, on a single certified question, from the order of that court insofar as it determines that the petition in this proceeding was not jurisdictionally defective in that it failed to allege that a thirty-day notice of termination of tenancy was served by the plaintiff-landlord upon the defendant-tenant.

In connection with the appeal by the plaintiff-landlord the Appellate Division certified the following three questions':

“ A. Are the provisions of the City Rent Laws, Administrative Code § U41-7.0 applicable to the instant case where a final order and warrant were issued prior to September 17, 1947 but this warrant of eviction had not been executed prior to the effective date of the Act, upon which date the tenant was still in possession of the premises?

“ B. Is Regulation II, Article II, Section 2, subdivision b promulgated by the Temporary City Housing Rent Commission which provides: - ‘Section 2(h). A proceeding to evict is deemed to be pending if a warrant of eviction was not issued therein prior to September 17, 1947.’ In the light of the provisions of the State Act (L. 1947 [sic], Chap. 4) the City Eent Laws, and prior Court decisions, valid and enforceable when interpreted to mean that such proceeding is not pending if a warrant was issued but not executed prior to such Act?

“ C. .Considering the specific provisions of the special statute, enacted in an emergency (adm. code, Sec. U41-7.0 and the Regulations) prohibiting a landlord from taking any further action to evict without procuring a certificate of eviction from the City Rent Commission, may the Court a stay of execution of the warrant herein in view of the provisions of the General Statute, Section 1446 of the Civil Practice Act? ”

Upon the appeal by the defendant-tenant the following single question was certified: “ Is the petition herein jurisdictionally defective in that it fails to allege that a thirty-days’ notice of termination of tenancy was served by the landlord on the tenant? ”

Although, following the expiration on September 30, 1946, of the defendant-tenant’s last lease he has continued to pay rent thereunder in advance, he is no longer a tenant at will or by sufferance, nor is he a month-to-month tenant — in view of the emergency legislation which had become effective prior to the expiration of his last lease. His occupancy of the apartment after his lease expired was not under any agreement express or implied but by virtue of a compulsion exerted on the landlord by the local emergency rent law which allowed him to remain in possession. (See 1239 Madison Ave. Corp. v. Neuberger, 208 App. Div. 87, 89-91.) After September 30, 1946, he became a statutory tenant because, by suspending the possessory remedies which his last lease had given him, the local emergency rent law in legal effect extended, against the will of the landlord, the right of the tenant to remain in possession of the leased premises. (Stern v. Equitable Trust Co., 238 N. Y. 267, 269-270.) In those circumstances — contrary to the defendant-tenant’s contention upon his appeal — the plaintiff-landlord was not required to serve the thirty-day notice of termination of tenancy, called for by sections 228 and 232-a of the Real Property Law. (See 1239 Madison Ave. Corp. v. Neuberger, supra, p. 90.)

We also conclude that, although the warrant to dispossess the defendant-tenant was issued before September 17, 1947, on which date Local Law No. 66 (1947) became effective, the fact that on that date the warrant had not been executed dictates the conclusion that the proceeding was still “ pending ” within subdivision o of section U41-7.0 of the Administrative Code which provides — “ The provisions of this section shall apply to all pending and future eviction proceedings ”. The present proceeding is designed to accomplish evictions. As the warrant, in and of itself, does not accomplish eviction until it is executed, and as it had not been executed on September 17, 1947, when Local Law No. 66 became effective, no eviction had taken place up to that date and accordingly the proceeding was then pending. That view has the support of adjudicated cases. (See Wegman v. Childs, 41 N. Y. 159, 161-163; People ex rel. H. D. H. Realty Corp. v. Murphy, 194 App. Div. 530, 534-536, affd. 230 N. Y. 654; Grattan v. Tierney Sons, Inc., 226 App. Div. 811.) In Matter of Tartaglia v. McLaughlin (297 N. Y. 419) — where a final dispossess order had issued before the effective date of Local Law No. 66 (1947) but no warrant had issued — it was that latter fact which became decisive and prompted the statement by Chief Judge LoughraN (p. 424) that the proceeding “ was still pending within the meaning of the local law, for no warrant was ever issued in that proceeding ”. We think the same reasoning applies in the present case where, although a final order and a warrant had issued, the warrant had not been executed. It follows that the defendant — in protecting his rights as a statutory tenant — may invoke the provisions of Local Law No. 66 (1947).

We have seen from provisions of subdivision d of section U41-7.0 of the Administrative Code, quoted (supra) that it is a prerequisite to the institution by a landlord of a- proceeding to recover possession of an apartment, that he file with the temporary city housing rent commission a verified application for a certificate of eviction. Despite this requirement of the local law the plaintiff-landlord failed either to allege in his petition or to establish by evidence that prior to the institution of this summary proceeding he made the required application for a certificate of eviction. Furthermore, under paragraph (2) of subdivision (h) of section TT41-7.0 quoted {supra), before an of an apartment can remove a tenant in possession it must appear that 80% or more of the tenants occupying the building in • which the apartment is located have, by purchase or stock ownership, become co-operative owners. We find in the record no evidence which satisfies those requirements of the local law. Indeed, in an affidavit of record herein filed in support of a motion by the defendant-tenant to vacate the final order, dated September 11, 1947, and to dismiss the petition, the statement is made — which is not denied by the answering affidavit filed by the plaintiff-landlord — that 80% of the tenants in the building in which the apartment in suit is located have not purchased the apartments they occupy.

Concluding, as we do, that the New York City Rent Control Law (Local Law No. 66 [1947]) applies to the controversy here involved and that this proceeding was pending on September 17,1947, when Local Law No. 66 (1947) became effective; and there being no record proof that prior to the institution of this proceeding the plaintiff-landlord applied to the temporary city housing rent commission for a certificate of eviction as required by subdivision d of section U41-7.0, the orders should be reversed and the petition dismissed, without costs. Of the three questions certified in connection with the plaintiff’s appeal we answer question “ A ” in the affirmative; we do not answer questions “ B ” and “ C ”. The single question certified in connection with the defendant’s appeal is answered in the negative.

LougheaN, Ch. J., CoNway, DesmoNd, Dye and Fuld, JJ.„ concur.

Orders reversed, etc.


author: Puld, J.

text:
    Robert J. Wiener, Administrator of Estate of Patricia A. Wiener, Deceased, Respondent, v. Specific Pharmaceuticals, Inc., Appellant.
    Submitted December 2, 1948;
    decided January 13, 1949.

