author: Crane, Ch. J.

text:
    The People of the State of New York, Respondent, v. Charles Luciano, Thomas Pennochio, David Betillo, James Frederico, Abraham Wahrman and Ralph Liguori, Appellants.

      Argued January 18, 1938;
    decided April 12, 1938.

      Martin Conboy, David Asch, F. W. H. Adams and Moses Polahoff for Charles Luciano, appellant.
    Statements by alleged co-conspirators were improperly submitted to the jury as evidence of the existence of the unlawful combination and of appellant’s participation therein. (Cuyler v. McCartney, 40 N. Y. 221; United States v. McKee, 26 Fed. Cas. 1107; Kuhn v. United States, 26 Fed. Rep. [2d] 463; United States v. Renda, 56 Fed. Rep. [2d] 601; Stager v. United States, 233 Fed. Rep. 510; Pope v. United States, 289 Fed. Rep. 312; Minner v. United States, 57 Fed. Rep. [2d] 506; People v. Kathan, 136 App. Div. 303.) The right to be tried and sentenced for each offense separately, under the law of the State at the time of the commission of the crimes charged in the indictment, was a substantial right. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People v. Faden, 271 N. Y. 435; McElroy v. United States, 164 U. S. 76.)

      David P. Siegel and Samuel Hassen for David Betillo and Abraham Wahrman, appellants.
    The indictment is insufficient on its face. In construing section 279 of the Code of Criminal Procedure as applicable to the appellants, and as allowing the joinder of many alleged distinct crimes, each based on a distinct transaction and each comprising a group of facts distinct and different from the others, each containing the essential legal elements of a distinct crime with no allegation in the indictment of their connection through conspiracy, a common scheme or plan; and in compelling the appellants to stand trial under such indictment, the court denied to them due process and the fundamental form of criminal accusations with which the individual is endowed as a matter of right. (Polinsky v. People, 73 N. Y. 65; Hawker v. People, 75 N. Y. 487; People v. Goldner, 70 Misc. Rep. 199; People v. Wilson, 151 N. Y. 403; People v. Callahan, 29 Hun, 580; People v. Adler, 140 N. Y. 331; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; Taylor v. People, 12 Hun, 212; Dolan v. United States, 133 Fed. Rep. 440; Kelly v. United States, 258 Fed. Rep. 392; Pointer v. United States, 151 U. S. 396.) The activities of the defendants, as disclosed by the record, were not made criminal by section 2460 of the Penal Law. (People ex rel. Jackson v. Potter, 47 N. Y. 375; People v. Plath, 100 N. Y. 591; People v. Moore, 142 App. Div. 402; People v. Draper, 169 App. Div. 479.) The evidence adduced by the People was insufficient as a matter of law to make out a case, to justify the submission of the case to the jury, to rebut the presumption of innocence and convict beyond a reasonable doubt. (McGuire v. Bell Tel. Co., 167 N. Y. 208; People v. Taleisnik, 225 N. Y. 489; People v. Downs, 236 N. Y. 306; People v. Shaw, 158 App. Div. 146; People v. Miller, 70 App. Div. 592; People v. O’Farrell, 175 N. Y. 323; People v. Elliott, 106 N. Y. 288; People v. Bissert, 71 App. Div. 118; People v. Weiss, 129 App. Div. 671; People v. Butler, 140 App. Div. 705; People v. Kudon, 173 App. Div. 342; People v. Josephs, 143 App. Div. 534; People v. Courtney, 28 Hun, 592; People v. Cohen, 223 N. Y. 406; People v. White, 62 Hun, 114; People v. Ledwon, 153 N. Y. 10.) In construing section 279 of the Code of Criminal Procedure as applicable to the appellants, and as allowing the joinder of many alleged distinct crimes occurring in date prior to the effective date of the s'ection, particularly where the indictment on its face made no charge of conspiracy, a common scheme or plan, or the connection between various crimes, the appellants were deprived of a substantial right. (Calder v. Bull, 3 Dall. 269; Kring v. Missouri, 107 U. S. 221; People v. Adler, 140 N. Y. 331; Duncan v. Missouri, 152 U. S. 377; Beazall v. State of Ohio, 269 U. S. 167; People ex rel. Luciano v. Murphy, 160 Misc. Rep. 573.)

      Ceasar B. F. Barra and Ralph J. Barra for Thomas Pennochio, appellant.
    The demurrer to the indictment should have been allowed and the indictment dismissed, upon the ground that more than one crime is charged in the indictment within the meaning of sections 278 and 279 of the Code of Criminal Procedure. (Calder v. Bull, 3 Dall. 386; Thompson v. Utah, 170 U. S. 343; Thompson v. Missouri, 171 U. S. 380; Beazell v. Ohio, 269 U. S. 167; Kring v. Missouri, 107 U. S. 221; Duncan v. Missouri, 152 U. S. 377; Hartung v. New York, 26 N. Y. 167; People v. Cox, 67 App. Div. 344; McElroy v. United States, 164 U. S. 76; Summers v. United States, 231 U. S. 92; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People v. Cox, 67 App. Div. 344; Matter of Doyle, 257 N. Y. 244.) The judgment and sentence was illegal and void, being based upon an invalid statute. (People v. Faden, 271 N. Y. 435; People v. Ingber, 248 N. Y. 302; People ex rel. Thornwell v. Heacox, 231 App. Div. 617; People v. Edwards, 173 App. Div. 375; People v. Kerns, 7 App. Div. 535; People ex rel. Tweed v. Liscomb, 60 N. Y. 560; People ex rel. Prince v. Brophy, 273 N. Y. 90; Matter of Farlow, 272 Fed. Rep. 910; Morgan v. Divine, 237 U. S. 632; Anderson v. Moyer, 193 Fed. Rep. 499; Moorehead v. United States, 270 Fed. Rep. 210; People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48; People ex rel. Dixon v. Lewis, 249 App. Div. 464; People ex rel. Battista v. Christian, 249 N. Y. 314; People ex rel.

      Kemmler v. Durston, 7 N. Y. Cr. Rep. 350; 55 Hun, 64; 7 N. Y. Cr. Rep. 364; 119 N. Y. 569.) The trial court erred in charging the jury on the question of conspiracy. (People v. Lazar, 271 N. Y. 27; People v. Smith, 232 N. Y. 239; People v. Montgomery, 176 N. Y. 219; People v. Sobieskoda, 235 N. Y. 411.)

      Joseph Ralnick and Lorenzo C. Carlino for Ralph Liguori, appellant.
    The case against Liguori was wholly circumstantial and was based upon testimony relating to varied and uncorroborated facts from which the jury was asked to draw an inference of guilt. (People v. Woltering, 275 N. Y. 51; People v. Lewis, 246 App. Div. 93; People v. Razezicz, 206 N. Y. 249; People v. Suffern, 267 N. Y. 115; People v. Millard, 247 App. Div. 253.)

      Samuel J. Siegel for James Frederico, appellant.
    The acts alleged to have been committed by appellant in connection with the bonding of prostitutes do not constitute a violation of section 2460 of the Penal Law. (People v. Fegelli, 163 App. Div. 576.)

      Thomas E. Dewey, District Attorney (Stanley H. Fuld of counsel), for respondent.
    Proof of a conspiracy was proper to establish the connection among the various defendants. (People v. Crossman, 241 N. Y. 138; People v. Demasco, 240 N. Y. 170; People v. Swersky, 216 N. Y. 471; People v. Becker, 215 N. Y. 126; People v. Cassidy, 213 N. Y. 388; People v. McKane, 143 N. Y. 455; People v. Alexander, 183 App. Div. 868; Davis v. United States, 12 Fed. Rep. [2d] 253; 271 U. S. 688; State v. Meating, 202 Wis. 47.) All who become parties to a common scheme and plan are criminally responsible. (People v. Swersky, 216 N. Y. 471; People v. Crossman, 241 N. Y. 138; Matter of Disbarment Proceedings, 321 Penn. St. 81.) All of the defendants, having aided and abetted, or having been otherwise concerned in their commission, were guilty of the crimes charged. (People v. Draper,
      169 App. Div. 479; People v. Fegelli, 163 App. Div. 576; 214 N. Y. 670.) The testimony of non-accomplices was ample and tended to connect the defendants to the conspiracy. (People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111; People v. Cohen, 223 N. Y. 406.) The receipt of money for so-called bonding was a violation of subdivision 8 of section 2460 of the Penal Law. (Ernst v. Crosby, 140 N. Y. 364; Holmead v. Maddox, 12 Fed. Cas. 391; Dougherty v. Seymour, 16 Col. 289; Ralston v. Brady, 20 Ga. 449; Ashbrook v. Dale, 27 Mo. App. 649; Matter of Davis, 299 N. Y. Supp. 632; Bowman v. Phillips, 41 Kan. 364; Matter of Disbarment Proceedings, 321 Penn. St. 81; People v. Fegelli, 163 App. Div. 576; 214 N. Y. 670.) A trial of an indictment containing ninety counts, charging crimes of a similar nature connected together and part of a common scheme, is a reasonable application of the joinder statute. (Cravens v. United States, 62 Fed. Rep. [2d] 261; Morse v. United States, 174 Fed. Rep. 539; Harris v. United States, 8 Fed. Rep. [2d] 841; Roselle v. Breshears, 35 Fed. Rep. [2d] 934; Chapman v. United States, 10 Fed. Rep. [2d] 124; State v. Brunn, 145 Wash. 435; State v. Meating, 202 Wis. 47.) The legislation (Code Crim. Proc. § 279) dealing with the joinder of separate offenses is valid and constitutional and is not of an ex post facto nature. (People ex rel. Pincus v. Adams, 274 N. Y. 447; Williams v. United States, 168 U. S. 382; Pointer v. United States, 151 U. S. 396; Cravens v. United States, 62 Fed. Rep. [2d] 261; Harris v. United States, 8 Fed. Rep. [2d] 841; People v. Northcott, 209 Cal. 639; People v. Kelly, 203 Cal. 128; State v. Fox, 56 S. Dak. 294; State v. Brunn, 145 Wash. 435.) Subdivision 4 of section 2190 of the Penal Law is constitutional. (People ex rel. Pincus v. Adams, 274 N. Y. 447.)
   Crane, Ch. J.

