author: O’Brien, J.

text:
    Stephen S. Johnson, Jr., Respondent, v. The Travelers Insurance Company, Appellant.

      (Argued December 9, 1935;
    decided January 8, 1936.)

      Bernard J. McGUnn, Louis P. Gcdli and William J. Moran for appellant.
    Plaintiff’s proof showed neither total nor partial loss of time continuously from the date of accident. Upon this showing the complaint should have been dismissed. (Irwin v. Travelers Ins. Co., 243 App. Div. 377; Rufino v. Metropolitan Life Ins. Co., 154 Misc. Rep. 628; Hagadorn v. Masonic Equitable Accident Assn., 59 App. Div. 321; Rhodes v. Railway Passenger Ins. Co., 5 Lans. 71; Martin v. Travelers Ins. Co., 310 Mo. 411; Buford v. North American Accident Ins. Co,, 3 Fed. Rep. [2d] 263; Thompson v. General Acc, Fire & Life Assur. Co., 155 La. 31; Lewis v. Preferred Accident Co., 151 Wash. 396; Masonic Protective Assn. v. Farrar, 73 Ind. App. 19; Letherer v. U. S. Health & Accident Ins, Co., 145 Mich. 310; Walter v. Mutual Ben. Assn., 208 Iowa, 894; McDaniel v. Business Men’s Assur. Co., 6 S. W. Rep. [2d] 337; Penguite v. General Accident Fire & Life Corp., 121 Kan. 174; Robinson v. Masonic Protective Assn., 87 Vt. 138; Southern Surety Co. v. Penzel, 164 Ark. 365; Coburn v. Maryland Casualty Co., 224 Ky. 377; Smith v. U. S. National Life & Casualty Co., 101 Cal. App. 79; Burrell v. Provident Life & Accident Ins. Co., 162 Term. 672.)

      Neil P. Cullom and Henry W. Steingarten for respondent.
    Plaintiff was wholly and continuously disabled from the date of the accident. (Harasymczuk v. Massachusetts Accident Co., 127 Misc. Rep. 344: Rathbun v. Globe Indemnity Co., 107 Neb. 18; Kremper v. Police & Firemen’s Ins. Assn., 48 S. W. Rep. [2d] 978; Collis v. Massachusetts Bonding & Ins. Co., 236 App. Div. 525; 264 N. Y. 447; United States v. Spaulding, 293 U. S. 498; Brendon v. Traders & Travelers’ Acc. Co., 84 App. Div. 530; Booth v. Fidelity Ins. Co., 130 Atl. Rep. 131; Massachusetts Protective Assn. v. Lewis, 72 Fed. Rep. [2d] 952; American Liability Co. v. Bowman, 114 N. E. Rep. 992; Jones v. Fidelity & Casualty Co., 207 N. W. Rep. 179; Lobdill v. Laboring Men’s Mut. Aid Assn., 69 Minn. 14; Kemper v. Police & Firemen’s Ins. Assn., 44 S. W. Rep. [2d] 978; Claxton v. American Casualty Ins. Co., 158 Pac. Rep. 544; Erickson v. Commercial Travelers Ins. Co., 176 Pac. Rep. 989; Continental Casualty Co. v. Matthis, 150 S. W. Rep. 507; Rorabaugh v. Great Eastern Casualty Co., 200 Pac. Rep. 587; Silverstein v. Metropolitan Ins. Co., 254 N. Y. 81; Bird v. St. Paul Ins. Co., 224 N. Y. 47.)
   O’Brien, J.

Defendant issued a policy insuring plaintiff against loss resulting from accidental body injuries “ as specified in the following Schedule, subject to the provisions and limitations hereinafter contained.” The schedule provides for total loss of time for injuries which shall “ wholly and continuously disable the Insured from date of accident from performing any and every kind of duty pertaining to his occupation,” and for partial loss of time which shall wholly and continuously disable the Insured from date of accident from performing one or more important daily duties pertaining to his occupation, or for like continuous disability following total loss of time.” Plaintiff’s application for this policy stated that his duties consisted of office duties and traveling. The complaint alleges that on October 22, 1932, plaintiff received an accidental injury which immediately wholly disabled him from performing any and every kind of duty pertaining to his occupation and will so disable him for some time in the future. Dining the trial plaintiff introduced a statement or computation of damages in which the claim is made for $11,583.57 for continuous disability from performing any and every kind of duty pertaining to his occupation from November 21, 1932, to March 21, 1934, and for continuous disability from performing one ór more important daily duties pertaining to his occupation from March 21, 1934, to September 19, 1934. At the close of the trial at the court’s suggestion, in view of this statement or computation, plaintiff’s counsel moved ¿nd was granted the privilege of conforming the complaint to the proof. The judgment entered upon the verdict for upwards of $16,000 in plaintiff’s favor has been unanimously affirmed. The question of law is whether there is any evidence proving a continuous disability from the date of the accident within the reasonable meaning of those words as used in the policy.

On October 22, 1932, plaintiff, while assisting another man to lift a box of books from the rumble seat of an automobile, received an injury concerning the nature of which he was unaware until November 16, 1932. On December 19, 1932, defendant received from him a proof of claim containing these questions and answers:

"Describe the injuries sustained: Severe injury to lower back. Total Loss of Time? (means the period during which the insured was disabled from performing any and every kind of duty pertaining to his occupation). From November 29, 1932, 9 o’clock p. m. Still totally disabled.
" Partial Loss of Time? (means the period during which the insured was disabled from performing one or more important daily duties pertaining to his occupation). From October 22, 1932, 7:30 o’clock p. m. to October 29, 1932, 9 o’clock p. m.
“ If partially disabled name the important daily business duties you could not perform: Difficulty in walking and travelling.”

The allegations in the complaint and the statements in the proof of claim are at variance. The complaint alleges that the accident of October 22, 1932, immediately wholly disabled plaintiff from performing any and every kind of duty pertaining to his occupation and that it would so disable him for some time in the future. The proof of claim states the total loss of time as extending from November 29,1932, to the date of the notice, December 15, 1932, and still continuing, and the partial loss of time as extending from October 22, 1932, to October 29, 1932. The computation of damages submitted at the trial gives the date as November 21 instead of November 29. The only partial disability immediately following the accident of October 22, 1932, which disabled plaintiff from performing one or more important daily duties pertaining to his occupation is, according to the proof of claim, Difficulty in walking and travelling,” and this difficulty is not shown to have impeded the performance of his duties.

At the time of the accident, which occurred in Ponca City, Oklahoma, plaintiff was an engineer and the western sales representative of M. W. Kellogg Company, a corporation which manufactured machinery for chemical and oil industries. He was in that city for the purpose of selling machinery to a man named Osborn. The accident occurred on a Saturday evening October 22, 1932, and at that time plaintiff did not realize that he had sustained any injury. He felt a little kink, a little stiffness in his back and thought very little of it at the time. He continued to assist his friends in removing the other boxes of books from the car. After the accident that evening he went to an entertainment and on the next day, Sunday, filled an appointment at Mr. Osborn’s office, spent an hour there and eventually sold him the machinery. The rest of the day he spent socially at the Osborn home and in the evening went to a motion picture and walked back to his hotel. On Monday he attended another conference with Mr. Osborn and other engineers in respect to reconstructing an oil refinery at Ponca City and at this conference he offered designs and calculations. It lasted several hours in the morning and part of the afternoon and plaintiff was at the disposal of these men all day. When he was not attending the conference, he worked at his hotel on plans and specifications and conferred intermittently all week. Nearly every day he went out to the réfinery of the Continental Oil Company on business of his employer. At the end of the week the sale was consummated and plaintiff, alone, took a day train for Wichita, Kansas, and thence by sleeping car to San Francisco where his presence had been requested. There on the following Monday, October 31, he consulted with the vice-president of his corporation and several engineers in reference to the installation of a plant for the Associated Oil Company at Avon, California. During his stay at San Francisco he was driven twenty miles with others to the refinery at Avon for inspection. On election day he walked from his hotel to the City Hall in San Francisco to listen to an address by President Hoover. During this time his foot troubled him and he consulted a physician in San Francisco. A few days thereafter he left alone by train and arrived at New York about the 11th or 12th. On the 16th his physician examined him and found that the fifth vertebra had slipped forward and caused a lameness in the leg. He traveled by train from Summit, New Jersey, where he lived, to New York and visited the office of the M. W. Kellogg Company each day until he entered the hospital November 29, 1932, where he remained until February, 1933. On December 5, 1932, he submitted to an operation and was encased in a plaster cast and he so remained for five months. In March, 1934, he resumed his duties and at the date of the trial attended at the office on routine office work from nine o'clock until three or four o’clock. This narrative is founded entirely upon plaintiff’s testimony and that of his physician and leaves no doubt that from the date of the accident, October 22, until November 29 not only was he not continuously disabled from performing any and every kind of duty pertaining to his occupation but that he was in no sense disabled from performing one or more important daily duties pertaining to his occupation. There was no loss of time, neither total nor partial, from October 22 to November 29. The loss of time did not begin until five weeks subsequent to the accident and consequently his injury did not disable plaintiff continuously from the date of the accident.

Plaintiff argues that literal interpretation should not be placed upon the terms of the policy. Unless we are prepared to adopt the theory of the cynic that language was invented for the purpose of concealing thought, we have no right to disregard the clear provisions which defendant inserted in the policy and which plaintiff accepted. No idea could be more clearly expressed than that the thought of both parties to this contract was to indemnify for loss of time beginning contemporaneously with the accident. The expression “ continuously from date of accident ” can convey no conception other than an immediate disability. Indeed the complaint alleges that the accidental injury sustained by plaintiff on October 22, 1932, immediately disabled him and, if any evidence tended to support such an allegation, this judgment would be correct. The proof, however, shows that he was in no respect disabled prior to November 21, and probably not before November 29, and the pleading as amended to conform to such proof cannot state a cause of action on this policy. Defendant did not contract to indemnify plaintiff merely for loss of time; the agreement relates to loss of time beginning with the accidental injury. To give force to language expressing a clear intent does not result in absurd literalism.” In many instances disability may be caused by an event so remote that causal connection is difficult and sometimes impossible to trace. Even in this case plaintiff as late as November 28 was unable definitely to assign the cause of his disability. On that date he notified defendant in writing that his back had been injured as a result of “ two recent accidents.” He then thought that his injury might have been caused by an accident in September when a boat fell upon his shoulders. Doubtless the provision relating to disability from the date of the accident is in the policy for the purpose of rendering possible the ascertainment of the cause of the disability. Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous the terms are to be taken and understood in their plain, ordinary and proper sense. (Preston v. Ætna Ins. Co., 193 N. Y. 142, 144; Abrams v. Great American Ins. Co., 269 N. Y. 90.)