      Sidney IS. Levin for appellant.
    I. Plaintiff, an administrator appointed by the Probate Court of Michigan, does not have legal capacity to sue in the courts of New York. (Helme v. Buckelew, 229 N. Y. 363; Wikoff v. Hirschel, 258 N. Y. 28; Baldwin v. Powell, 294 N. Y. 130, 840; Maysville St. B. B. & Transfer Co. v. Marvin, 59 F. 91; Lichtenstern v. Augusta-Aiken By. Corf., 165 App. Div. 270; Loucks v. Standard Oil Co., 224 N. Y. 99; Slater v. Mexican Nat. B. B. Co., 194 U. S. 120; Moore v. Mitchell, 281 U. S. 18; Furst v. Fargason Co., 287 F. 306; Aleksiak v. Lehigh Valley B. B. Co., 245 App. Div. 722; Hopper Hopper, 125 N. Y. 400; Cooper v. American Airlines, Inc., 57 F. Supp. 329.) II. Plaintiff, under the provisions of the' Michigan statute, sues on behalf of the estate generally and not as trustee. (Baldwin v. Powell, 294 N. Y. 130.)

      Woodrow J. Sandler for respondent.
    I. A foreign administrator in a wrongful death action may sue in our courts as statutory trustee without obtaining ancillary letters. (Cooper v. American Airlines, Inc., 149 F. 2d 355; Graham v. Douglas Aircraft Co., 188 Mise. 1043; Pearson v. Norfolk & Western By Co., 286 F. 429; Wilson v. Tootle, 55 F. 211; Dematti v. Missouri-Kansas, 345 Mo. 1136; Kerr v. Basham, 62 S. D. 300; Ghilain v. Couture, 84 N. H. 48; Knight v. Moline, E. M. 'S W. By. Co., 160 Iowa 160; Connor v. N. T., N. H. & H. B. B. Co., 28 R. I. 560; Boulden v. Pennsylvania B. B. Co., 205 Pa. 264.) II. Plaintiff is a statutory trustee under Michigan law. The proceeds of any recovery belong to the next of kin and in no event are they subject to claims of creditors of the estate of the deceased. (Matter of Venneman. 286 Mich. 368: Michigan Judicature Act, ch. 266. § 27.712; 23 Mich. Stats. Ann., § 27.3178 [185], suhds. [4], [6] ; Baldwin v. Powell, 294 N. Y. 130; Davis v. New York Central & Hudson Riv. R. R. Co., 233 N. Y. 242; Rufner v. City of Traverse City, 296 Mich. 204.) III. Since creditors’ rights are not involved, the general rule requiring ancillary administration in this State does not apply. (Toronto Gen. Trust Co. v. Chicago, Burlington & Quincy R. R. Co., 123 N. Y. 37; Petersen v. Chemical Bank, 32 N. Y. 21; Parsons v. Lyman, 20 N. Y. 103; Doolittle v. Lewis, 7 Johns. Ch. 45; Taylor v. Syme, 162 N. Y. 513; Hastings v. Byllesby & Co., 286 N. Y. 468; Shipman v. Treadwell, 200 N. Y. 472; Stone v. Penn Yan, Keuka Park & Branchport Ry., 197 N. Y. 279; Howarth v. Angle, 162 N. Y. 179; Stoddard v. Lum, 159 N. Y. 265; Matter of Waite, 99 N. Y. 433; Dayton v. Borst, 31 N. Y. 435.)
   Puld, J.

Patricia Ann Wiener, then five years old, died in 1945, in Detroit, Michigan, where she had lived with her parents, her only next of kin. Her father was appointed administrator by a Michigan court and some time later, in January, 1948, brought this action to recover damages for the infant’s wrongful death, allegedly occasioned by one of defendant’s pharmaceutical products which had been administered to the child.

Defendant’s motion to dismiss the complaint on the ground, that plaintiff lacked standing to sue 'in our courts was denied by the court at Special Term, and its order was unanimously affirmed by the Appellate Division. The latter court, in granting-leave to appeal, certified this question of law: “ Is plaintiff, an administrator appointed by the Probate Court of Wayne County, State of Michigan, pursuant to the Michigan Death Statute, possessed of capacity to sue in the New York courts to recover damages for the death of a decedent in the State of Michigan?

It is settled that as a general rule a foreign administrator may not sue in the courts of this State without first obtaining ancillary letters. (See Helme v. Buckelew, 229 N. Y. 363, 365; Wikoff v. Hirschel, 258 N. Y. 28, 31; Baldwin v. Powell, 294 N. Y. 130, 133.) Plaintiff, however, maintains that there is an exception to the general rule. He argues that, if an administrator is a statutory trustee, he may sue without ancillary letters.

Before considering whether snch an exception exists, it is, of course, necessary to determine first whether plaintiff occupies such a status. The underlying principle is clear. An administrator is “ a special statutory trustee ” if so constituted by the law of the place where the wrong causing death occurred. (See Baldwin v. Powell, supra, at p. 134.) And he is to 'be regarded as such a trustee, we said in the Baldwin case, if the wrongful death statute of the foreign jurisdiction authorizes him to sue “ for the benefit of a designated person or group of persons ”.

Accordingly, we turn to the law of Michigan. Its wrongful death statute provides, in part, that whenever the death of a person is occasioned by “ wrongful act, neglect or default ” for which the deceased could have recovered had he lived, an action may be maintained and shall be brought by and in the names of “ the personal representatives of such deceased person ”. Damages may be given “ with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person ” during the time intervening between the infliction of injury and his death. It is then explicitly recited that the “ amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury ”. (20 Mich. Stats. Ann., §§ 27.711, 27.712.) And the companion statute, governing the distribution of the amount recovered (23 Mich. Stats. Ann., § 27.3178), specifies the procedure to be followed by the Probate Court in dividing the avails; in part, it declares that, although provision may be made for the payment of funeral expenses, “ such proceeds shall not be liable for the payment of any other charges against the estate of the decedent ” (23 Mich. Stats. Ann., § 27.3178 [185], subd. [6]).