The indictment returned by the grand jury against appellants contained ninety counts, each charging a separate crime in violation of one of the subdivisions of section 2460 of the Penal Law relating to the compulsory prostitution of women. The crimes were joined as separate counts in the one indictment under the authority of section 279 of the Code of Criminal Procedure. Prior to the submission of the case to the jury, twenty-eight counts were withdrawn and the jury rendered a verdict of guilty on each of the sixty-two remaining counts.

In general the indictment charged three distinct types of the crime, each a violation of one of the subdivisions of Penal Law, section 2460. The defendants were charged with placing a female in a house of prostitution, in violation of subdivision 2; with receiving money for having placed her in a house of prostitution, in violation of subdivision 4; and with receiving money from the earnings of the woman so placed, without giving a consideration therefor, in violation of subdivision 8. The various counts of the indictment charge a crime under one of these subdivisions, specifying the names of the different women and the time, place and manner of the commission of the crime.

Without going into great detail, we may outline the scheme simply as follows: Appellants are all members of a combination to control commercialized vice in the city of New York. It attempted to gain a monopoly on prostitution and to exact tribute from those engaged in that unlawful calling. Prostitutes were obliged to operate through agents of the combination, or combine,” as it was called, and each week would be instructed by these agents or bookers ” as to the location of the house where she was to work during the ensuing week. For this service the booker collected a commission.

The keeper of the house received a portion of the girl’s earnings and in addition was paid a further sum for board. Each booker paid to the appellants a certain sum from his earnings each week, or in some cases, turned over all his commissions and was paid a stated salary. In addition, every prostitute was obliged to pay weekly to the combine ” the sum of ten dollars for protection. In return for this sum, the “ combine ” supphed her bail if she were arrested, and assisted her in her defense, or in otherwise escaping punishment for her crime. The operations of the conspirators were extended by force and violence so that all engaged in that vice would be brought under their control.

The appellant Luciano was the head of this enterprise; Pennochio was the treasurer; Betillo was in active charge ; Frederico was sort of a manager; Wahrman was leader of the collectors and strong-arm man; Liguori was a strong-arm man.

As the principal and leader of the whole enterprise, Luciano did not take an active part in the daily operations of the business, but that he was the directing head and moving force behind it all, the evidence adduced on the trial leaves no doubt. A man by the name of Bendix sought an interview with Luciano in 1935 for the purpose of procuring a job. Luciano offered him a job as a collector for some of the houses of prostitution. Frederico was with Luciano at that time. Luciano told him: If you are willing to work for $40 a week, it is O. K. with me. I will tell Little Davie to put you on.” Betillo introduced Luciano to the witness, Mildred Balitzer, saying, “ I want you to meet my boss.” The same witness intended to marry a man who was involved in the vice combination and she asked Betillo to let him quit and make a new start. On his refusal to assent, she threatened to appeal to Luciano and was met by Betillo’s reply that Luciano approved of everything he did. She saw Luciano, who told her that he would see Betillo about it, and later was told by him that he had spoken to Betillo but that nothing could be done until the man had paid up his indebtedness.

The witness Nancy Presser saw Luciano twice during 1933, or early 1934, with appellants Wahrman, Frederico and Pennochio, at which Luciano received reports and gave orders relative to forcing operators of houses to work with appellants. On one occasion, she witnessed a conversation between Luciano and Betillo concerning the running of the prostitution and bonding business. Luciano stated to her that he would be better off if he himself handled the thing ” instead of trusting it to Betillo, and he spoke of his plan of taking over all houses of prostitution, raising prices, and placing the madams on a salary basis, with Betillo in charge of the business.

The witness Flo Brown saw Luciano, Pennochio, Betillo and Frederico in conference on numerous occasions. On one occasion they discussed the conduct of bookers and Luciano directed Frederico respecting the handling of bookers. On other occasions she was present at conversations between them in the course of which the prostitution racket was discussed, where Luciano gave instructions, and advice. At one time Luciano suggested that inasmuch as the vice investigation was pending, “ it may get tough, and I think we ought to fold up for a while.” Betillo argued against this stand, and Luciano discussed the syndication of all the houses and the placing of the operators on a salary or commission basis. Luciano said: Well, all right, then let it go. I will let it go for a couple of more months, and if things are the same, you will have to let it drop.”

One of the bookers, Harris, asked appellant Wahrman who was behind Betillo; and Wahrman answered: “ Don’t worry about it. * * * Charlie Lucky is behind him; he is behind Little Davie,” i. e., Betillo. At one time trouble developed with a booker named Montana. Frederico told Luciano that Montana had been collecting money and failing to pass it in and Luciano replied, Well, have them all come down and we will straighten the matter out.”

' The appellant Luciano took the stand in his own behalf and testified that he did not know any of the defendants except Betillo. In this, he was contradicted not only by the women witnesses, but by employees of two different hotels.

This evidence cogently proves Luciano’s connection with this nefarious enterprise. His position as head of this combination did not bring him in direct contact with the victims of this scheme, and he displayed an anxiety that his name be not too openly associated with the bonding enterprise. Thus the evidence against him is not so easily available as it was against some of those lower in the organization, but the evidence produced against him is amply sufficient to warrant the verdict of guilty against him. Much of this evidence, it will be observed, consists of acts and statements of Luciano himself. Other evidence is supplied by the acts and statements of co-conspirators in furtherance of the joint enterprise. While no conspiracy is charged in the indictment, there was ample proof of a conspiracy among appellants to organize prostitution on a basis most profitable for them. Their bookers placed the girls in the houses, collected a commission for so locating them, and their collectors levied upon each girl who operated in any of the houses. The acts and declarations of the conspirators in furtherance of the joint enterprise were admissible against all of those participating in the conspiracy.

When a conspiracy is shown, or evidence on the subject given sufficient for the jury, then the acts and declarations of the conspirators, in furtherance of its purpose and object, are competent, and in a case like this it is not necessary, in order to make such proof competent, that the conspiracy should be charged in the indictment.” (People v. McKane, 143 N. Y. 455, 470. See, also, People v. Cassidy, 213 N. Y. 388; People v. Becker, 215 N. Y. 126; People v. Miles, 192 N. Y. 541.)

It is not necessary in order to make such proof competent that the conspiracy should be charged in the indictment.” (People v. Cassidy, supra.)

People v. McKane is an outstanding case in this State. McKane was not charged with conspiracy. He was charged with a felony for violating the Election Law. The members of the Board of Registry' were induced by him willfully to violate -the Election Law (Laws of 1892, ch. 680). McKane wad not a member of the Board of Registry yet he was found guilty of the acts which only the members of the board could perform. He was guilty of procuring them to commit the crime, and the violations were numerous. The case, against McKane was proved by the establishment of a conspiracy to commit the crimes. No single direct act was brought home to McKane. Everything against him was proof of the conspiracy and the acts and declarations made by the conspirators in the absence of McKane. No charge of conspiracy was contained in the indictment. A .single case of compulsory prostitution would be established by proving a conspiracy to commit it if carried out,."even without alleging the conspiracy in the indictment. If the conspiracy then proved is sufficient for one charge of compulsory prostitution, it is sufficient for two or more. In other words, the conspiracy proved, involving.many effectuated similar crimes, may be sufficient to convict of each crime committed. The same evidence could be produced in separate trials; now we need but one trial. " Only those crimes committed as the result of the conspiracy, however, are covered by this rule.

