author: Lehman, Ch. J.

text:
    Albert E. McKenzie, as Trustee in Bankruptcy of Graves-Quinn Corporation, Appellant, v. Irving Trust Company, Respondent.
    Argued March 6, 1944;
    decided April 13, 1944.

      David Morgulas for appellant.
    I. The preference took place on November 28, 1940, the date when the hank’s records indicate the sum of $150,000 was withdrawn from the bankrupt’s account. II. Until the respondent complied with section 3477 of the Revised Statutes of the United States, as amended October 9, 1940 (U. S. Code, tit. 31, § 203), the assignment in suit was null and void. (National Banh of Commerce v. Downie, 218 U. S. 345; Manhattan Commercial Co. v. Paul, 216 N. Y. 481; Levison v. Illinois Surety Co., 222 N. Y. 280; Martin v. National Surety Co., 300 U. S. 588; In re Meadow Sweet Farms, Inc., 32 Fed. Snpp. 119; Prairie State Banlc v. United States, 164 TJ. S. 227.) III. The assignment in question involving a contract and warrant of the United States, the Federal Statute with respect to assignments was applicable and not New York State decisions on the general law pertaining to assignments. (Clearfield Trust Co. v. U. S., 318 U. S. 363; Matter of National Fish Co., 6 Am. Bank. Reports [N. S-] 454.) IY. The assignment was not effective until at least December 2, 1940, within the meaning of section 60, subdivision a, of the Bankruptcy Act as amended in 1938. (Corn Exchange Banlc v. Klauder, 318 U. S. 434; 3 Collier on Bankruptcy, 14th ed., § 60; American Surety Co. v. Electric Co., 296 U. S. 133; Jenlcins v. National Surety fio., 277 U. S. 258; Scarsdale Nat. B. T. Co. v. U. S. F. & G. Co., 264 N. Y. 159; Judson v. Corcoran, 58 U. S. 612; Matter of Cox, 132 F. 2d 881.) V. On November 22, 1940, the bankrupt, having previously assigned to the surety company, had no power to make an assignment to the bank. (Matter of Allied Products Co., 134 F. 2d 725; Scarsdale Nat. B. & T. Co. v. U. S. F. & G. Co., 264 N. Y. 159.) YI. The mailing of the government check on November 27, 1940, was a delivery to the respondent for the purposes of depositing it in the bankrupt’s account, and nothing more. (Martin v. National Surety Co., 300 U. S. 588; Singer v. Sirotta, Inc., 27 Fed. Supp 276; Goodfellow v. Webber Lumber Supply Co., Inc., 257 Mass. 503; Glennan v. Rochester Trust & S. D. Co., 209 N. Y. 12; Hurley v. Union Trust Co., 244 App. Div. 590; Attorney-Gen’l. v. Continental Life Ins. Co., 71 N. Y. 325.)

      William A. Onderdonh and Paul E. Mead for respondent.
    I. Defendant had an assignment on November 22, 1940, of all moneys due and to become due from the government to the construction corporation under the War Department contract. (Pickering v. Lomax, 145 U. S. 310; People v. Ryan, 274 N. Y. 149; Amiesite Constr. Corp. v. Luciano Contr. Co., 284 N.'Y. 223.) II. From the delivery of the assignment on November 22, 1940, no purchaser from the corporation, and no creditor could acquire a superior right to the moneys assigned. (Corn Exchange Bank v. Klauder, 318 U. S. 434; Goldstein v. Busch, 56 F. 2d 10; Hanna v. Lichtenhein, 182 App. Div. 94; Williams et al. v. Ingersoll et al., 89 N. T. 508; Central Trust Co. v. West India Imp. Co., 169 N. T. 314; Goodyear Tire & Rubber Co. v. Bagg, 292 Mass. 125; Superior Brassiere Co., Inc., v. Zimetbaum, 214 App. Div. 525; Salem Co. v. Manufacturers’ Co., 264 XT. 8. 182; Erie B. Co. v. Tompkins, 304 IT. S. 64; Bockmore v. Lehman, 129 F. 2d 892.) III. The delay in obtaining the consent and in the filing only operated to impair the recourse of defendant to the government. (Young v. TJpson, 115 F. 192; Williams et al. v. Ingersoll et al., 89 N. Y. 508; Salem Co. v. Manufacturers’ Co., 264 U. S. 182; Benedict v. Batner, 268 U. S. 353; Portuguese-American Bank v. Welles, 242 U. S. 7; State Bank v. Central Mercantile Bank, 248 N. Y. 428; Fortunato v. Patten, 147 N. Y. 277; Martin v. National Surety Co., 300 U. S. 588; Muhial Trust Co. v. Merchants Nat. Bank, 236 N. Y. 478; Irving Trust Co. v. Leff, 253 N. Y. 359; Whiting v. Hudson Trust Co., 234 N. Y. 394.) IV. Begardless of the import of the consent and of the filing, the assignment was at least effective as to the government check for $155,865.50 out of which the $150,000 debt of the corporation was discharged on November 28, 1940. Apart from the Assignment of Claims Act of 1940 defendant had a valid common law assignment which attached to the government check upon its delivery to the corporation on November 27, 1940. (National Bank of Commerce v. Downie, 218 II. S. 345; Martin v. National Surety Coi} 300 D. 8. 588; Blake v. Weiden, 291 N. Y. 134; Amiesite Constr. Corp. v. Luciano Contr. Co., 284 N. Y. 223; Matter of Leterman, Becher & Co., 260 F. 543; Clark v. Iselin, 21 Wall. 360; Fairbanks v. Sargent, 117 N. Y. 320; Central Trust Co. v. West India Imp. Co., 169 N. Y. 314; Freund et al. v. Importers & Traders’ Nat. Bank, 76 N. Y. 352.) V. Assuming no assignment whatever, plaintiff cannot recover. The government check for $155,865.50 was delivered to defendant on November 27, 1940, and against this sum, treated as a routine deposit, defendant had a right of setoff which is beyond the reach of plaintiff. (Merrimack Nat. Bank v. Bailey, 289 F. 468; Elliotte v. American Sav. Bank &
      Trust Go., 18 F. 2d 460; Studley v. Boylston Bank, 229 IJ. S. 523; Kolkman v. Manufacturers’ Trust Co., 27 F. 2d 659; Chapman v. Mills & Gibb, 241 F. 715; People v. Continental Casualty Co., 157 Mise. 15; Bainbridge v. Hoes, 163 App. Div. 870.)
   Lehman, Ch. J.

On March 28, 1941, a petition in bankruptcy was filed against G-raves-Quinn Corporation and thereafter the corporation was duly adjudicated a bankrupt. On November 28, 1940, the defendant bank had received from the bankrupt its check for $150,000. The check had been mailed from Boston on November 27th. The deposit account of the bankrupt with the defendant bank was at that time overdrawn. It had borrowed large sums of money from the bank and had executed and delivered to the bank three promissory notes aggregating the sum of $150,000. On November 27, 1940, the bankrupt received a check for $155,865.50 from the United States Government in payment of construction work which the bankrupt was performing under a contract with the War Department. On the same evening the bankrupt mailed that check to the bank for deposit in the bankrupt’s account, and also mailed to the bank a second check in the sum of $150,000 drawn on its deposit account to the order of the bank. The bank received the checks on November 28th and used the bankrupt’s check for $150,000 to pay and discharge the three promissory notes of the bankrupt, executed by the bankrupt when it borrowed that amount from the bank. After the adjudication in bankruptcy the trustee brought an action for the restitution of the moneys of the bankrupt which the bank had applied on November 28, 1940, to the payment of that indebtedness.