In the present case, the complaint contains no allegation of pain or suffering on the part of the child and they are not alleged as items of damage or as bases for recovery; accordingly, we disregard the effect, if any, which the inclusion of such a claim may have upon our decision in another case. We likewise put aside as immaterial plaintiff’s claim for medical and funeral expenses, since such a claim is simply for administrative charges arising out of the wrongful death and not for the benefit of.the general estate. (See, e.g., Davis v. New York Central Hudson Riv. R. R. Co., 233 N. Y. 242.) The only operative item is the claim for pecuniary injury resulting ” from the infant’s death. That item, the Michigan cases as well as its statutes make clear, is referable exclusively to the loss suffered by the spouse and the next of kin. (See Baker v. Slack, 319 Mich. 703, 710-711; Matter of Olney, 309 Mich. 65, 80; Matter of Venneman, 286 Mich. 368, 378; see, also, Baldwin v. Powell, supra, p. 134; Davis v. New York Central Hudson Div. R. R. Co., supra, p. 246.) In calculating the pecuniary injury resulting from wrongful death, the only factor to be considered, the Michigan court has ruled, is whether there were persons of the specified class occupying a position entitling them to look to the decedent. for support, maintenance or services. Such persons, and only such persons, are to receive the amount recovered for “ pecuniary injury ”. In other words, since such an award does not represent money to which the deceased himself would have been entitled had he survived, it is not an item of damage to which his general estate lay claim.

There can be no doubt, considering all this, that the damages allowable in Michigan for a pecuniary injury resulting from wrongful death are referable solely to the loss suffered by the persons designated. That being so, the amount of recovery is held subject to a special trust, and the administrator seeking such recovery is,, by the same token, a statutory trustee.

We come, then, to an important question — hitherto expressly left open by this court (Baldwin v. Powell, supra, p. 134; Wikoff v. Hirschel, supra, pp. 31-32) — as to whether a foreign administrator, suing as special statutory trustee to recover damages for wrongful death, has the legal capacity to maintain such a suit in our courts.

It has been repeatedly observed that the reason for insisting that a foreign administrator obtain ancillary letters before suing in another State is to assure that the-decedent’s domestic creditors shall have their claims paid out of any fund recovered for the benefit of the debtor’s estate. (See, e.g., Taylor v. Syme, 162 N. Y. 513, 518; Toronto Gen. Trust Co. v. Chicago, Burlington & Quincy R. R. Co., 123 N. Y. 37, 46-47; Ghilain v. Couture, 84 N. H. 48, 52; Boulden v. Pennsylvania R. R. Co., 205 Pa. 264.) In the Toronto ease (supra) for instance, this court declared, “ The courts will not lend their aid to [foreign administrators] in the removal of the assets from this state to the possible prejudice of domestic creditors ” (123 N. Y. at pp. 46-47), and in the Ghilain case (supra) the rule was said to be “ based solely upon the policy of the courts of each state to protect resident creditors of the decedent against the withdrawal into another state of assets on which they may equitably rely for the payment of the debts that may be due them.” (84 N. H. at p. 52; italics supplied.)

The point need not be further labored. Tbe rule barring foreign administrators from our courts is just and reasonable only if applied in cases, first, where there are domestic creditors, and, second, where the foreign administrator sues to recover a fund in which such creditors may share. Obviously, no prejudice threatens local creditors of the decedent if, the wrongful death statute makes no provision for recovery on behalf of the general estate and, in fact, bars creditors ’ claims against the proceeds. Suing under such a statute, plaintiff as an officer of the foreign court appointed by it as. alter ego for the estate, but as a. trustee for the designated beneficiaries, the actual and real parties in interest. In such a case, the amount recovered truly constitutes a special fund for their exclusive benefit, and, since it is not subject to the claims of others, no danger exists that failure to require local qualification may harm or prejudice domestic creditors. With the primary and, perhaps, only reason for the rnle thus removed, the rnle itself has no sensible application and shonld not be invoked in this class of case.

For that reason, we conclnde, as have the courts of a number of other jurisdictions, that a foreign administrator, suing as statutory trustee, has standing to maintain a wrongful death action in this State upon the strength of his orginal letters. (See, e.g., Cooper v. American Airlines, 149 F. 2d 355; Pearson v. Norfolk Western Ry. Co., 286 F. 429; Reilly v. Pepe Co., 108 Conn. 436; Knight v. Moline, East Moline & Watertown Ry. Co., 160 Iowa 160, 168; Demattei v. Missouri-Kansas-Texas R. R. Co., 345 Mo. 1136, 1140; Ghilain v. Couture, 84 N. H. 48, supra; Boulden v. Pennsylvania R. R. Co., 205 Pa. 264, supra; Connor v. New York, New Haven & Hartford R. R. Co., 28 R. I. 560; see, also, Goodrich on Conflict of Laws [2d 254-255; Restatement, Conflict of Laws, § 467, comment, p. 567; 8 R. C. L., Death, § 48, p. 765.)

The order of the Appellate Division should he affirmed, with costs, and the question certified answered in the affirmative.

LoughbaN, Ch. J., Lewis, CoNway, DesmoNd and Dye, JJ., concur.

Order affirmed, etc.


text:
    The People of the State of Respondent, v. I. James Brody and James V. Auditore, Appellants, et al., Defendants.
    Argued November 29, 1948;
    decided January 13, 1949.

      I. Maurice Wormser, Hyman Bar shay and Samuel Bader for I. James Brody, appellant.
    I. The payments alleged in the indictment were not made for the performance or omission of an official act nor were they made to a public officer: hence they did not constitute crimes. (People v. McKane, 143 N. Y. 455.) II. The trial court committed reversible error in instructing the jury that the receipt of the moneys by the shipping business owner consummated the commission of the crime. (People v. Katz, 290 N. Y. 361; People v. Waller, 198 N. Y. 329.) III. The evidence was insufficient as a matter of law to establish guilt beyond a reasonable doubt. (People v. Weiss, 290 N. Y. 160; People v. Kress, 284 N. Y. 452; People v. Maione, 284 N. Y.-423; People v. Nitzberg, 287 N. Y. 183; People v. Mullens, 292 N. Y. 408.)

      Henry Epstein- and Robert Wolf for James V. Auditore, appellant.
    I. It is a question of fact whether or not Brody, the public officer, actually received any money; the trial court committed reversible error by adopting the theory of the prosecution whereunder the jury did not consider this question. (United States v. Britton, 108 U. S. 199; United States v. Mantón, 107 P. 2d 834; Williamsons. United States, 207 U. S. 425; People v. Mullens, 292 N. Y. 408; People v. App. Div. 14, 294 N. Y. 927; People v. Luciano, 277 N. Y. 348.) II. The convictions under the substantive counts of the indictment must be reversed in the absence of a determination by the jury that a public officer received tainted moneys. (People v. Mullens, 292 N. Y. 408; People v. Glougher, 246 N. Y. 106; People v. Hyde, 156 App. Div. 618; People v. Fitzgerald, 288 N. Y. 58.) III. The language of section 1826 of the Penal Law itself reveals the fallacy in the People’s theory and the trial court’s charge. (People v. Stoll, 242 N. Y. 453; People v. Salomon, 212 N. Y. 446.)