Respondent cites Collis v. Massachusetts Bonding & Ins. Co. (236 App. Div. 525; affd., 264 N. Y. 447) as controlling the facts in this case. We think that it does not apply. There the policy of health insurance provided that if such illness shall immediately, continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation ” the insurer would pay indemnity. The complaint in that action alleged and the answer denied that plaintiff was disabled by illness from July 1, 1928, to November 1, 1928. The memorandum report in this court (264 N. Y. 447) discloses that there was testimony that on July 3 plaintiff left his place of business and on the advice of his physicians went to Europe, not returning until November 6, and that on such testimony the Appellate Division found as facts, reversing contrary findings by the trial court, that plaintiff was disabled by illness and prevented from performing any and every kind of duty pertaining to his occupation from July 3 to November 6. A variation of two days between the allegation of the complaint and the proof is not sufficient to warrant a finding that the disability was not immediate. The principle announced in such decisions as Rhodes v. Railway Passenger Ins. Co. (5 Lans. 71, 77) and Buford v. North American Accident Ins. Co. (3 Fed. Rep. [2d] 263, 264) is applicable here where there is no evidence that plaintiff’s injury prevented him from substantially performing the duties of his occupation until an interval of four or five weeks had elapsed. Here the complaint alleges an immediate disability as of October 22 and we find no evidence in the record that plaintiff was prevented from substantially performing all his duties until November 21 and perhaps November 29. Not only did he attempt to work but he did work and received his salary at least as late as November 11.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Judgments reversed, etc.


source: Caselaw Access Project

author: Crouch, J.

license: Public Domain

text:
    David H. Clark, Appellant, v. John L. Dodge et al., Respondents.

      (Argued December 12, 1935;
    decided January 8, 1936.)

      James M. Gray and Mortimer B. Patterson for appellant.
    On this motion for judgment on the pleadings, the only facts considered are those stated in the complaint and reply and in the answer favorable to plaintiff. (Harmon v. Peats Co., 243 N. Y. 473; Continental Securities Co. v. Belmont, 75 Misc. Rep. 234; 150 App. Div. 298; 206 N. Y. 7; Garfunkel v. Malcolmson, 217 App. Div. 632; Lloyd v. R. S. M. Corp., 251 N. Y. 318.) On this motion plaintiff is entitled to “ the most favorable inferences which may be drawn from the complaint.” (Blum v. Whitney, 185 N. Y. 232; Clark v. West, 193 N. Y. 349.) The contract was personal between two stockholders owning all the stock of the corporation. Its dominant feature as to the corporation was that the majority stockholder would so use his control to the end that the minority stockholder would receive his just proportion of the income. The agreement to vote so as to keep plaintiff in office as manager was only so long as he was “ faithful, efficient and competent.” (Breslin v. Friesbreslin Co., 70 N. J. L. 274; Wood Co. v. American Co., 62 Atl. Rep. 768; Lorillard v. Clyde, 86 N. Y. 384; Manson v. Curtis, 223 N. Y. 313; Drucklieb v. Harris, Inc., 209 N. Y. 211; Kantzler v. Bensinger, 214 Ill. 589; Fitzgerald v. Christy, 242 Ill. App. 343; Venner v. Chicago City Ry. Co., 258 Ill. 523; Kassell v. Empire Tinware Co., 178 App. Div. 176; King v. Barnes, 109 N. Y. 267; Baymond v. Colton,
      104 Fed. Rep. 219; Doan v. Rogan, 79 Ohio St. 372.) The contract to vote stock to keep plaintiff in office as a director was valid; and the individual defendant’s affirmative breach of it gives a cause of action against him. (McQuade v. Stoneham, 263 N. Y. 323; Manson v. Curtis, 223 N. Y. 313.)

      Arthur L. Barton and John S. Sickels for respondents.
    The contract is illegal and' void in that its performance contemplates and necessitates the relegation of the corporate boards of directors to the status of dummies and in that the enforcement of its provisions as demanded by plaintiff would require the court to ignore and continue to ignore and displace the boards of directors, substituting itself therefor. (McQuade v. Stoneham, 263 N. Y. 323; Manson v. Curtis, 223 N. Y. 313; Fells v. Katz, 256 N. Y. 67; Jackson v. Hooper, 76 N. J. Eq. 592; Hellier v. Alhorn, 255 Mass. 273; Seitz v. Michel, 148 Minn. 80; Lothrop v. Goudeau, 142 La. 342; Dejonge v. Zentgraf, 182 App. Div. 43; Hastings v. International Paper Co., 187 App. Div. 404; Thomas v. Matthews, 94 Ohio St. 32; Dubbs v. Kramer, 302 Penn. St. 455; Haldeman v. Haldeman, 176 Ky. 635; Walker v. Man, 142 Misc. Rep. 277; Drucklieb v. Harris, Inc., 209 N. Y. 211; Cuppy v. Ward, 187 App. Div. 625; 227 N. Y. 603.)
   Crouch, J.

The action is for the specific performance of a contract between the plaintiff Clark and the'defendant Dodge, relating to the affairs of the two defendant corporations. To the complaint a joint answer by the three defendants was interposed, consisting of denials and a separate defense and counterclaim. To the separate defense and counterclaim a reply was made. The defendant then moved under rule 112 of the Rules of Civil Practice, and under sections 476, 96 and 279 of the Civil Practice Act, to dismiss the complaint. The motion was made “ on the pleadings in this action and the admissions of the plaintiff ” in two affidavits submitted by him on a prior motion in the action. The alleged admissions are equivocal at best, and clearly were not intended to be treated as a part of a pleading or made to avoid some question arising on the pleadings.” (Lloyd v. R. S. M. Corporation, 251 N. Y. 318, 320.) We shall deal, therefore, with the questions here presented in the light of the facts most favorable to plaintiff appearing in the pleadings only.

Those facts, briefly stated, are as follows: The two corporate defendants are New Jersey corporations manufacturing medicinal preparations by secret formulse. The main office, factory and assets of both corporations are located in the State of New York. In 1921, and at all times since, Clark owned twenty-five per cent and Dodge seventy-five per cent of the stock of each corporation. Dodge took no active part in the business, although he was a director and, through ownership of their qualifying shares, controlled the other directors of both corporations. He was the president of Bell & Company, Inc., and nominally general manager of Hollings-Smith Company, Inc. The plaintiff Clark was a director and held the offices of treasurer and general manager of Bell & Company, Inc., and also had charge of the major portion of the business of Hollings-Smith Company, Inc. The formulas and methods of manufacture of the medicinal preparations were known to him alone. Under date of February 15,1921, Dodge and Clark, the sole owners of the stock of both corporations, entered into a written agreement under seal, which after reciting the stock ownership of both parties, the desire of Dodge that Clark should continue in the efficient management and control of the business of Bell & Company, Inc., so long as he should remain faithful, efficient and competent to so manage and control the said business;” and his further desire that Clark should not be the sole custodian of a specified formula but should share his knowledge thereof and of the method of manufacture with a son of Dodge, provided, in substance, as follows: That Dodge during his.lifetime and, after his death, a trustee to be appointed by his will, would so vote his stock and so vote as a director that the plaintiff (a) should continue to be a director of Bell & Company, Inc. and (b) should continue as its general manager so long as he should be faithful, efficient and competent;” (c) should during his life receive one-fourth of the net income of the corporations either by way of salary or dividends; and (d) that no unreasonable or incommensurate salaries should be paid to other officers or agents which would so reduce the net income as materially to affect Clark’s profits. Clark on his part agreed to disclose the specified formula to the son and to instruct him in the details and methods of manufacture; and further, at the end of his life to bequeath his stock — if no issue survived him — to the wife and children of Dodge.

It was further provided that the provisions in regard to the division of net profits and the regulation of salaries should also apply to the Hollings-Smith Company.

The complaint alleges due performance of the contract by Clark and breach thereof by Dodge in that he has failed to use his stock control to continue Clark as a director and as general manager, and has prevented Clark from receiving his proportion of the income, while taking his own, by causing the employment of incompetent persons at excessive salaries, and otherwise.

The relief sought is reinstatement as director and general manager and an accounting by Dodge and by the corporations for waste and for the proportion of net income due plaintiff, with an injunction against further violations.

The only question which need be discussed is whether the contract is illegal as against public policy within the decision in McQvade v. Stoneham, (263 N. Y. 323), upon the authority of which the complaint was dismissed by the Appellate Division.