If five men meet in a room, and the leader directs that one shall commit a burglary on a bank on one night; that another commit a burglary on a jewelry store the next; and that the others commit a burglary in a fur shop on another night, can it be possible that the leader who directs and superintends all these burglaries can only be tried for a conspiracy, which is a misdemeanor? Of course not. He is guilty, although he never left that room, of all these three burglaries, and by proving this conspiracy, which need not be alleged in the indictment, he could be convicted of the crimes of burglary committed on these three different nights. Have we become so rigid and antiquated in our procedure that it would be necessary to call the same evidence over again for three separate trials on three separate indictments? What is the objection under our present and modern procedure of putting in all the evidence of the conspiracy, and of the crimes committed in furtherance of it, in one trial, and convicting this high criminal of the three offenses, of which he was actually guilty? We must not be so backward as to make our legal procedure a hindrance instead of a furtherance to justice. Such is this case exactly. There is no need and no necessity and no reason for charging in the indictment that these three crimes, in the illustration I have given, were committed as the result of a conspiracy. Being included in one indictment, as they can be, they can be proved by a conspiracy the same as you prove a single crime by a conspiracy — without alleging' the conspiracy in the indictment.

It is urged that the indictment is insufficient in that there is no charge of conspiracy and there is no allegation that the acts or transactions are connected together or that they constitute part of a common scheme or plan. In other words, the indictment charges a number of separate crimes but failed to charge a conspiracy embracing within it all the separate crimes joined in the indictment. The argument is made that while the indictment charged the appellants with placing women in houses of prostitution with accepting money for so placing them and with receiving part of their earnings without consideration, and, detailed names, time, place, in each particular count, the People attempted to sustain it on the trial by proof that Luciano was an overlord of crime and the “ top man in a gigantic criminal conspiracy. Such a variance was fatal, it is urged, and such practice under section 279 of the Code of Criminal Procedure is not to be condoned.

This argument is not, in my opinion, sound. There was no variance between the indictment and the proof offered to sustain it. To take one particular count, for example; Luciano was charged with placing Betty Anderson, on April 22, 1935, in a named house of prostitution. There was no contention that Luciano personally knew the girl or that he personally sent her to that place. However, in order to convict him of the crime, it is not necessary that he perform the act himself. A principal is “ a person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime.” (Penal Law, § 2.) It is not necessary to show that he knew that this particular girl was placed in the designated house on that date. It is enough to show that Luciano schemed with the others to “ book ” all the girls possible, in the houses over which they had or would be able to gain control, that he assumed the direction of the organization, lent his influence and force, and gave counsel, direction, advice; that his organization assumed control over the bookers and that he so aided and abetted in the commission of each particular crime. Where defendants were charged with poisoning horses, in violation of Penal Law, section 190, this court held that one of the witnesses was an accomplice because involved in the conspiracy. Said the court: “It is not. necessary to show that he knew in advance of the event that the horses of this particular rival were to be poisoned. * * * It is enough, however, that he made himself a party to a conspiracy which embraced within its scope the destruction of the horses of competitors whenever in the judgment of the managers resort to such a measure became necessary.” (People v. Swersky, 216 N. Y. 471, 477.) In like manner, Luciano planned with his lieutenants to place prostitution on a commercial basis and to extract whatever financial profit was possible. - The actual management he may have entrusted to others, but he cannot escape his criminal responsibility as the leader and principal.

Moreover, the indictment is not defective in form under the requirements of section 279 of the Code. Section 279 of the Code of Criminal Procedure provides: When there are several charges * * * for two or more acts or transactions connected together or constituting parts of a common scheme or plan, or for two or more acts or transactions constituting crimes of the same or a similar character, instead of having several indictments or informations, the whole may be joined in one indictment or information in separate counts, * * * ; provided, however, that where the charges involve two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan, the court, in the interest of justice and for good cause shown, may, in its discretion, order that the different charges set forth in the indictment or information or indictments or informations, be tried separately.” .

Here the crimes charged against all of the appellants ■ were beyond all doubt parts of a common scheme or plan. In addition, however, they were all crimes of a similar character, and the substantial similarity was apparent upon a mere reading of the indictment. The similarity between the crimes was so striking that the inference that they were connected together or parts of a common scheme is well nigh inescapable. Where it does not appear in the indictment that the charges involving acts of a similar nature are connected together or are parts of a common scheme or plan, the court has discretion to order them tried separately. Nevertheless, it is proper to join them in one indictment, and to try them together unless the court orders otherwise. There was here no need to allege a conspiracy since the crimes were properly joined together because of their similarity.

As to the sentences; for certain crimes a man loses his life; for others he may be imprisoned for life; he certainly cannot stay in jail beyond his life. There is nothing, therefore, unusual in a punishment which may last as long as a man lives. A man may commit a separate crime on each of three distinct days for each of which he is tried separately and sentenced after each trial, the terms of imprisonment to run consecutively. These three sentences could very easily under our law amount to one hundred and fifty years, if the crimes were of a serious nature. A person, however, could not serve longer than his life. What is illegal about this? I confess I can see nothing in the criticism of the sentence in this case.

The fact is that the defendants in this case received shorter sentences than the law allowed and permitted the judge to impose for the crimes of- which they have been found guilty. In other words, they got less than they might have gotten.

In form the sentence may be objectionable in that the statute (Penal Law, § 2190, subd. 4) contemplates a separate sentence for each distinct offense, but since it would be unreasonable to suppose that the punishment would have been less under such construction of the statute we hold that no substantial right of the defendants has been affected. (Stephens v. State, 53 1ST. J. L. 245.)

The judgments should be affirmed.

Lehman, O’Brien, Loughran and Finch, JJ. concur; Rippey, J., dissents on the ground there were material and prejudicial errors committed during the trial which cannot be overlooked, and that the defendants were tried for a crime with which they were not charged in the indictment. Hubbs, J., taking no part.

Judgments affirmed.^


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Clair Wold, an Infant, by Dave Wold, Her Guardian ad Litem, et al., Plaintiffs, v. Rubin Grozalsky, Respondent, and Jennie Blinderman, Appellant, Impleaded with Another.
    Argued January 26, 1938;
    decided April 12, 1938.

      George J. Stacy and James J. Mahoney for appellant.
    A defendant in a personal injury action should not be required to pay as contribution more than his pro rata share of the entire judgment, determined by the number of judgment debtors and not by the number of properties owned between them. (Ward v. Iroquois Gas Corp., 258 N. Y. 124; Neenan v. Woodside Astoria Transportation Co., 261 N. Y. 159; Martindale v. Griffin, 233 App. Div. 510; 259 N. Y. 530.) As defendant-respondent did not pay the original judgment nor any part of it, he is not a real or proper party in interest and has no right to make the motion. (Metropolitan Casualty Ins. Co. v. Union Indemnity Co., 141 Misc. Rep. 792; Ocean Acc. & Guar. Corp. v. Hooker Electrochemical Co., 240 N. Y. 37; Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399; Lord & Taylor v. Yale & Towne Mfg. Co., 230 N. Y. 132.)

      George C. Koch and Edward L. Johnson for respondent.
    Defendant-respondent is entitled to fifty per cent contribution from the defendant-appellant. (Martindale v. Griffin, 233 App. Div. 510; 259 N. Y. 530.) Defendant-respondent satisfied plaintiffs’ judgment by drafts of bis insurance carrier and he, therefore, is a proper party to move, under section 211-a of the Civil Practice Act, for contribution. (Adams v. Book, 244 App. Div. 646.)
   Finch, J.

Where the plaintiff was injured as the result of passive negligence on the part of the owners of adjoining buildings, one of which is owned individually and the other by two owners, does section 211-a of the Civil Practice Act require a contribution by the individual owner to one of the joint owners who has paid the judgment, of one-half or of one-third of the judgment?

The plaintiffs have recovered judgments totaling $1,500 against the defendants in a negligence action. The defendant Blinderman owns a house adjoining the house owned by the defendants Grozalsky and Michaelson. The infant plaintiff was injured when a flowerpot fell from the top of a common party wall between these buildings. The judgments were recovered against all three defendants on the theory of negligent maintenance. The defendant Grozalsky caused the judgments to be paid through his insurance company. Then, pursuant to section 211-a of the Civil Practice Act, he moved against Blinderman for contribution of one-half, that is, $750. The motion was granted and judgment entered thereon has been unanimously affirmed. Leave to appeal was granted by this court.

Section 211-a of the Civil Practice Act reads as follows:

§ 211-a. Action by one joint tort-feasor against another. Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury or for property damage, and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution from the other defendants with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment; provided, however, that •■no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment. Such recovery may be had in a separate action; or where the parties have appeared in the original action, a judgment may be entered by one such defendant against the other by motion on notice.” (Italics interpolated.)

