text:
    In the Matter of Betty B. Carow, Appellant, against The Board of Education of the City of New York, Respondent.

      (Argued December 2, 1936;
    decided December 31, 1936.)

      A. Mark Levien for appellant.

      Paul Windels, Corporation Counsel (Seymour B. Quel and Paxton Blair of counsel), for respondent.
   Lehman, J.

The petitioner’s name was placed upon an eligible list for kindergarten teacher in February, 1929, after the petitioner had taken a competitive examination conducted by the Board of Examiners of the Board of Education. At that time the Education Law (Cons. Laws, ch. 16), section 871, provided in part that no eligible lists, except a principals’ eligible list shall remain in force for a longer period than three years.” The statute was amended in 1931 so as to provide that all eligible lists in existence on April 1,1931, except a principals’ eligible fist, shall remain in force for a period of four years. In accordance with the terms of the amended statute the eligible list, upon which the petitioner’s name was placed, expired then in February, 1933. At that time the plaintiff had not yet received any appointment and her name was not upon any eligible fist from which appointments could be made.

In April, 1933, the Legislature added section 871-b to the Education Law. It provided in part that “ in a city having a population of one million or more * * * the term of eligibility of all open competitive, and promotion eligible lists prepared by the board of examiners of the board of education of said city, (a) which were in force on the fifteenth day of May, nineteen hundred thirty-two, * * * shall be extended for a period of four years after the expiration of the term of eligibility which was fixed * * * for such eligible lists * * (Laws of 1933, ch. 146.) In February, 1935, the petitioner received an appointment as a kindergarten teacher. If the Legislature had power in April, 1933, bo extend, as it attempted to do, the life of the list promulgated in 1929, upon which the plaintiff’s name was placed, then the appointment was concededly valid; if the statute transcended the powers of the Legislature, then the expired eligible list remained without force or vitality, and no right to appointment could be derived from it.

In Hurley v. Board of Education (270 N. Y. 275) (decided March, 1936) the court held that whenever an appointment in the civil service of the State may be made only ■after merit and fitness have been ascertained by competitive examination (State Const, art. V, § 6) the Legislature cannot, by attempted revival of an expired list, confer new eligibility after eligibility had expired with the list from which it was derived, and, therefore, section 871-b was unconstitutional when applied to lists which had expired at its date. The Board of Education felt itself constrained by that decision to revoke the petitioner’s appointment because made from a list which had expired when chapter 146 of the Laws of 1933 was enacted.

The Constitution, article V, section 6, in part provides that appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” The Legislature may not disregard, evade or weaken the force of that mandate. It applies to every position in the civil service of the State, but within limits which we have attempted to define in other cases, the Legislature may determine whether it is practicable to ascertain merit and fitness for a particular position by competitive examination, or, indeed, by any examination. In the case of Hurley v. Board of Education (supra, p. 279) we said: '' It is not disputed that it is practicable to ascertain merit and fitness for the position of attendance officer by competitive examination. The Legislature has so determined, and examinations have been held to ascertain such merit and fitness.” That was the foundation of our decision, that appointment to the position of attendance officer must be made solely according to merit and fitness ascertained in that manner. Nothing that we said or decided in that case has any application where the Legislature has not made similar determination. The position of an attendance officer of the Board of Education is in the classified civil service. The position of a teacher is in the unclassified ” service. (Civil Service Law [Cons. Laws, ch. 7], § 9.) In Ciaccia v. Board of Education (271 N. Y. 336, 341) this court again applied the rule of the Hurley case and held that the Legislature had no power to extend the life of an eligibility fist after the list had expired, but it pointed out that both that case and the Hurley case relate solely to the classified service.” We thus left open for future determination whether the Legislature might extend such lists for appointments in the unclassified service. After the Board of Education had revoked the petitioner’s appointment, the petitioner applied for a mandamus order to reinstate her in the position of kindergarten teacher. The court at Special Term denied the application, holding that chapter 146 of the Laws of 1933 is unconstitutional when applied to eligible lists for appointments to positions in the unclassified service as well as when applied to lists for appointments to positions in the classified civil service.

From that decision the petitioner has appealed directly to this court under subdivision 3 of section 588 of the Civil Practice Act, and upon this appeal we may consider only the validity of the statutory provision under the Constitution of the State. We must disregard every other question which the appellant has raised in the court below or has sought to raise upon this appeal. The considerations which constrained us to hold that the Legislature had no power to extend eligible lists for appointments in the classified civil service constrain us now to the same conclusion in regard to eligible lists in the unclassified civil service, though we recognize that such conclusion precludes the Legislature from extending relief from unmerited hardship to many individuals.

The constitutional mandate is clear, and includes within its scope appointment to every position in the civil service of the State which is not excluded by some other provision of the Constitution. A duty was placed upon the Legislature to provide the machinery required to carry out the mandate. (Chittenden v. Wurster, 152 N. Y. 345.) Accordingly in section 9 of the Civil Service Law the Legislature has provided that: The civil service of the state and of each of its civil divisions and cities shall be divided into the unclassified service and the classified service,” and in other parts of the Civil Service Law it has made general rules and regulations in regard to appointments, tenure and removal in the classified service and set up machinery by which examinations, competitive or otherwise, may be held to ascertain merit and fitness for particular offices included in the classified service, so far as it is practicable to ascertain that by such examinations. It has not, in the Civil Service Law, made general rules or regulations in regard to positions in the unclassified service. The distinction between the classified and the unclassified civil service is purely statutory, but the division made by the Legislature is not arbitrary or unreasonable. The nature of the positions included in the unclassified service may furnish reason why the Legislature should not regulate appointment, tenure and removal there by general rules. None the less, even after the division of the civil service “ into the unclassified service and the classified service,” both divisions were still part of the "civil service” in which the Constitution commanded that appointments and promotions shall be made according to “ merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive,” and the Legislature remained under a duty to provide other legislation for competitive examination in the unclassified service where such examination is practicable. The constitutional command remains in force, though the Legislature may choose the time and form for carrying out that command.

The unclassified service, as defined by the Legislature in section 9, “ shall comprise ”

1. “ All elective offices.”

2. All offices filled by election or" appointment by the Legislature on joint ballot.”

3. “ All persons appointed by name in any statute.”

4. “ All legislative officers and employees.”

5. All offices filled by appointment by the Governor [except officers and employees in the executive offices].”

6. All persons appointed by the Secretary of State subject to the approval of the Governor.”

7. “ All election officers.”

8. The head or heads of any department of the government.”

9. “All * * * superintendents, principals or teachers in a public school or academy or in a state normal school or college.”

Even casual consideration of the offices comprised in the unclassified civil service leaves little doubt that the Legislature in most cases determined that it was not practicable to ascertain merit and fitness by examination, and intended that both in appointment and removal the appointing officers should be free to pass upon the merit and fitness of those appointed by them; and in most cases the legislative determination may hardly be challenged as unreasonable. In the case, however, of teachers in the public schools in large cities, it might well be argued that a determination by the Legislature that appointments and promotions according to merit and fitness ascertained by competitive examination is impracticable, would be arbitrary.

In this case we are dealing with appointments in. public schools in the city of New York. Though such positions are in the unclassified service, the Legislature has provided in the Education Law (§§ 871, 872) that appointments shall be made after competitive examination conducted by the Board of Examiners of the Board of Education. That is a legislative determination that it is practicable to ascertain merit and fitness by competitive examination, and such determination conforms to the command of the Constitution, no less than if made by placing the position in the classified service. Where a competitive examination is practicable the Legislature has no power itself to confer eligibility for appointment.

The order should be afiirmed, without costs.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and.Finch, JJ., concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Crane, Ch. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. William Crum, Appellant.
    (Argued November 30, 1936;
    decided December 31, 1936.)

      Henry Grusky and J. Allan Ballman for appellant.

      Henry Hirschberg, District Attorney, for respondent.
   Crane, Ch. J.

The Constitution of this State in article VI, section 7, provides that the jurisdiction of the Court of Appeals, except where the judgment is of death, shall be limited to the review of questions of law. “ This,” said the court in People v. Gaffey (182 N. Y. 257, 259), “ enables us to review the facts in capital cases as we always did.” A review of the facts means that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder beyond a reasonable doubt. We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt.

A reading of this record causes me to hesitate. I am not convinced. I have a reasonable doubt which I shall attempt to explain and which, in my judgment, compels us to reverse this conviction and grant a new trial.

Here are the facts: Grover C. Nielson kept a gasoline station on the Walden-Wallkill road about a mile out of the village of Walden. On Saturday night, December 15, 1934, between the hours of eight and nine o’clock at night, he was shot and killed by some person or persons who apparently robbed him in a holdup. The bullet which caused his death had on it such distinct marks and grooves as readily to enable the identification of the pistol, should it ever be found.

On Sunday night, December 16, 1934, Emil Vyborny, having a gasoline station on Bay View avenue and Sylvan boulevard, near Hackensack, New Jersey, was shot and killed in a holdup, and the bullet which caused his death came from the same pistol as did the bullet killing Nielson. The pistol was found by two boys in King’s woods, also called King’s bluff, near Weehawken, and was given over by them to the police authorities of New Jersey. The pistol and the two bullets are connected without contradiction and with such detail, explanation and identificatian as to convince any one of the facts. The ballisticians, Winslow Humphrey of New Jersey and Harry F. Butts of the New York city police department, as well as Col. Roy B. Jones, state fully the reason for their conclusions. Col. Jones was selected by the defendant and appointed by the order of the court, on the defendant’s suggestion, as his expert, and he agrees with both Humphrey and Butts that the Nielson and the Vyborny bullets both came from the same pistol.