“ The business of a corporation shall be managed by its board of directors.” (General Corporation Law [Cons. Laws, ch. 23], § 27.) That is the statutory norm. Are we committed by the McQuade case to the doctrine that there may be no variation, however slight or innocuous, from that norm, where salaries or policies or the retention of individuals in office are concerned? There is ample authority supporting that doctrine (e. g., West v. Camden, 135 U. S. 507; Jackson v. Hooper, 76 N. J. Eq. 592). But cf. Salomon v. Salomon & Co. ([1897] A. C. 22, 44), and something may be said for it, since it furnishes a simple, if arbitrary, test. Apart from its practical administrative convenience, the reasons upon which it is said to rest are more or less nebulous. Public policy, the intention of the Legislature, detriment to the corporation, are phrases which in this connection mean little. Possible harm to bona fide purchasers of stock or to creditors or to stockholding minorities have more substance; but such harms are absent in many instances. If the ' enforcement of a particular contract damages nobody — ; not even, in any perceptible degree, the public — one sees no reason for holding it illegal, even though it impinges i; slightly upon the broad provision of section 27. Damage suffered or threatened is a logical and practical test, and has come to be the one generally adopted by the courts. (See 28 Columbia Law Review, 366, 372.) Where the~> directors are the sole stockholders, there seems to be no ¡; objection to enforcing an agreement among them to vote | for certain people as officers. There is no direct decision j to that effect in this court, yet there are strong indications j that such a rule has long been recognized. The opinion hr Manson v. Curtis (223 N. Y. 313, 325) closed its discussion by saying: The rule that all the stockholders by their universal consent may do as they choose with the corporate concerns and assets, provided the interests of creditors are not affected, because they are the complete owners of the corporation, cannot be invoked here.” That was because all the stockholders were not parties to the agreement there in question. So, where the public was not affected, the parties in interest, might, by their original agreement of incorporation, limit their respective rights and powers,” even where there was a conflicting statutory standard. (Ripin v. U. S. Woven Label Co., 205 N. Y. 442, 448.) Such corporations were little more (though not quite the same as) than chartered partnerships.” (Id. p. 447.) In Lorillard v. Clyde (86 N. Y. 384) and again in Drucklieb v. Harris (209 N. Y. 211), where the questioned agreements were entered into by all the stockholders of small corporations about to be organized, the fact that the agreements conflicted to some extent, with the statutory duty of the directors to manage the corporate affairs was thought not to render the agreements illegal as against public policy,' though it was said they might not be binding upon the directors of the corporation when organized. (Cf. Lehman, J., dissenting opinion in the McQuade case.) The rule recognized in Manson v. Curtis, and quoted above, was thus stated by Blackmar, J., in Kassel v. Empire Tinware Co. (178 App. Div. 176, 180): As the parties to the action are the complete owners of the corporation, there is no reason why the exercise of the power and discretion of the directors cannot be controlled by valid agreement between themselves, provided that the interests of creditors are not affected.”

Fells v. Katz (256 N. Y. 67), where all the stockholders were parties to the agreement, is no authority to the contrary. The decision there merely construed the agreement and found that plaintiff had breached it, thereby justifying his removal. “ The agreement'of the stockholders to continue a man in the directorate must be construed as an obligation to retain him only so long as he keeps the agreement on his part faithfully to act as a trustee for the stockholders ” (p. 72). Indeed, the case may be regarded as applying the test of damage above referred to.- Any other construction would have caused damage to the corporation and its stockholders and would have been illegal.

Except for the broad dicta in the McQuade opinion, we think there can be no doubt that the agreement here in question was legal and that the complaint states a cause of action. There was no attempt to sterilize the board of directors, as in the Manson and McQuade cases. The only restrictions on Dodge were (a) that as a stockholder he should vote for Clark as a director — a perfectly legal contract; (b) that as director he should continue Clark as general manager, so long as he proved faithful, efficient and competent — an agreement which could harm nobody; (c) that Clark should always receive as salary or dividends one-fourth of the net income.” For the purposes of this motion, it is only just to construe that phrase as meaning whatever was left for distribution after the directors had in good faith set aside whatever they deemed wise; (d) that no salaries to other officers should be paid, unreasonable in amount or incommensurate with services rendered — a beneficial and not a harmful agreement.

If there was any invasion of the powers of the directorate under that agreement, it is so slight as to be negligible; and certainly there is no damage suffered by or threatened to anybody. The broad statements in the McQuade opinion, applicable to the facts there, should be confined to those facts."

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

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

Judgment accordingly.


author: Crane, Ch. J.

text:
    In the Matter of William E. Walker, Respondent, against The Board of Regents of the University of the State of New York, Appellant.
    (Argued December 13, 1935;
    decided January 8, 1936.)

      John J. Bennett, Jr., Attorney-General (Dorothy U. Smith and Henry Epstein of counsel), for appellant.
    The registration and color of authority for the practice of dentistry procured by petitioner was procured and is possessed through fraud or deceit. (Cons. Laws, ch. 16, § 1311; Laws of 1895, ch. 626; Laws of 1893, ch. 661; Laws of 1879, ch. 540.) The determination by the Board of Regents was in accord with the evidence and the weight of evidence. (Matter of Niagara Falls Power Co. v. Water Power & Control Comm., 267 N. Y. 265.)

      Robert C. Killough, Jr., Matthew M. Dunne and Charles J. Tobin for respondent.
    In the written charges there is no definite allegation of fraud sufficient to bring the proceeding within section 1311 of the Education Law. (Cons. Laws, ch. 16; Dym&nt v. Board of Medical Examiners, 57 Cal. App. 260.) Assuming that there are proper charges and findings of fraud the evidence is not sufficient to sustain the charges or warrant the findings. (People ex rel. Greenberg v. Reid, 151 App. Div. 324; State ex rel. Williams v. Purl, 228 Mo. 1.)
   Crane, Ch. J.

This is a proceeding to review a determination of the Board of Regents of the State of New York revoking, annulling and canceling whatever license, right or color of authority William E. Walker had to practice dentistry, and directing that his registration, wherever it may appear, be annulled and canceled of record.

The action of the Board of Regents was taken pursuant to section 1311 of the Education Law (Cons. Laws, ch. 16), which provides that the license and registration of a practitioner of dentistry may be revoked where the dentist is grossly ignorant or inefficient in the practice of dentistry, or the dentist is guilty of fraud or deceit in his practice or in procuring admission to practice. Charges of inefficiency, and deceit in procuring admission to practice were preferred to the Board of Dental Examiners b> the Secretary of the Board, and many hearings were had and much testimony taken. The committee appointed pursuant to law to hear the evidence made findings wherein they stated:

First. That the respondent is practicing dentistry in the State of New York by reason of an affidavit filed in the Clerk’s office of Rensselaer County on the 19th day of August, 1895.
“ Second. That respondent has never taken or passed an examination to obtain a license to practice dentistry in the State of New York.
“ Third. That the respondent never obtained a license to practice dentistry from the Regents of the University of the State of New York.
“Fourth. That by reason of the affidavit so filed in the Clerk’s office of Rensselaer County, said respondent has been annually registered by the Secretary of the Board of Dental Examiners from the year 1916 up to and including the year 1931.
“Fifth. That the respondent is now practicing his profession in the City of Albany, County of Albany, State of New York.”

It also found that the charges of inefficiency, with the exception of one, were sustained. The Regents thereupon, after due hearing, revoked the petitioner’s color of license on April 20, 1933, and directed the cancellation of his registration. The Commissioner of Education signed an order executing this determination of the Regents. On certiorari to the Supreme Court, the Appellate Division, two justices dissenting, annulled the determination of the Regents' and vacated the order of the Commissioner of Education, from which decision the Board of Regents of the University of the State of New York has taken this appeal.

In this opinion we shall deal solely with the charges that Walker was unauthorized to practice dentistry.

On the 19th day of August, 1895, William E. Walker filed in the Rensselaer County Clerk’s office his statement, of authority to practice dentistry in the State of New York, in the form of an affidavit. He therein stated that the legal authority by which he is to practice dentistry within this State was conferred upon him by diploma from Wisconsin Dental College, dated May 5, 1893. The Wisconsin Dental College was not recognized in New York State as an approved institution. Walker had taken the six months’ correspondence course given by the institution. Under none of the laws of this State in force since 1879 down to the present day has Walker been authorized to practice dentistry. A brief review of the legal provisions will make this evident.

The practice of dentistry in this State was regulated by chapter 540 of the Laws of 1879. It provided:

It shall be -unlawful for any person to practice dentistry in the State of New York for fee or reward, unless he shall have received a proper diploma or certificate of qualification from the State Dental Society, or from the faculty of a reputable dental or medical college, recognized as such by said society * * *.
Every person practicing dentistry within this State shall, within sixty days after the passage of this act, register in the office of the clerk of the county where located.”

The practice of dentistry was further covered in the Public Health Law (Laws of 1893, ch. 661, art. 9).

“ § 160. Qualifications. No person shall practice dentistry in this state * * * who shall not be licensed and registered as prescribed in this article or who was not lawfully licensed and registered when this chapter takes effect. * * *

§ 161. License. A person shall be deemed licensed to practice dentistry in this state, who shall have attained the age of twenty-one years, and shall have had properly granted to him either by the dental society of the state of New York, or an incorporated medical or dental school approved by such society, a diploma conferring a recognized medical or dental degree. No diploma shall be deemed valid if conferred irregularly * * * without substantial compliance by the person to whom granted or the corporation conferring it with the general statutory requirements of this state as to course and duration of preparatory and professional study * * *.

§ 162. Registration. Every person practicing dentistry in this state shall register in the office of the cleric of the county where his place of business is located * * * his * * * legal authority for practicing dentistry * * * which registration he shall be entitled to make only upon presenting to the county clerk a certificate from the member of the state board of censors, appointed by the state dental society for the judicial district in which such county is situated, to the effect that such applicant has received a proper diploma. * * * Any registration procured by fraud or false statements, shall be deemed void.”

An amendment of this act of 1893 was passed in chapter 626 of the Laws of 1895, which became a law May 11, 1895. The requirements were extended by requiring an examination by the Board of Regents: “ But no person shall be examined by said board unless he be at least twenty-one years old, of good moral character, and shall receive a certificate from said regents that he has satisfied them by examination or otherwise, that prior to commencing his professional studies he had a preliminary education equivalent to that required of students entering the dental colleges of this State, * * * and either has been graduated in course, with a dental degree from a registered dental school, or else, having been graduated in course from a registered medical school with the degree of doctor of medicine, has pursued thereafter a course of special study of dentistry for at least one year in a registered dental, school. * * * On certification by the board of dental examiners that a candidate has successfully passed the examination and is competent to practice dentistry, the regents shall issue to him their license so to practice pursuant to the rules established by them. * * * Any student of dentistry whose certificate of study under private preceptorship shall have been duly filed with the secretary of the State Dental Society at the time this act takes effect pursuant to the provisions of law then in force, may present himself for examination to the board” (§§ 162, 163).

These statutes were or had been the law of the State of New York prior to August 19, 1895, when William E. Walker registered with the Rensselaer County Clerk his statement that he had legal authority to practice dentistry within this State by diploma from the Wisconsin Dental College. This was not a compliance with chapter 540 of the Laws of 1879 as the said dental college and its correspondence course were not recognized as a qualificar tian in this State. Neither was Walker licensed, pursuant to the provisions of sections 161 and 162 of chapter 661 of the Laws of 1893 and chapter 626 of the Laws of 1895. He had never taken any examination or received a dental degree from a registered dental school.