      Frank S. Hogan, District Attorney (Whitman Knapp, Harold Roland Shapiro, Charles W. Manning and William Hoppen of counsel), for respondent.
    I. Guilt was beyond a reasonable doubt. (People v. Luciano, 277 N. Y. 348; People v. Madas, 201 N. Y. 349; People v. Giro, 197 N. Y. 152; Commons-wealth v. Connolly, 308 Mass. 481; State v. Ames, 90 Minn. 183.) II. The trial was free of error. (Mankes v. Fishman, 163 App. Div. 789; Jarvis v. United States, 90 P. 2d 243, 302 S. 705.)
   DesmoNd, J.

Appellant Brody, during the times covered by this indictment, was deputy commissioner of the New York City Department of Marine and Aviation. Appellant Auditore, a friend of Brody, was the owner of two corporations engaged in the shipping business in New York City. Both appellants were convicted of the crime of conspiring (Penal Law, § 580) to ask and receive, on behalf of Brody, illegal fees for the granting by Brody’s city department, of permits for the berthing of ships at city piers. Both were convicted, also, of fifteen other alleged crimes, each consisting of the receipt of an unlawful fee, in violation of section 1826 of the Penal Law, for the issuance of one such permit. The fifteen indictment counts which set out the alleged section 1826 violations, each said that appellant Brody, “ acting in concert, with and aided and abetted by ” appellant Auditore (and with one Gross, who pleaded guilty and testified for the People), had “ received ” money not authorized by law, for doing an official act, to wit, the granting of a berthing permit. Appellants present a number of law points, only one of which we think it necessary to discuss here.

That point turns on the refusal of the Trial Judge to charge, as he had been requested to do, that appellant Brody could not be convicted of any of the section 1826 charges, unless the jury should find that Brody had received money for the granting of the permits. That refusal, say appellants, was error. It allowed the jury, they say, to come to a guilty verdict without ever passing on the issue presented by the indictment, that is,, as to whether, as charged in the fifteen “ substantive ” counts, there was receipt of illegal fees, by appellant Brody. It is our view, however, that the court’s whole charge, including the refused request, presented to the jury an entirely correct legal theory.

The substance of the People’s proof was that when appellant Brody became deputy commissioner of the city department which controlled the city piers, he entered into a corrupt agreement with Gross and appellant Anditore, whereby Brody, as such deputy commissioner, would personally handle all applications for a certain kind of permits, that he would deny such permits to steamship owners or agents, telling them that no such berthing spaces were available for the desired dates, that appellant Auditore, in the name of one or the other of his corporations, would then take out such permits from Brody, as deputy commissioner, and release or sublet the space to the outside applicants at a profit over the city’s fixed charge, the resulting profit to he divided equally among the three (Gross, Auditore and Brody). There .was competent proof that all this took place — indeed, there was proof that Brody actually gqt part' of the profits, hut we must consider the case as if there was no showing that any of the money went to Brody, since the court’s charge, as abpve described, made it the law of the case that no such showing was requisite for a conviction.

At least twice in his main charge, the Trial Judge made it plain that appellant Brody was not to be convicted unless he had received money not authorized by law, for performing official acts. Elsewhere in the charge, the Judge made it equally plain that appellant Auditore, not being a public officer,, could be adjudged guilty under section 1826 only if he had aided and abetted public officer Brody, in taking such unlawful emoluments. The Judge explained to the jury, that the theory of the People was that the issuance of permits by Brody to corporations, and the transfer thereof at a profit by those corporations, to outsiders, was a device for charging excess fees to those outsiders for the berthing permits. But, the court told the jurors, there would have to be, for any conviction under section 1826, findings by the jury that such a scheme was hatched for that particular purpose, and successfully carried out, and that “ the various acts of Gross and Auditore about which you have been told were performed by them in pursuance of that conspiracy, that is to say, as agents for the public officer, Brody. ” The whole charge, it seems to us, was an entirely lucid statement that no convictions could be had (on substantive ” counts) unless Gross and Auditore had, as agents for Brody, received illegal fees for city permits, as the result of the working out of the conspiracy testified to. It was in that setting and against that background that the court — properly, we say — ruled that it was not essential that the money he traced into appellant Brody’s pockets.

The crime of taking unauthorized fees (like the crime of taking bribes under section 372 of the Penal Law) can, obviously, be committed through an intermediary or agent (see People v. Fitzgerald, 288 N. Y. 58; Commonwealth v. Connolly, 308 Mass. 481, 489, 490). Nothing in People v. Hyde (156 App. Div. 618) or People v. Mullens (292 N. Y. 408) is to the contrary of that proposition. The Hyde conviction (supra) was reversed because there was no showing that there was any transmission of anything of real or substantial benefit to Hyde. The Mullens case (supra) was tried on the theory that Mullens had in fact received a bribe, directly and not merely through another. True, the accusations in the present case were that defendant Brody “ received ” money, and a bald statement to the jury that no such receipt need be established would have been entirely inadequate. But the receipt by Brody could be vicarious, and so the jury was instructed. When the jury was convinced, on adequate proof, that the conspiracy had been carried out, and that as to each of the permits in question, the issuance, and subsequent reissue or transfer thereof, for a profit, amounted to no less than a taking of money by Brody through confederates, for the issue of such permit to the ultimate user of the pier space, that made the crime complete.

If the court had said, or implied, that the crimes under section 1826 proofs would fie complete as soon as the conspiracy was proven and permits were issued pursuant thereto, we would agree that fatal error had been committed. But the court’s instructions warned the jury that more was needed — that there had to be proof and finding that Gross and Auditore had received money for Brody under such circumstances as to amount to a receipt thereof by Brody.

It is true enough that the giving of a pier permit to an Auditore corporation, and a transfer thereof by that corporation to a shipowner, were both, intrinsically and without proof of corrupt motivation, lawful acts. But “ the corruption aimed at is not simply the doing of things which may be improper in themselves, but even the doing of proper things as the result of an improper agreement ” (People v. Furlong, 140 App. Div. 179, 184, affd. on opinion below 201 N. Y. 511; see People v. Clougher, 246 N. Y. 106, 112; People v. Clark, 242 N. Y. 313, 326). It would have been lawful for Auditore, in the ordinary run of business, to take money as Ms profit on tbe transfer of a pier permit, but when all that was a mere cover for the taking of an illegal fee by Brody as Auditore’s undisclosed principal, then there was criminality. Nor does it matter that Auditore, not being a public official, could not, on Ms own account, have committed a crime under section 1826. As an aider and abettor of Brody, who was of the class of persons who could commit the crime as defined in the statute, Auditore, too, could be held as a principal (Penal Law, § 2; People v. McKane, 143 N. Y. 455, 464; Commonwealth v. Mannos, 311 Mass. 94, 107, 108; Downs v. United States, 3 F. 2d 855, certiorari denied 268 U. S. 689; Ex parte O’Leary, 53 F. 2d 956). Auditore⅛ act was Brody’s act, and Brody’s guilt was Auditore’s (see People v. Madas, 201 N. Y. 349, 352; People v. Luciano, 277 N. Y. 348, 359, 361).