The first cause of action in the complaint alleges that such transfer of its moneys by the bankrupt in payment of an antecedent indebtedness operated as a preference which is unlawful under the provisions of the Bankruptcy Act (U. S. Code, tit. 11). The second cause of action alleges that the transfer was void because in violation of section 15 of the Stock Corporation Law of the State of New York. In its answer the defendant, in addition to denials of material allegations of the complaint, pleaded certain affirmative defenses to each cause of action and then moved pursuant to rule 113 of the Rules of Civil Practice for summary judgment dismissing the first, cause of action on the ground that “ the defenses thereto are sufficient as matter of law and founded upon facts established by documentary evidence or official record ”. The Appellate Division unanimously reversed an order of Special Term denying the motion and granted the motion to dismiss the first cause of action alleged in the complaint. An order of severance and a judgment dismissing the first cause of action was entered. Upon this appeal we are concerned only with that cause of action.

The alleged unlawful transfer on November 28th was made, it is said, exactly four months prior to the date of the petition in bankruptcy. Payment of an antecedent debt by a transfer of moneys, at that time belonging to the bankrupt, upon which the creditor had no lien and in which it had no special property would, it is plain, constitute an unlawful preference which could be set aside upon the suit of the trustee if the creditor at that time knew that the debtor Avas insolvent. That would not be true, however, if the payment of the antecedent debt was made from property of the debtor which had been transferred to the creditor at any time prior to November 28th, and the defendant has pleaded in its affirmative defenses and, upon the motion for summary judgment has established, facts which, it is contended, show a prior assignment by the debtor of the moneys which might thereafter be paid by the government for work performed under the construction contract of the defendant and which show, also, that on and after November 27th, if not before, the “ defendant had a lien and right of offset against the deposit balance of G-raves-Quinn Corporation to the amount of $150,000.” The Bankruptcy Act, which in section 60 provides that a preferential transfer of property by an insolvent debtor in payment of an antecedent debt shall be void, if made Avithin four months of the filing of a petition in bankruptcy, by an amendment adopted in 1938 also formulates in section 60 (subd. a) the test which must be applied in determining the date when a transfer is complete. “ A transfer shall be deemed to have been made at the time when it became so far perfected that no bona-fide purchaser from the debtor and no creditor could thereafter have acquired any rights in the property so transferred superior to the rights of the transferee therein, and, if sneh transfer is not so perfected prior to the filing of the petition in bankruptcy * ⅞ * it shall he deemed to have been made immediately before bankruptcy.” We apply that test here. The problem presented upon this appeal is whether a transfer so perfected that it can withstand that test was made on or before November 27th.

In September, 1940, when the contract was made, assignments of moneys due or to become due from the United States under contracts with the government, were expressly prohibited by statute: “ All transfers and assignments made of any claim upon the United States # * * and all powers of attorney, orders, or other authorities for receiving payment of any such claim, ⅜ * ⅜ shall be absolutely null and void, unless they are freely made * * ⅜ after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. ⅜ ⅜ * ” United States Code, title 31, Money and Finance, section 203 (Devised Statutes, 3477). The assignment delivered by the bankrupt on November 22, 1940, would undoubtedly have been “ absolutely null and void ’ ’ if the statute had not been amended on October -9, 1940, for the express purpose of authorizing, subject to conditions therein specified, the assignment of claims against the United States arising even under contracts theretofore made with the government (Public Law No. 811 of the 76th Congress; 54 Stat., ch. 779, p. 1029). The statute as amended provides that:

The provisions of the preceding paragraph shall not apply in any case in which the moneys due or to become due from the United States or from any agency or department thereof, under a contract providing for payments aggregating $1,000 or more, are assigned to a bank, trust company, or other financing institution, including any Federal lending Agency: Provided,

“'1. That in the case of any contract entered into prior to the date of approval of the Assignment of Claims Act of 1940, no claim shall be assigned without the consent of the head of the department or agency concerned;

£ £ g ⅝ ⅜ # ⅜ ⅜

“ 4. That in the event of any such assignment, the assignee thereof shall file written notice of the assignment together with a true copy of the instrument of assignment with —

“ (a) the General Accounting Office,

“ (b) the contracting officer or the head of his department or agency,

“ (c) the surety or sureties upon the bond or bonds, if any, in connection with such contract, and

“ (d) officer, if any, designated in such contract to make payment.

the assignment as required in subdivision 4 of the amended statutes. It enclosed the assignment in a letter addressed to the Quartermaster General in Washington, dated November 27, 1940, in which for the first time it ‘ ‘ requested the approval of the Head of the Department concerned ” and stated that it “ should appreciate your cooperation in obtaining this approval.” Accordingly on December 4th the assignment was transmitted by the office of the Quartermaster General to the Assistant Secretary of War with a memorandum stating among other things2. It is the opinion of this office that the attached assignment has been executed pursuant to and in accordance with the Assignment of Claims Act of 1940 and, therefore, constitutes a valid assignment. 3. It is recommended that the attached assignment be approved by you in accordance with the provisions of subdivision 1 of the Assignment of Claims Act of 1940.” The following day, December 5, 1940, the Secretary of War formally approved the assignment. In the meanwhile on December 2, 1940, the defendant had sent written notices of the assignment to the surety company and the other persons with whom such written notices must be filed in accordance with subdivision 4 of the amended statute. Thus it appears undisputed that on December 5th there was full compliance with every condition provided by the statute in connection with the assignment of claims against the United States; but since such compliance was completed four months of the filing of the petition of bankruptcy the question arises whether the assignment constitutes a transfer which was perfected ” within the meaning of the Bankruptcy Act when executed or only when there was compliance with all the conditions provided in the Assignment of Claims Act.

The right to assign a debt or claim arising under a contract with the United States may be granted or withheld by Congress and the power of Congress to attach such conditions as it sees fit to the grant of a right to assign is not open to serious challenge. Here it has granted a right to assign; there has been compliance with the statutory conditions and the United States does not challenge the validity of the assignment. We are told that Congress attachéd conditions to the right to assign a claim against the United States primarily for the protection of the government and that it “ was not inoperative because of the delay either in obtaining the consent of the Secretary of War thereto or in the filing of the assignment with the various government departments ” (266 App. Div. 599, 601) citing Amiesite Constr. Corp. v. Luciano Contr. Co. (284 N. Y. 223); Salem Co. v. Manufacturers’ Co. (264 U. S. 182).