As the petitioner’s name remained upon the registry of dentists in the office of the Clerk of Rensselaer County, there was issued to him blank applications for registration, pursuant to chapter 129 of the Laws of 1916, and a certificate of registration was sent to him from the Board of Dental Examiners yearly thereafter. It might have been noticed that in the application which Walker made out in 1916 he failed to give his license number. These yearly applications and renewal registrations were matters of form due to the original registration or certificate filed with the Rensselaer County Clerk. It was a continuation of the first misleading move. Any one searching the records would naturally be misled into believing that the petitioner had been duly and properly licensed in accordance with the law, whereas and in fact he had not qualified pursuant to the statutes, and was not legally licensed to practice dentistry.

In March of 1903 a bill was introduced in the Legislature of this State to legalize the registration of the petitioner as a dentist and to authorize him to practice dentistry. It did not become a law. In 1905 the Dental Society of the State instituted a mandamus proceeding against the Clerk of Rensselaer county asking that he be directed to expunge from his records the name of William E. Walker. The application was denied on the ground that the mandamus is to compel the performance of an act, and not to undo an act already done. (Matter of Dental Society v. Jacobs, 103 App. Div. 86, 91.) Mr. Justice Chase, afterwards a judge of this court, wrote the opinion in which he stated: As Walker was not duly licensed and registered as a dentist in this State prior to August 1, 1895, it was absolutely necessary for him to obtain a license from the Regents of the University of the State of New York to entitle him to registration after that date. He has never obtained such a license and the affidavit presented by him to the clerk of Rensselaer county not only did not comply with the statutory requirements but wholly failed to present to such clerk any authority or justification for registering Walker as a dentist.”

The respondent upon this appeal insists that even if the facts be as we have stated them, yet there is no authority for the action of the Board of Regents and the Commissioner of Education, as section 1311 permits revocation only where actual fraud and deceit have been proved, and that such evidence is lacking here. We may concede for the purposes of this opinion that the petitioner was mistaken in believing he had authority in 1895 to practice dentistry, and that his. registration was sought and obtained in good faith. Nevertheless this does not license him, to practice dentistry. He has no license. We think the words fraud or deceit ” have a broader meaning than the respondent seeks to give them. The public are deceived by the false registration into believing that the petitioner is licensed. The records on their face indicate that Walker has complied with our law and is qualified by examination and otherwise. His acts and statements were false in fact even though there is no intent to deceive; and there is deceit, because the public is misled and the purposes and objects of the law frustrated.

Section 1311 of the Education Law is apparently taken from section 162 of chapter 661 of the Laws of 1893 and chapter 626 of the Laws of 1895. A reference above to the quotation from chapter 661 of the Laws of 1893 will show the intent and meaning of the act. There it is stated that a registration procured by false statements shall be deemed void.

Strange indeed would it be if, after ell the care which the Legislature has taken to protect the practice of dentistry and to qualify the dentist by previous years of study and preparation culminating in examination, there were no remedy to revoke or annul a registration or license granted by mistake on deceiving records.

For the reasons here stated the order of the Appellate Division should be reversed, and the determination of the State Board of Regents confirmed, with costs in all courts.

Lehman, O’Brien, Hubbs, Crouch, LouGHRAJsr'and Finch, JJ., concur.

Ordered accordingly.


author: Hubbs, J. Finch, J.

text:
    The People of the State of New York ex rel. William Meyer, Appellant, against The Warden of the Nassau County Jail et al., Respondents.
    (Submitted December 3, 1935;
    decided January 8, 1936.)

      Louis Fleischer, Harry Alexander and Charles Liebling for appellant.
    The court having once had jurisdiction of the relator and the offense, and the relator having been tried therefor, he has been placed in jeopardy and cannot thereafter be tried for the same offense. (King v. People, 5 Hun, 297; People ex rel. Stabile v. Warden, 202 N. Y. 138; People v. Goldfarb, 152 App. Div. 870; 213 N. Y. 664; People ex rel. Cohen v. Collins, 238 App. Div. 592; People v. Thrum, 143 Misc. Rep. 7.) Relator could have secured his discharge whether he proceeded by writ or by appeal from the judgment. (People v. Weiner, 211 N. Y. 469.)

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for People of the State of New York, respondent.
    The retrial of the relator upon the original informations would not constitute second jeopardy. (People v. Duhrs, 79 Hun, 415; People v. Noblett, 244 N. Y. 355.) The relator is not entitled to use habeas corpus as a substitute for appeal. (People v. Monahan, 257 N. Y. 388; People ex rel. Hubert v. Kaiser, 206 N. Y. 46; People ex rel. Marcley v. Lawes, 254 N. Y. 249.)
   Hubbs, J.

Relator-appellant was arrested, charged with disorderly conduct. His trial was started before a police justice and a jury on Saturday and finished Sunday. He was found guilty by the jury and sentenced on Sunday for a term of thirty days in the county jail. He applied for a writ of habeas corpus and was released. He was again charged with the same offense upon the same information. Before trial he again applied for a second writ of habeas corpus and was released on the ground that a new trial would subject him to double jeopardy. The People appealed to the Appellate Division from the orders sustaining the writs. The orders were reversed by a divided court. The Appellate Division held that a second trial would not place appellant in double jeopardy as an appeal from the judgment of conviction as the result of the trial on Sunday would have resulted in granting a new trial.

The Constitution prevents a person from being placed twice in jeopardy for the same offense. “ No person shall be subject to be twice put in jeopardy for the same offense.” (N. Y. Const., art. I, § 6.)

That provision of the Constitution is fundamental and all courts of the State must be governed by it not only in form but in spirit even though the result is to release one legally indicted for the crime of murder. (People ex rel. Stabile v. Warden, 202 N. Y. 138.)

We are, therefore, required to determine whether under the clear wording of the Constitution and the undisputed facts, the appellant was placed in jeopardy at the trial, which was commenced on Saturday and continued into Sunday with the result that he was found guilty by the jury and sentenced to a term in jail by the police justice.

In this State, from the early days, it has been the law that a court cannot be lawfully held on Sunday and any judgment granted on Sunday is absolutely void. (Van Vechten v. Paddock, 12 Johns. 178; Story v. Elliot, 8 Cow. 27; Pulling v. People, 8 Barb. 384.)

The question of what constitutes placing one in jeopardy within the meaning of that word as used in the Constitution has repeatedly been passed upon by our courts.

The general rule in this State is that if the court has jurisdiction and all prior proceedings are valid, a prisoner is placed in jeopardy when he has been arraigned and pleaded to a valid charge, a jury has been examined and sworn, and evidence given. (King v. People, 5 Hun, 297; People ex rel. Stabile v. Warden, supra; People v. Goldfarb, 152 App. Div. 870; affd., 213 N. Y. 644; cf. 1 Bishop on Criminal Law [9th ed.], p. 752, § 1014, subd. 5.)

There is slight variation of that rule in other jurisdictions but generally it is substantially the same. (Cf. 16 Corpus Juris, p. 236 and cases cited.)

It is not necessary in order that a person may avail himself of the constitutional right not to be placed twice in jeopardy for the same offense that the prior trial shall have resulted in a valid judgment either of conviction or acquittal. It is sufficient if the prisoner was actually placed in jeopardy in that he was in danger of having a valid judgment pronounced as the result of the trial.

It is not the verdict or judgment which places a prisoner in jeopardy. If a court proceeds illegally after a prisoner has been placed in jeopardy its illegal act cannot nullify the jeopardy. “If it did, then the process might be repeated forever, and the constitutional guaranty be rendered void.” (1 Bishop on Criminal Law, p. 772, § 1045.)

In the case of People ex rel. Stabile v. Warden (supra) the defendant was placed on trial under an indictment which charged him with the crime of murder. The trial judge arbitrarily discharged the jury after the case had been submitted to it and while it was deliberating. The defendant was thereafter discharged in a habeas corpus proceeding upon the ground that he had been placed in jeopardy and could not be again tried for the same offense. In that case as in this the argument was made that the defendant had not been placed in jeopardy as there was no valid judgment of acquittal or conviction. This court rejected the argument and decided that as the defendant had been placed in jeopardy the unlawful termination of the trial did not prevent him from availing himself of his constitutional right. (Cf. People v. Goldfarb, supra; 1 Bishop on Criminal Law [9th ed.], p. 749, § 1013.)

If a court in which a prisoner is tried is entirely without jurisdiction and the trial is only one in form and can have no legal effect such trial does not place the prisoner in jeopardy and that defense is not available to him upon a retrial. (People v. Connor, 142 N. Y. 130.)

In the case at bar the trial started on Saturday, the court had jurisdiction, the proceeding was regular and the defendant was in jeopardy. The fact that thereafter the court lost jurisdiction by holding over into Sunday did not change the fact that the defendant had been placed in jeopardy.

When arrested the second time for the same offense, the appellant had a legal right to seek his release by habeas corpus. He was entitled to be released as a matter of law as no questions of fact were involved. There being no right to again place him on trial on the same charge, he was illegally deprived of his liberty and habeas corpus was a proper remedy. (People ex rel. Brinkman v. Barr, 248 N. Y. 126; People ex rel. Stabile v. Warden, supra.)

The order of the Appellate Division should be reversed and the orders of the Special Term affirmed.

Finch, J.

(dissenting). The relator was convicted of disorderly conduct. He applied for a writ of habeas corpus and was released on the ground that, although the trial had been properly started on Saturday, since it had not been finished -until Sunday, the judgment was void. He has now been again charged with the same offense, on the same information. He seeks release and freedom from a new trial by habeas corpus, on the ground that a new trial would subject him to double jeopardy.

Reliance is placed on the general rule that if a court has jurisdiction and all prior proceedings are valid a prisoner is placed in jeopardy when he has been arraigned and pleaded to a valid charge, a jury has been examined and sworn and evidence given. (1 Bishop on Criminal Law [9th ed.], p. 752.) This rule was evolved and, as far as I know, has been applied only in cases where the jury, without adequate reason, were dismissed before rendering a verdict or where the defendant was acquitted. No reason appears for extending the rule to a case where the defendant has been convicted and by his own acts has had the conviction set aside.