We, therefore, start this case with these certain facts: Whoever killed Nielson did so with a pistol which was used the next night in killing Vyborny. The conclusion which one would naturally draw in the absence of any explanation would be that it was the same person who killed both.

At this point the story is taken up by Charles Wiese, whose relation to the defendant Crum is that of an accomplice. He turned State’s evidence and in substance gave the following testimony: William Crum, the defendant, the witness Charles Wiese and a man named John Favorito were friends and associates. Wiese had known Cram for about six years, having served with him in the Jersey National Guard. Favorito he had known for about sixty days. Crum lived in Leonia, New Jersey, which borders on, or adjoins, Englewood. These three lived in the vicinity of Leonia and Hackensack.

The pistol in question belonged to Favorito, in whose possession it was. Crum stated that he knew a place near Walden in New York State where they could easily get some money, and the three started out in a car on Saturday afternoon, December 15, 1934, to rob Nielson. They drove directly to Walden and parked the car at James street off Ulster avenue, from which place they walked back to the main section of the village where there was a traffic officer in the middle of the street directing traffic. They stood on the corner, the three of them, for half an hour or more, Cram going into a nearby lunch wagon, kept by Stanley Burton, to purchase cigarettes. Wiese smoked some of these cigarettes when Crum came back.

Later they drove toward Nielson’s place, Wiese protesting that he did not desire to get into any trouble in New York State. Favorito and Crum got out of the car, while Wiese drove a thousand feet or more away. When he came back Crum and Favorito jumped in the car, Crum demanding the wheel, saying they were in a hurry to get away. Crum also said that when they went in Nielson grabbed for a rifle which was on a chair and he (Crum) said to Favorito, Let him have it; ” that Favorito shot Nielson in the hand. Earlier Crum said that they were going to meet some girls in Walden and needed this money to entertain them, but because of the shooting they had to get back to Jersey. When they arrived at Fort Lee in New Jersey in a dance hall Crum gave Wiese four dollars out of the thirty dollars he said they had taken.

On the next night, says Wiese, the three of them held up Vyborny’s place, only this time Crum remained in the car while Wiese and Favorito went into Vyborny’s gas station where Favorito shot him. Wiese says Crum was looking in the door as he was obliged to drive some people away, and that when they ran out and got in the car Crum bawled out ” Favorito, saying, The same thing happened last night in the same place.”

On both these occasions it will be noted that Favorito did the shooting. While they were escaping from Vyborny’s murder, Favorito gave the gun to Crum who promised to hide it or take care of it. The inference is that it was he, in view of this statement, who threw the gun down King’s bluff, where it was found by the boy Clifford Warrington, who gave it to Officer Kessner.

This in outline is the testimony against Crum bringing him into the murder of Nielson. If Wiese’s story is to be accepted, Crum is guilty of murder in the first degree; but we pause to reflect that under our law no one can be convicted upon the testimony of an accomplice standing alone and unsupported by other proof. Wiese has given his testimony in much detail, unshaken by cross-examinatian and without any apparent improbabilities or inherent marks of falsehoods. But who is Wiese? His reputation is bad. He was tried with Favorito and Crum in New Jersey for the murder of Yyborny. Favorito was found guilty and put to death; Wiese received a sentence of twelve to fifteen years, although apparently he was as guilty as Favorito. Crum was acquitted, although Wiese testified against him, refraining, however, from saying anything about the Nielson murder the night before. Wiese had previously had a criminal record, having been convicted of conspiracy, of taking money on two different occasions, and of extorting money on another. Experience has taught the courts to be chary of an accomplice’s testimony as there are so many reasons which may lead one to shift to, or share the crime with another.

Thus a witness named Coco, in jail with Wiese in Hackensack, testified that Wiese told him that he had to turn State’s evidence against Crum to save his own neck. I place very little reliance on what this witness Coco said; I only refer to it to call attention to the underlying reason and good reason drawn from experience for our statute, section 399 of the Code of Criminal Procedure, reading: A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

“ The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. * * * It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth. The corroboration is not restricted to any particular point. Its connection with defendant’s own statements and denials should be considered. * * * It may vary in its nature according to the circumstances of the particular case. Matters in themselves of seeming indifference or light trifles of the time and place of persons meeting may so harmonize with the accomplice’s narrative as to have a tendency to furnish the necessary connection between defendant and the crime.’’ (People v. Dixon, 231 N. Y. 111, 116.)

Without Wiese’s testimony there is nothing to connect Crum with the case. The pistol, the bullets, the association with Favorito and the disposition of the pistol are linked up with Crum solely by what Wiese has said. The fact that certain twenty-eight-calibre bullets were found in the bureau drawer of his home in Leonia when it was searched cannot be considered of the least importance. Slight contradictions there were in the explanation the defendant gave as to the manner of obtaining them, but it does not appear that he ever had a pistol or even possessed the one that Favorito carried. The People proved through Favorite’s uncle that the pistol belonged to this third accomplice.

We must, therefore, look to other evidence in the case to sustain this conviction, and it is right here that doubt creeps in.

Mr. and Mrs. Burton, who kept the lunch wagon in Walden, were asked to identify Crum as having come into their place to purchase cigarettes on the afternoon or evening of December 15th. Mrs. Burton could not identify him and although Mr. Burton picked out Crum’s photograph, he testifies that he is not positive that he is the man, and he might be mistaken. It all depends upon the chief of police in Walden, who was in the middle of the street, directing traffic when these three men are said to have been standing on the corner for half an hour or more.

As the identification of Crum is the crux of the case, let me give George Totty’s testimony as it appears in the record:

L Q. Did you sometime in the afternoon or early evening of December 15, 1934, see the defendant William Crum in the Village of Walden, N. Y.? A. Yes.
“ Q. And at the time that you saw him ih the Village of Walden, N. Y., were you on duty? A. Yes.
“ Q. And whereabouts? A. At the corner of Main and Ulster Avenue.
“ Q. Tell the jury briefly just where you saw the defendant, whether he was alone or not, and what if anything you saw him do. A. Well, I first seen him at •— or over by the People’s Lunch, right by the clock — just below the clock — that’s on Ulster Avenue; I seen him standing around the bank there; it was a little unusual to have three strangers around the bank at that time of the year and we don’t have so many strangers in Walden in the wintertime; I was going on with my regular line of duty, looking after the traffic and pedestrians and I couldn’t watch him right continually. * * * There were three of them.
Q. Can you tell us whether or not in your opinion Wiese was one of the two men that you saw on this occasion in Walden with the defendant Crum? A. I believe he was. * * *
A. Well, I couldn’t testify to the clothing on any of the three; just the face is all I remember, the faces.
Q. You wouldn’t testify whether or not the defendant Crum had a hat on, would you? A. I think there was one or two that didn’t have hats on; I couldn’t say which one, I don’t think Crum had a hat on and I wouldn’t say for sure whether the other two had * * *.
Q. Now, what characteristics did you identify him by as regards his face? A. Well, in not having much of a chin and what I would call a little over shod * * *.
“ Q. How long were you watching the three men? A. Well, I was half an hour but not continually.
“ Q. Not continually? A. No
“ Q. * * * And at no time did you concentrate your view solely on the defendant Crum, did you? A. Not solely, no.
“ Q. How far away was the defendant Crum when you first saw him? A. Well, when I first saw him he would be, well, sometimes — the nearest I was to him was 20 or 25 feet and the farthest would be perhaps 60 * * *.
Q. Now, Chief, you are quite positive that one of the men you saw in Walden on that day is the defendant Crum? A. Absolutely.
Q. Don’t you believe that you could be honestly mistaken in that? A. Not unless he had a twin brother.”

The defendant testified upon this trial that he was never in Walden, so that if Totty is correct in his testimony this circumstance would strongly corroborate Wiese’s story and justifies in my opinion the jury’s verdict of guilty. Can we say, or should we say that this identification under the circumstances given is sufficient to send a man to his death ■ — to convict him of murder in the first degree? Totty never got nearer than twenty or twenty-five feet, possibly sixty feet to these men; they were standing on the corner in the main street of the village of Walden; Totty was in the middle of the street tending to his duties directing traffic. Nothing happened beyond their mere presence which caused him to give Crum special attention. They were strangers in the town and he was watching them twenty or twenty-five feet away, while directing traffic. While he is positive that Crum is the man, identification under such circumstances is not altogether satisfactory or beyond a peradventure of a mistake. I have no doubt that Totty is giving his honest belief, but are we justified ■under the circumstances in taking this belief as a finality?

Whatever hesitancy I might have in affirming a death sentence dependent, as it is, upon such identification, I am more than convinced that we should not do it in view of the other testimony in the case.

The president of the Pascach Coach Company, for whom the defendant had worked for a year and a half, the Mayor of Leonia, the former deputy chief of the volunteer fire department and the ex-chief and fire marshal and other citizens gave Crum a good character. He had served in the volunteer fire department. His mother, his aunt and uncle testified that be was with them at his grandmother’s house in Englewood on Saturday afternoon, December 15, 1934, and drove them home to Leonia about half-past eight that evening. Arthur Lamme and Henry Muller, Jr., friends of Crum, testified to having been with him from about eight-thirty o’clock in the evening, meeting him at a moving picture house and going thereafter to a dance in Tenafly. Crum’s aunt, who testifies to his presence with her at the time_ when he was supposed to be in Walden, is a woman of some dependability and character, as for twenty-six years she has been the bookkeeper in the firm of Tippin & Parshall. formerly Thomas Tippin, of Englewood.