The judgments should be affirmed.

LougheaN, Ch. J., Lewis, CoNway, Dye and Fuld, JJ., concur.

Judgments affirmed.


text:
    Argued November 30, 1948;
    decided January 13, 1949.

      John W. MacDonald, Thomas J. P. Cawley and Horace E. Whiteside for appellants.
    I. The Appellate Division invaded the province of the jury in reversing the judgment of the trial court entered upon a jury’s verdict, upon the stated ground that there was no proof of a causal connection between the breaking of the rope ” and plaintiff’s injury and in dismissing the complaint upon the ground that “ the accident was not one within reasonable range of anticipation (Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Carr v. City of New York, 281 N. Y. 469; Maguire v. Barrett, 223 N. Y. 49.) II. The Appellate Division invaded the province of the jury in deciding as a matter of law that there was no liability proved against the defendant by the plaintiff in this action. (Palsgraf v. Long Island R. R. Co., 222 App. Div. 166, 248 N. Y. 339; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Casper sen v. La Sala Bros., 253 N. Y., 491; Indermaur v. Barnes, [1866] L. R. 1 C. P. 274, L. R. 2 O. P. 311; Matter of Polemis & Furness, Withy & Co., [1921] 3 K. B. 560; Sullivan v. Central Hanover Bank & Trust Co., 294 N. Y. 497; Peck v. Weil, 231 App. Div. 670, 235 App. Div. 601, 259 N. Y. 540; Alpert v. Day, 241 App. Div. 604, 264 N. Y. 643; McGlone v. Angus, Inc., 248 N. Y. 197; O ’Neill v. City of Port Jervis, 253 N. Y. 423.) III. The Appellate Division erred in holding that plaintiff must show by direct evidence that the cause of his fall was the breaking of the rope. (Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193; Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Tortora v. State of New York, 269 N. Y. 167.)

      Matthew S. Gibson and Frederick L. Scofield for respondent.
    I. There can be no legal liability for an accident such as this, which, upon the admitted and undisputed facts, was so rare, unexpected, and unusual that no reasonable person could fairly say that defendant, in the exercise of reasonable care, should have anticipated its occurrence. (Sweeney v. Rosell, 31 Mise. 640; Dugan v. American Transfer Co., 160 App. Div. 11; Paul v. Consolidated Fireworks Co., 212 N. Y. 117; Cronin v. American Linen Co., 147 F. 755; Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306; Burns v. Old Sterling Iron & Mining Co., 188 N. Y. 175.) II. Plaintiff failed to establish a prima facie case sufficient to warrant submission to the jury of the question of whether the breaking of the alleged defective valve cord was what caused plaintiff to fall from his employer’s truck. (White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Scharff v. Jackson,
      216 N. Y. 598; Wolf v. Kaufmann, 227 App. Div. 281; Bourcheix v. Willow Brook Dairy, Inc., 268 N. Y. 1; Buppert v. Brooklyn Heights B. B. Co., 154 90; Buback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Slater v. Barnes, 241 N. Y. 284; Dillon v. Bockaway Beach Hosp., 284 N. Y. 176.) III. Plaintiff failed to establish a prima facie case sufficient to warrant submission to tbe jury of the question of whether plaintiff was free from contributory negligence. (Lyon v. Socony-Vacuum Oil Co., 268 App. Div. 788; Fillis v. Wahlig, 267 App. Div. 781; Owen v. Westchester Country Club, Inc., 264 App. Div. 796, 289 N. Y. 819; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240; Deane v. City of Buffalo, 42 App. Div. 205; Fetch v. Allen, 98 Mass. 572.)
   Lewis, J.

The appellant’s intestate, a driver of an oil tank trailer truck, instituted this action during his lifetime to recover for personal injuries sustained by him when, during a tank-filling operation upon premises maintained by the defendant corporation, he fell to the ground from a catwalk on the oil truck he was operating.

At Trial Term a jury awarded a verdict to the plaintiff, whose death occurred eleven weeks after the trial. Although since the death of the plaintiff his widow has prosecuted the action as administratrix of his estate, it will be convenient to refer to the decedent as the plaintiff. At the Appellate Division the judgment entered at Trial Term was reversed on the law and the facts and the complaint was dismissed on the law. The opinion Per Curiam by the Appellate Division states the basis of its decision as follows: “ In our opinion there was no proof adduced which would serve to show a causal connection between the breaking of the rope and the fall of plaintiff’s intestate, particularly in the light of the undisputed fact that the rope was not provided as a means of support and that, at the time it broke, the plaintiff’s intestate was located squarely in the middle of the catwalk, kneeling on one knee and holding onto the hatch opening with his left hand while operating the valve by means of the rope with his right hand. We are also of opinion that the verdict was excessive, in the light of the fact that the proof shows that plaintiff’s intestate was suffering from nephritis and arteriosclerosis. The complaint should be dismissed, however, for the reason that the accident was not one within reasonable range of anticipation, in any event a new trial would he granted because of the excessiveness of the verdict.” (272 App. Div. 935-936.)

In those circumstances — the reversal was upon the law we are bound by the facts which the jury might have found.” (Hendrickson v. Hodkin, 276 N. Y. 252, 257.) Accordingly, the scope of our problem is narrowed to the inquiry: Is there evidence — direct or circumstantial — from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred? (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217, 223; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176, 179; Osipoff v. City of New York, 286 N. Y. 422, 425; Rosenberg v. Schwartz, 260 N. Y. 162, 166; Faber v. City of New York, 213 N. Y. 411, 414.) If there is such evidence the question was presented for determination by a jury — under proper instructions — whether plaintiff’s injuries were caused by actionable fault of the defendant.

had been observed by one of the defendant’s patrons, other than the plaintiff, more than a week prior to the plaintiff’s accident.