It has never been suggested that where a conviction has been reversed because of error in the trial, a new trial cannot be had. The fact that the reversal or setting aside of the conviction is on the ground that the trial was completed on a Sunday, rendering it void, offers no greater reason for so holding. Where there has been a conviction the situation differs radically from one where the defendant, although in danger of being convicted, was acquitted or might have been acquitted if the jury were permitted to render a verdict.

The relator has been put in danger of conviction. But not only has he been in danger of conviction; he has been convicted. Whether the conviction is set aside on the ground that there were errors on the trial or because the trial was completed on a Sunday, the fact of the conviction eliminates the element of double jeopardy.

It has been held that there is no double jeopardy in a new trial where before verdict was rendered on the original trial the jury was dismissed because the term of the court ended. (Lore v. State, 4 Ala. 173; State v. Jeffors, 64 Mo. 376; Commonwealth v. Thompson, 3 Va. [1 Va. Cas.] 319; State v. Moor, 12 Am. Dec. [Miss.] 541. See State v. Brooks, 22 Term. 70.) The trial involved in the case at bar was valid until it extended into Sunday. The proceedings thereafter were void. In so far as it was valid there is no essential difference between this case and the cases where the trial terminated because of the end of the term. Are we to permit the relator to escape because the jury was permitted to go on with the case and subsequently found him guilty? On the other hand, if it should be said that continuing the trial into Sunday rendered the entire trial void, then clearly there is no double jeopardy. (People v. Connor, 142 N. Y. 130.)

There is no reason in law or justice for permitting a man who has been found guilty to escape being retried when he has had the original conviction set aside because of a technical error of the court which rendered the conviction void.

No case is cited where the verdict of guilty having been set aside, on motion of the defendant, it has been held to bar another trial.” (United States v. Keen, 26 Fed. Cas. 686, 688; 1 McLean, 429.) The reason given for not applying the principle of double jeopardy to a retrial after a conviction has been set aside for error is that the defendant by appealing and thereby setting aside the judgment of conviction has by his own act brought about the retrial in place of his conviction and so has waived the defense of double jeopardy. (People v. Dowling, 84 N. Y. 478; People v. McGrath, 202 N. Y. 445. See People v. Palmer, 109 N. Y. 413; People v. Cignarale, 110 N. Y. 23.) In the case at bar the relator has been convicted and, by his own act, has had the conviction set aside for error. It is true that this was accomplished by means of a writ of habeas corpus, but why has not the defendant thereby waived his objection to a retrial as completely as if he had set aside his conviction by appeal?

The fact that the relator was discharged by habeas corpus proceedings should not prevent another trial. (See note, 97 A. L. R. 160 and cases cited therein.) To refuse the law-enforcing agencies a new trial and to set free the defendant for the reason that he employed one form of procedure, namely, habeas corpus, rather than an appeal, is to place form and technicality above substance. To this I am unable to agree.

The order of the Appellate Division should be affirmed.

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

Ordered accordingly.


text:
    Paladino-Natanson Company, Inc., Respondent, v. The State of New York, Appellant.
    (Claim No. 21645.)
    (Submitted December 6, 1935;
    decided January 8, 1936.)

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for appellant.
    Under the provisions of the contract respondent was not entitled to an additional payment for the material excavated within the lines of the highway. (Halsted v. Globe Indemnity Co., 258 N. Y. 176; Moran v. Standard Oil Co., 211 N. Y. 187; Norton v. Woodruff, 2 N. Y. 153; McCluskey v. Cromwell, 11 N. Y. 593; Cream of Wheat Co. v. Crist Co., 222 N. Y. 487.)

      Charles B. Sullivan and Benjamin McClung for respondent.
    Claimant was entitled under the contract to be paid for all embankment in place, which claimant constructed at its contract price for such embankment, irrespective of the source from which the embankment material was obtained. The State was not entitled under any provision contained in the contract to deduct from embankment measured in place, as a pay item, such quantity as it might assume or estimate was formed from spoil material which became available to claimant for embankment construction through performance of the excavation work. (United Water Works Co. v. Omaha Water Co., 164 N. Y. 41; Industrial Trust Co. v. Tod, 180 N. Y. 215; Moran v. Standard Oil Co., 211 N. Y. 187; Gillet v. Bank of America, 160 N. Y. 549.)
   Crane, Ch. J.

This is an appeal from an order of the Appellate Division affirming a judgment of the Court of Claims against the State of New York for the sum of $2,446.32, the balance claimed to be due on a contract with the State for the construction of Conduit boulevard, part 2, county highway No. 9107-C, Queens county. The claimant contracted to do certain grading and excavation work, including the building or placing of embankments. It has been paid in full with the exception of the amount mentioned, which represents the work done in connection with replacing certain excavated material.

The claimant was to be paid for excavating and for putting embankments in place. For the latter purpose he was to be paid extra for bringing the fill from other places. The State claims that the claimant was not to be paid for placing embankments where the material used was that excavated within the lines of the work and which the claimant was under contract to excavate. It is this amount of excavated material which is the basis of the claim. The dispute arises over the meaning and terms of the contract. The finding of the Court of Claims was as follows: “ Under the provision of claimant’s contract, he was entitled to pay for embankment in place whether said embankment had been furnished and formed from materials excavated without or within the highway limits.” The itemized proposal which formed part of the contract contained the following:

No. 4 3,500 Cubic yards, unclassified excavation for Seventy cents
per cubic yard............ $2,450 00
No. 4-A 15,000 Cubic Yards embankment in place............. $10,500 00.”

The book of specifications adopted by the New York State Division of Highways January 2, 1929, formed a part of the contract and explained what work was to be done under this No. 4 item in the proposal. It read:

“ Item 4 • — ■ Unclassified Excavation.
“ a. Work. Under these items the Contractor shall do all the excavation required in the construction of the road section and its structures and connections, the placing and compacting of the excavated materials, and the rolling of the whole earthwork surface of the roadway —• all as shown on the plans or as ordered by the Engineer.
“ c. Disposal of excavated material. All suitable materials from the excavation shall be used so far as practicable in making embankments, building up low places on the subgrade or shoulders, and such other places as directed. ****** *
| r " p. Measurement and payment. The prices bid for Items 2, 3 and 4 shall cover all labor, materials, supplies, plant, tools and incidentals for the removal, delivery and placing of excavated materials in embankments or spoil banks and for rolling, compacting and grading the same and all other work incidental thereto.”

These provisions of the contract would to our minds require the materials from the excavation within the highway limits to be used as far as practicable in making embankments, and fix the prices bid under item No. 4 to include the placing of said excavated materials in embankments. Evidently there was not enough of the excavated material within the lines of the highway to meet the requirements for the proper construction of the road, and the contractor was expected to get the material for the fills and embankments elsewhere. The “ borrow pits ” outside the highway were to be acquired by the contractor at his own expense, but item 4-A provided the price that the, contractor was to be paid for constructing the embankments out of such borrow pit ” material. For all of this it has been paid, the dispute being, as above stated, over the material excavated within the lines.

The Attorney-General interprets this contract as meaning the following: Under item 4 material taken from within the highway lines and placed by the contractor in the completed embankment is included within the price bid under this item for “ Unclassified Excavation.” Item 4-A refers to material procured by the contractor from without the highway lines, the cost of which to the State is covered by the price bid for embankment in place.

The contract provisions which we have quoted fully justify the stand which the State has taken in this matter, and we are, therefore, obliged to reverse the judgment and dismiss, the claim, with costs.

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

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

Judgments reversed, etc.


text:
    In the Matter of John J. Walsh, Respondent, against Fiorello H. LaGuardia, as Mayor of the City of New York, et al., Appellants.
    (Argued December 9, 1935;
    decided January 8, 1936.)

      Paul Windels, Corporation Counsel (Joseph L. Weiner and Herman Horowitz of counsel), for appellants.
    Mandamus will not lie unless the duty sought to be enforced is specific in its nature, and of such character that the court can prescribe a definite act or series of acts which will constitute a performance of the duty. The order herein exceeds any duty imposed by law upon the appellants. (People ex rel. Hasbrouck v. Supervisors, 135 N. Y. 522; Matter of International Ry. Co. v. Schwab, 203 App. Div. 68; Klinkenstein v. Third Ave. Ry. Co., 246 N. Y. 327; Matter of Ottinger v. Voorhis, 213 App. Div. 561; People ex rel. Bartlett v. Dunne, 219 Ill. 346; State ex rel. Hawes v. Brewer, 39 Wash. 65; State ex rel. Beardslee v. Landes, 149 Wash. 570; People ex rel. Fitzgerald v. Whipple, 41 Mich. 548; McAlester-Edwards Coal Co. v. State, 31 Okla. 629; Jackson v. Cochran, 134 Ga. 396; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo, 410; State v. Linn County, 113 Kan. 203.) The order was properly denied by Special Term in the exercise of discretion; the reversal by the Appellate Division, as a matter of law, was improper. (People ex rel. Wood v. Assessors, 137 N. Y. 201; United States v. Dern, 289 U, S. 352; People ex rel. Judge v. Hylan, 200 App. Div. 430.) The facts do not warrant an interference with the executive function of the officials of the city. (People ex rel. Judge v. Hylan, 200 App. Div. 430; Matter of International Ry. Co. v. Schwab, 203 App. Div. 68.)

      John J. Walsh, in person, for respondent.
    Mandamus cannot rest in discretion when there are no disputed facts. (Brennan v. Board of Education, 245 N. Y. 8; People ex rel. Judge v. Hylan, 200 App. Div. 430.) The charter of the city of New York (L. 1901, ch. 466) forbids the operation of stage or omnibus routes until a franchise is obtained. (Bogart v. Walker, 231 App. Div. 499.)
   Crane, Ch. J.

In Blanshard v. City of New York (262 N. Y. 5) this court decided that unless a consent be granted by the Board of Estimate and Apportionment in accordance with section 74 of the charter (Laws of 1901, ch. 466, as amd.), a bus line has no right in the city streets; it is a trespasser, and any person may bring an action as a taxpayer to enjoin its operation.