Congress, by its amendment to the Assignment of Claims Act, sanctioned the assignment of claims against the United States subject to the specified conditions for the purpose of enabling contractors to borrow money for the performance of the work upon the assurance that moneys received in payment for the work would, be used to satisfy the debt. That appears plain upon the face of the statute and is confirmed by the debate in Congress. It is not so plain that the. conditions that the. consent of the head of the department be obtained and that the assignment be filed in government offices were attached to the right to assign solely for the protection of the government. The debates in Congress suggest additional reasons. The Chairman of the Judiciary Committee of the House of Representatives explained: “ If this bill is not enacted there can be no assignment of claims. That is the first proposition. The agencies of the Government which have responsibility are themselves responsible for proposing this legislation. They came down to the Committee on the Judiciary, ⅜ *' * and indicated their desire to increase as far as possible the number of persons who could bid on these contracts, and who could help the Government in this emergency. They said, however, with reference particularly to some of the equipment material, with regard to which secrecy had to be preserved, that they did not want to take the responsibility of advising that in every case these claims should be assignable, or that there would not be in the nature of things some claims that should not be assigned.” (Congressional Reeord, vol. 86, Part ii, p. 12557.) o '

We think that consent was required by Congress, not only for the protection of the government but also for the protection of the public from harm which might arise from assignment of some contracts with the War Department, the Navy Department or other departments of the government. To afford such protection in the fullest measure, we think that Congress may well have intended that an assignment of a claim for moneys due or to become due under a contract with the United States should be absolutely void unless consent was given, and should be inoperative ” until such consent was given. The question is now posed whether compliance with the statutory conditions, required to give force to the inchoate assignment of a claim, has retroactive effect for any purpose, or whether even after the assignment has become fully valid and enforcible it may be given effect only as if executed at the time when all statutory conditions were fulfilled. That is a question which depends solely upon the construction of a statute of Congress, and we are told that the question has not yet been considered or decided by any Federal court.

Congress, in attaching conditions to the contractor’s right to assign claims against the United States, had, it is plain, no intention to dictate to the contractor what he should do with the moneys received upon his contract. (Hobbs v. McLean, 117 U. S. 567.) After the contractor has fully complied with the conditions attached to his right to assign, the purpose of imposing any limitation upon the contractor’s freedom to assign claims is fulfilled, and the government and the public have received the intended protection and have no interest in any controversy between successive assignees of the fund or claim or between persons asserting conflicting liens at law or in equity in the fund. It has been held that even where the statute provides that a transfer or assignment of a claim against the United States “ shall be absolutely null and void ” unless executed with prescribed formalities after “ the issuing of a warrant for the payment thereof ”, an assignment which is for that reason “ void ” may still give rise to equities, and after the moneys are ‘ ‘ in the hands of the contractor or subsequent payees with notice, assignments may be heeded, at all events in equity, if they will not frustrate the ends to which the prohibition was directed.” (Martin v. National Surety Co., 300 U. S. 588, 596.) Though the analogies may not be complete, what was said and decided in that case may guide us in seeking the intent of the statute enacted after that case was decided.

Here the statute does not in express terms declare that an assignment is wholly void until the assignment has been filed and consent has been given. On the contrary, under the statute the assignment is permitted, provided that there is compliance with these conditions. Not only have the government and the public no interest in refusing all retroactive effect to sucb compliance, but tbe purpose of the government in sanctioning assignments to financial institutions, subject to specified conditions, might be thwarted in part if a lender who receives an executed assignment as security for a loan did not have the assurance that it thereby acquired an inchoate interest in the fund which would become enforcible when he complied with the statutory conditions. A consent which gives validity to an assignment previously executed, like the ratification of a contract made without prior authorization, cannot wipe out property rights acquired by third parties in the interval between the execution of the assignment and the consent without which it lacks validity. We think that at least as between the parties to the assignment, the assignment, however, effects an inchoate transfer of the assigned rights or property even though there must thereafter be compliance with statutory conditions before the assignment becomes enforcible.

That brings us to the question whether prior to November 28, 1940, the assignment of the moneys due or to become due under the contract was ‘ ‘ perfected ’ ’ within the meaning of section 60, subdivision (a) of the Bankruptcy Act [U. S. Code, tit. 11, § 96, subd. (a)], even though consent was not given until later. The test under the statute as amended in 1938 is, as I have said, whether no “ bona fide purchaser from the. debtor and no creditor could thereafter have acquired any rights in the property so transferred superior to the rights of the transferee therein The “ standards which applicable state law would enforce against a good-faith purchaser ” or against a creditor must be applied here. (Corn Exchange Bank v. Klauder, 318 U. S. 434.)

The test of what constitutes a perfected transfer formulated in section 60, subdivision a, is not the test previously applied. It is “ more comprehensive and accords with the contemplated purpose of' striking down secret liens. # ⅜ ⅜ ” (House Reports, No. 1409, 75th Congress, First Session, p. 30. See Corn Exchange Bank v. Klauder, supra.) The appellant, however, fails to point out any rule of law whereby a bona fide purchaser for value or a creditor could have any rights in the moneys which might become due under the contract before they were paid to the contractor or its assignee, except perhaps a lienor under tlie provisions of the Lien Law of this State. It is unnecessary to decide whether the word creditor ” in the Bankruptcy Act was intended to include a lienor who complied with the statute, or whether a purchaser for value or a creditor could have obtained any rights in the moneys until they were paid to the contractor and the check mailed to the defendant on November 27th. It seems clear that at least from that time the transfer was perfected.

Certainly when the contractor received payment by check from the government on November 27th it was in good faith bound to deliver the check or its proceeds to the defendant in accordance with its agreement as evidenced by the executed assignment. The contractor had received a direction from the bank that the check should be mailed to it, and from the time that the check was deposited in the mail in accordance with that request, delivery of the moneys to the assignee was complete. The book entries of the bank on November 28th by which the check received by the contractor from the government was deposited in the account of the contractor and the check of the contractor to the order of the bank in payment of indebtedness to the bank, merely constituted a record of the transaction in compliance with the directions of the contractor.

The appellant maintains, finally, that if an assignment of claims against the United States may be given effect without compliance with the statutory conditions, the surety company had received a prior assignment of the same moneys and therefore had ‘ rights superior to the rights of the defendant as subsequent assignee. Many objections are pointed out by the respondent to that contention of the plaintiff-appellant. We do not consider these objections, for the action is not brought by the plaintiff as trustee to establish that the surety company has a title superior to the title of the bank. The action is brought solely to set aside the transfer to the bank as an unlawful preference. The trustee in bankruptcy has no authority to bring an action to establish a superior title in some other person.

The judgment should be affirmed, with costs.

LoughraN, Rippey, Lewis, CoNway, DesmoNd and Thaoher, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: CoNway, J. LehmaN, Ch. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, Morris Malinski and Sidney Rudish, Appellants.
    Argued January 17, 1944;
    decided April 20, 1944.