In Ward v. Iroquois Gas Corp. (258 N. Y. 124) we held that this statute changed the common law rule, and permitted the enforcement' of contribution between joint tort feasors, but we did not decide what the amount of contribution should be. The appellant contends that, since the judgments were obtained against all the defendants, her “ pro rata ” share should be one-third, that is, $500. We have held, however, that this purely mechanical or arithmetical method of arriving at the pro rata share by dividing the amount of the judgment by the number of persons against whom it has been obtained, will not be followed where the result is substantially inequitable. In Martindale v. Griffin (233 App. Div. 510; affd., 259 N. Y. 530) the plaintiff was injured as the result of a collision between an automobile in which he was a passenger and another automobile. He recovered judgment against the driver, who was also the owner of one of the automobiles, and against both the driver and the owner of the other automobile. Nevertheless, the driver-owner who had paid the judgment was permitted a contribution of only fifty per cent against both the driver and the owner of the other car. Whether or not this case is distinguishable on its facts, it does establish the principle that the determination of the pro rata share to be contributed involves more than a mechanical division among the number of defendants.

To divide the amount of the judgments among the number of defendants in the case at bar also would work injustice. The negligence was passive, not active. The liability arose out of the ownership of the houses. Under such circumstances it is inequitable to saddle the owners of one house with two-thirds of the judgment and allow the owner of the other house to escape with payment of only one-third. The unfairness of such a decision becomes more evident if we consider a hypothetical case. Suppose one of the houses was owned by nine persons. Should these owners of one house be required to pay ninety per cent of the judgment while the owner of the other house pays only ten per cent?

A different situation may exist where the defendants are guilty of active negligence or misfeasance. In such a case the liability would arise out of their own negligent acts and not through ownership, and contribution according to the number of defendants against whom the judgment is obtained may be the fair and proper method. In the case at bar, however, the negligence was passive, and the only fair method of contribution is to apportion according to the ownership, and have the owners of each house pay fifty per cent.

One other point is raised. It is argued that, since Grozalsky did not actually pay the judgment but it was paid on his behalf by an insurance company, he is not the real party in interest, and has no right to make this motion for contribution. As the judgment was paid on behalf of Grozalsky, he should have his right over against the other defendants. There can be no doubt that he would have such right if he had paid the money himself and in fact and effect this is what happened. The insurance company may be entitled to whatever sum Grozalsky recovers from the appellant, but that should not deprive him of his right to contribution.

The judgment should be affirmed, with costs.

Crane, Ch. J., O’Brien, Loughran and Rippey, JJ., concur; Lehman, J., dissents; Hubbs, J., taking no part.

Judgment affirmed.


author: Cbane, Ch. J.

text:
    The People of the State of New York ex rel. John J. Bennett, Jr., as Attorney-General, et al., Appellant, v. Earl S. Laman, Respondent.

      Submitted March 7, 1938;
    decided April 12, 1938.

      John J. Bennett, Jr., Attorney-General (Sol Ullman, Ernest P. Cole and Henry Epstein of counsel), for appellant.
    The practice of medicine, continued daily and threatened in the future, by one who is not licensed to do so, constitutes a public nuisance per se. (State v. Anderson, 6 Tenn. Civ. App. 1; Kentucky v. Payne, 213 Ky. 382; Sloan v. Mitchell, 168 S. E. Rep. 800; State v. Lindsay, 85 Kan. 79; Dworken v. Apt. House Assn., 176 N. E. Rep. 577; Fitchette v. Taylor, 254 N. W. Rep. 910; Rhode Island Bar Assn. v. Auto Service, 179 Atl. Rep. 139; Ottaway v. Lowden, 172 N. Y. 129; People v. Hawker, 152 N. Y. 234; 170 U. S. 189; State v. Smith, 29 Pac. Rep. [2d] 718; State v. Howard, 241 N. W. Rep. 682; City of New Orleans v. Liberty Shop, 157 La. 26; Crolius v. Douglas Boat Club, 139 Misc. Rep. 29; City of New York v. De Peyster, 120 App. Div. 762; 190 N. Y. 547; Gottlieb v. Matckin, 117 Misc. Rep. 128; Brown v. Shyne, 242 N. Y. 176; People v. Lee, 151 Misc. Rep. 431.) The continuous practice of medicine by one who is unlicensed and who is uninformed, untrained and unskilled, and whose acts have had and will have harmful and serious consequence by reason of which a dangerous and serious menace is threatened, constitutes a public nuisance in fact which may be restrained by a court of equity. (State v. Smith, 29 Pac. Rep. [2d] 718; Kentucky State Board v. Payne, 213 Ky. 382; State v. Anderson, 6 Tenn. Civ. App. 1; State v. Lindsay, 116 Pac. Rep. 207; Beaumel, Inc., v. F. B. & W. Realty Corp., 152 Misc. Rep. 631.) The penal remedies are not exclusive as to acts which are dangerous to the health of the People. (City of New York v. N. J. & S. I. Ferry Co., 173 App. Div. 496; City of New York v. De Peyster, 120 App. Div. 762; 190 N. Y. 547; Crolius v. Douglas Boat Co., 139 Misc. Rep. 29; Livingston v. Van Ingen, 9 Johns. 507; Thomson v. N. Y. & H. R. R. Co., 3 Sandf. Ch. 625; United States v. Bank of New York, 296 U. S. 337; Matter of Wood, 194 Cal. 49; State v. Anderson, 6 Tenn. Civ. App. 1; Sloane v. Mitchell, 168 S. E. Rep. 800; Kentucky v. Payne, 213 Ky. 382; Fitchette v. Taylor, 254 N. W. Rep. 910; United States v. Debs, 158 U. S. 564.) The allegations of the complaint show that the penal remedy is inadequate to prevent a continuance of defendant’s acts in the future. (State v. Anderson, 6 Tenn. Civ. App. 1; State v. Smith, 29 Pac. Rep. [2d] 718; Kentucky State Board v. Payne, 213 Ky. 382; Sloane v. Mitchell, 168 S. E. Rep. 800; Matter of Debs, 158 U. S. 564; Matter of Wood, 194 Cal. 49; State of Ohio v. Cox, 257 Fed. Rep. 334; Robbins v. United States, 284 Fed. Rep. 39.) Equity may enjoin a public nuisance detrimental to public health on the application of the People even though no property right exists. (United States v. Gray, 201 Fed. Rep. 291; Com. v. McGovern, 116 Ky. 212; N. A. Ins. Co. v. Yates, 214 Ill. 272; Chicago Fair Grounds v. People, 60 Ill. App. 488; State v. Lindsay, 85 Kan. 79; State of Ohio v. Cox, 257 Fed. Rep. 334; Robbins v. United States, 284 Fed. Rep. 39; Dean v. State, 151 Ga. 371; Kentucky State Board v. Payne, 213 Ky. 382; State v. Chicago, 88 Neb. 669; State of Ohio v. Cox, 257 Fed. Rep. 334.)

      Glen N. W. McNaughton and Arthur J. Delany for respondent.
    The Attorney-General is seeking to have equity enjoin a crime. This equity will not do. (People v. Universal Chiropractors’ Assn., 302 Ill. 228; State v. Maltby, 108 Neb. 578; Dean v. State, 151 Ga. 371; Redmond v. State, 152 Miss. 54; State v. Johnson, 26 N. M. 20; People v. Pierson, 176 N. Y. 201; Merz v. Murchison, 11 Ohio Cir. Ct. Rep. [N. S.] 458; 20 Ohio Cir. Ct. Rep. 646; Woollcott v. Shubert, 169 App. Div. 194; Village of Brockport v. Johnston, 13 Abb. N. C. 468; Walsh v. Cusack Co., 196 N. Y. Supp. 435; Wollitzer v. National Title Guaranty Co., 148 Misc. Rep. 529; Stuart v. La Salle County, 83 Ill. 341: State v. Uhrig, 14 Mo. App. 413.) The complaint contains no allegation to take the appellants’ cause of action out of the operation of the rule that equity has no criminal jurisdiction. (People ex rel. Lemon v. Elmore, 256 N. Y. 489; Matter of Debs, 158 U. S. 564; Respass v. Commonwealth, 131 Ky. 807; State v. Ehrlick, 65 W. Va. 700; State v. Maltby, 188 N. W. Rep. 175; State v. Johnson, 26 N. M. 20; Dean v. State, 151 Ga. 371; Redmond v. State, 152 Miss. 54; People v. Universal Chiropractors’ Assn., 302 Ill. 228; Brown v. Shyne, 242 N. Y. 176.) Equitable jurisdiction to restrain unlawful practice of medicine is generally refused. (State v. Maltby, 108 Neb. 578; Dean v. State, 151 Ga. 371; Merz v. Murchison, 11 Ohio Cir. Ct. Rep. [N. S.] 458; 30 Ohio Cir. Ct. Rep. 646; State v. District Court, 77 Mont, 361; State v. Ehrlick, 65 W. Va. 700; State v. Johnson, 26 N. M. 20; People ex rel. Shepardson v. Universal Chiropractors’ Assn., 302 Ill. 228; Redmond v. State, 152 Miss. 54; State v. Smith, 29 Pac. Rep. [2d] 718; Crowder v. Graham, 201 S. W. Rep. 1053; People ex rel. Chiropractic League of California v. Steele, 40 Pac. Rep. [2d] 959.)
   Cbane, Ch. J.