The petitioner in this case alleges that there are about twenty-seven bus routes operated through the streets and avenues of the county of Queens, city of New York, without having obtained any franchises or rights in accordance with the provisions of the city charter; that while the Board of Estimate and Apportionment has given approval to a formal contract and adopted resolutions authorizing the operation of these bus lines, pursuant to section 74 of the city charter, the Mayor has failed and refused to give his consent thereto, as is required by section 72. (Amd. L. 1905, ch. 629, § 10.) Thus it seems to be conceded that these bus hues are operating illegally, without authority, and contrary to law. What is the remedy which the public has in this situation?

We stated it, or thought we had, in the Blanshard case. Instead of seeking relief by injunction, the petitioner has sought a mandamus order compelling the Mayor and the Police Commissioner to perform their duty and stop the buses from operating over these various routes. The Special Term denied the application, but the Appellate Division has made an order requiring the defendants to forthwith cause every person, firm or corporation now operating any omnibus line or lines for the transportation of passengers for hire upon the routes described in the petition herein * * * to cease and discontinue such transportation unless and until each such person, firm or corporation shall have complied with the provisions of the Transportation Corporations Law and of the Greater New York Charter with respect to the operation of an omnibus line or lines.”

The Appellate Division stayed the operation of the order for a period of one hundred and eighty days. The appeal to this court has to do with the question of remedy, and it may seem rather a captious objection that what might be accomplished by a paper order called injunction ” may not be done by another paper order called a “ mandamus,” yet there are distinctions of substance between the two remedies which must not be overlooked. We may in this day have little patience with a practice which denies any relief because the paper presented to the court called a petition ” asks for the wrong remedy, but we must have patience to consider carefully whether the remedy which is granted by the court on any petition, call it what we will, can be effectual to accomplish its purpose, or recognizes the rights of litigants and third parties. In the action for an injunction all these bus corporations, if there be more than one, would be heard upon the question of franchise and rights to operate in the street. We do not know in this proceeding from the affidavits that any corporation is operating buses. We are not even given the names of the persons or associations illegally using the streets. The proceeding is against the Mayor and the Police Commissioner, to compel them to sweep all public buses off the highways in Queens county. Such drastic proceedings cannot be had without hearing the parties affected, and the proceedings by way of injunction afford this opportunity.

There is another reason which is equally fundamental. No court can compel the Mayor to approve the contract submitted by the Board of Estimate regarding these bus lines. He is given a discretion by section 72 of the charter. His approval is necessary to make the franchise legal. (See, also, sections 74 and 242 of the charter [as amd.].) The Mayor and his appointee, the Police Commissioner, have their duties defined by law. The Legislature has placed upon them the responsibility of carrying out the provisions of the charter of the city of New York, and if they fail in these duties remedies are afforded the public other than the appeal to the courts.

In other words, the order of mandamus which, as we all know, means the command to do a specific thing or suffer the consequences of contempt proceedings, is not the method provided by the law for reaching the present situation regarding these bus Unes. Mandamus is used to enforce an administrative act positively required to be done by a provision of law. It is not used for the purpose of preventing third parties from doing illegal acts.

As before stated, we may welcome the day when applications to the courts for reUef may be referred to as merely “ petitions ” for refief, but it wifi be a long time before we wipe out the distinctions between “ mandamus ” and injunction.” The distinction was very well brought out in Matter of International Ry. Co. v. Schwab (203 App. Div. 68), where a peremptory mandamus order was sought directing the Mayor and the Commissioner of PubUc Safety to enforce the Transportation Corporations Law (Cons. Laws, ch. 63), and section 29 of the Penal Law, with respect to motor vehicles carrying passengers for hire. It there appeared that the drivers of jitney buses were violating the statutes, and it was sought to compel the Mayor to enforce these statutes. The court quoted the decision of this court in People ex rel. Hasbrouck v. Supervisors (135 N. Y. 522, 533) as a basis for its denial of the application. This court said: When a writ of peremptory mandamus issues, all judicial action has ceased, and the party commanded is bound to obey, and in default thereof he may be punished. He has no discretion to perform part of the acts commanded and to omit others; but he must obey the writ in the terms in which it was issued. The writ must command precisely what the party is required to do, and no more than he is legally bound to do.”

The Appellate Division, in this opinion in the International Ry. Co. case, put the matter very well: “ Mandamus is an extraordinary remedy and the judiciary is loathe to interfere with the executive department of the government in the exercise of its official duties, unless some specific act or thing which the law requires to be done has been omitted.” It also referred to an opinion of Mr. Justice Andrews, late of this court, wherein he said: The interference of the Supreme Court with the details of municipal administration is not to be encouraged. These details are entrusted by the people to officers chosen directly or indirectly by themselves. These officers are criminally responsible for a willful neglect of their duties, and upon them the responsibility for the government of our cities should usually be allowed to rest. The Supreme Court is not so organized as to enable it conveniently to assume a general supervisory power over their acts; and, indeed, such an assumption by it would be contrary to the whole spirit and intent of our government” (p- 74).

• We find authorities outside our State taking the same view. (People ex rel. Bartlett v. Dunne, 219 Ill. 346; State ex rel. Hawes v. Brewer, 39 Wash. 65, and State ex rel. Beardslee v, Landes, 149 Wash. 570, 571, wherein it was said, quoting the Hawes case: “ Mandamus will not lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties.”) (See, also, People ex rel. Fitzgerald v. Whipple, 41 Mich. 548; McAlester-Edwards Coal Co. v. State, 31 Okla. 629; Jackson v. Cochran, 134 Ga. 396; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410; State ex rel. Griffith v. Bd. of Commrs. of Linn County, 113 Kan. 203.)

It is not the operation of the buses upon the streets which is illegal; it is the operation for hire which requires the franchises or the consent of the city.

The order granted by the Appellate Division requiring the Mayor and the Police Commissioner to prevent the violation of law lacks the elements required of a mandamus order, and must be reversed. The Appellate Division, we feel confident, appreciated this, as it allowed a period of six months within which the buses might be operated or franchises obtained. In other words, it provided that its order should not take effect for one hundred and eighty days.

The courts have no greater power than the Mayor or the Police Commissioner to suspend the operation of the statute, but we fully appreciate that this was an attempt to afford these officials an opportunity to adjust matters without the great misfortune which would fall to the residents of Queens county should means of transportation cease. We also call attention to the remedy provided by section 63-g of the Public Service Law (Cons. Laws, ch. 48), whereby summary proceedings maybe taken by the Commission to stop the illegal operation of buses.

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

Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Ordered accordingly.


author: Htjbbs, J.

text:
    Pauline Keener, Appellant, v. Herman Epstein et al., Respondents.

      (Argued December 5, 1935;
    decided January 8, 1936.)

      Nathan Wald for appellant.
    The plaintiff did not have to prove record ownership of the fee in order to recover damages from a trespasser. Hence it is not material to the issues as to whether or not the plaintiff’s rights in the premises included record ownership of the fee. (Compton v. The Chelsea, 139 N. Y. 538; Gulish v. Johnston, 206 App. Div. 625.) The court order, substituting abbreviated findings, after entry of judgment, is of no force or effect. (Herpe v. Herpe, 225 N. Y. 323; Israel v. Manhattan Ry. Co., 158 N. Y. 624; Whalen v. Stuart, 194 N. Y. 495; Shaw’s Jewelry Shop v. New York Herald Co., 170 App. Div. 504; 224 N. Y. 731.)

      Robert Cooper for respondents.
    The order resettling the findings merely removes the inadvertent inconsistencies not supported by evidence. (Stokes v. Stokes, 198 N. Y. 301.) Appellant is not entitled to damages for the time she was not the owner. (Civ. Prac. Act, § 1007.)
   Htjbbs, J.

On February 19, 1933, the appellant, being then the record owner of premises consisting of a store, second floor apartment and basement, leased to respondent Herman Epstein the store and space for a stock room to be built by him in the basement. Access to the basement could be gained from the street and also from a hallway leading to the street. Appellant had a heating apparatus and storage bins in the basement. The respondents entered into possession, built a storage room, removed the lock from the outer door and substituted another, refusing to give appellant a key. Respondents stored merchandise in the basement both within and outside of their storage room. This action was instituted on April 25, 1934, to recover treble damages under section 535 of the Real Property Law (Cons. Laws, ch. 50) for forcible detainer of the portion of the cellar not leased from March 1, 1933, to commencement of the action and for an injunction.

The trial court granted the injunction and treble, damages of thirty dollars based upon a finding of five dollars per month rental value for the period from March 10, 1933, to May 10, 1933, the period during which appellant’s ownership was found to have been interfered with. Appellant appealed from the judgment in so far as it limited the damages to thirty dollars, and the Appellate Division affirmed, one justice dissenting.

The question presented on this appeal is whether the appellant was required, in the absence of admissions or stipulations on the part of the respondents, to establish continued ownership of the premises.

When the lease was made, appellant was the record owner of the premises and with her son occupied the apartment. The son and a daughter managed the property. About May 16, 1933, she deeded the property to the daughter who held the record title for about a year, after which it was deeded back. The reason for the transfer was stated by appellant’s attorney, husband of the daughter, in answer to a question by the court: “ When did Pauline Kerner cease to own the property? Mr. Wald: She still owns it. Her husband was sick and she was nervous and she didn’t want to bother with the property, and she transferred it in her daughter’s name a short time and now it is back again in her name.”

That she continued in possession and control of the premises is not disputed by the testimony adduced at the trial and is clearly indicated in, testimony of the son. Absence of more definite proof as to appellant’s right to possession is explained by admissions of ownership contained in the answer and by stipulation at the trial. The statute against forcible entry or detainer of real property (Real Prop. Law, § 535) does not specify ownership as a condition upon which the right to recovery must depend. The court below was in error in limiting the recovery to that period during which appellant retained the legal title. All that she was required to prove was that during the period she was in peaceful possession, (iGulish v. Johnston, 206 App. Div. 625; Isaacs v. Washougal Clothing Co., 233 App. Div. 568; Compton v. “ The Chelsea;’ 139 N. Y. 538.)

That the court in awarding damages proceeded upon the theory that ownership was necessary is indicated by the comment of the court: This woman ceased to be the owner since the middle of May, 1933, and there cannot be any recovery for what took place during the time she was not the owner.”