We cannot say that the weight of evidence is with the prosecution when Totty’s identification rims up against this testimony of the defendant. The truth is hard to find and this court should not readily interfere with verdicts of jurors who have had the advantage of seeing and hearing witnesses. Inconsistencies and strained situations arise in every perplexing case. They do here. For instance, Crum stated on the stand that Wiese had a grudge against him arising out of a quarrel taking place two or three weeks before the fifteenth of December, 1934. “ He grabbed hold of me to pull me out of the car and hit me * * *. Then I hit him, and the bus was coming up the road, and he seen the bus and he ran, and the bus stopped, and as the bus stopped he hollered out, I will get even with you if it is the last thing I ever do.’ ” Such was the relationship between these two men, according to the testimony of the defendant. It is this incident which Crum says accounts for Wiese’s turning"on him and bringing him into the Nielson murder. On the other hand, we have the testimony of Crum’s friend, Alphonse Ficaro. He is the man that Crum went to the dance with on Saturday night, December 15th. Crum brings him into the case as a friend and associate, yet Ficaro testifies that when Crum came to see him that morning, Saturday morning, December the 15th, at his place of work, Wiese was with him. This is hardly consistent with the bad feeling which Crum would have us believe existed between him and Wiese.

Recognizing these various points in behalf of the People, I still am of the opinion that Totty’s identification does not remove the doubts, based upon the reasons which I have given, forcing me to conclude that the conviction should be reversed, and a new trial granted.

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

Finch, J. (dissenting). A majority of the court is about to set aside a conviction for murder in the first degree on the weight of the evidence. In my opinion there was ample evidence to sustain the verdict.

This record shows that one of three men allegedly involved, Charles Wiese, turned State’s evidence and testified that this defendant gave the order to another confederate, since executed, to shoot down the keeper of the gas station near Walden in order that the three might profit through the robbery of thirty dollars. This testimony is corroborated by the chief of police in the village of Walden who testifies that it was unusual in the winter time for strangers to be about this village and that for one-half horn he had these three men under surveillance as he stood on the corner of Main and Ulster avenues in that village only twenty or twenty-five feet or at the most sixty feet away, directing traffic. This chief of police, a trained observer, testifies that he identified absolutely this defendant. Crum’s own testimony on the stand was such as to impress one with the belief that his entire alibi was fictitious. His story varies considerably from his previous testimony given at the hearing for his extradition from New Jersey. In addition Crum would have us believe that he and Wiese were enemies and that Wiese turned State’s evidence to get even with him, whereas a witness who admittedly was a friend and associate of Crum, namely, Picaro, testifies that when Crum came to see him on the afternoon of the 15th Wiese was with him. This is in direct contradiction to Crum’s statement that the last he saw of Wiese was during a quarrel two or three weeks before the 15th and that thereafter Wiese had a grudge against him. Emphasis is placed on the alibi and character witnesses furnished by Crum. These alibi witnesses were all close relatives, his mother, uncle and aunt; his character witnesses friends of the same relatives. Even Lamme and Muller, whose testimony tends to corroborate his family alibi, were friends of the defendant. His own present associates, the record shows, were criminals of the type of Wiese and Favorito who left his car in Crum’s garage. The State also produced two witnesses, Mr. Burton and Mrs. Carmen, who while not so positive as the Walden chief of police, believed they saw Crum or someone a “ whole lot like him ” near the scene of the crime. Bullets similar in calibre to those used in the murder were found in Crum’s bureau. All this last, while not conclusive, surely are at least “ matters in themselves of seeming indifference or light trifles ” which so harmonize with the accomplice’s narrative as to have a tendency to furnish the necessary connection between defendant and the crime.” (People v. Dixon, 231 N. Y. 111.) When to this is added the clear and positive identification of the chief of police, first noted, the verdict of the jury seems justified beyond a reasonable doubt. Other testimony could also be recited to show the guilt of the defendant but all this court need find is that the verdict of the jury is sustained by the weight of evidence beyond a reasonable doubt in finding this defendant guilty of the murder of a law abiding citizen.

The judgment appealed from should be affirmed.

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

Judgment of conviction reversed, etc.


author: O’Brien, J.

text:
    Grace E. Lowendahl, Appellant, v. Baltimore and Ohio Railroad Company et al., Respondents.
    (Argued December 1, 1936;
    decided December 31, 1936.)

      Neil P. Cullom, I. Maurice Wormser, James E. Freehill and Henry W. Steingarten for appellant.

      William D. Whitney, Bruce Bromley and Albert R. Connelly for respondents.
   O’Brien, J.

Plaintiff recovered a judgment against L. Van Bokkelen, Inc., for $211,782.56 in an action to set aside as fraudulent a sale to that corporation November 1, 1929, of the assets of a business conducted by Walter Van Bokkelen and the estate of Libertus Van Bokkelen (260 N. Y. 557). That judgment was not paid and the present action is brought for the amount of that judgment upon the theory that L. Van Bokkelen, Inc., was a mere agent, instrumentality and dummy for the present defendants who are alleged to have completely dominated the affairs of the Van Bokkelen corporation and to have directed and controlled the fraudulent transfer of November 1, 1929. The New York Transit and Terminal Company is a subsidiary of and wholly owned by Baltimore and Ohio Railroad Company. Judgment for $211,782.56 is demanded against these defendants.

At Special Term judgment went for plaintiff, but the Appellate Division, reversing and dismissing the complaint on the merits, decreed that the transfer from Walter Van Bokkelen to L. Van Bokkelen, Inc., on November 1, 1929, was not fraudulent on the part of the present defendants and that L. Van Bokkelen, Inc., was not the agent or instrumentality of defendants in respect to that transfer.

As between plaintiff and L. Van Bokkelen, Inc., the transfer was fraudulent. The issue in this action is whether the allegations have been sustained which charge that that corporation was at the time of the fraudulent transfer the agent or instrumentality of the Baltimore and Ohio Railroad Company and the New York Transit and Terminal Company, the defendants in the present action, and was subject to a domination and control by them so complete that it might be said to have no existence of its own and to be operated as a mere department of these defendants.

The certificate of incorporation of L. Van Bokkelen, Inc., as a Maryland corporation was executed October 14, 1929, by R. E. Lee Marshall, Walter Van Bokkelen and James H. Graves. The corporation was capitalized at 5,000 class A preferred and 30,000 shares common. The Bank of Manhattan Company, of which both Walter Van Bokkelen and the Baltimore and Ohio were customers, subscribed $500,000 for the preferred stock and the defendant New York Transit and Terminal Company agreed with the bank to take this stock within two years. Walter Van Bokkelen took forty-nine per cent of the common stock and fifty-one per cent was issued to three officers of the bank, Fletcher Earl Gill, Arthur J. Titus and Howard J. Rogers, who acted as trustees under a voting trust agreement dated November 1,1929, to remain in effect for four years. At the first meeting of the board of directors October 31, 1929, Walter Van Bokkelen was elected president, James H. Graves vice-president, R. E. Lee Marshall secretary, and Arthur H. Titus treasurer.

At a later date George H. Shriver, Jr., son of the vice-president of the present defendants, became treasurer. The three directors, Marshall, Walter Van Bokkelen and Graves, at that meeting voted to increase the number of directors to five and elected Arthur H. Titus and Howard J. Rogers as the two new directors. They were suggested by the president of the Bank of Manhattan Company. Mr. Marshall was an attorney in Baltimore and testified that he had never been employed by the Baltimore and Ohio. Graves had known Libertus Van Bokkelen since 1919 and Walter Van Bokkelen since 1927 and did not know defendant’s officers until after he became an officer of L. Van Bokkelen, Inc. Titus, vice-president of the Bank of Manhattan Company, also had known Libertus since 1915 and Walter since 1927 and acted as banker for them since 1927. Walter was president, a director and owner of forty-nine per cent of the voting stock. In the agreement dated November 1, 1929, between him and L. Van Bokkelen, Inc., by James H. Graves, as vice-president, by which the Van Bokkelen business was transferred to the Van Bokkelen corporation, is this provision: “The corporation agrees for the period of five (5) years from the date of transfer to employ said Van Bokkelen as its president at a salary to be agreed upon, and to give to him the full management and control of the business with the powers of President as set forth in the by-laws of the corporation, subject only to such control by the Directors of the Corporation over the general business and policy of the Corporation as is generally exercised by directors in similar companies.” From November 1, 1929, to May 28, 1930, the only attorney for the corporation was Joseph S. Johnson who for many years had acted for Libertus and Walter. Graves testified that he exercised his independent judgment as director and did not take instructions. Between June, 1930, and the time when the corporation went into bankruptcy in 1931 he had frequent conversations on his own initiative with Shriver in relation to obtaining additional funds.

There is no doubt that these defendants, as majority stockholders in L. Van Bokkelen, Inc., participated in the organization of that corporation, that they concealed their identity as such stockholders from their traffic competitors to Baltimore and South America, and that subsequent to and probably at the time of the agreement of November 1, 1929, they exerted a powerful influence as majority stockholders in respect to the policy of the Van Bokkelen corporation, but there is no evidence that any of their officers at the time of the transfer agreement of November 1, 1929, were aware of the existence of plaintiff’s claim or that they used L. Van Bokkelen, Inc., to defraud creditors or to evade existing obligations. The Appellate Division is correct in holding on the weight of evidence that the transfer was made by Walter Van Bokkelen and L. Van Bokkelen, Inc., an independent corporate entity, which was not the agent or instrumentality of defendants within the doctrine of Berkey v. Third Avenue Ry. Co. (244 N. Y. 84) and Rapid Transit Subway Constr. Co. v. City of New York (259 N. Y. 472). The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgment affirmed.


author: O’Brien, J. Finch, J.

text:
    Loretta Williams, Respondent, v. New York Rapid Transit Corporation, Appellant.
    (Argued December 2, 1936;
    decided December 31, 1936.)