      David F. Price and Joseph Solovei for Morris Malinski, appellant.
    I. The confession of Malinski should have been excluded; its admission presents material and prejudicial error requiring a reversal of the judgment of conviction. (People v. Pantano, 239 N. Y. 416; People v. Pignataro, 263 N. Y. 229.) II. The lawless practice of police officers in failing to comply with the procedure set forth in section 165 of the Code of Criminal Procedure has been condemned. (People v. Doran, 246 N. Y. 409; People v. Cohen, 243 App. Div. 245; People v. Mummiani, 258 N. Y. 394; People v. Alex, 265 N, Y. 192; People v. Elmore, 277 Y. 397.) III. The court should reverse the judgment herein, emphasizing the influence that the illegal conduct^ of the police has in its action, and condemn the conduct of the District Attorney for approving this illegal police action. This court should proclaim a rule that henceforth all confessions obtained from persons illegally detained in custody be excluded and this rule rigidly enforced. (McNabb v. United States, 318 U. S. 332; Anderson v. United States, 318 U. S. 350.) IV. The guilt of defendant Malinski was not established beyond a reasonable doubt. (People v. Crum, 272 Y. 348; People v. Goldberg, 281 N. Y. 855; People v. Lewis, 275 N. Y. 33; People v. Becker, 210 N. Y. 274; People v. Davino, 288 N. Y. 423; People v. Feolo, 284 N. Y. 381; People v. Ledwon, 153 N. Y. 10.) V. The witnesses Yellin and Spielfogel are both accomplices as a matter of law. The finding that Spielfogel was not an accomplice is contrary to the evidence and against the weight of the evidence. (People v. Sweeney, 213 N. Y. 37; People v. Cohen, 223 N. Y. 406; People v. Clougher, 246 N. Y. 106; People v. Swersky, 216 N. Y. 471; People v. Zacko-wits, 254 N. Y. 192; People v. Kress, 284 N, Y. 452.) VI. The witness Kovner was an accomplice and the court erred when it charged the jury that Kovner is not either in law or in fact an accomplice. (People v. Rosenthal, 289 N. Y. 482; People v. Walker, 198 N. Y. 329.) VII. Appellant Malinski was entitled to a fair trial. The trial which he received is a reproach to the administration of justice. (People v. Malkin, 250 N. Y. 185;
      People v. Zachowitz, 254 N. Y. 192; People v. Richardson, 222 N. Y. 103; People v. Russell, 266 N. Y. 147; People v. Kress, 284 N. Y. 452; People y. Wolf, 183 N. Y. 464; People v. Ferguson, 245 App. Div. 837; People v. Elbroch, 250 App. Div. 583; People v. Esposito, 224 N. Y. 370; People v. Johnson, 284 N. Y. 182; Vierech v. United States, 318 U. S. 236.) VIII. The court erred in its charge to the jury to the prejudice of appellant Malinski. (Code Grim. Pro. § 393A; People v. Rakiec, 289 N. Y. 306; People v. Minnaugh, 131 N. Y. 563; People v. Rreen, 181 N. Y. 493; People v. Stern, 201 App.' Div.. 687; Matter of Eno, 196 App. Div. 131; People v. Weiss, 290 N. Y. 160.)

      John J. Fitzgerald, Julian V. Garabba and Saul M. Meadow for Sidney Rndish, appellant.
    I. The indictment was a nullity. It was found on the uncorroborated testimony of an accomplice. There was no corroborating testimony connecting the defendant Rudish, with the crime. The motion of said defendant, to dismiss the indictment because based only upon the uncorroborated testimony of an accomplice, should have been granted. Its denial is reversible error. (People v. Nitzberg, 289 N. Y. 523; People v. May, 158 Mise. 488; People v. Willett, 213 N. Y. 368; The People v. D’Argencour, 95 N. Y. 624; People v. Wiechers, 179 N. Y. 459; People v. Sweeney, 213 N. Y. 37; People v. Glen, 173 N. Y. 395; People v. Sexton, 187 N. Y. 495; United States v. Coolidge, 2 Gallison 393; People v. Walsh, 262 N. Y. 140; People ex rel. Lemon v. Supreme Cou,rt, 245 N.. Y. 24; People ex rel. Eirschberg v. Supreme Court, 269 N. Y. 392.) II. The witnesses Yellin and Spielfogel are both accomplices as a matter of law. The finding that Spielfogel is not an accomplice is contrary to the evidence and against the weight of evidence. There was no evidence against the defendant Rudish, except that of accomplices, and it was reversible error to deny the motion to direct a verdict in favor of said defendant. (People v. Sweeney, 213 N. Y. 37; People v. Cohen, 223 N. Y. 406; People v. Clov,gher, 246 N. Y. 106; People v. Swershy, 216 N. Y. 471; People v. Zachowitz, 254 N. Y. 192; People v. Kress, 284 N. Y. 452; People v. Demasco, 240 N. Y. 170; People v. Ledwon, 153 N. Y. 10.) III. The guilt of defendant Rudish, was not established beyond a reasonable doubt. The verdict of guilty as to Rudish was contrary to the evidence and against the weight of evidence. (People v. Crum, 272 N. T. 348; People v. Weiss, 290 N. Y. 160; People v. Kress, 284 N. Y. 452; People v. Malkin, 250 N. Y. 185; People v. Plover, 232 N. Y. 264; People v. Manganaro, 218 N. Y. 9; People v. Watson, 216 N. Y. 565; Viereck v. United States, 318 U. S. 236; People v. Lewis, 275 N. Y. '33; People v. Becker, 210 N. Y. 274; People v. Feolo, 284 N. Y. 381.) IV. The confession of defendant Malinski, should have been excluded, as a matter of law. Its admission was highly prejudicial to defendant Rudish. It was a denial of “ due process ” under the Fourteenth'Amendment to the Constitution of the United States, and section 6 of artcile VI of the State Constitution, and requires the reversal of the judgment as to him. (People v. Mummiani, 258 N. Y. 394; People v. Elmore, 277 N. Y. 397; People v. Alex, 265 N. Y. 192; People v. Cohen, 243 App. Div. 245; People v. Trybus, 219 N. Y. 18; People v. Doran, 246 N. Y. 409; McWabb v. United States, 318 U. S. 332; People v. Barbato, 254 N. Y. 170; People v. Weiner, 248 N. Y. 118; People v. Kelly, 264 App. Div. 14.) V. The trial court’s charge was inadequate in several respects. The failure more fully to instruct the jury regarding the Jalkover and Shamin incidents, the testimony of Holingsworth, as to Spielfogel’s status as an accomplice, and as to the duty of the police to arraign the defendants without unnecessary delay after arrest, all constitute reversible error. (People v. Odell, 230 N. Y. 481; People v. Fanning, 131 N. Y. 659.)

      Thomas Cradock Hughes, Acting District Attorney (Henry J. Walsh of counsel), for respondent.
    I. The'indictment is not a nullity. An indictment as a court record imports absolute verity until properly impeached and the presumption attaches that it was based upon legal and sufficient evidence in the absence of satisfactory proof to the contrary. (People v. Nitsberg, 289 N. Y. 523; People v. Sweeney, 213 N. Y. 37; People v. Glen, 173 N. Y. 395.) II. Spielfogel was not accomplice as a matter of law and the court properly left his status to the jury. (People v. Swersky, 216 N. Y. 471.) I'll. Malinski’s confession was properly received in evidence. (People v. Doran, 246 N. Y. 409; People v. Mummiani, 258 N. Y. 394; People v. Alex, 265 N. Y. 192; People v. Poulin, 207 N. Y. 73; People v. Smith, 180 N. Y. 125; People v. Bimieri, 180 N. Y. 163.) TV. Other Budish. contentions with respect to Malinski’s confession as it affected Bndish and the Jalkover and Shamin “ incidents ” are unfounded. V. The trial court’s charge was adequate in all respects.
   CoNway, J.