This action has been brought by the People on relation of the Attorney-General and the State Board of Regents to restrain the defendant from practicing medicine unlawfully and in violation of the Education Law. (Cons. Laws, ch. 16.) Before service of an answer, the defendant moved to dismiss the complaint, and the courts below have granted that motion. On this appeal we must take the facts alleged in the complaint to be true. The complaint is a very lengthy one, and we shall not attempt to summarize all the allegations, but shall call brief attention to those we deem material and more important. The situation as outlined in the complaint appears thus:

For the past fifteen years the defendant has maintained offices in the city of Binghamton and in Endicott city, in the county of Broome. During that time he has practiced medicine, as defined in section 1250, subdivision 7, of the Education Law, and is holding blips,elf out to the public as being able to diagnose and treat diseases, pains and physical conditions. In that period he has treated a great many patients and has received compensation for his services. He lacks knowledge, skill and ability for the practice of medicine in this State, and he is inefficient and wholly unequal to the responsibilities of a medical practitioner in this State. It appears that after leaving high school defendant was by turn a prescription clerk in a drug store, a rural mail carrier, a railway mail clerk and a secret service agent. He spent only twenty-two months in a chiropractic school, and he neither spent the required time in study nor received instruction in the prescribed subjects, as demanded by this State of an applicant to practice medicine.

Defendant gives his patients chiropractic treatments and in his work he has used and applied heat and electric lamps, light rays, vibrators and ointments. He intends and threatens to continue the practice of medicine and to hold himself out as being able to diagnose and treat human diseases, pains and physical conditions.

The complaint sets forth all the requirements of the Education Law respecting the qualifications, examinations and licensing of practitioners, and alleges that defendant lacks the proper qualifications, training and knowledge required by the law; that he has never been examined, licensed or registered as a physician, physiotherapist or osteopath under the laws of this State; and that he has no authority to practice in this State. He has openly, repeatedly and intentionally carried on his practice with full knowledge that he is violating the law of this State and he is endangering the health and welfare of the people. The complaint charges that by reason of the activities of defendant and other chiropractors of the county in publicity and propaganda, that many members of the community have come to believe that regardless of the provisions of law, chiropractors are entitled to practice in this State, even though they practice medicine in doing so,

It is finally alleged: “ That repeated criminal prosecutions of defendant for his unlawful practice of medicine, will make necessary a multiplicity of criminal prosecutions of defendant for his myriad daily acts of unlawful practice, and should convictions result at any time, the penalties provided by law would be insufficient and inadequate as to defendant and would not afford protection to the health and safety of the public as against his uninformed, unskilled, inefficient, incompetent, unqualified and unlicensed practice of medicine. On information and belief, that the continuous, habitual and intentional violation of the law by defendant in practicing medicine in the State of New York without a license to so practice, and the continuous diagnosis and treatment by defendant of the diseases, pains, deformities and physical conditions of men, women and children in the State of New York in an uninformed and unskilled manner and without possessing the education, professional ability and medical knowledge required by law, has endangered, impaired and imperilled and threatens to endanger, impair and imperil the health of the public, has defeated and defeats public policy, has constituted, constitutes and will constitute an open, public and continuous nuisance in the County of Broome, State of New York, and has been and will be subversive to and has caused and will cause irreparable injury to the health, safety and welfare of the People of the State of New York, and that said public nuisance cannot be caused to cease except by injunctive order in and by a court of equity.” These allegations that defendant is inefficient, unskilled, lacking in learning and ability and wholly unequal to the responsibilities required of a practitioner of medicine, and that he has and will endanger the public health and welfare, and will be a menace to the health of the community, we treat as true. The regulation of the practice of medicine is undertaken by the State not for the protection of the physicians themselves, but for the protection and welfare of the people. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud.” (Dent v. West Virginia, 129 U. S. 114, 122; People v. Mulford, 140 App. Div. 716; affd., 202 N. Y. 624.) Those seeking medical attention have no means of estimating the skill and ability of the physician, and must depend upon the State to permit only those qualified to engage in that profession. The fact that one practicing does not possess a license does not necessarily mean that he is ignorant, incapable and a menace to the public health. In the case at bar, however, the complaint alleges that the defendant is unskilled, incapable, lacking wholly in the qualifications required by statute, and had endangered and will continue to be a menace to the public health.

Article 48 of the Education Law governs fche practice of medicine in this State. We need not advert here to the various provisions of that article. Section 1263 provides for penalties. By subdivision 2:

Any person who not being then lawfully licensed or authorized to practice medicine within this state shall

(a) Practice or advertise to practice medicine; or

(b) Use in connection with his name any designation tending to imply or designate him as a practitioner of medicine; or

“ (c) Use the title ‘ doctor ’ or any abbreviation thereof in connection with his name or with any trade name in the conduct of any occupation or profession involving or pertaining to the public health or the diagnosis or treatment of any human disease, pain, injury, deformity, or physical condition, unless duly authorized by law to use the same; * * * shall be guilty of a misdemeanor.”

That is the punishment prescribed by statute for the unlawful practice of medicine. The question before us on this appeal is whether a court of equity of this State has jurisdiction to enjoin the unlawful activities of defendant, or whether jurisdiction over his acts exists only in the proper criminal courts.

That a court of equity will not undertake the enforcement of the criminal law, and will not enjoin the commission of a crime is a principle of equity jurisprudence that is settled beyond any question. There can equally be no doubt that the criminal nature of an act will not deprive equity of the jurisdiction that would otherwise attach. (Cranford v. Tyrrell, 128 N. Y. 341; Davis v. Zimmerman, 91 Hun, 489, 492; Matter of Debs, 158 U. S. 564, 593.) Whether or not the act sought to be enjoined is a crime, is immaterial. Equity does not seek to enjoin it simply because it is a crime; it seeks to protect some proper interest. If the interest sought to be protected is one of which equity will take cognizance, it will not refuse to take jurisdiction on the ground that the act which invades that interest is punishable by the penal statutes of the State. Equity does not pretend to punish the perpetrator for the act; it attempts to protect the right of the party (here the People) seeking relief, and to prevent the performance of the act or acts, which here may injure many.

In an early case in this State, Chancellor Kent laid down a rule which has been often cited (Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371): “ If a charge be of a criminal nature, or an offense against the public, and does not touch the enjoyment of property, it ought not to be brought within the direct jurisdiction of this court, which was intended to deal only in matters of civil right, resting in equity, or where the remedy at law was not sufficiently adequate. Nor ought the process of injunction to be applied, but with the utmost caution. It is the strong arm of the court; and to render its operation benign and useful, it must be exercised with great discretion, and when necessity requires it. Assuming the charges in the information to be true, it does not appear to me that the banking power, in this case, produces such imminent and great mischief to the community, as to call for this summary remedy. * * * It is an extremely rare case and may be considered, if it ever happened, as an anomaly, for a court of equity to interfere at all, and much less, preliminarily, by injunction, to put down a public nuisance which did not violate the rights of property, but only contravened the general policy ” (pp. 378, 380).

In that case an information was filed by the Attorney-General against the defendants, charging them with engaging in banking operations, without any authority under their charter and in violation of the act to restrain unincorporated banking associations. The information concluded with a prayer for an injunction to restrain the company from the business incident to incorporated banks. In refusing an injunction, the opinion of the Chancellor concluded: The exercise of the banking power cannot be brought under the head of a public nuisance. It has none of the characteristic marks of a mischief which calls for such a remedy as injunction. It may be endured without excessive public annoyance, until it can be abated by the regular process of the common law. Even if it was a nuisance, I should not deem myself sufficiently authorized to abate it, on the strength of one solitary modern case in the exchequer, by no means analogous. It is well understood, that public nuisances are public offenses, over which the courts of law have had a uniform and undisputed cognizance ” (p. 390). The rule is also stated in 5 Pomeroy’s Equity Jurisprudence (§§ 1890, 1893, 1894).

The stress upon property rights is again repeated in Matter of Debs (158 U. S. 564, 592, 593), where it was said: Indeed, it may be affirmed that in no well-considered case has the power of a court of equity to interfere by injunction in cases of public nuisance been denied, the only denial ever being that of a necessity for the exercise of that jurisdiction under the circumstances of the particular case. * * * Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature, but when such interferences appear the jurisdiction of a court of equity arises, and is not destroyed by the fact that they are accompanied by or are themselves violations of the criminal law.”

Although invasion of property rights or pecuniary interests is emphasized in some of the earlier cases as a basis for equitable interference, there appeared later a recognition that public health, morals, safety and welfare of the community equally required protection from irreparable injury.