      Frederick S. Martyn and George D. Yeomans for appellant.

      Leo J. Hickey for respondent.
   O’Brien, J.

In this action for personal injury plaintiff obtained a verdict which the trial justice set aside and the complaint was dismissed. By a divided court the Appellate Division reversed and reinstated the verdict.

While plaintiff was waiting on one of defendant’s station platforms for the purpose of boarding a train, some unknown person coming in contact with another passenger, Proschold, threw him off his balance and he in turn collided with plaintiff. The force of this collision caused plaintiff to fall from the platform onto the track and she was seriously injured.

The complaint, supplemented by the bill of particulars, is based upon allegations that the crowd on the platform was very large and the platform was taxed to capacity, that defendant failed to provide an adequate force of guards to control the crowds, failed to provide adequate platform space to accommodate its passengers and permitted the platform to become obstructed with structures.

This platform on defendant’s elevated structure has tracks on both sides. It is reached by a stairway and approximately twenty or twenty-five feet from the stairway is a newsstand erected in the middle of the platform. On each side of the newsstand between it and the edge of the platform is a space six feet in width. Between the staircase and the newsstand, some standing, others moving, were waiting passengers to the number of twenty-five or thirty. Many of them were huddled around the newsstand to seek protection from a cold wind. The number of persons on that side of the newsstand where plaintiff was injured does not appear. Plaintiff walked down the platform from the staircase toward the newsstand and in passing through the six-foot space between the left side of the newsstand and the edge of the platform she was pushed over the edge. At that time Proschold was standing within this six-foot space about a foot and a half or two feet from the edge of the platform with his back to the staircase, his right side toward the newsstand and his left side toward the track. Some one squeezed between his right side and the newsstand, he was thrown off his balance and he brushed against and overthrew plaintiff who was then attempting to pass through the two-foot space between him and the edge of the platform.

On these facts the Appellate Division has held that there exists a question for the jury whether defendant could fairly and reasonably have anticipated any danger to plaintiff. The questions of law are whether the conceded facts warrant an inference of negligence by defendant and whether any acts or omissions by defendant constitute a proximate cause of plaintiff’s injury.

The existence of the newsstand does not constitute an unlawful obstruction. It offers a convenience to passengers. A space no greater than six feet in width between the newsstand and the edge of the platform is usual on many railway stations. Common observation proves this fact. If this form of construction is negligent, then hundreds, perhaps thousands, of railway stations must be rebuilt. This passageway was not obstructed. Other passengers that day had passed through it in safety. Defendant’s guard, then present, was under no duty to drive his employer’s patrons from the shelter of this newsstand which afforded protection from the cold December wind. Plaintiff’s unfortunate injury resulted from the act of some unknown passenger. This is not the case of an excessive crowding of a platform. This one is capable of accommodating a hundred or more passengers. Nor is it a case of failure to repress a boisterous or unruly aggregation of passengers. Conditions were in all respects normal. Defendant could not fairly and reasonably anticipate the awkwardness of the passenger who caused plaintiff’s injury.

The judgment of the Appellate Division should oe reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Finch, J.

(dissenting). The facts shown by this record raise an issue of fact for the jury as to whether the defendant was negligent. It is uncontroverted that the building of the newsstand crowded this platform, comparatively narrow at best, and left a space of only six feet as a passageway for those boarding and leaving the trains. In this narrow passageway fifteen to twenty-five passengers were standing and waiting. True it is that the entire platform could accommodate one hundred or more persons. True it may be also that the building of the newsstand did not in itself constitute negligence. But the congregation of fifteen to twenty-five people in a passageway six feet wide might well result in an obstruction dangerous to any one attempting to board or leave the defendant’s trains. The record contains evidence that within this passageway a crowded condition existed. Under such circumstances it was for the jury to say whether it was negligent for the guard on duty to make no attempt to eliminate fille' dangerous condition by clearing the obstructed passageway, even if it involved more exposure to the weather for some of the waiting passengers. (Bacon v. Hudson & Manhattan R. R. Co., 154 App. Div. 742.)

There is no evidence that the unknown who pushed Proschold into the plaintiff Was in any way awkward, and even if there were such proof the jury might well find that it was the dangerous condition of the passageway which actually caused or contributed to the injury o.f the plaintiff.

The argument is made that other passengers had boarded the trains by using the passageway and had not been injured. The mere fact that others were more fortunate or that the plaintiff was the first to suffer as the result of the crowded passageway should not bar her recovery. In this connection it is interesting to note, however, that the record discloses that ten similar accidents had occurred on this very platform within a period of seven months immediately preceding the plaintiff’s injury.

The judgment of the Appellate Division should be affirmed.

Crane, Ch. J., Lehman, Hubbs, Crouch and Lough-ran, JJ., concur with O’Brien, J.; Finch, J., dissents in opinion.

Judgment accordingly.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Kent Stores, Inc., Appellant.
    (Submitted November 25, 1936;
    decided December 31, 1936.)

      S. Frederick Placer, George J. Gruenberg and Lawrence Ratner for appellant.

      John J. Bennett, Jr., Attorney-General (Leon Freedman and Joseph A. McLaughlin of counsel), for respondent.
   Per Curiam.

We think the evidence established such an identity of interest of the defendant and Bayside Dye Works, Inc., in the operation of the factory in question as to have warranted the finding of the defendant’s guilt.

The judgment should be affirmed.

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

Judgment affirmed.


author: Finch, J. Lehman, J.

text:
    The People of the State of New York, Respondent, v. Henry H. Stevens and Charles A. Waterbury, Appellants.
    (Argued November 23, 1936:
    decided December 31, 1936.)

      Charles J. Yorkey and Richard P. Byrne for Henry H. Stevens, appellant.

      Joseph T. McCaffrey, Crandall Melvin and Thomas F. Zaia for Charles A. Waterbury, appellant.

      Harry M. Stacy, District Attorney (Clarence J. Gorman of counsel), for respondent.
   Finch, J.

The evidence establishes without dispute that the defendants made preparation to rob the National Bank of Lacona in broad daylight. Pursuant to this plan these two defendants entered the bank during the noon hour. At that time the decedent, Charles M. Salisbury, the chairman of the board of directors, was seated at a desk in one corner of the bank. One defendant had a thirty-two-calibre revolver and the other a twenty-five-calibre automatic pistol. At the point of these loaded guns they ordered the bank teller and the bank clerk to proceed to the corner of Salisbury’s desk. When Salisbury arose the defendants ordered him back but he was slightly deaf and either did not hear or was sufficiently brave not to acquiesce. The defendants both shot at Salisbury, the bullet from the gun of one defendant entered his thigh and the bullet from the other passed through his heart. After the defendants were arrested they made full confessions.

The defense of the defendant Waterbury was that he was insane and the defense of the defendant Stevens that he acted under the coercion of Waterbury. Waterbury did not take the stand as a witness. Both defenses as well as that of abandonment were duly submitted to the jury and duly rejected by them and the evidence sustained the findings of the jury.

Upon the request of the District Attorney the court submitted the case to the jury on a felony murder count only and charged that it must find the defendants guilty of murder in the first degree or acquit them. It is argued that this constitutes error which requires us to reverse the conviction. It is true that where there is evidence from which the jury could find that the defendants are guilty of a lesser crime, the jury must not be left with the alternative of convicting of murder in the first degree or acquittal. On the other hand, in a felony murder case where the facts are susceptible of one interpretation only, the defendants are guilty of murder in the first degree or they are not guilty at all and the court may properly refuse to charge a lesser degree of homicide. (People v. Schleiman, 197 N. Y. 383; People v. Kropowitz, 271 N. Y. 505; cf. People v. Koerber, 244 N. Y. 147.) The only possible ground upon which it may be argued that this latter rule does not apply in the case at bar is that both defendants claim abandonment and Stevens claims coercion and Waterbury pleads insanity. According to the defendants’ own story they had not even retreated when they shot at the deceased. That each shot the deceased is not denied nor is it denied that they were engaged in the commission of a felony. In fact they have each so confessed. Upon sufficient evidence the jury has found against them upon every question involved. In the circumstances of this case I can find no reasonable basis for setting aside the verdict of the jury.

The judgments of conviction should be affirmed.

Lehman, J.

(dissenting). The defendants have been convicted of murder in the first degree. The evidence establishes without dispute that the defendant Waterbury conceived the idea of robbing the National Bank of Lacona in the village of Lacona in Oswego couty. He communicated his idea or plan to the defendant Stevens, and by persuasion, or, as Stevens claims, by coercion, enlisted his co-operation. After preparations for the proposed robbery had been completed, the two defendants proceeded together to the bank building. They entered it during the noon hour. At that time Mr. Charles M. Salisbury, the chairman of the board of directors, was seated at a desk in one corner of the bank. The bank teller and a bank clerk were also in the bank. One defendant had a thirty-two-calibre revolver and the other a twenty-five-calibre automatic pistol. At the point of these guns they ordered the bank teller and the bank clerk to proceed to the corner near Salisbury’s desk. When Salisbury arose the defendants ordered him to move back also. He was seventy-nine years old and slightly deaf. He disregarded the defendants’ order or, perhaps, did not hear it. Both defendants shot at Salisbury. A thirty-two-calibre bullet entered his thigh. A twenty-five-calibre bullet passed through Mr. Salisbury’s heart and caused his death. All this the defendants admitted in confessions made after their arrest. Beyond question it establishes prima facie that the defendants killed Mr. Salisbury during an attempted robbery.