The two defendants and one Joseph Indovino were convicted of the crime of murder in the first degree. As to Indovino, the jury recommended life imprisonment and his case is not now before us.

The deceased, Leon Pox, was a police officer of the city of New York who was accompanying the manager of a theater to a branch bank in Coney Island so that the' receipts of the day might be deposited in the bank receptacle provided for that purpose. The tragedy occurred at about 11 o’clock at night and, since the date was February 15, 1941, and the scene on Surf Avenue in Coney Island, there was practically no one abroad. As the police officer and the manager proceeded toward the bank they neared an automobile which was parked on one of the streets running at right angles to and facing Surf Avenue. One door was open and the front lights had been extinguished. As they passed it, a man jumped from the car, knocked the.manager down and shot the officer. The manager dropped the bag upon command, after attempting to run with it. It was picked up and the automobile drove off. The police officer fired some six shots after the departing automobile as he lay upon the sidewalk. None of the robbers was identified by anyone. Those within the neighborhood testified to the speed and the quick departure of the automobile. One witness did say that he heard in all five or seven shots; that an automobile shot past; that there were three men in. it; that the two men in front were short men; that the driver looked as if he could not reach the pedals of the car; that the man in the rear of the car was thin with hair slicked back and that he was bent over.

Ten months passed.-

In December of the year of the murder two men were sentenced to a State prison for robbery committed while armed. One of them was David Yellin. He received a sentence of from ten to twenty years. The other, committed three days later in connection with the same crime, was Nathan Spielfogel. He received a sentence of from thirty to sixty years. Spielfogel was the intimate of the defendant Malinski. He was married., As an outgrowth of his intimacy with Malinski and of their criminality together, he and Malinski had agreed that if one went to prison the other would contribute to the support of the family of the one incarcerated. Malinski broke that agreement after partial performance of it.

At the State’s prison at Sing Sing Spielfogel ate with a convict named Kovner. Kovner had never known Spielfogel or Yellin before meeting them in Sing Sing. He was intimate, however, with Malinski and Indovino and his close companion was one Ebbie Beitler. Kovner testified that whenever Beitler was in the city the two of them were inseparable. We shall return to Beitler later. Suffice it to say at this point that it was Beitler who gave the signal which led to the shooting of Fox and that Kovner had been with Beitler when the latter was subsequently engaged in an affray in a New York hotel in which Beitler shot one man, attempted to shoot a policeman and then committed suicide. That had occurred on October 28, 1941, and it was thereafter that Kovner was sent to Sing Sing and became one of the trio composed of Yellin, Spielfogel and Kovner.

That was the setting as we approach the end of the second ten-month period succeeding the murder of Fox.

On October 23, 1942, in the early morning, the defendant Malinski was arrested and brought to a leading hotel in Brooklyn and lodged in a room there. Spielfogel was brought to the same hotel. On the following day the defendant and Indovino were arrested and brought to the hotel. On that same day David Yellin was brought there from Sing Sing prison. Thereafter Malinski,' B-udish and Indovino were indicted and put upon trial.

On that trial David Yellin, testifying as a witness, said that on the Tuesday or Wednesday preceding the day of the murder he met Indovino on First Street and Avenue A in Manhattan. He said that Beitler called to him, introduced him to Indovino and asked him to take a message to Spielfogel. The message was that Indovino, the finger man, had a “ cinch job ” (crime) which could be done at Coney Island and which involved the manager of a theater who took the receipts of the theater to a bank in a neighborhood where there was no one about. When they had finished talking Beitler told the witness to see Spiel-fogel and tell him that he (Beitler) wished him to join in the commission of the crime and to give to Spielfogel the details. It was there stated that the receipts should total about $1,000. As a matter of fact that estimate was but $230 too high. Indovino stated that he would not go himself because he was too well known in Coney Island. Yellin carried the message that night to Spielfogel but the latter said that he would not take part in anything in which Indovino was concerned. We shall return to the testimony of Yellin later but shall now proceed chronologically with the testimony of others.

Nathan Spielfogel, whose nickname was Slip, testified for the People that Yellin had brought to him .message and that he was not' interested so long as the crime had been suggested by Indovino. He said that Beitler met him the next day and that he again told Beitler that he didn’t' wish to join with him. He said that Beitler then asked if it was all right to use the pieces ” (guns). Spielfogel testified that he told Beitler that he would have to ask Malinski. He testified, “ I says, ‘ Those “ pieces ” don’t belong to me ’. I told him, Malinski — it is up to If he wants to give you them, they are yours. I got no part of them pieces they are all Malinski’s.’ * * * I said, ‘ Those “ pieces ” don’t belong to me. They are all Malinski’s “ pieces ”. If he gives them to you, you got ” .Beitler was interested because the “ pieces ” were large ones. Apparently there were then seven guns at the store in which Malinski worked. Spielfogel testified that on the following Saturday he had four guns in hi.s possession and put them in the store but again denied that they were his.

Then occurred the robbery and murder, to the circumstances of which reference has already been made. Following it and at about 1:30 a. on the morning of February 16th, Malinski arrived at Spielfogel’s home without hat or coat. He said he had left his coat at the club but that he had dropped his hat — hat — when he jumped from the automobile when abandoning it. Hershee was one Harry Levine who had given Malinski a hat. A hat had been found under the automobile used in the robbery which had been abandoned, on Stillwell Avenue about a block and a half from Surf Avenue. The hat so found, later initaled by Malinski during a confession to which reference will be made, fitted Malinski when he was required to put it on while testifying or the jury could so have found.

Spielfogel said that after he provided Malinski with another hat, they went to the Citadel Club where Malinski talked over the crime which had been committed. He said that he met the defendant Rudish in Manhattan at about 9 o’clock and that they picked up Beitler on Houston Street and then drove to Coney Island. They visited a restaurant and then placed the automobile in position near the bank. Beitler stayed on the corner and gave Malinski a signal when the manager and the police officer were approaching. The shooting then occurred. They abandoned the automobile after going a few blocks and Beitler and Malinski took first one cab and then another back to Manhattan. Beitler then told Malinski to go to the club with the money while he went to the store of his aunt and disposed of the guns which had been used. Rudish was to come by train and when all three finally arrived at the club the money was divided. There was a dispute there, at the time of the division of the money, as to the conduct of the robbery, Malinski insisting to Spielfogel that he had done all that he was supposed to do as planned beforehand; that Beitler was supposed to take the money while he (Malinski) “ took the cop ”, whereas Rudish and Beitler were insisting that it had been arranged for Malinski to take the money.