When the tank was nearly full the plaintiff released his hold on the valve cord to stop the flow of oil. After ascertaining by examination that the tank would hold 200 gallons more, he again wound the cord around his gloved hand and pulled the valve cord to release the flow. As he did so the cord broke and he fell from his kneeling position on the catwalk to the concrete surface below. A witness who was filling a tank truck at an adjoining platform, and who had noticed the plaintiff ‘ ‘ squatting ’ ’ on the catwalk and pulling the rope ”, saw the plaintiff fall from the catwalk and upon going to his aid found his body on the paved surface of the plant floor with a piece of the broken valve cord in his hand “ tied up around his fist, his hand ⅜ # ⅝ it was wound around the glove.” That witness described the condition of the valve cord as follows:

“ Q. Now, describe the condition of that rope as you saw it there that day. A. Well, the rope had a knot at the end of the rope and then about, I should say, about six to ten inches another knot, then further up where the rope was broken there was another knot, that the rope was broken before that, and it was tied together. * # *
“ Q. Tell me with reference to the break that you say was there, other than the break at the time of Betzag’s accident, was it above the piece that you picked off the ground or was it below the end of the piece you picked off of the ground? A. The break was below.
“ Q. How far below? A. Oh, I would say about eight or nine inches.
“ Q. As you looked at the rope can you tell us ¶⅛⅛ the id tion of it was? A. Yes:
“ Q. Well, what was it? A. The rope had all files on it. hi other words, a lot nf the strands had been 'broken.

of causation or of negligence even though it does not negative the existence of remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent.” Here — where the complaint has been dismissed on the law, as in the Dillon case 179) —we think it enough that plaintiff upon the trial came forward with evidence of facts and conditions from which the defendant’s negligence and “ the causation of the accident by that negligence may be reasonably inferred.”

In the circumstances disclosed by this record we cannot say as a matter of law, as did the Appellate Division, that the accident which befell the plaintiff was not one within the reasonable range of anticipation.

The judgment should be reversed, with costs, and the case remitted to the Appellate Division for further proceedings not inconsistent with this opinion..

LoughbaN, Ch. J., CoNway, DesmoNd, Dye and Fuld, JJ., concur.

Judgment reversed, etc. [See 298 N. Y. 916.]


author: LoughbaN, Ch. J.

text:
    In the Matter of Catherine Hickox et al., Appellants, against E. Floyd Griffin et al., Constituting the Board of Appeals of the Town of Oyster Bay, et al., Respondents.
    Argued October 21, 1948;
    decided January 13, 1949.

      Jackson A. Dykman, Ralph W. Grolly, W. Royden Klein and Robert E. Lawther for appellants.
    I. The Board of Appeals has no original on an application for a variance. (Matter of Mamaroneck Commodore, Inc., v. Bayly, 233 App. Div. 741, 260 N. Y. 528; Dotvsey y. Village of Kensington, 257 N. Y. 221; Matter of Von Elm v. Zoning Bd. of Appeals of Hempstead, 258 App. Div. 989; Kaufman v. City of Glen Cove, 180 Mise. 349, 266 App. Div, 870; Matter of Thomas v. Board of Standards &
      Appeals, 290 N. Y. 109; Matter of Sanders v. Davidson, 258 App. Div. 1058, 284 N. Y. 780; Sun Oil Go. v. MacAuley, R. I. 206.) II. In any event the board of appeals exceeded its statutory power by attempting to review legislative general rules. (Matter of Otto v. Steinhilber, 282 N. Y. 71; People ex rel. Arverne Bay Gonstr. Go. v. Murdoch, 247 App. Div. 889, 271 N. Y. 631; Arverne Bay Gonstr. Co. v. Thatcher, 253 App. Div. 285, 278 N. Y. 222; Matter of Sloane v. Walsh, 245 N. Y. 208; Matter of New Yorh Water Service Gorp. v. Wafer Power & Control Comm., 283 N. Y. 23; Matter of Levy v. Board of Standards .Appeals, 267 N. Y. 347; Matter of Joyce v. Dobson, 255 App. Div. 348; Matter of Mamaronech Commodore, Inc., v. Bayly, 233 App. Div. 741, 260 N. Y. 528; Matter of Y. W. PL. Assn. v. Board of Standards & Appeals, 266 N. Y. 270.) III. In any event a variance must rest upon unnecessary and undue hardship peculiar to a particular piece of property. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of New Yorh Water Service Corp. v. Water Power Control Comm., 283 N. Y. 23; Matter of Collins v. Béhañi, 285 Y. 187; Matter of Steers, Inc., v. Bembaugh, 259 App. Div. 908, 284 N. Y. 621; Matter of Aberdeen Garage, Inc., v. Murdoch, 257 App. Div. 645.)

      Henry V. Poor, amicus curies, in support of appellants’ position.
    I. The purpose of zoning regulations is to stabilize property uses in a community. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Devaney v. Board of Zoning Appeals, 132 Conn. 537; Matter of Stubbe v. Adamson, 220 N. Y. 459; People ex rel. Kannensohn Holding Corp. v. Walsh, 120. Mise. 467.) II. The power to vary the terms of an ordinance must be exercised sparingly. (Prusih v. Board of Appeals, 262 Mass. 451; Matter of Holy Sepulchre Cemetery v. Board of Appeals, Greece, 271 App. Div. 33.) III. None of the necessary conditions is met in the case at bar. (Matter of Otto v. Steinhil-ber, 282 N. Y. 71; Matter of Aberdeen Garage, Inc., v. Murdoch, 257 App. Div. 645.) IV. “ Unnecessary hardship ” is no justification for granting a variance if the hardship is self-imposed. (Matter of Holy Sepulchre Cemetery v. Board of Appeals, Greece, 271 App. Div. 33; People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280; Matter of Aberdeen Garage, Inc., v. Murdoch, 257 App. Div. 645; Matter of Levy v.
      Board of Standards & Appeals, 267 N. Y. 347; Matter of Prusik, 262 Mass. 451.)