To meet this evidence the defendant Stevens testified that in joining in the proposed robbery he acted solely under coercion exercised upon him by the defendant Waterbury. Waterbury did not take the stand as a witness, but evidence was produced in his behalf intended to show that he was insane. The evidence on neither point was, perhaps, very persuasive though sufficient to raise questions of fact for the jury to pass upon. Stressing some details in the testimony, otherwise without significance, as to what was said by the defendants, or one of them, before the shooting, the defendants’ counsel urged that there was also a question of fact as to whether the killing occurred during the commission of the attempted robbery or whether, on the other hand the robbery had been abandoned before the killing.

The indictment contains two counts. The first count charges in common law form that the defendants killed Charles M. Salisbury with force.and arms, feloniously, willfully, and of their * * * malice aforethought, and with a deliberate and premeditated design of them and each of them * * * to effect the death of him, the said Charles M. Salisbury.” The second count charges that the defendants killed Charles M. Salisbury while “ engaged in the commission of a Felony, to wit: the crime of an Attempt to Commit the Crime of Robbery in the First Degree. ”• It alleges, incidentally, that the defendants acted “ feloniously, willfully, and with * * * malice aforethought, and with a deliberate and premeditated design.” Before the trial the defendants moved for an order to compel the District Attorney to elect under which count the prosecution would proceed. The motion was denied on the ground that it was premature. It was not renewed by the defendants at the trial, but at the close of the evidence the trial judge, over objection and exception by the defendants’ counsel, granted a motion made by the District Attorney to go to the jury only upon the second or felony count.

The trial judge thereafter instructed the jury that the charge against the defendants was the killing of Charles M. Salisbury in the commission of a felony pursuant to their common plan or design ” and that the crime so charged * * * is murder in the first degree.” He told the jury that the defendant Stevens claimed that he had reasonable apprehension that he was to be killed by the defendant Waterbury, and he excused himself by the fear of duress,” and the judge further instructed the jury that if you find under the evidence that he [Stevens] was compelled to do the things which he did do, and that he had reasonable apprehension on his part that he was liable to be killed or receive grievous bodily injury in case he refused, then in that case he is excusable.” The trial judge then explained to the jury the nature of the defendant Waterbury’s claim of insanity and that if he was laboring under such a defect of reason as not to know the nature and quality of his act or not to. know that it was wrong, the jury might acquit him.

In his main charge the trial judge made no reference to any possible claim that the defendants had abandoned the attempted robbery before they shot Mr. Salisbury, and it may be doubted whether there is any evidence upon which such claim could reasonably be based, but at the defendants’ request the trial judge did thereafter charge the jury “ that if they find from all of the evidence that at the time of the firing of the fatal shot which mortally wounded Mr. Salisbury, the defendants, Stevens and Waterbury, had abandoned the attempt of robbery, had abandoned the idea of loot, and were running away and were escaping, or seeking to run away or escape, this doctrine of felony murder heretofore charged in this case has no application, and the jury is instructed to disregard it and their verdict with respect to both defendants must be not guilty.” The verdict of the jury finding the defendants guilty of murder in the first degree imports that the jury rejected the defenses of coercion and insanity and the defendants’ claim of abandonment of the attempted robbery, and found that at the time the fatal shot was fired, both the defendants were engaged in a concerted attempt at robbery. The evidence sustains the findings of the jury. .

Section 610 of the Penal Law provides: Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime.” The indictment, in both counts, charged the prisoners with the crime of murder, in the first degree. In spite of the mandate of the statute the trial judge refused the request of the defendants’ counsel that upon the trial of the indictment the jury might convict the defendants of a lesser degree of homicide. The only charge submitted to the jury was the charge of felony murder in the second count of the indictment and the trial judge stated that there were no “ lesser degrees ” of felony homicide. In refusing the request of counsel that the jury be instructed that “ if from all of the evidence they find the defendants or either of them are guilty of homicide in some degree, but they have a reasonable doubt as to which one or more degrees either one or both are guilty of, then they may find them guilty of the lowest of those degrees only,” the court said: “ that would be true under common law.”

The jury retired at seven-twenty p. m. to commence their deliberations. The evidence established beyond dispute that the two prisoners had come to the bank, prepared to rob it, and that while in the bank they had killed an aged officer of the bank. Upon that evidence the jury might well be reluctant to bring in a verdict of not guilty which would allow the prisoners to go free and unwhipt of justice, but even though the jury might well reject the claim of one prisoner that he was coerced and the claim of the other that he was insane, the jury might still find, in the youth of the one and the testimony of variation from the usual and normal in the conduct of the other, ground for reluctance to convict of murder in the first degree with its consequent penalty of death. That the jurors were reluctant to acquit or to convict of murder in the first degree appears plainly in this case, for at eleven-two p. M., almost four hours after they had left the court room, they stated to the court that “ the jury would like to know, if found guilty can a verdict other than murder in the first degree be entertained.” To this the court replied not under the charge here, not under the indictment upon which these defendants are tried. They are tried on what we call a felony indictment. As I charged the jury today, if you find under the rules and instructions which I gave you that these defendants intended to commit the crime of robbery of the bank on the 7th day of May, and in carrying out that attempt they killed a human being, you may find them guilty of murder in the first degree; otherwise you find them not guilty under the rules which I gave you.”

The administration of justice is not so tightly bound by legalistic formulas that the life or death of an accused may be made dependent upon the manner in which a charge is formulated in the indictment. Certainly the probative value and the effect of evidence presented to the jury cannot be changed by the form of an indictment or by choice of a District Attorney to have the case submitted to the jury under one count of an indictment rather than another.

In People v. Schleiman (197 N. Y. 383) this court said that “ where the indictment charges murder in the first degree in the common-law form only or murder in the first degree committed from a deliberate and premeditoted design to effect death and the defendant is tried upon that charge, he is entitled, if he so requests, to have the jury instructed that it is within their power to find a verdict for a lesser degree of felonious homicide. Upon a murder trial such instruction may properly be refused only where the evidence is directed toward the establishment of a kind of murder in which the intent to kill is immaterial. Such was the case here. No attempt at all was made to prove the second count of the indictment which was in the common-law form ” (p. 389). Torn from their context, these words might seem to indicate that perhaps the form of the indictment and the election of a District Attorney to proceed under one count of an indictment for murder in the first degree rather than unde: another count, may determine whether the prisoner may be convicted of a lesser degree of homicide or must be acquitted unless it is proven beyond a reasonable doubt to the satisfaction of the jury that the prisoner while engaged in the commission of a felony killed a human being and was, therefore, guilty of murder in the first degree. The opinion read as a whole, however, shows that the decision was based upon the fact that there was no evidence to sustain a finding that the defendant was a guilty participant in a homicide unless the killing occurred as charged during the commission of a felony in which the defendant did participate. The final words of the opinion point this out clearly. The conditions are exceptional, however, which warrant a refusal to instruct the jury as to their power to convict of a lower degree of the crime charged for which the defendant is upon trial and great care should be observed, as was done here, not to withhold such instruction unless the case is one like that before us, where there was no possible view of the facts which would justify any other verdict except a conviction of the crime charged or an acquittal ” (p. 390). (Italics not in original.)

If there ever was room for difference of opinion as to the scope of the decision in that case, it has been removed by what the court has both said and decided in subsequent cases. So in People v. Moran (246 N. Y. 100,105) we said: this court has given warning more than once that the conditions justifying submission of the felony ’ grade of homicide to the exclusion of all others must be understood to be ' exceptional.’ (People v. Schleiman, supra.) Such a submission is proper only where there is no possible view of the facts which would justify any other verdict except a conviction of the crime charged or an acquittal.’ (People v. Schleiman, supra; People v. Van Norman, supra; People v. Koerber, supra.) Apparently the warning has need to be repeated.” Again, in People v. Seiler (246 N. Y. 262, 267), though we held that, because of exceptional circumstances, the requested instruction as to degrees of crime was properly refused, we pointed out that in People v. Schleiman (supra)this court did not base distinction on technical form of indictment or on other ground than that the court may confine its instruction to the jury to those degrees of the crime charged in the indictment, of which, under the evidence, the jury might find the defendant guilty. However strong the evidence of deliberate and premeditated design may be, the jury alone has power to find that fact and may refuse to find it. It may refuse to find even intent to effect death and then there can be a conviction only of manslaughter. In some cases the court may deem refusal by the jury to find a higher degree of crime unreasonable, yet a verdict of guilty of lesser degree is within the power of the jury if based on evidence which establishes at least all the elements of the crime of lesser degree. The case is logically different where a verdict of guilty of a lesser degree of the crime charged depends not merely upon the failure of the jury to find some element of crime which in the opinion of the court has been clearly proven, but upon an affirmative finding of fact which is not sufficiently supported by the evidence.”

In that case the evidence showed that one Masterson was killed by a person engaged in an attempted robbery, but the fatal shot was not fired by the defendant, and as we there said, unless the defendant was a guilty participant in the attempted robbery no evidence here presented would justify an affirmative finding which * * * would make the defendant share in the guilt of the slayer ” (p. 268). That was the situation also in People v. Chapman (224 N. Y. 463, 479), in which this court approved a refusal to charge the degrees of crime because “ there was no possible view of the evidence which would have justified any verdict other than a conviction for murder in the first degree or an acquittal.” (Cf. People v. Scarnici, 266 N. Y. 401.)