In Stead v. Fortner (255 Ill. 468, 478) the court said: “ The maintenance of the public health, morals, safety and welfare is on a plane above mere pecuniary damage although not susceptible of measurement in money, and to say that a court of equity may not enjoin a public nuisance because property rights are not involved, would be to say that the State is unable to enforce the law or protect its citizens from public wrongs.”

In Kentucky State Board of Dental Examiners v. Payne (213 Ky. 382, 388, 389) the Kentucky Court of Appeals had before it an appeal involving an action to restrain the defendant from practicing dentistry without having first obtained a license as prescribed by statute. The court said: * * * Moreover, we are unable to see why the remedy would prevail in cases where purely property rights are involved and withheld in cases where health, and possibly fife, is involved, since to hazard the latter is as much a nuisance as it is to imperil and impair the former, even if we were compelled to place the grounds of our decision upon the right of the Commonwealth to abate a nuisance. But we are not convinced that the right to maintain this action rests solely upon that ground. * * *. It is freely admitted that equity will not enjoin the commission of a crime as such. * * * but where the chief purpose of the statute is to provide for the public welfare by regulating (not prohibiting) some already lawful calling and only provides a penalty for refusing to comply with such regulations, and which penalty is enacted as a punishment for such refusal, we can discover no logical reason why a court in administering the laws of its jurisdiction would be powerless to prevent the doing of the prohibited act merely because a penalty (only nominal in this case) is attached for a refusal to comply with the regulation.”

And in Commonwealth v. McGovern (116 Ky. 212, 238) it was said: Nor do we think that the right of the chancellor to so employ the writ of injunction in this case is dependent upon the fact that a property right be involved. It may be justified upon the higher ground that the morals and safety of the public are involved, and that the public good is of the first consideration.”

In our own State Chief Judge Rtjgeb wrote (Health Dept. v. Purdon, 99 N. Y. 237, 241) : “ The fact that the teas, the sale of which this action was- brought to restrain, were adulterated, and that their possession for the purpose of sale to the general public was a nuisance subjecting the offenders to an indictment, and in case of sale, to actions for penalties for selling adulterated goods, cannot be successfully controverted; and yet this fact alone is insufficient to support the action. The plaintiffs have thereby established but one of the elements necessary to entitle them to the relief demanded. Courts will not in all cases interfere by way of injunction to restrain the continuance of an illegal trade, the abatement of a nuisance, or the prosecution of a dangerous employment. (Wolcott v. Melick, 3 Stockt. 204; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371.) Its power, however, to do so in case of the exercise of any trade or business which is either illegal or dangerous to human life, detrimental to health, or the occasion of great public inconvenience, is not only conferred by the provisions of the statute, but belongs to the general powers possessed by courts of equity to prevent irreparable mischief and obviate damages for which no adequate remedy exists at law.”

In an action to enjoin defendant from selling and distributing milk to consumers or stores at less than the minimum prices fixed by the New Jersey Milk Control Board for the area in which the defendant conducts its business for sale within the State of New Jersey (State ex rel. State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504, 513), the court stated the rule: “ Where the property rights of many citizens are involved, it is proper for the government upon their behalf to invoke the powers of equity. Pom. Rem. § 480. A fortiori, the injunctive power may be invoked when the health or very existence of the people is menaced by the deprivation of an essential food commodity, or its service in a contaminated state.” It seems clear, therefore, that a court of equity will extend its protection to the health and safety of the public, and, in a proper case, will enjoin acts which imperil that interest and are a public menace. The Supreme Court of Iowa said: “ * * * the practice of medicine without a license is injurious to the health of all the people, and therefore, under the general statute defining nuisances, constitutes and is a nuisance.” (State v. Howard, 214 Iowa, 60, 66.) Broadcasting by an unlicensed radio station has been held to be a public nuisance which could be enjoined at the suit of the Attorney-General. (United States v. American Bond & Mortgage Co., 31 Fed. Rep. [2d] 448.) “ It is apparent that the elasticity of the word ‘ nuisance ’ permits courts to stretch it to cover almost any situation which threatens injury to interests of the public.” (Injunctions against Crime, by Harmon Caldwell, 26 Ill. L. Rev. 259, 268.)

Section 1251 of the Education Law provides that: “No person shall practice medicine * * * : unless licensed by the department and registered as required by this article.” Provision is then made for the admission to examinations, the subjects of examinations, the licensing and registration of those found qualified to practice. The criminal penalties are then prescribed in section 1263, quoted before. The prohibition against the unlawful practice of medicine is made without relation to the imposition of a penalty. Equity is not concerned with the criminal feature of defendant’s acts. Another section of the statute absolutely prohibits such unlawful practice. These provisions are designed to protect the people from the ministrations of incompetent, incapable, ignorant persons, and to avoid the consequent harm to their health and physical wellbeing. The interest of the State, the imminence of the danger and the irreparable character of the injury are here fully apparent. A court of equity is not powerless to lend its assistance.

We have pointed out that the fact that a criminal penalty is imposed for the performance of such acts will not deprive equity of its jurisdiction. In equity the court will consider the criminality of the act only to determine whether, under the particular circumstances, equitable intervention is necessary to give adequate protection to the interest invaded or whether justice will be best served by relegating the parties to the criminal court. It is not every violation of a statute, even of the statute under consideration, that calls for equitable interference. But where, as here, it is made to appear as a fact that real danger is threatened to the public health by the conduct of the defendant, that irreparable damage to the health of individuals is likely to result, and that criminal prosecution, even if successful, will not give adequate protection to those in danger, a proper case for injunction has been made out.

There are allegations in the complaint which charge that criminal prosecutions against defendant and others have been unsuccessful due to the reluctance of local juries to convict those defendants. That is not a factor calling for equitable intervention. It is no part of the office of equity to take over the duties of other public officers. Nor will equity sit in judgment on the criminal courts. As heretofore pointed out, equity interferes, in a proper case, not to punish the individual for his past acts, but to afford more complete protection to the complaining party by enjoining unlawful acts in the future.

In some of the other' States, an injunction has been permitted in similar cases. (State v. Anderson, 6 Tenn. Civ. App. 1; Kentucky State Board of Dental Examiners v. Payne, 213 Ky. 382; Commonwealth ex rel. Attorney-General v. Pollitt, 258 Ky. 489; State ex rel. La Prade v. Smith, 43 Ariz. 131.) Other States have refused to grant such an injunction. (People ex rel. Shepardson v. Universal Chiropactors’ Assn., 302 Ill. 228; Redmond v. State, 152 Miss. 54; State v. Maltby, 108 Neb. 578; Dean v. State, 151 Ga. 371.) In People ex rel. Shepardson v. Universal Chiropractors’ Assn, it was stated that what defendants were doing was not a menace to public health, morals, safety or welfare. In Dean v. State (supra) there were no findings of harm, even it it were so conceded the chancellor could find.

The policy of our State in extending the remedy of injunction may be observed in the acts enacted by the Legislature. (Civ. Prac. Act, § 1218, to restrain the unlawful exercise of corporate rights; § 1221-b, to restrain the unlawful practice of law; Gen. Corp. Law [Cons. Laws, ch. 23], §§ 96, 135, 219, to restrain corporations, their officers, etc., under certain circumstances; Agriculture and Markets Law [Cons. Laws, ch. 69], § 38, to restrain the further violation of provisions of that chapter; § 258-e, to enforce compliance with the statute, rules and regulations respecting milk control; § 270-c, to restrain violation of statute, rules or regulations respecting public markets; Public Health Law [Cons. Laws, ch. 45], § 21, board of health may restrain violation of its orders or regulations, violations of any regulations of State sanitary code, or may enforce its orders and regulations; §§ 343-a to 343-c, to enjoin certain nuisances; Penal Law, § 2357, enjoin use of a trade-mark; § 948, restrain the unlawful use of name of benevolent, humane or charitable corporation; Civil Rights Law [Cons. Laws, ch. 6], § 51, to restrain the invasion of right to privacy; Village Law [Cons. Laws, ch. 64], § 93, enforce obedience to village ordinance; § 179-c, restrain or abate violation of zoning law; Second Class Cities Law [Cons. Laws, ch. 53], § 42, to restrain violation or compel compliance with ordinance of the common council; Gen. City Law [Cons. Laws, ch. 21], § 20, subd. 22, compel compliance with or restrain violation of any ordinance of every city; Town Law [Cons. Laws, ch. 62], § 268, restrain or abate violation of zoning law.) It may be urged that the enactment of these statutes indicates a policy of permitting injunctions to restrain violation of statute to issue only in those cases where specific provision has been made. It is clear, however, that the policy of the State is to make the remedy more available, not to restrict it. Thus, section 1221-a subdivision 1, of the Civil Practice Act gives the Attorney-General the authority to maintain an action against any one rendering services which are prohibited by law and the statutes in such case made and provided as constituting the unlawful practice of the law.” The final judgment in favor of plaintiff must perpetually restrain the defendant from the “ commission or continuance of the act or acts complained of.” (§ 1221-b.) No special damage or injury to the public need be shown; commission of the prohibited acts is sufficient. Section 258-e of the Agriculture and Markets Law provides that the Commissioner may institute any action at law or in equity to enforce compliance with any of the provisions of the statutes, rules and. orders committed to his administration, and may apply for relief by injunction if necessary to protect the public interest without being compelled to allege or prove that an adequate remedy at law does not exist.”