In the course of that conversation as detailed by Spielfogel from the witness stand, Malinski said that he had used the “ pieces ” which Red Tiplet had taken from a locker uptown and he identified them as two .38 calibre pistols and two of .45 calibre and that he and Beitler had each fired two shots. Digressing for a moment and bearing in mind that this story was told by Spielfogel in October of 1942 (he was brought to the city from Sing Sing on October 15, 1942), nearly twenty months after the commission of the crime, it is interesting to note that the District Attorney brought to the trial one Simon Eisler who, at the time of the trial, was a corporal in the United States Army stationed at Tacoma in the State of Washington and who had never been convicted of any crime nor charged with any crime. The testimony of that man as distinguished from that of the convicts who gave, testimony against Malinski undoubtedly had great weight with the jury and was very damaging to Malinski. Eisler’s nickname was Red Tiplet (a red pigeon). When he gave his testimony he had been in the Army since January 20, 1941, a period of about two and one half years. He entered the Army therefore about twenty-five days before the murder. He had known the defendant Rudish for fifteen years and the defendant Malinski for about three years. He testified that in the latter part of December, 1940, he had a talk with Malinski at the Citadel Club and that Malinski gave him a ticket to pick up a package in the Terminal and to bring it down to the club. Malinski gave him four dollars and he went uptown, picked the package up and brought it back to the club. Malinski opened it and in the package he saw four pistols: two fountain pen guns and two pistols of .38 calibre. The two .38 calibre pistols were wrapped in stockings. He was asked: “ Q. In addition to the fountain pen guns and the two .38⅛, did you see any other object in the A. There were more stockings, but' I don’t know what was in them.” The corporal said that when he obtained the package he had not known what was in it. He also said that he did not know the defendant He had known Yellin all his life and he knew Spielfogel and had gone to school with Beitler. At the time of the errand, he lived on the east side of Manhattan about half a block away from the Citadel Club. Curiously enough the witness had never told Spielfogel nor Yellin nor any police officer about the errand on which Malinski had sent him until he was brought from Tacoma on June 12, 1943, a distance of 3,000 miles, five days before he testified on June 17, 1943. It would seem clear that the information as to Eisler could only have come to the District Attorney from Malinski through Spielfogel to Yellin or Kovner in Sing Sing.

We now return to Malinski and Spielfogel at the Citadel Club in those early morning hours after the murder. After leaving the club they went to a restaurant and then to the store where Malinski worked. There the latter left the change in silver which had been taken in the robbery. Then they. went to the home of a sister of Malinski where he wished to stay rather than to return to Brooklyn for fear his parole officer might appear. Spielfogel testified that lie went in the kitchen of that apartment, took a drink of water and walked back into the hall. A few minutes later he heard Malinski say, 1 ‘ Go back to bed.” The two separated at about 4 o’clock that morning.

Again despite the lapse of twenty months as already indicated, the People put upon the stand the brother-in-law of Malinski and the girl in whom Malinski was interested and who was living at that time with Malinski’s sister and her husband. Malinski’s brother-in-law, Pietro Di Pisa, testified that Malinski came to his home about 1:30 or 2 o’clock in the morning of Sunday, February 16, 1941; that Malinski said he had shot a cop in Coney Island and that he had $200 in his pocket; that Malinski talked to the young girl, Jean Goonan, in the kitchen and that he heard Malinski say to her, If you don’t go back to bed there I give you the same dose as I give the cop. ’ ’ Di Pisa said that he ordered Malinski out. Malinski’s sister did not testify in denial of any of this. Di Pisa said that he had not talked with anyone from the police department or from the District Attorney’s office until the Tuesday preceding the day on which he testified.

Jean Goonan-testified that she was living with the Di Pisas; that on the Sunday morning at about 2:30 she was awakened by a banging on the door and that Malinski came in. She heard him tell his sister that he had shot a cop and that they had obtained about $200 each as a result; that she asked him, “ What did you do; shoot a cop? ” and that Malinski said, “ Get back in bed before I give you the same thing I gave the cop.”

We take now the case against On February 14, Spielfogel said he talked with Rudish in Manhattan. Rudish asked why Spielfogel was not taking part in the robbery and •Spielfogel told him that he didn’t like it. Again on Saturday afternoon hnade the same inquiry and Spielfogel said that it was because he didn’t like, the tipster. Rudish then said that he, Malinski and Beitler were going to meet at 9 o’clock, that night. On Sunday when Rudish met Spielfogel in the afternoon he said that Malinski had “ balled everything up. All he knows how to do is to throw a couple of shots.” Rudish said that he had gone to Brooklyn to look for Spielfogel’s uncle, whose address Spielfogel had given him the day before in connection with another matter, hnt had lost the address; that when it was near 9 o’clock he stole the first car he saw and picked np Malinski on 8th Street and Beitler on Houston Street in the Borongh of Manhattan. He said that after the robbery, he abandoned the car and went np on the Stillwell Avenue railroad station. He told Spielfogel that it sounded as though all the sirens in New York were in Coney Island. said they obtained about $220 each and that Malinski received $20 extra because two of his guns were used.

Samuel Kovner, whom we have mentioned before as the convict who ate at Sing Sing prison with Spielfogel, testified that about five days before the murder while accompanied by Beitler he met Malinski and Indovino. Indovino talked of “ a piece of work ” at Coney Island. Indovino asked Beitler and Kovner whether they cared to undertake it. Kovner took Beitler aside and they talked and then Beitler told Indovino that Kovner was not interested because there was a cop in it. Indovino said he could not go because he was known in Coney Island and Beitler said he would look for a,third man. Kovner next saw Beitler and Indovino about the 21st of February, six days after the murder. Indovino then asked Beitler for money. He saw him again two days later. Then Indovino was complaining that Beitler was too quick; that he did not have to shoot the policeman; that it would have been sufficient to put the gun against his back. A' few days later he heard Indovino again asking Beitler for money.

In general that was the case presented against the defendants by the People, apart from a four day confession by Malinski which we have not considered, and there was sufficient there if believed to justify the conviction of the defendants of murder committed during a robbery. Counsel have urged upon us, however, that it was error for the court to submit to the jury the confession by Malinski orally on October 23rd, by word and deed on October 25th and 2.6th and to an Assistant District Attorney and a stenographer in the early morning hours of October 27th. It is urged that the confession should have been excluded for two reasons. First that the defendant Malinski was not arraigned promptly before' a magistrate and second that the confession was obtained by fear produced by threats and assault.

Perhaps, it will be helpful before discussing the law as to those two contentions, if we quote the following in the words from the brief of counsel for Malinski in recounting Spielfogel’s testimony: “ That while Malinski was being questioned by the District Attorney he talked to Malinski which was about two weeks after he was brought down from Sing Sing. This took place in the Hotel Bossert. Malinski asked one of the lieutenants if he could speak to Spielfogel but the witness would not talk to Malinski. The police officers all said ‘ Go over and see what he wants ’ so he and Malinski went into the next room and Malinski said that he knew they had Jake [Rudish] in the next room and that they knew too much already; that he might as well go out there and tell them the rest. That he told Malinski that he was over twenty-one and Malinski then told the lieutenant he would tell the truth but did not want to go to the chair. The lieutenant promised Malinski nothing, saying ‘ This is a police case. You will have to take your chance,’ and Malinski said he would ‘ like to bring in a Rabbi or a fellow by the name of Nat Math ’ ”.