That is not the case here. The testimony of the bank teller and the bank clerk, if believed, leads to the conclusion that Stevens held the twenty-five-calibre automatic pistol and fired the fatal bullet; on that point their testimony is contradicted by the confessions of the defendants who agree that Waterbury held the pistol from which the fatal bullet was shot, while the bullet from the revolver held by Stevens inflicted only a flesh wound. Thus the jury, even though it had chosen to reject or disregard completely the testimony which showed a concerted attempt at robbery or had found that the attempt was abandoned before the shooting, might still have convicted either Stevens or Waterbury of murder in the first or second degree on a finding that he actually shot the deceased with a design to effect his death, or might have found both guilty of some degree of felonious homicide, since both fired at the deceased simultaneously under circumstances which would lead fairly to the inference that they were shooting in concert even if they had not previously concerted a plan to rob. (Cf. People v. Walsh, 262 N. Y. 140.)

In People v. Koerber (244 N. Y. 147) this court held that the denial of a request by an accused charged with felony murder that the court instruct the jury upon the degrees of homicide and the rule of reasonable doubt as applied to lower degrees of crime presents reversible error if the accused had produced evidence of intoxication which raised a question as to whether the mind of the defendant was so obscured by drink that he was incapable of forming the specific intent which is an element in the underlying felony. In that case we said that “ the fact that the accused did not have the intent to rob would not mean that acquittal should follow. It is conceivable, for example, that a youth whose mind was befuddled by drink might intend merely to stage a hold-up and yet be guilty of some degree of homicide. He might be so frightened by resistance as to shoot in the heat of passion, the emotion of fright, and thus be guilty of manslaughter in the first degree, or conceivably even of murder in the second degree (p. 154). We reversed in that case, though we added that we may doubt whether the evidence of intoxication adduced by this defendant would carry sufficient weight with an intelligent jury to affect its verdict ” (p. 155).

Upon what ground can that case be distinguished from this? In both cases a defendant charged with homicide during the commission of a felony produced evidence which raised question as to whether the accused was a guilty participant in the felony. If a person with mind too befuddled with drink to form an intent to commit a robbery may still be guilty of some degree of homicide, then surely a defendant who was coerced into apparent participation in the robbery may also be guilty of some degree of homicide. Indeed, in this case, even if the jury had believed that the defendant Stevens joined in the attempted robbery because of coercion, an intelligent jury could hardly have doubted that when Stevens shot, he did so because of excitement or desire to escape, or other motive than coercion. Surely if the District Attorney had believed that the jury might accept the testimony of coercion, he would have had the right to a charge that acquittal would not follow but that the jury might find guilt of murder in the second degree or of manslaughter. If the District Attorney would have been entitled to such a charge, how can it be said that Stevens was not entitled to the same charge if he so requested?

If the trial judge properly submitted to the jury a question as to abandonment of the attempt to rob before Salisbury was shot, then all that I have said obviously applies to both defendants. Surely even if the defendants had abandoned the concerted attempt at robbery before the killing occurred, they should not escape punishment for the killing itself. In many cases we have held that where abandonment of the felony is shown, the jury may still find guilt of any other degree of homicide justified by the evidence.

I have said that in this case it may well be doubted whether there is any evidence of abandonment, and I shall assume that the trial judge erred in favor of the defendants when he charged the jury that there was such evidence. None the less, the court could, of course, not charge the jury as matter of law that the jury must find that the defendants killed the deceased while engaged in an attempted robbery, even if the evidence to prove that were conclusive and unchallenged. As we said in People v. Seiler (supra), however strong the evidence may be, the jury alone has power to find that fact and may refuse to find it.” Then the rule stated in People v. Schleiman (supra), in People v. Moran (supra), in People v. Walsh (supra) must be applied, as it has been applied in numerous other cases. That rule is that where a jury even unreasonably rejects evidence presented to establish a charge of felony murder, the jury may convict of any lesser degree of homicide which is established by the evidence and, in accordance with that rule, then the jury should have been instructed that if they do not find that the defendants were engaged in the commission of a felony when they killed Mr. Salisbury, the defendants might still be convicted of some degree of homicide based upon the evidence that in concert they both shot Mr. Salisbury and one of them killed him.

It may be said, of course, that the jury did not reject or disregard the evidence showing a concerted attempt at robbery, and did find that the attempt was not abandoned and that Stevens was not coerced into becoming a participant in the attempt. From this it would seem to follow logically that the defendants were not prejudiced by failure of the court to charge that, if the jury did not so find, they might convict of a lower degree of crime; indeed it might seem that a charge that if they do not find that the defendant is guilty of those acts which constitute murder in the first degree they should acquit, is more favorable to the defendant than a charge that in such case they should find guilt of a lesser degree of homicide. The same argument could have been made in every case where this court has held that the trial judge must upon the request of a defendant charge in accordance with section 610 of the Penal Law that the jury might convict of a lesser degree of crime. Back of such argument lies the assumption that a finding or verdict of a jury is based solely upon unimpassioned appraisal of the evidence by men who are firmly guided by cold reason. The argument has been invariably rejected by this court because that assumption ignores the fact that jurors are subject to the same human frailties, the same fears and passions and predilections and prejudices as the average man,. Here, indeed, the jury asked whether there might be conviction of a lower degree of homicide, and indicated that if its power extended so far, it would exercise it. A jury should not be forced into the dilemma of choosing between death and freedom ” where there is evidence which would support a finding of guilt of homicide in a degree less than murder in the first degree. (People v. Moran, supra.) As we said in People v. Koerber (supra):We cannot say that, with proper

instructions, but one decision and that adverse to the defendant could reasonably have been reached.’ When the alternative presented was conviction of murder in the first degree or acquittal, a conscientious jury would scarcely bring itself to a verdict of not guilty in this case. If they had been instructed that other verdicts were permissible, they might or might not have found the defendant guilty of a lesser degree of felonious homicide ” (p. 155). I do not see how we can expect the trial courts or district attorneys to heed our warning that the cases are exceptional in which a trial judge may refuse a request to charge the lesser degree of homicide, if we ourselves disregard the warning. That is why I have quoted so freely from other opinions of this court.

There is no basis in reason or authority for the statement in the prevailing opinion that the only possible ground upon which it may be argued ” that the court erred in its refusal to charge a lesser degree of homicide is that both defendants claim abandonment and Stevens claims coercion and Waterbury pleads insanity.” The uncontrovertible ground is that the defendants had been charged with murder in the first degree, that the statute provides that upon the trial of an indictment for murder in the first degree the prisoner may be convicted of any lesser degree of homicide where the evidence would sustain a finding of every element of the crime of which the defendant is convicted. No one can dispute here that if the jury chose, even arbitrarily, to reject the evidence of the commission of a felony, the evidence would justify a conviction of murder in the second degree or even manslaughter.

I do not understand the statement in the prevailing opinion that it is not denied that the defendants were engaged in the commission of a felony. True they confessed to that before the trial, but at the trial an issue was presented as to whether they were engaged in the commission of a felony and that issue was presented to the jury. I assume that my associates would concede that the defendants could not have been convicted of murder in the first degree unless the jury had found against the defendants upon that point. Surely the power of a jury to find a lesser degree of homicide upon a trial of a charge of murder in the first degree, cannot depend upon the force of the evidence intended to prove the higher degree of crime or even upon denial of guilt of the higher degree. In all cases the jury and not the court passes upon the degree of guilt of a defendant and upon a trial the court must charge degrees of crime where the facts are susceptible of an interpretation which would include every element of such degrees.

The mandatory death penalty, upon conviction of murder in the first degree, has, I think, survived only because a jury has, under the statute, as at common law, power to find a lesser degree of guilt even in cases where no reasonable person could doubt that the defendant has committed acts which the statute defines as murder in the first degree.

Without change of the statute and without citation of any case in this jurisdiction or elsewhere, as authority, and solely because they believe that the jury could not reasonably reject the evidence that the homicide occurred in the commission of a felony, my associates now deny this power to the jury.

The judgment should be reversed and a new trial ordered.

O’Brien, Hubbs and Loughran, JJ., concur with Finch, J.; Crane, Ch. J., votes to affirm as to the defendant Waterbury, and concurs in the result of the opinion of Finch, J., as to said defendant, but dissents and votes for reversal as to the defendant Stevens; Lehman, J., dissents in opinion in which Crouch, J., concurs. Lehman and Crouch, JJ., vote to reverse and order a new trial as to both defendants.

Judgments of conviction affirmed.


author: Lehman, J.

text:
    Camille Geary, Plaintiff, v. John R Geary, Appellant. Caruthers Ewing, as Receiver, et al., Respondents.

      (Argued November 16, 1936;
    decided December 31, 1936.)

      Carroll G. Walter and James Lee Kauffman, appearing specially, for appellant.

      Edward D. Bolton for Caruthers Ewing, as receiver, respondent.
   Lehman, J.