In the case at bar the People would not be entitled to an injunction upon a mere showing that the statute had been violated or that acts prohibited by the statute had been performed, in the absence of special statutory authority. However, they go much further than that. They allege facts showing that the acts of defendant imperil the health of the people of the community, and will continue to cause irreparable injury to the health of the people and perhaps to their Uves. The relators invoke only the ordinary powers of a court of equity. The power of the court to restrain acts which are dangerous to human life, detrimental to the public health and the occasion of great public inconvenience and damage is one that is possessed by ah courts of equity. (Health Dept. v. Purdon, supra.) Enough has been shown here, which if proven upon the trial, will warrant the issuance of an injunction.

The judgments should be reversed, and the motion denied, without costs.

O’Beien, Htjbbs, Loughean and Finch, JJ., concur; Lehman and Bjppey. JJ., dissent.

Judgments reversed, etc.


text:
    Winifred D. Jackson, as Administratrix of the Estate of James L. Jackson, Deceased, Plaintiff, v. Citizens Casualty Company of New York, Respondent. Martin C. Schaus, Appellant.

      Argued February 28, 1938;
    decided April 12, 1938.

      Frank Gibbons for appellant.
    The cause of action sued upon is one arising out of contract and was assignable. (Cons. Laws, ch. 41, § 41; Marsh v. Perkins, 132 Misc. Rep. 629; 225 App. Div. 672; Snyder v. City of New York, 74 App. Div. 421; Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273; Baseball Players Fraternity, Inc., v. Boston American League Baseball Club, 166 App. Div. 484; 221 N. Y. 704; Brace v. City of Gloversville, 167 N. Y. 452; Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609; Hicks v. British American Assur. Co., 162 N. Y. 284; Skenandoa

      Rayon Corp. v. Halifax Fire Ins. Co., 245 App. Div. 279; 272 N. Y. 457; Lavine v. Indemnity Ins. Co., 260 N. Y. 399; Bakker v. Ætna Life Ins. Co., 264 N. Y. 150; Brustein v. New Amsterdam Casualty Co., 255 N. Y. 137; Merchants Mut. Auto. Liability Ins. Co. v. Smart, 267 U. S. 126; State ex rel. Park Nat. Bank v. Globe Indemnity Co., 332 Mo. 1089.) The cause of action sued upon is also assignable if its parentage is statutory rather than contractual. (Tanas v. Municipal Gas Co., 88 App. Div. 251; Morenus v. Crawford, 51 Hun, 89; Grocers Nat. Bank v. Clark, 48 Barb. 26; Selden v. Illinois Trust Bank, 239 Ill. 67; Imperial Film Exchange v. General Film Co., 244 Fed. Rep. 985; Smith v. Endicott-Johnson Corp., 199 App. Div. 194; 234 N. Y. 628; Meech v. Stoner, 19 N. Y. 26; People v. Stedeker, 175 N. Y. 57; Quin v. Moore, 15 N. Y. 432; Illinois Surety Co. v. United States, 240 U. S. 214; Title Guarantee & Trust Co. v. Puget Sound Engine Works, 163 Fed. Rep. 168; Title Guarantee & Trust Co. v. Crane Co., 219 U. S. 24.) Where the insurance carrier of one of two joint judgment debtors pays the judgment it cannot maintain an action to recover over against the insurer of the other judgment debtor for contribution under the provisions of section 211-a of Civil Practice Act.

      Manly Fleischmann, Alger A. Williams and Adelbert Fleischmann for respondent.
    The cause of action alleged in the complaint is not assignable. (Burke v. London Guaranty & Accident Co., 47 Misc. Rep. 171; 126 App. Div. 933; 199 N. Y. 557; Royal Indemnity Co. v. Travelers Ins. Co., 244 App. Div. 582; 270 N. Y. 574; Commercial Casualty Ins. Co. v. New Amsterdam Casualty Ins. Co., 239 App. Div. 914; Knickerbocker Ins. Co. v. New York Indemnity Co., 140 Misc. Rep. 654; Metropolitan Casualty Ins. Co. v. Union Indemnity Co., 141 Misc. Rep. 792; 229 App. Div. 827; 255 N. Y. 591.) Other statutory causes of action are non-assignable. Where a statute creates a cause of action for the recovery of a civil penalty as a means of enforcing the provisions of a particular statute, such cause of action cannot be assigned. (McBratney v. Rome, W. & O. R. R. Co., 19 Hun, 385; 87 N. Y. 467; Coyle v. Interurban Street Ry. Co., 88 N. Y. Supp. 136.)
   Finch, J.

Whether the person injured may assign the cause of action given by subdivision 1 of section 109 of the Insurance Law (Cons. Laws, ch. 28), either before or after judgment against the insured, is the question of law presented for decision.

The facts, in so far as necessary to present this question, are as follows: James L. Jackson died as the result of injuries received by him from an automobile operated on the highway by one Juan Lord. The plaintiff, his widow, brought a statutory death action against Brown & Kleinhenz, Inc., Forbes Motor Agency, Inc., and Juan Lord, to recover damages alleged to have been caused by the negligence of the defendant Juan Lord, as operator, and Brown & Kleinhenz, Inc., and Forbes Motor Agency, Inc., as owners. At Trial Term a verdict was rendered in favor of defendant Brown & Kleinhenz, Inc., of no cause of action and in favor of plaintiff against the defendants Forbes Motor Agency, Inc., and Juan Lord for approximately $18,000. Forbes Motor Agency, Inc., appealed to the Appellate Division where the judgment of the Trial Term was reversed and the complaint as to it dismissed (246 App. Div. 445). On appeal to the Court of Appeals, the judgment of the Appellate Division was reversed and that of Trial Term reinstated (273 N. Y. 365). Juan Lord did not appeal and execution issued against him has been returned wholly unsatisfied. The defendant Citizens Casualty Company had issued an automobile liability policy, obligating payment of the judgment recovered against Juan Lord, and the plaintiff commenced an action against this surety company. Following the decision of the Court of Appeals, reinstating the judgment against Forbes Motor Agency, Inc., the judgment in favor of plaintiff was assigned to Martin C. Schaus, as was also the cause of action which the administratrix had against the defendant by virtue of the liability insurance policy. Schaus thereupon moved to revive the action against the defendant insurance company and substitute himself as plaintiff. This motion was denied, and upon appeal the Appellate Division affirmed on the law and not in exercise of discretion, thus presenting squarely the question of law, whether the cause of action provided by subdivision 1 of section 109 of the Insurance Law was assignable. The Appellate Division granted leave to appeal to this court and certified the question, “ On the record in this case was the motion of the appellant Martin C. Schaus properly denied as matter of law?

Prior to the enactment of section 109 of the Insurance Law, an injured person possessed no cause of action against the insurer of the tort feasor because of the lack of privity of contract. (Burke v. London Guarantee & Accident Co., 47 Misc. Rep. 171; affd., 199 N. Y. 557.) In consequence if the insured was insolvent, so that the person injured or the estate of one killed was unable to satisfy the judgment against him, the insurer in effect would be released. The policy being one of indemnity against loss suffered by the principal, it followed that the insured having suffered no damage, there was no loss for the insurer to indemnify. For the purpose of correcting this situation with its attendant injustice the Legislature enacted this remedial statute which became section 109 of the Insurance Law. (Coleman v. New Amsterdam Cas. Co., 247 N. Y. 271.) Since a new cause of action was created, the initial step in determining the intention of the Legislature must be a careful analysis of the wording of the statute. For convenience the pertinent portions of section 109 follow: “ No policy of insurance against loss * * * resulting from accident to * * * an employee or other person * * * shall be issued * * * unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured * * * shall not release the insurance carrier from the payment of damages for injury sustained * * * and a provision stating that in case judgment against the insured * * * shall remain unsatisfied * * * then an action may be maintained by the injured person, or his or her personal representative, against the insurer * * * ” (subd. 1).

The above section was attacked as offending the Constitution. Because the issuance of a policy coming within the purview of the provisions required by section 109 was entirely voluntary on the part of the insurer the section was upheld. (Merchants Mut. Automobile Liability Ins. Co. v. Smart, 267 U. S. 126, affg. 236 N. Y. 577; 206 App. Div. 630.)