The latter was an Assistant District Attorney. Permission was refused Malinski to see either a rabbi or Mr. Math and he then confessed. That was on Friday, the day of his arrest. It was on the following day, after that confession, that the defendant Rudish and Indovino were arrested.

We shall first consider the question whether, when a prisoner is'not brought before a magistrate without unnecessary delay, following his arrest, a confession obtained after such unnecessary delay is admissible at all or must be excluded. Court has given earnest consideration to that problem in the past and has resolved it in favor of the admission of the confession to be followed by an instruction that it must be disregarded if obtained through fear produced by threats and that, in reaching a conclusion thereon, the jury may take into consideration the circumstance that the confession was obtained while arraignment was illegally delayed. (People v. Mummiani, 258 N. Y. 394; People v. Alex, 265 N. Y. 192.) It seems to us that applicable and convincing reasoning leading to that conclusion was declared with clarity in People v. Defore (Cardozo, J., 242 N. Y. 13, 23, 24, 25). We need not quote at length. There are a few sentences which indicate the reasoning. “."We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would he. The pettiest peace officer woufd have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes the most flagitious. * * * "We may not subject society to these dangers until the Legislature has spoken with a clearer voice. ⅜ ⅞ ⅜ The question is whether protection for the individual would not he gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall he repressed. On the other, the social need that law shall not he flouted hy the insolence of office. There are dangers in any choice. The rule of the Adams case strikes a balance between opposing interests. We must hold it to be-the law until those organs of government hy which a change of public policy is normally effected, shall give notice to the courts that the change has come to pass.” We have made our choice. .

It is next urged upon us that the confession should have been excluded as a matter of law because when Malinski was brought to the hotel he was stripped to see if there were any evidences of .bullet wounds in view of the fact that the deceased officer had fired after the automobile, following the shooting, and because there was some evidence that at least one shot had struck the car. The stripping of Malinski for that purpose was concededly proper but complaint is made because he was left in his underwear for- the greater part of the first day of his stay at the hotel. Malinski said that he was subjected to physical violence. The testimony as to the violence was not very strong. He said among other things that he was struck twice by a lieutenant and once by another police officer, ‘ ‘ but not too hard ” by the latter. “Not hard enough to throw me over. I was sitting in one of the armchairs.” His lips were not cut; his nose did not bleed; his mouth bled on the inside. Such was testimony. He did not complain to the prison doctor because he, “ didn’t have no injuries.” There was no testimony as to violence except by Malinski. Neither Rudish nor Indovino claimed to have been assaulted although in the same hotel with the same officers. of them confessed to the police ⅝ or District Attorney. | Whether the confession therefore was induced by fear produced by threats and violence was for the to determine. \ They weighed his testimony as to the violence and they considered the fact that he was compelled to spend most of one day clothed in his underwear and a blanket and the excuse of the police that that was a way to prevent escape in the hotel. Whether these latter circumstances would produce fear so that a man would confess his crime would depend a great deal upon the type of man involved. We do not think it can be held as a matter of law that it brought about such fear that the confession folloAved. All those questions it seems to us were for the jury which saw Malinski and heard him. They were in a position to judge from his appearance and attitude what effect depriving him of his outer clothing would have upon him.

It is next urged upon us that the Assistant District Attorney gave his views as to the reason why Malinski was left in his underclothes and we are asked to reverse because of that. The three defendants on trial were represented by experienced counsel. It is true the Assistant District Attorney made the statements quoted in the dissenting opinion. The summation covers sixty-three printed pages. The first quotation is pages before the second. The District Attorney was interrupted by counsel fourteen times. Nearly all of those objections were made by the attorney for Malinski. Yet no interruption by objection was made to the remarks quoted. That is no excuse for the' remarks but it is some indication of the fact that none of the counsel took them seriously. The remarks were indefensible. Whether under the circumstances a new trial should be ordered for Malinski because of these disconnected and disjointed utterances which at the time of their utterance brought not a single one of the counsel to his feet to make objection, is a matter of judgment. Our judgment is that the verdict should stand and be affirmed. Even apart from the fact that it did not appear important enough to counsel to cause them to register an -objection immediately, the effect of the utterances it seems to us would inure to the benefit of Malinski rather than against him and they did not relate to Budish or Indovino.

When we have spoken of Malinski’s confession we include, of course^ not only the confession made orally to a police officer on the Friday night of the arrest but also the two automobile trips on Sunday and Monday, one to the police garage to permit Malinski to identify the automobile used in the crime and the other to Coney Island to revisit a restaurant and the scene of the crime, and the confession to the District Attorney which was taken stenographically in the early morning of Tuesday, October 27th.

On the question of arraignment without unnecessary delay the court charged as follows: “Lieutenant McNally claims that he was willing to arraign Malinsky before a Magistrate on the very day, namely, Friday, when Malinsky was first brought to the Bossert, but that Malinsky stated that he would rather stay at the hotel with his friend Spielfogel than be thrown into a cell in a police station.

“Be that as it may, I charge you that it was the duty of the police to arraign the defendant before the nearest Magistrate without unnecessary delay, and, further, that if a police officer failed or refused to perform such duty, he is guilty of a misdemeanor.

“ But, gentlemen, you will bear in mind that the police department is not on trial in this case. This testimony was adduced solely on the question as to whether or not the alleged confession later made was the result of the coercion, either direct or implied, which is prohibited by the statute, and which invalidates a confession if made. If you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinsky, including the one made in the early hours of October 27th at the Bath Beach station house.” ■

On the question of whether the stenographically transcribed confession of Malinski to an Assistant District Attorney should be accepted by the jury, the court charged as follows: “ Although Malinsky does not deny that he made this confession, his contentions are:

“ That the confession is valueless as evidence against him because it was made by him due to force and intimidation and fear visited upon him by the police authorities, and implied coercion because of the manner in which they kept him in custody from the time of his apprehension until he made this confession. You must find beyond a reasonable doubt that this confession was a voluntary one before yon would have the right to consider it.

“ Malinsky then urges a second objection to this confession. His claim is that the statements contained in this confession implicating him in this crime are untrue.

“ Under the law, therefore, you will determine, first whether or not this confession is voluntary. If you find it was involuntarily made, or if you have a reasonable doubt about it, then you will disregard the confession entirely. On the other hand, if you find beyond a reasonable doubt that the confession is a voluntary one, you will then determine whether .or not the statements inculpating the defendant, therein contained, are true. If you shall have resolved both of these questions in favor of the prosecution, then and only then will you consider the confession in determining the guilt or .innocence of the defendant of the crime of murder in the first degree. ’ ’

We have gone to this length in setting out the facts because it seemed to us necessary to indicate that the most serious of crimes against duly constituted authority had been committed without witnesses; that it was an unsolvable crime if dependence were to be placed upon witnesses or clues; that fate decreed that there should be gathered and thrown together in Sing Sing prison three men who knew of the crime and one of whom, Spielfogel, who knew the most about it, was depending for his wife’s support upon one of the active participants in the crime. It is quite evident that when Malinski proved faithless to his agreement, that Spielfogel unburdened himself to Tellin and Kovner but with no intention of acting against Malinski for, curiously enough, testimony is in this record that, after knowledge of what had occurred in the shooting of Pox reached the police department and a lieutenant of police was sent to Sing Sing prison to interview Spielfogel, he refused to talk to the police officer. Even after that police officer had told him all that Spielfogel must have told to Yellin and Kovner he still evinced no interest in helping the police. It was only later that he consented to talk.