The plaintiff and the defendant were married in the city of New York in 1918. They resided in Japan after the marriage. In February, 1931, the plaintiff, having returned to the State of New York, obtained an order for the service upon the defendant, by publication or personally in the State of California, of the summons in an action which the plaintiff was about to begin in this State for a separation. Service of the summons and verified complaint was made upon the defendant personally in California on March 8th, 1932. The defendant then was and still is a resident of Japan. On March 24th attorneys for the defendant appeared specially ” for the defendant for the purpose and solely for the purpose of the motion to be made herein objecting to arid denying the jurisdiction of the court over the person of the defendant and the subject of this action and for such reasons asking for a dismissal of the complaint herein and for no other purpose.” An order to show cause why the complaint should not be dismissed was made returnable on March 28th, 1932, and after a hearing the motion was denied. In March, 1933, a judgment in the action was entered in the plaintiff’s favor upon the defendant’s default. It provides that the plaintiff is entitled to a judgment of separation, from the bed and board cf the defendant for ever, because of the abandonment of the plaintiff by the defendant, because of the cruel and inhuman treatment of plaintiff by the defendant, and because of his failure, neglect and refusal to provide for the plaintiff and the issue of the marriage of the plaintiff and defendant.” The judgment awards to the plaintiff the sole custody of the two infant sons of the parties and orders the defendant to pay to the plaintiff each month the sum of $3,000 for her support and the support of the two children. It further provides that “ Caruthers Ewing, Esq., of 41 East 42nd Street; Borough of Manhattan, City of New York, the Receiver appointed by this Court .by order dated the 7th day of April, 1932, be and he is hereby authorized to continue the Receivership in this action, for the support, maintenance and education of the children of the marriage, for the support of the plaintiff, and for her expenses in bringing and carrying this action and the proceedings incidental thereto or connected therewith, with the usual powers and directions.”

The order dated the 7th day of April, 1932, appointing Caruthers Ewing receiver, which is referred to in the judgment, was an order for the sequestration of the defendant’s property made in the pending separation action pursuant to the provisions of section 1171-a of the Civil Practice Act. At the time of the service of the summons and complaint upon the defendant in California, the defendant was served also with an order to show cause why an order should not be entered, sequestrating the property of the defendant within this State and appointing a receiver to take and hold the same until the further order of the court. On the return day of the order to show cause the motion was adjourned to March 28th, 1932. Prior to that day the plaintiff, by order to show cause, moved for alimony pendente lite and for counsel fee. That motion was also returnable on March 28th.

On that day not only the plaintiff’s motions for orders sequestrating the defendant’s property within the State and for alimony and counsel fees were made returnable but also the defendant’s motion to set aside the service of the summons in the action on the ground that the court had not, by service of the summons without the State, obtained jurisdiction of the person of the defendant or the subject-matter of the action. The defendant could not appear generally and oppose the plaintiff’s motions without submitting himself to the jurisdiction of the court and abandoning the ground of his own motion to dismiss the complaint. If he succeeded upon his own motion to dismiss the complaint, then the plaintiff’s motions must, in any event, fail because no action for separation would then be pending in which alimony could be granted. As we have said, the defendant’s motion was denied and then the plaintiff’s motions were granted upon the defendant’s default. A motion made thereafter by the defendant to vacate the orders granting the motion for alimony and the motion to sequestrate the defendant’s property was denied.

The order of April 7th, 1932, sequestrating the defendant’s personal property and appointing Caruthers Ewing receiver of such property provides among other things that the General Electric Company of Schenectady, New York, and other corporations named in the order, deliver and turn over to the said receiver all moneys, stocks, bonds and other property, in their possession, or control due or to become due to the defendant, John Richard Geary.” The defendant was entitled to moneys from a pension or retirement fund of General Electric Company, and in September, 1932, an order was made directing the receiver to take possession of all moneys which have become due or shall hereafter become due to the defendant out of the pension and /or retirement fund of the General Electric Company * * * and pay over the said funds to the plaintiff after deducting therefrom his lawful commissions and expenses.”

Pursuant to these various‘orders of the court, General Electric Company paid all pension moneys due to the defendant to the receiver until September, 1935. Then counsel for the defendant notified General Electric Company that defendant claimed that the orders requiring such payments were void, and objected to further payments of moneys thereunder. The receiver then made this motion for an order directing the General Electric Company to forthwith pay over to the receiver all moneys in its possession or control representing defendant’s interest in the company’s retirement or pension funds. General Electric Company maintains a neutral attitude in the controversy between the receiver and the defendant. It desires only that the court should decide that controversy by an order or judgment which is binding on all parties. The defendant has appeared specially ” to object to the jurisdiction of the court to grant the motion.

On the ground that the order granting the receiver’s motion deprives the defendant of his property without due process of law the defendant has appealed to this court from the order of affirmance of the Appellate Division. The receiver respondent urges that the order is not a final order in a special proceeding, but is only an interlocutory order in the action auxiliary to and for the purpose of enforcing the judgment, and that, therefore, no appeal lies to this court without permission of the Appellate Division. The order is directed to General Electric Company. That company is not a party to the action, and the judgment is not an adjudication against it. The receiver now seeks an order which will bind that company though it is not a party to the action. To that extent, then, the proceedings are independent of the action and the order is a final order which is appealable to this court without leave of the Appellate Division. (Cf. Klasko Finance Corp. v. Belleaire Hotel Corp., 257 N. Y. 1; Geller v. Flamount Reatty Corp., 260 N. Y. 346; Rosenberg v. Rosenberg, 259 N. Y. 338.) We denied the defendant’s motion for leave to appeal from previous orders made in 1932, which overruled objections to the jurisdiction of the court over the person of the defendant or the subject-matter of the action because these orders were interlocutory orders in an action. This appeal for the first time brings the objections of the defendant before this court.

No sequestration order was made in this action until April 7th, 1932, and no property of the defendant was seized actually or constructively until after that order was made. Without prior seizure of property, service of process without the State is, it is said, entirely ineffective and the seizure must be made when jurisdiction in the action is first assumed. That was not done here. The judgment in the action was entered upon default after service of the summons made before any property was seized, and the defendant’s contention is that, therefore, the award of alimony in that judgment is entirely void and that no property belonging to him may be seized and applied upon a void judgment.

The defendant does not upon this appeal challenge the validity of the judgment in so far as it decrees a marital separation or limited divorce. The attack is confined to the provisions of the judgment which award alimony and continue the receivership of the defendant’s property. The governmental powers of the State of New York do not extend beyond its territorial limits and the jurisdiction of the courts of the State is confined to property and persons subject to the power of the State. Without service of process within the State or voluntary appearance in court or submission to its jurisdiction, no court of a State acquires jurisdiction of the person of a non-resident defendant or can grant a personal judgment enforceable by execution against his person or property. Though a State has power to provide thab the property of a non-resident within the State may be applied to satisfy the obligation of a non-resident, it may do so only where the action is directed against property which the court has taken into its custody or possession and where the defendant who owns the property has actual or constructive notice of the action and has opportunity to defend. (Pennoyer v. Neff, 95 U. S. 714.)

It has been said that “ if possession of the res is the foundation of jurisdiction, that possession must be acquired when jurisdiction is assumed.” (Helme v. Buckelew, 229 N. Y. 363, 371.) To the extent that possession of specific property constituting the res is the foundation of jurisdiction and is dependent upon prior seizure of the property, it may well be argued that the property must be seized when jurisdiction of the action is first assumed, so that the defendant may have notice and opportunity to be heard at every step leading to the disposition of his property. That is the defendant’s contention in this case. It must fail where possession of specific res is not the foundation of jurisdiction.

The'reFwKTciri's' bhe subject-matter of ^actions which are substantially in rem ” is nob in all cases tangible personal property which can be seized and the foundation of jurisdiction of the court is not always physical possession of the res. In matrimonial actions the “ res ” is the marital status of a resident of the'Stat^ and toNhe extent that the purpose of the action is to alter or affect that matrimonial status, the action is a proceeding substanEany'm rem ” where “ substituted sendee by publication or in any other authorized form ” is sufficient notice to answer the requirement o: .ue process as formulated in Pennoyer v. Neff (supra). Thus evens before seiz’ure of any property the courts of New York might assume jurisdiction of the action for separation though the jurisdiction so assumed would not extend to the inclusion of an award of alimony in the judgment of separation. (Rigney v. Rigney, 127 N. Y. 408.)

A matrimonial action often has a dual aspect. In one aspect it is substantially a proceeding Jxurgan, since its purpose is to alter the matrimonial status of the parties; in the other aspect it is a proceedmgTiñ^ers^mnj anee its purpose is to compel the defendanfNó""pefíorm his obhgationTo furnish his wife and chüdren mfE support. A State^aij^OWérTo^fdmde that The propertyrtrtthin the State of a non-resident defendant may be seized and applied to satisfy the defendant’s marital obligation to support his wife, just as it may be seized and applied in satisfaction of any other obligation. (Pennington v. Fourth Nat. Bank, 243 U. S. 269, 272.) In that case the court said: the only essentials to the exercise of the State’s power are presence of the res within its borders, its seizure at the commencement of proceedings, and the opportunity of the owner to be heard.” Section 1171-a of the Civil Practice Act provides for the exercise of that power by the State of New York. In Matthews v. Matthews (240 N. Y. 28) the court found in that section provisions, implied if not expressed, which met fully these essentials. The only question which remains is whether in the case which we are now considering the parties have properly availed themselves of these provisions.

Pursuant to these provisions, the property of a defendant in an action for divorce or separation ” may be seized by proceedings analogous to attachment, where “ it appears to the court that the defendant is not within the state, or cannot be found therein, or is concealing himself therein, so that process cannot be personally served upon him.” In the opinion by Grane, J., in Matthews v. Matthews (supra, 32), the court pointed out that the words in an action ” can mean only in an “ action already pending or presently begun.” In that case the plaintiff had obtained a sequestration order, though no action was then pending, and thereafter the plaintiff, . without having served the summons and complaint in the action, and without obtaining an order for service by publication, obtained ex parte an order for alimony and counsel fee to be paid out of defendant’s property which had been sequestrated. That we held could not be done. The sequestration order, if not made in a pending action, must, the court decided, be followed by publication commenced within the period provided by the Civil Practice Act where an order of attachment has been granted; and the sequestrated property may be applied upon an award for alimony only where such award is made by judgment or by order upon notice which “ to be legal and effective must be * * * given personally or in some form recognized by our practice.” To illustrate the scope of the section, the opinion points out that after a defendant has been served by publication and is in default of appearance or pleading, the court can enter judgment and dispose of the sequestered property as it deems best for the interest of the wife and children ” (p. 34).