      Theodore Kiendl, William B. Meagher and Michael J. Petch-kovsky for Long Island University, respondent.
    I. The zoning board of appeals has original jurisdiction to entertain an application for a variance, and preliminary application therefor to the building inspector is not necessary. (Broys v Toivn of Hempstead, 272 3; Matter of Holy Sepulchre Cemetery v. Board of Appeals, Greece, 271 App. Div. 33; Matter of Underhill v. Board of Appeals of Town of Oyster Bay, 72 N. Y. S. 2d 588, 273 App. Div. 788, 297 N. Y. 937; Matter of Donegan v. Griffin, 270 App. Div. 937; Matter of Sanders v. Davidson, 258 App. Div. 1058, 284 N. Y. 780; Matter of Mamaronech Commodore, Inc., v. Bayly, 233 App. Div. 741, 260 N. Y. 528; People ex rel. Kannensohn Holding Corp. v. Walsh, 120 Mise. 467.) II. The vendee under an executory contract to purchase land may apply for a variance as a “ person aggrieved ” within the meaning of subdivision 2 of section 267 of the Town Law. (Matter of Nagaven Realties, Inc., v. Banzhof, 149 Mise. 361; People v. De Goode, 203 App. Div. 35; Epstein v. Gluckin, 233 N. Y. 490; People ex rel. Parry v. Walsh, 121 Mise. 631; Booth v. Cleveland Mill Co., 74 N. Y. 15; Patterson v. Guardian Trust Co., 144 App. Div. 863; People ex rel. Bingham Operating Corp. v. Eyrich, 265 App. Div. 562; People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280.) The facts established by the record and those found by the board, as stated in its decision and return, warranted the granting of the variance. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; People ex rel. IIudson-Harlem Co. v. Walker, 282 N. Y. 400; People ex rel. Werner v. Walsh, 212 App. Div. 635.) IY. The land cannot yield a reasonable return if used only for a purpose allowed in the zone. V. The plight of the owner is due to unique circumstances and not to general. conditions in the neighborhood. (Matter of Hopkins v. Board of Appeals, Rochester, 179 Mise. 325; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73.) YI. The use to be authorized by the variance will not alter the essential character of the locality. YII. The zoning board of appeals had power to grant a special exception in this case, and as the record supports such action by the board, this court may affirm on that ground, even if it should consider the case insufficient for the grant of a variance. (Building Zone Ordinance, § 18, subd. C; Matter of Thomas v. Board of Standards & Appeals, 290 N. Y. 109.)

      Theodore V. Summers for E. Ployd Griffin and others, respondents.
    I. The board has the power to grant variances in a use district. II. The decision of the board of zoning appeals is presumptively correct. (Bove v. Doimer-Hanna Colee Corp., 142 Mise. 329, 236 App. Div. 37; Morgan v. City of Binghamton, 102 N. Y. 500; Ulmer Park Realty Co. v. City of New York, 270 App. Div. 1044; Matter of Wulfsohn v. Burden, 241 N. Y. 289; Matter of Joyce v. Dohson, 255 App. Div. 348; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519; Matter of Y. W. H. Assn. v. Board of Standards & Appeals, 266 N. Y. People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280; People ex rel. Hudson-Harlem Co. v. Walker, 282 N. Y. 400.)
   LoughbaN, Ch. J.

The Board of Appeals of the Town of Oyster Bay is empowered to vary or modify the application of the town zoning ordinance where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter thereof. (See Town Law, § 267; Zoning Ordinance of Town of Oyster Bay, § 18, subd. B.) This case presents questions as to the scope and meaning of the phrase “ unnecessary hardships ”, as that phrase is used in legislative provisions of the type that have just been cited. (Of. General City Law, § 81.)

On May 14, 1947, Long Island University entered with Marjorie Post Davies and Adelaide B. MacNeille into a contract whereby the university agreed to purchase a 73-acre country estate owned by MacNeille plus 49 out of 107 acres of an adjoining country estate owned by Davies. The 122 acres which that contract set apart is the property here in question. It lies wholly within an area which the town of Oyster Bay has zoned Residence A District ”. Under the town zoning ordinance use of property as a country estate is a conforming use in such a district.

On May 20, 1947, Long Island University addressed to the town board of appeals an application for a zoning variance that would permit the property in question to be used ‘ ‘ as and for a university with usual campus facilities.” In that application the university named itself as “ appellant ” and said: “ Under the Zoning Ordinance of the Town of Oyster Bay no provision is made for a university though provisions are made in residential A and B Zones for a school. # # * It is submitted that the Zoning Laws as they now exist work an unnecessary and undue hardship upon this property in that no provision is made for a university in this residential area. ’ ’

Hearings upon that application were thereafter held by the town board of appeals during June and July, 1947, and on July 28th, the board — one of its five members not voting and another dissenting — granted the requested variance. To obtain a review of that determination, a number of objecting property owners, who had appeared before the board, commenced this proceeding under article 78 of the Civil Practice Act. The Appellate Division confirmed the ruling of the board, two justices dissenting, and the objecting property owners then brought the case here.

By their answer in this article 78 proceeding, the board of appeals made the following allegation: “ That the Board found that there was sufficient evidence presented to indicate that the property in question would not yield a reasonable return if limited to the uses under which it was presently zoned and that a hardship was proven. It further found that the property was unique in that it is a large estate property with large permanent buildings which militates against its salability and the construction of the buildings being of steel and concrete could be readily utilized for an institution of higher learning, and further that it would not adversely affect the use and development of adjacent properties.”

Such findings obviously are no warrant for the special privilege which the board here undertook to confer upon Long Island University. Structures upon the property in question may be peculiarly suited to the purposes of that institution, but considerations of that sort are here irrelevant, as also is the evidence that country estates cannot be managed with economy and are not very easy to sell (see Matter of Y. W. H. Assn. v. Board of Standards & Appeals, 266 N. Y. 270). There must at least be proof that a particular property suffers a singular disadvantage through the operation of a zoning regulation before a variance thereof can be allowed on the ground of “ unnecessary hardship ” (see Dowsey v. Village of Kensington, 257 N. Y. 221, 227-228; Matter of Otto v. Steinhilber, 282 N. Y. 71, 75-76). Not an item of proof to that effect appears in this record and so the granting of the application of Long Island University for a variance of the zoning ordinance of the town of Oyster Bay cannot be upheld.

Long Island University asks us to sustain the determination of the board of appeals on the strength of subdivision 0 of section 18 of the town zoning ordinance, which, within limits stated therein, empowers such a board to authorize “ special exceptions ” to its zoning regulations, subject to appropriate conditions and safeguards ”. But the application of the university for a variance was made under subdivision B of section 18 of the ordinance and prayed only for leave to use the property in question ‘ ‘ as and for a university with usual campus facilities ’ ’ — an application which, as we have seen, was granted without qualification. So broad a license cannot in our judgment now be looked upon as an award by the board of a special exception pursuant to subdivision C"of section 18. (Cf. Matter of Thomas v. Board of Standards & Appeals, 290 N. Y. 109, 115-116.)

Mention should be made of two important additional issues which have been argued before us, viz.: (1) Does section 267 of the Town Law empower a town board of appeals to entertain an application for a zoning variance in the first instance, i.e., without prior request for issuance of a permit by the building inspector of the town or other authority having original jurisdiction? (2) Is the vendee named in an executory contract to purchase land a “ person aggrieved ” within the meaning of section 267 of the Town Law, even in a case where (as here) the passing of title is by the contract conditioned on the granting of a zoning variance? Since these questions were not raised before the town board of appeals, we prefer not to decide them on the present record.