While there is a denial in the answer of right to possession by appellant of the basement, it is coupled with an admission of her ownership of the premises. The evidence, while establishing that she parted with legal title for a time, shows both title and possession at the commencement of the period and clearly indicates continued possession and control, with no attempt on the part of respondents to establish otherwise. It appears to be undisputedly established that she was in possession during the whole period, and an allowance of damages for the entire period should have been awarded.

No consideration need be given the question of the power of the trial court to amend the findings, as the Appellate Division could make new findings or adopt those made below as amended. As no question of fact was involved below and the error upon which we reverse is an error of law in applying an improper measure of damages, we have power to make a final judgment correcting the error and are not required to. order a new trial.

The judgments should be modified by allowing the appellant $330, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Division.

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

Judgment accordingly.


text:
    Spoor-Lasher Company, Inc., Appellant, v. Newburgh Gas and Oil Company et al., Respondents.
    (Argued December 12, 1935;
    decided January 8, 1936.)

      Joseph A. McCabe for appellant.
    The tenant is liable for the taxes for the reason that the assessments in the different years ran against the tanks and not against the premises or property of the landlord. (People ex rel. Hudson River Day Line v. Franck, 257 N. Y. 69; People ex rel. Muller v. Bd. of Assessors, 93 N. Y. 308; People ex rel. International Nav. Co. v. Barker, 153 N. Y. 98; Smith v. Mayor, 68 N. Y. 552; Smith v. Russell, 172 App. Div. 793; Matter of Donner-Hanna Coke Corp., 212 App. Div. 338; Witherhead v. Ort, 223 App. Div. 626.)

      George V. L. Spratt for respondents.
    The complaint states but a single cause of action for equitable relief and damages incidental thereto. (Imperial Shale Brick Co. v. Jewett, 169 N. Y. 143; Gooding v. McAlister, 9 How. Pr. 123; Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436; Inderlied v. Whaley, 85 Hun, 63; Spring v. Fidelity Mut. Life Ins. Co., 183 App. Div. 134; Engelhorn v. Reitlinger, 122 N. Y. 76; Thomas v. Scutt, 127 N. Y. 133; Uihlein v. Matthews, 172 N. Y. 154; Miller v. Schloss, 218 N. Y. 400; Cumming v. Harkley, 8 Johns. 202; American Metal Co. v. Neumann, 184 App. Div. 229; Fox v. Stern Dental Supply Co., 207 App. Div. 750; Graham v. Buffalo General Laundries Corp., 235 App. Div. 246; 261 N. Y. 165; Todd v. Keator, 177 App. Div. 112; Welsh v. Darragh, 52 N. Y. 590; Mills v. Bliss, 55 N. Y. 139; Melnick v. Kukla, 228 App. Div. 321; Silvestri v. Associated Gas & El. Corp., 240 App. Div. 179; O’Brien v. Fitzgerald, 143 N. Y. 377; Boissevain v. Boissevain, 224 App. Div. 576; Dagood Holding Corp. v. Rosenbluth, 231 App. Div. 470.) Plaintiff is not entitled to recover the damages prayed for. (Dudley v. Congregation Third Order of St. Francis, 138 N. Y. 451; Reichert v. Stilwell, 172 N. Y. 83; Jackson v. Strong, 222 N. Y. 149; Ehrlich v. Mills, Inc., 215 App. Div. 116; Graham v. Dunigan,
      15 N. Y. Super. Ct. 516; Lageman v. Kloppenburg, 2 E. D. Smith, 126; Wells v. Porter, 7 Wend. 119; City of New York v. Pike Realty Corp., 126 Misc. Rep. 260; Allen v. Murray R. R. Employees’ Benefit Fund, 112 Misc. Rep. 156; N. Y. C. R. R. Co. v. Buffalo, 76 Misc. Rep. 655; Matter of Cullinan, 113 App. Div. 485; Rouse v. Catskill Steamboat Co., 59 Hun, 80; Proctor Troy Properties Co. v. Dugan Store, Inc., 191 App. Div. 685; On v. Doubleday, Page & Co., 223 N. Y. 334; Matter of Loew’s Buffalo Theatres, Inc., 233 N. Y. 495; Columbus Spa, Inc., v. Star Co., 216 App. Div. 218; Barker v. Hawk, 189 App. Div. 266; City of New York v. United States Trust Co., 116 App. Div. 349; Ayer v. Bonwit, 161 App. Div. 122; Nassau Hotel Co. v. Barnett & Barse Corp., 162 App. Div. 381; 212 N. Y. 568; Manning Realty Corp. v. Topping Bros., 120 Misc. Rep. 592; 207 App. Div. 852.)
   Crane, Ch. J.

The courts have been asked to decide who is obliged to pay the real estate taxes imposed on certain oil tanks erected on leased property.

On August 15, 1930, the Spoor-Lasher Company, Inc., leased by written instrument vacant land to the New-burgh Gas and Oil Company for the term of four years, giving to the lessee the “ privilege of erecting on said leased premises any other building or structure of any kind or nature upon their obtaining from the party of the first part written permission to do so,” etc., and the said premises are to be used and occupied as a storage station for the bulk storage of gas and oil and kindred commodities.” The following are also pertinent provisions:

8. That no building, structure or improvement of any kind or nature shall be made on the said premises without the consent of the said landlord in writing and all structures so placed upon the said premises with the consent of the said landlord other than movable tanks and personal equipment, shall belong to the said landlord at the expiration of the said lease term, or any extension thereof in the event that the option to renew this lease is exercised by lessee.”
21. If the landlord shall default in the payment of any taxes, assessed against the premises * * * the tenant may pay the same and the amount so paid * * * may be applied by the tenant upon any rent theretofore or thereafter falling due hereunder.”

Nowhere do we find any statement or provision as to the payment of taxes except the above. The lessor reasons that because of the words “ taxes assessed against the premises ” the taxes which it was to pay were restricted to those assessed against the premises — vacant premises — as they were on the date of the lease. This reasoning cannot hold good as the expression looks to the future and the contract gave the lessee the right to erect buildings and structures on the land which become the property of the lessor. Movable tanks and personal equipment only were to remain the property of the lessee.

Here we have a case where land is leased with permission given the lessee to erect oil tanks on the property, title to which shall not pass to the landlord. Rent is reserved which is assumed to be fair compensation for all these privileges and rights. The lessor agrees that if it defaults in the payment of taxes against the premises, the tenant may pay and deduct the amount for the rent due.

This would indicate that the lessor was to pay all the taxes assessed against the premises as they then existed or would exist after the tenant had exercised its privilege of erecting buildings or tanks. If buildings, they become the property of the lessor; if tanks, they were to belong to the lessee, but in either case the lessor was to pay the taxes. If the parties had anything else in mind, or the word “ premises ” was not to include all the premises or all the real estate as it existed at the time of the assessment, the lease should have so stated. Courts cannot be expected to guess at what the parties meant, or order that to be done which the parties were able to do for themselves and probably would have done had it been thought of. The tanks became part of the realty for the purposes of taxation (People ex rel. Hudson River Day Line v. Franck, 257 N. Y. 69), and were part of the “ premises ” on which the taxes assessed were to be paid by the lessor. That the tanks were separately assessed at $8,700 and the land for $95,400 during the years in question cannot affect the terms of the lease. This action, moreover, is one to reform the lease, to place the obligation to pay the tank tax on the lessee, thereby intimating, if not conceding, that it does not now contain any such agreement.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Finch, J.

text:
    Commercial Casualty Insurance Company, Appellant, v. Harry A. Roman, Respondent.

      (Submitted December 13, 1935;
    decided January 8, 1936.)

      William Lurie and Elliot W. Isaacson for appellant.
    The extension of the maturity date of the bond and mortgage discharges the mortgagor only to the extent of the value of the real property at the time the extension was given; the question as to such value was properly submitted to the jury. (Feigenbaum v. Hizsnay, 187 App. Div. 126; Freedlander v. Wilson, 187 App. Div. 919; Brockport Holley Water Co. v. Village of Brockport, 203 N. Y. 399; Baldel v. Berko, 144 N. Y. Supp. 10; Gillan v. O’Leary, 124 App. Div. 498; Schweinburg v. Altman, 145 App. Div. 377; 207 N. Y. 681; Tubiola v. Baker, 225 App. Div. 420; Matter of City of Rochester, 234 App. Div. 583; Hirsch v. Schwartz & Cohn, 256 N. Y. 7; Atkinson v. Sanders, 250 N. Y. 170; Eno v. Klein, 236 N. Y. 543.) The agreement did not effect an extension of the final installment of principal under the bond. As to this installment, there is nothing in the record showing a discharge of the defendant, and the jury’s verdict in that sum is proper. (Cohn v. Spitzer, 145 App. Div. 104; 207 N. Y. 738; Federal Land Bank v. Shoemaker, 147 Misc. Rep. 308.)

      John E. Booth and William C. Morris for respondent.
    The agreement extending the date of payment of the mortgage discharged defendant to the extent of the value of the land. (Murray v. Marshall, 94 N. Y. 611; Ducker v. Rapp, 67 N. Y. 464; Jester v. Sterling, 25 Hun, 344; Syracuse Trust Co. v. First Trust & Deposit Co., 141 Misc. Rep. 603; Metzger v. Nova Realty Co., 214 N. Y. 26; White v. Augello, 254 N. Y. Supp. 228.) The agreement was an extension of the principal remaining due and not of unpaid installments. (Gillet v. Bank of America, 160 N. Y. 549.)
   Finch, J.

This is an appeal by the plaintiff from an order and judgment of the Appellate Division, first department, which directed that a money judgment theretofore entered in favor of the plaintiff and against the defendant, after a trial before a judge and jury, be reversed and the complaint dismissed.

The complaint is by an assignee of a mortgage bond executed by the defendant to recover the principal sum of $13,000, with interest.

The defendant purchased certain real property for $275,000 and took the property subject to a first mortgage for $180,000 and a second mortgage, being a purchase-money bond and mortgage, for $70,000. Subsequently the defendant sold the property, subject to these mortgages. Through various mesne conveyances the title to the fee came to one Misrok. The purchase-money second mortgage was payable in semi-annual installments of $5,000 each, the first installment to be paid January 1, 1924, which made the last installment payable July 1, 1930. The bond also contained a provision for the acceleration of the unpaid principal at the option of the holder of the bond, after default, among other things, in the payment of an installment.