Id this case, though the defendant was served personally in California under a valid order of the court, and failed to appear or plead in the action, the judgment which could be granted upon default could not include an effective award of alimony payable out of sequestrated property of zJ¿he defendant which had not previously been seized. ( The right to dispose of it rests upon a prior seizure. Only so does the defendant receive notice that he has rights which should be protected. It must, therefore, appear before a judgment is entered purporting to deal with a non-resident’s property, that by attachment, by injunction, by sequestration, in some manner, the court has laid hands upon his property within the state.” (Italics are mine.) (Matthews v. Matthews [second appeal], 247 N. Y. 32, 34, per Andrews, J.)

The manner in which the court lays hands upon property within the State is regulated by local law. Here there has been compliance with the provisions of section 1171-a of the Civil Practice Act. We may assume that service in California of the order to show cause why the defendant’s property should not be sequestrated was entirely ineffective. The statute, however, provides that a sequestration order may be made without any notice and on the first appeal in Matthews v. Matthews (supra), this court held that the Legislature had power to so provide, so long as the moneys could not be removed from the custody of the court except by order or judgment of the court made upon notice. /Here seizure of the property though made in a pending matrimonial action after the service of the summons outside of the State was made long before judgment was entered. By service of the summons and complaint the defendant had constructive notice of the pendency of the action for separation,] He chose to disregard it, though the court had jurisdiction even then to enter a decree of separation. When thereafter the defendant’s property was sequestrated the action became transformed into oiie where the defendant’s property could be applied in satisfaction of alimony that might be awarded in the action. As was said in Pennoyer v. Neff (supra, p. 727), the law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for'its condemnation and sale.” In this case there is proof, indeéd, that the defendant had actual notice that his property had been taken into the custody of the court and that he must look to proceedings authorized by law for the application of the seized property upon the defendant’s marital obligation. Again he chose to disregard the notice.

The jurisdiction of the court over the marital status of the parties did not depend upon the sequestration or seizure of the defendant’s property. It had such jurisdiction before. That jurisdiction did. not, however, extend further to the disposition of any property which might be thereafter seized. That, can rest only upon prior seizure. We are not here concerned with the~validity of any orders for alimony pendente lite. The order which wé are reviewing applies only to alimony granted by the judgment. {Since the judgment was granted after seizure in this case, and since the defendant had notice that his property was seized and would be applied in satisfaction of any award of alimony made against him, and since the defendant had opportunity to contest the right to seizure of his property and to its application upon any judgment that might be entered, and chose to disregard the notice, he should not be heard to complain that his property has been taken without due process of law. vThe rule, if there be such rule, that seizure must precede assumption of jurisdiction hv Abarcón rt in the actmm appliesjoul^v to ,a.s«n motion of jurisdiction toadjudicate in the action upon rights in the ctoi'cndani’s property. The New York statute in terms' permits tEe making~of a sequestration order in a pending action. The Constitution of the State of New York and the Constitution of the United States are not violated by such provision so long as under the New York statute seizure must precede inquiry or adjudication as to the award of alimony, or the application of property of the defendant to payment of such award so that the defendant may have opportunity to be heard upon that inquiry. The defendant has had such opportunity here.

The order should be affirmed, with costs.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Order affirmed.


text:
    In the Matter of the Probate of the Will of Augustus Mackenzie, Deceased. Donald Mackenzie, Jr., an Infant, by Frederick A. Keck, His Special Guardian, et al., Appellants; Augustus Mackenzie, Jr., et al., Respondents.
    (Submitted November 25, 1936;
    decided December 31, 1936.)

      Fred L. Gross, Frederick A. Keck and Daniel G. Connolly for appellants.

      John E. Purdy for Augustus Mackenzie, Jr., respondent.
   Per Curiam.

Until a jury has agreed upon a verdict upon the issues submitted to it, a verdict upon other issues directed at the trial is not embodied in any order or decree or judgment which constitutes a judicial determination of such issues. Until then it remains merely a ruling made in the course of the trial. Section 463 of the Civil Practice Act which, by section 69 of the Surrogate’s Court Act, is made applicable to trials in the Surrogate’s Court, provides that after disagreement of a jury a new jury shall be empanelled “ and the same proceedings must be had before the new jury as if it was the jury first empaneled.” In accordance with the provisions of the statute, at the new trial every issue may be litigated again as if there had been no previous trial.

The order of the Appellate Division and that of the Surrogate’s Court should be reversed, without costs, and the matter remitted to the Surrogate’s Court to proceed in accordance with this opinion. The question certified should be answered in the negative.

Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Crane, Ch. J., Loughran and Finch, JJ., dissent.

Ordered accordingly.


text:
    Jeanette Borenstein, Respondent, v. David Borenstein, Appellant.
    (Argued March. 11, 1936;
    decided July 8, 1936.)

      Jonas J. Shapiro, Theodore S. Jaffin and Alfred Mann for appellant.

      Harry T. Zucker and Sydney J. Schwartz for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs and Loughran, JJ. Dissenting: Crouch, J. Taking no part: Finch, J.


text:
    Sobering & Glatz, Inc., Respondent, v. American Pharmaceutical Company, Inc., Appellant, and The Chemical Foundation, Inc., Respondent.
    (Argued April 29, 1936;
    decided July 8, 1936.)

      Louis D. Frohlich, Nathan Burkan, Albert T. Scharps and Louis Barnett for appellant.

      Clifton Cooper and Fritz v. Briesen for plaintiff, respondent,

      Maurice Leon for defendant, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Louqhran and Finch, JJ.


text:
    Matteawan Manufacturing Company, Appellant and Respondent, v. Chemical Bank and Trust Company, Respondent and Appellant, and The Midnight Mission, Appellant and Respondent.
    (Argued April 30, 1936;
    decided July 8, 1936.)

      Orison S. Marden and Charles J. Fay for plaintiff; appellant and respondent.

      Justus Scheffield, Philip A. Carroll and Jack D. Gunther for Chemical Bank and Trust Company, defendant, respondent and appellant.

      Walbridge S. Taft, Malcolm S. Langford and Whitman Knapp for The Midnight Mission, defendant, appellant and respondent.
   Judgment modified to the extent that plaintiff’s complaint against The Midnight Mission is dismissed, with costs in all courts to The Midnight Mission against the plaintiff, and the judgment otherwise affirmed, with costs to the plaintiff against Chemical Bank and Trust Company, and with costs to Chemical Bank and Trust Company against The Midnight Mission. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    The People of the State of New York, Respondent, v. Thomas McFarland, Appellant.
    (Argued May 22, 1936;
    decided July 8, 1936.)

      Joseph A. Solovei, Roy R. Richard and Joseph Weiss for appellant.

      William F. X. Geoghan, District Attorney (Edward H. Levine and Henry J. Walsh of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    Margaret J. Clark, as Administratrix of the Estate of Frank J. Clark, Deceased, Appellant, v. The Delaware and Hudson Railroad Corporation, Respondent.
    (Argued May 22, 1936;
    decided July 8, 1936.)

      James A. Leary and Walter A. Fullerton for appellant.

      Joseph Rosch, Wallace E. Pierce and Raymond L. Carr for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, O’Brien, Htjbbs, Crouch, Lough-ran and Finch, JJ. Dissenting: Crane, Ch. J.


text:
    Katarzyna Pasiak, Individually and as Administratrix of the Estate of Michael Pasiak, Deceased, Appellant, v. International Railway Company, Respondent, Impleaded with Others.
    (Argued May 25, 1936;
    decided July 8, 1936.)

      Philip Halpern and George E. Phillies for appellant.

      Clarence B. Runals for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.; Lehman, J., taking no part.


text:
    Alice A. Zimtbaum, Appellant, v. Mark Zimtbaum, Respondent.
    (Argued May 26, 1936;
    decided July 8, 1936.)

      Francis P. Burns for appellant.

      Abraham Lehman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    Orville Gerhardt, Respondent, v. Helen M. Norton, Defendant, and Marie H. Maeder, Appellant.
    (Argued May 25, 1936;
    decided July 8, 1936.)

      Oscar J. Brown for appellant.

      James E. Cuff for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    Clinton W. Paddock, Respondent, v. Hohneker Dairy, Inc., Appellant.
    (Argued May 25, 1936;
    decided July 8, 1936.)

      H. C. Stratton and V. D. Stratton for appellant.

      Frank W. Barnes for respondent.
   Judgment affirmed, with costs, no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Httbbs, Crouch, Loughran and Finch, JJ.


text:
    Marvin J. Kittle, as Administrator of the Estate of Evelyn B. Kittle, Deceased, Respondent, v. The State of New York, Appellant.
    (Claim No. 22246.)
    (Argued May 26, 1936;
    decided July 8, 1936.)

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for appellant.

      Carl W. Peterson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Crouch, Loughran and Finch, JJ.


text:
    In the Matter of the Probate of the Will of Charles E. Austin, Deceased. Edith E. Austin, Appellant; Title Guarantee and Trust Company, Respondent.
    (Argued May 26, 1936;
    decided July 8, 1936.)

      Maurice Edelbaum for appellant.

      Fred L. Gross, Frederick A. Keck and Donald J. Turrill for respondent.
   Order affirmed, with costs to respondent payable out of the estate. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.