The order of the Appellate Division should be reversed, the determination of the town board of appeals annulled and the application denied, with costs.

Lewis, CoNway, Dye and Fuld, JJ., concur.

Order reversed, etc.


text:
    The People of the State of New York ex rel. Hotel Corp., Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued 17, 1948;
    decided January 13, 1949.

      Arthur A. Segall and Robert L. Pels for appellant.
    I. The Appellate Division’s increase of substantially 20% over its own decision for the preceding tax year was an erroneous projection into real estate value of the 20% increase in business value reflected by the successive sales prices of $3,000,000 and $3,600,000. No other evidence in the record can account for the Appellate Division’s modification. (People ex rel. Hotel St. George Corp. v. Lilly, 45 N. T. S. 2d 599, 268 App. Div. 830, 293 N. T. 898; People ex rel. Hotel Astor v. Sexton, 159 Mise. 280, 256 App. Div. 912, 280 N.. Y. 853; People ex rel. Manhattan Square Beresford, Inc., v. Sexton, 284 N. Y. 145.) II. The weight of all the credible evidence relevant to a determination of the value of the real estate as distinguished from the value of a going business shows no change in value in the year intervening January, 1945, and January, 1946, and fails utterly to support the Appellate Division’s sharp rise in value. (People ex rel. Hotel Astor v. Sexton, 159 Mise. 280, 256 App. Div. 912, 280 N. Y. 853; People ex rel. Manhattan Square Beresford, Inc¡, v. Sexton, 284 N. Y. 145; People ex rel. Strong v. Hart, 216 N. Y. 513; People ex rel. 36 East 72nd St. Corp. v. Lilly, 271 App. Div. 865; People ex rel. Pennsylvania Tunnel & Terminal R. R. Co. v. Miller, 26 N. Y. S. 2d 232.) III. The increase of over 20% in the value of the real estate within a twelve-month period, proposed by the Appellate Division modification, is the antithesis of the statutory requirement that real estate shall be assessed at its “ full value ” and at its value under “ ordinary circumstances ”. (People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126.)

      John P. McGrath, Corporation Counsel (Morris Handel and William F. Murphy of counsel), for respondents.
    The sale and resale of the property at prices far in excess of the Appellate Division’s value, numerous other sales, actual net earnings of 18%, the credible evidence of replacement cost and other indicia of value support the Appellate Division’s value. The Special Term erroneously treated a prior adjudication of value as res judicata. (People ex rel. Hilton v. Fahrenkopf, 279 N. T. 49; People ex rel. MacCracken v. Miller, 291 N. T. 55.)
   Fuld, J.

The property, whose assessed valuation is here in issue, is land in the Times Square district of the city of New York, improved with a nineteen-story hotel structure, erected in 1928, and operated as a commercial transient hotel. For the tax year under review, 1946-1947, the assessed valuation of the property was $2,500,000, of which $430,000 represented the land valuation. The court at Special Term found a value of $340,000 for the land and a total value of $1,765,000 for the land and building. These findings were identical in amount with the values fixed for the property by the Appellate Division for the tax year 1945-1946, reviewed in an earlier tax certiorari proceeding. (People ex rel. Chase Nat. Bank v. Chambers, 272 App. Div. 877.) The assessed valuation for that earlier tax year (1945-1946) was substantially lower — $1,825,000. In the present proceeding, the Appellate Division, one Justice dissenting, has modified the determination by Special Term and found the higher values of $400,000 for the land and $2,150,000 for the land and building.

At the trial, evidence was received of a sale of the subject hotel property and business in August, 1945, to the present relator, for $3,000,000, and of a sale of the relator’s capital stock in March, 1946, for $3,600,000. The earlier sale had been received in evidence in the certiorari proceedings covering the prior tax years. There was also evidence, adduced by both relator and respondents, of large earnings produced by the hotel.

■worth of such additional elements as management, good jwill, hotel furniture and furnishings, inventory of food and beverages and the usual hotel services. The manner of determining what portion of the sales prices and of the yearly income is attributable to the real estate and of segregating that from the portion derived from the other items, the record does not disclose. In these circumstances, the valuation of a transient hotel property is in essence the valuation of a “ specialty ”, a term including real estate, which, unlike an apartment house or office building, produces income only in combination with a business conducted upon it. (See People ex rel. Hotel St. George Corp. v. Lilly, 293 N. Y. 898; Matter of City of New York [Chrystie St.], 236 App. Div. 321, affd. 260 N. Y. 583; People ex rel. Hotel Astor v. Sexton, 159 Misc. 280, affd. 256 App. Div. 912, leave to appeal denied 280 N. Y. 853; Banner Milling Co. v. State of New York, 240 N. Y. 533, 540.) The relevance of income or profit produced in the operation of such specialty property is necessarily limited — in the valuation of the real estate —to the inquiry whether the structural improvements are suitable to the site and whether the full structural value of the building may be added to the value of the land. (See People ex rel. New York Stock Exch. Bldg. Co. v. Cantor, 221 App. Div. 193, affd. 248 N. Y. 533; Matter of City of New York [Chrystie St.], 236 App. Div. 321, affd. 260 N. Y. 583, supra; Matter of City of New York [Blackwell’s Is. Bridge], 198 N. Y. 84, 86.)

Giving to the hotel income or to the sale of the hotel enterprise any additional weight was error for an additional reason, having to do more particularly with the valuation of the building. Structural value fixes the maximum value even of an apartment house or office building whose income if capitalized would indicate a higher valuation. (See People ex rel. Manhattan Square Beresford, Inc., v. Sexton, 284 N. Y. 145, 149; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126, 131.) The principle enunciated in the Beresford and Parklin cases {supra) is clearly applicable to a transient hotel whose income reflects the additional elements of management, good will and personal property. (See People ex rel. Hotel St. George Corp. v. Lilly, 293 N. Y. 898, supra.) It is a necessary corollary that a sale of the capital stock of a hotel enterprise cannot be evidence of a value in excess of the replacement cost of the bnilding. As the record demonstrates, both opposing experts added to their estimates of land value the full structural value of the hotel building. Since the Appellate Division was evidently not in disagreement with Special Term as to the structural value, its increased finding of building value was error.

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

LoughraN, Ch. J., Lewis, CoNway, DesmoND and Dye, JJ., concur.

Order reversed, etc. [See 298 N. Y. 919.]