In the light of the common law before the enactment of section 109 of the Insurance Law, the attendant injustice and the mischief which the Legislature was seeking to cure, we must conclude that the statute was drawn for the protection of injured plaintiffs. The words of the section give express protection to “ the injured person, or his or • her personal representative.” Was it the legislative intention to go further and permit an assignee to receive a like protection? Applying a fundamental principle of statutory construction, this specific mention of those to whom the right of action is given implies the exclusion of others. (Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57.) This construction likewise accords with a public policy which holds claims for personal injuries nonassignable. Whatever may have been the reason for such public policy in earlier times, it seems now clear that the protection of the injured person is the dominant note. In confining this protection to the person injured or his personal representative, the Legislature has still further protected the injured and the representative by excluding speculation in these claims. In addition it is to be noted that to permit a recovery by the assignee in the case at bar would in effect permit forcing contribution between companies issuing liability policies. In fact it is here urged that the defendant, as insurer of the driver of the automobile, is primarily liable as against the insurer of the owner of the car. But it is held that there can be no contribution or indemnification under these circumstances, and the recently enacted statute permitting contribution between joint tort feasors (Civ. Prac. Act, § 211-a) does not apply to the facts in the case at bar.

All the above considerations constrain us to go no further in the construction of section 109 than the express intention of the Legislature as shown in clear and unambiguous terms. These give a right of action to the injured person or his or her representative, and not to an assignee. If, because of the ambiguity of the language used by the Legislature the court has placed too strict a limitation upon the application of the statute, it is easily within the province of the Legislature to expand its application. A court should go no further than is indicated by language in the statute.

The above construction is in accord with that reached by this court in an analogous suit (Royal Indemnity Co. v. Travelers Ins. Co., 244 App. Div. 582; affd., 270 N. Y. 574). In that case plaintiff, an insurance carrier, paid an award under the Workmen’s Compensation Law (Cons. Laws, ch. 67) to the injured person, and then recovered a judgment against the tort feasor on the theory that the payment of the award operated as an assignment of the cause of action of the person injured. The judgment was returned unsatisfied and action was brought against the insurer of the wrongdoer under section 109 of the Insurance Law. In granting the motion of defendant for judgment on the pleadings, it was held by this court that the cause of action under section 109 was limited to the injured person, or, in case of death, his personal representative.

The appellant urges that the cause of action in the case at bar is created by the contract of insurance rather than by statute, and, therefore, is assignable equally with any other contractual right. But, as was well said by the Appellate Division, “ The right which is thus accorded the plaintiff owes its parentage to the statute, rather than to the contract of insurance. The policy adopts, under compulsion, the provisions of the statute. Under such circumstances it is idle to say that this is an action upon a contract rather than one under the statute.” (252 App. Div. 393, 397.)

Appellant also urges that although a cause of action for personal injuries may be too personal for assignment, yet upon the entry of judgment the non-assignability of the cause of action is lost, and the right which survives is merely that of a breach of the contract of insurance or one based upon the judgment obtained by the plaintiff. A complete answer to this contention is that, prior to the enactment of the statute, no claim could be enforced successfully against the insurer, whether founded upon a breach of contract or upon the recovery of judgment. In consequence all rights of recovery, upon whatever theory, are limited by the words of the statute and are given only to the injured party or to his or her representative.

Appellant also relies upon the provisions of the Personal Property Law (Cons. Laws, ch. 41, § 41). This section provides that any claim or demand may be transferred except where the transfer is forbidden by statute or would contravene public policy. But where as in the case at bar a new cause of action is created, and the statute creating such cause of action by its terms specifies the class to which the action is given, section 41 does not purport to enlarge this class. (Royal Indemnity Co. v. Travelers Ins. Co., supra.)

It follows that the order appealed from should be affirmed with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.


text:
    Lulu V. Payne, Appellant, v. City of New York et al., Defendants, and Manhattan and Queens Traction Corporation, Respondent.
    Argued March 17, 1938;
    decided April 12, 1938.

      Harold M. Phillips and Alvin R. Cowan for appellant.
    The trial court erred in granting the motion of the defendant-respondent to dismiss the complaint. The case should have been submitted to the jury. (Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604; Grawunder v. Beth Israel Hospital Assn., 242 App. Div. 56; De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350; De Agramonte v. City of Mount Vernon, 123 App. Div. 718; Burrows v. Liningston-Niagara Power Co., 244 N. Y. 548; Bonhag v. Queens Borough Gas & Electric Co., 240 App. Div. 888; Reid v. New York & New Jersey Tel. Co., 151 App. Div. 96.)

      Joseph M. Sullivan for respondent. The trial court properly dismissed the complaint as to defendant-respondent.
    The evidence presented no question of fact for the jury to pass upon. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; McPherson v. City of New York, 204 N. Y. 430; Loftus v. Union Ferry Co. of Brooklyn, 84 N. Y. 455; Di Biase v. Ewart & Lake, Inc., 228 App. Div. 407; 255 N. Y. 620; Cleveland v. N. J. Steamboat Co., 125 N. Y. 299; Flaherty v. Metro Stations, Inc., 202 App. Div. 583; 235 N. Y. 605; Beickert v. G. M. Laboratories, 242 N. Y. 168; Van Leet v. Kilmer, 252 N. Y. 454.)
   Crane, Ch. J.

Lula V. Payne, the plaintiff, is a registered nurse living, at the time of this accident, in West Seventy-first street, New York city. On July 7, 1933, she started to drive her automobile with friends to Jones’ Beach, coming over the Fifty-ninth Street Bridge,under the Queens boulevard, and then through Jamaica avenue to Sutphin boulevard. Sutphin boulevard is a wide street with car tracks on it of the Manhattan and Queens Traction Corporation. It is a very busy thoroughfare, automobiles going in both directions and using every part of the street, including the portion between the tracks paved with paving stones. As she was proceeding on Sutphin boulevard, a big sedan, passenger car, passed her on the left and, going over a large stone, threw it from the ground through her windshield, striking her and causing severe injuries. The railroad company had been repairing the street between its tracks. The men doing the work had left these stones in the street either piled up or scattered about. The stone or cobble was found in the plaintiff’s car, and weighed twelve and a half pounds. That it is possible for automobiles in passing over cobble stones or rocks to so strike them with the wheel on the slant or bias as to cause them to fly with great violence is almost common knowledge. Of course it all depends upon the shape and position of the stone, and the angle at which it is struck, but that such things do happen and can happen, is a matter which is not incredible as matter of law.

Whether or not the railroad company, in the exercise of reasonable care, should have foreseen that loose stones or cobbles lying in the street might thus be thrown with violence against persons or vehicles became a question of fact for the jury, in view of all the circumstances. The courts cannot say as a matter of law that on the evidence in this case danger was not foreseeable by a prudent person. Highways have changed with the coming of the automobile and the customs of the times. Highways are now smooth. Cobblestones have given way to asphalt or cement or to other prepared surfaces. This court was quite divided in opinion as to whether or not even sand upon a city street which got into a boy’s roller skates and caused him to fall under a car, constituted negligence in the person leaving the sand there. (Halpin v. New York Railways Corp., 276 N. Y. 545.)

The evidence is positive in this case that the stone or rock was thrown by the wheels of the passing car — no speculation of this fact. It is not an uncommon experience to have an automobile catch an article on the roadway and cause it to fly in the air, and such articles may be a source of danger to pedestrians and others on the roadway. (See as to facts Manning v. Dale Engineering Co., 269 N. Y. 636; Demjanik v. Kultau, 242 App. Div. 255; Burkes v. Lieberman, [14-1b. stone] 245 N. Y. 579.)

A person cannot be held liable in negligence for failing to provide against a danger he could not have reasonably foreseen. (Van Leet v. Kilmer, 252 N. Y. 454; Beickert v. G. M. Laboratories, Inc., 242 N. Y. 168; Cleveland v. N. J. Steamboat Co., 125 N. Y. 299.) If it might reasonably have been anticipated, or if its occurrence would not, in the minds of reasonable men, be in the highest degree unlikely, if things were left in the condition then presented to them, the charge of negligence might be a proper one for the jury to pass upon.” (Cleveland v. N. J. Steamboat Co., supra, p. 306.) To be negligent, a defendant must have acted or failed to act in such a way that an ordinary reasonable man would have realized that certain interests of certain persons were unreasonably subjected to a general but definite class of risks.” (Harper on The Law of Torts, § 111.)

One who negligently leaves stones or piles of stones in the public roadway might reasonably foresee injury to persons driving along the street and hitting such obstruction. (Francis v. Gaffey, 211 N. Y. 47; Sweet v. Perkins, 196 N. Y. 482.) We cannot say as matter of law that this defendant could not reasonably foresee an accident such as befell plaintiff.

At the end of the plaintiff’s case the trial judge dismissed the complaint. We do not know what the defense would have been or will be. The dismissal was error for, as we have intimated, the plaintiff made out a prima facie case justifying a submission to the jury of the defendant’s negligence, and the plaintiff’s damage in consequence thereof.

The judgments should be reversed and a new trial granted as to defendant Manhattan and Queens Traction Corporation, with costs to abide the event.

Lehman, O’Brien, Htjbbs, Lougsran, Finch and Bibpey, JJ., concur,

I'tidpnent.s reversed, etc.