On July 1, 1929, one Dora Floersheimer was the owner of the bond and second mortgage and Israel Misrok was the owner of the mortgaged premises. Prior to this date $55,000 of the principal sum and accrued interest had been paid by the various grantees of the defendant, leaving the sum of $15,000 due upon the second mortgage. On July 1, 1929, there became due an installment of principal in the sum of $5,000. Misrok failed to pay that installment on its due date, but on August 5, 1929, paid $2,000 ®n account of this installment and all accrued interest, leaving a balance of $13,000 of the principal sum. In October, 1929, Dora Floersheimer, still being the owner of the bond and mortgage, entered into a written agreement with Misrok which recited that the balance then due and unpaid upon said mortgage, with interest from July 1, 1929, was $13,000, and extended the payment thereof until July 1, 1930. As a part of the same transaction the plaintiff herein executed a surety bond to Dora Floersheimer in the sum of $15,000, conditioned for the payment. of any deficiency which may arise in the event of the foreclosure of said mortgage by reason of the default on the part of the principal to pay the amount due on maturity of said mortgage as provided therein in accordance with the terms, covenants and conditions thereof.” The property having been sold under foreclosure of the first mortgage and apparently not having brought sufficient to pay any part of the $13,000 remaining due on the second mortgage and the plaintiff having paid under its surety bond, this action was instituted on the mortgage bond against this defendant,

The answer of this defendant set up what purported to be six separate defenses. These defenses are, to a great extent, repetitious and substantially set forth but one alleged defense, namely, that the defendant had been discharged because the maturity date of the mortgage bond and mortgage had been extended and that the value of the. real property at the time of the extension was in excess of the amount of the mortgage then on the property, and hence the defendant as mortgagor was discharged because his right of subrogation against the mortgaged premises had been delayed.

At the trial of the case there was no difference between the parties as to the proper rules of law to be applied in the following particular, namely, that if at the time the extension was granted the value of the real property was in excess of the amount of the combined mortgages thereon, then this defendant was discharged from liability on his bond. If, on the other hand, the value of the land was less than the amount of the combined mortgages, then this defendant remained Hable to the extent of this difference. (Murray v. Marshall, 94 N. Y, 611.) The learned trial court in his charge to the jury properly submitted the case with reference to both these rules of law. No motion was made by the defendant at the close of the plaintiff’s case, or at the close of the whole case, for a dismissal of the complaint or for a directed verdict in favor of the defendant; nor was there any objection on the part of the defendant to the submission of the issues for decision by the jury. The only testimony bearing on the value of the premises had been that of two experts, who testified on behalf of the defendant that the value of the land exceeded the value of the combined mortgages. This question of value was submitted to the jury in the charge of the court. The jury was expressly charged that it was not bound by the testimony as to value. In this charge the defendant acquiesced.

The jury returned a verdict in favor of the plaintiff in the sum of $5,000. Upon appeal to the Appellate Division that court reversed the judgment entered upon the verdict of the jury and directed judgment in favor of the defendant dismissing the complaint upon questions of law. Specifically, the Appellate Division held that the . defendant had established by undisputed testimony that the value of the mortgaged premises was greater than that of the combined mortgages thereon, because the testimony of two real estate experts was uncontradicted. Assuming that fact to be established, they further held that the agreement extending the due date of the mortgage without the consent of the mortgagor discharged him from liability on the mortgage bond.

There is no dispute as to the correct principles of law to be applied to the facts in the case at bar. If at the time the extension of the due date of the mortgage was granted the value of the real property was in excess of the amount of both mortgages thereon, then the mortgagor was discharged from liability on his bond. As a corollary if the value of the land at the time of the extension of the due date of the mortgage was less than the amount of the mortgages on the property, then the mortgagor remained liable to the extent of this difference. {Murray v. Marshall, supra.)

The only question upon this appeal is whether these principles were correctly applied to the facts in the case at bar.

The issue as to the value of the mortgaged premises at the time of the execution of the extension agreement presented a question of fact for determination by the jury. The burden of alleging and proving that the value of the real estate at this time was equal to or in excess of the value of the combined mortgages was assumed by the defendant. The latter called two real estate experts, each of whom testified that the value of the property was substantially in excess of the mortgages. Even though no testimony was offered by the plaintiff to contradict the testimony of these experts, it was still within the province of the jury to reject their testimony altogether. The weight to be given to opinion evidence ordinarily is entirely for the determination of the jury. (The Conqueror, 166 U. S. 110; Head v. Hargrave, 105 U. S. 45; Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 124 App. Div. 896; affd., 196 N. Y. 502; People ex rel. Third Ave. R. R. Co. v. Tax Commrs., 212 N. Y. 472; Tubiola v. Baker, 225 App. Div. 420.) In the case at bar, however, it also appears that the testimony of these experts was greatly weakened upon their cross-examinatian. One knew of no sales in the neighborhood within a reasonable time and while endeavoring to base his testimony upon his estimate of rental income, had no knowledge of the amount of the rent roll nor did he go over the building prior to making his appraisal. Moreover, his testimony showed that the defendant had been a client of his office for several years and that because of his friendship with the defendant he was neither asking nor receiving any fee for his testimony. The other expert also did not rely on sales within the neighborhood and he too did not know the amount of the rent roll and had been friendly with the defendant for a number of years. Moreover, while no experts were called in opposition, the jury had before it facts which bore upon the value of the premises, namely, a description of the property, testimony as to the activity of the neighborhood with respect to sales of real property and the age of the building. They also had before them the fact, for whatever weight they cared to give to it, that the mortgagee upon granting the extension had secured a surety company bond in the amount of the mortgage to pay any deficiency. In view of the foregoing, it can'not be said that the verdict of the jury that the premises were worth less by $5,000 than the amount of both mortgages had no evidence to support it or was against the weight of the evidence.

It also appears that on all the above points the trial court charged the jury, without exception from the defendant. Under such circumstances the defendant was bound, by the charge and has in legal contemplation conceded its propriety, since he did not object thereto. (Hirsch v. Schwartz & Cohn, 256 N. Y. 7; Atkinson v. Sanders, 250 N. Y. 170, 172; Eno v. Klein, 236 N. Y. 543.)

It follows that the judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

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

Judgment accordingly.


author: Lotjghran, J.

text:
    In the Matter of the Probate of the Will of Abraham L. Erlanger, Deceased. Mitchell L. Erlanger et al., Appellants; Charlotte F. Erlanger, Respondent.
    (Submitted December 16, 1935;
    decided January 8, 1936.)

      I. Gainsburg and Joseph P. Segal for motion.

      Max D. Steuer and Mitchell Jelline opposed.
   Lotjghran, J.

The executors of the decedent ask leave to appeal directly to this court from a decree of the Surrogate’s Court of New York county admitting his will to probate. That decree was made in accordance with a petition of the executors and is not questioned by them. The sole object of their present application is to bring here for review an earlier order made in this probate proceeding in this form: “ Ordered that the contestant herein, Charlotte Fixel Erlanger, is the surviving widow of the decedent herein, Abraham L. Erlanger.” That order was affirmed at the Appellate Division (243 App. Div. 754), where the executors were denied leave to appeal to this court (244 App. Div. 717). We then declined to consider the record for want of finality in the determination so made (268 N. Y. 513). (Cf. Matter of Trowbridge, 266 N. Y. 283.)

The present application may be dismissed as nugatory, but evident misunderstanding by the executors of their position in respect of the jurisdiction of this court invokes comment.

Objections to probate of the will of the decedent were filed by the contestant as his widow. The executors moved to strike out the objections upon the ground that the contestant was not the widow of the decedent. Thereupon the Surrogate made an order, the material provisions of which were: That the issue whether or not the contestant was the wife and is now the widow of said decedent, and as such a person interested in the probate * * * of said paper writing, be tried before the Surrogate, without a jury, and before the trial of any of the other issues heretofore attempted to be raised by the contestant in said probate proceeding; and that decision upon the proponents’ application to strike out the objections of the contestant to the probate of the aforesaid paper writing as the last will and testament of said decedent be and the same is hereby reserved until after the determination of the trial of the preliminary issue herein-before ordered.” On the trial so directed, the Surrogate made the order declaring the status of the contestant as widow of the decedent (145 Misc. Rep. 1), and, after affirmance by the Appellate Division, as we have said, the executors were refused leave to present that determination to this court for review.

Thereafter the Surrogate made an order denying the motion of the executors to strike out the objections of the contestant to probate of the will and the issues raised by those objections were regularly brought on for trial. The will was then probated by the decree now presented. Therein the antecedent proceedings are recapitulated and there follows a recital that the objections of the said contestant, Charlotte Fixel Erlanger, having been withdrawn,” an order had been made, “ that the said objections be and thereby were withdrawn without prejudice to any and all rights which the said contestant now has or hereafter shall have in the estate of said decedent by virtue of the provisions of section 35 of the Decedent Estate Law as amended by chapter 293 of the Laws of 1919, and that the testimony herein be taken in the same manner as .though no objections had been filed.” Upon proofs submitted accordingly, probate was decreed by a direction in the usual form. (See Surr. Ct. Act, §§ 144, 151, 155.)

Upon the foregoing statement, it is clear that the decree admitting the will to probate has added nothing to the force or effect of the antecedent declaration that the contestant is the widow of the decedent. That decree established no more than the probate jurisdiction and the factum of the propounded paper as a valid testamentary instrument. For all that appears, the contestant has still to request a determination by the Surrogate’s Court of the validity or effect of her reserved right to take as surviving spouse an intestate share against the provisions of the probated will. This she must do by a new proceeding in which the parties will again be cited. (Surr. Ct. Act, § 145-a.) In that event, it may perhaps be that the issue of her status as surviving spouse will be ruled to be fixed beyond reagitation. (Williams v. Barkley, 165 N. Y. 48, 54. See 2 Freeman on the Law of Judgments [5th ed.], pp. 1401-1410.) Should that ruling be made, however, it will not follow, as the executors now suppose, that we cannot allow review in this court of an order which shall finally determine such an independent special proceeding. In saying this, we do not mean to imply that we have taken any notice of the merits of the controversy.

This motion should be denied, with ten dollars costs and necessary printing disbursements.

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

Motion denied, etc.