One other matter should be mentioned. It is urged upon us that the trial court erred in leaving it to the jury as to whether Spielfogel was an accomplice. It is urged by counsel that the pistols used were pistols supplied by Spielfogel for the commission of this very crime and that we cannot say that a jury could have found that Spielfogel told the truth when he said that the pistols used were pistols and not his.

That is not correct. Spielfogel testified that the pistols he had and put in the store where Malinski worked, on the morning of the day of the crime, were pistols that were to he used in connection with another crime to have been committed on Saturday morning or afternoon and that in that other crime there was to have been another participant in addition to himself and Malinski.' This court has laid down the sound rule on that question.. We can do no better than to quote it. Again we take but a few sentences from People v. Swersky (216 N. Y. 471, 478, Cardozo, J.) which seem determinative of this question. “ To permit a jury to say that he [Levinson] did join in it, when the only evidence is that he did not, would be to permit them [the jury] to build their verdict upon speculation and suspicion. Levinson, by his own confession, had .committed many other crimes. But he did not commit this crime, either in person or by procurement.”- It may be that it could be argued that a finding by the jury that Spielfogel placed the pistols in the store for use in the robbery at Coney Island, would not be based only upon speculation and suspicion. However, the jury chose to believe Spielfogel’s version of the incident. Whether or not we think a contrary finding would be speculative and based on suspicion, the contrary was not found and we cannot say that the jury was obligated to find it as a matter of law. Moreover, to find the contrary would be to disregard to a greater or lesser extent the testimony of Eisler.

When all is said and done these defendants had a fair trial and both confessed their guilt to persons other than the police or the District Attorney.

The judgments of conviction should be affirmed.

LehmaN, Ch. J.

(dissenting). Late on the night of February 15, 1941, Leon Fox, a patrolman in the Police Department of the City of New York, was shot, and he died shortly thereafter as a result of bullet wounds. At the time of the shooting the police officer, in the course of his duties, was accompanying the manager of a moving picture theatre who was carrying the day’s receipts to a bank. In November, 1942, more than a year and a half after the shooting the Grand Jury indicted Morris Malinski, Sidney Rudish and Joseph Indovino for the crime of Murder in the First Degree, committed as follows: The defendants, on or about February 15, 1941, in the County of Kings, acting in concert with Abraham Beitler, deceased, wilfully, feloniously and of malice aforethought shot and killed Leon Fox, with a pistol.” The three defendants named in the joint indictment were jointly tried and found guilty. As part of the verdict against the defendant Indovino the jury recommended life imprisonment. No such recommendation was included in the verdict against the defendants Malinski and Rudish. They have appealed to this court. The verdict against Indovino has not been brought up for review to this court.

The testimony of the manager of the moving picture theatre shows that, as he and the police officer were walking toward the bank, a man jumped out of -an automobile which was parked at the curb and shot Fox. The manager of the theatre attempted to run away with the bag containing the money he was taking to the bank, but he threw away the bag when the man who had shot the police officer said to him: “ Drop the bag, or I’ll drop you.” The robber picked it up, jumped back into the car and the car sped away. Later during the same night an abandoned car was identified as the car used in the robbery. It had been stolen earlier that night.

No eye witness of the robbery was able to identify the men who took part in it. To connect the defendants with the crime the People produced associates of the defendants who gave testimony of incriminatory statements made by the defendants, in furtherance of a conspiracy to rob the manager of the theatre in the Coney Island district of Kings County and, in addition, of incriminatory admissions made thereafter. To prove the guilt of the defendant Malinski, the People introduced, also, a written confession made by Malinski' while he was in the custody of the police, but before his arraignment.

David Yellin testified that a few days before February 15, 1941, he was introduced by Beitler, now deceased, to the defendant Indovino. He was told by them about a plan to rob the manager of the moving picture theatre. Indovino was the author of the plan, but said he would not accompany the others at the robbery because he was too well known in Coney Island. Beitler wanted one Spielfogel, known as “ Slip ”, to take part in the robbery. Yellin saw Spielfogel the same night, but Spielfogel, distrusting Indo vino, refused to go along. Yellin further testified that in the early morning after the holdup he met the defendant Eudish and Eudish told him that he had come back from a “ trick ” on Coney Island and that Beitler Malinski had shot a cop. At that time, according to Yellin, Eudish was carrying the “ pieces ” or guns, which he said had been used in the robbery. The witness Yellin had been committed to Sing Sing on December 12, 1941, upon a sentence of imprisonment for ten to twenty years for robbery while armed with a gun. Nathan Spielfogel had been sentenced to Sing Sing upon a conviction for the same crime to a term of imprisonment of thirty to sixty years. Both were serving their terms when the District Attorney was informed’ that these men knew who had killed the police officer.

•Spielfogel testified that when Yellin spoke to him he had refused to take any part in the robbery because he distrusted Indovino and that on the next day he told Beitler, also, that he would not go along. According to his testimony, Beitler then asked him whether they could use some “ pieces ” or guns which apparently Beitler thought belonged to Spielfogel, and Spielfogel said:

“ Those pieces don’t belong to me. They are Malinski’s pieces. If he gives them to you, you got them.” He testified that at 1:30 ‘on the morning of February 16, 1941, Malinski came to his house and told him that Beitler, Eudish and he had committed the robbery and gave him complete details as to the robbery. He told of other admissions alleged to have been made by Malinsky after the crime and these admissions are corroborated, at least in part, by the testimony of other witnesses. His testimony also implicates Eudish. Eudish, he said, told him early in the evening of February 15th that he, Malin-ski and Beitler were going to meet at 9 o’clock that night to carry- out their conspiracy to rob the manager of the theatre and on the next day, Sunday, February 16th, he again saw Eudish and Eudish gave him full details of what had occurred that night.

The record is devoid of any testimony tends to connect the defendant B-udish with the crime, other than the testimony of Yellin and Spielfogel. The Trial Judge charged the jury that Yellin was an accomplice as matter of law, for according to his own admissions he aided and abetted the defendants in their conspiracy. The Trial Judge left to the jury as a question of fact whether or not Spielfogel was an accomplice. It is, of course, not disputed that Spielfogel was an associate of the defendants and, according to his own story, he had gone out with them on other “ jobs.” Nevertheless, he is not an accomplice in the crime of robbery in the commision of which the police officer was killed unless he aided and abetted the defendants in that crime. The appellants now urge that his testimony conclusively proves that if the defendants committed the crime, the witness Spielfogel took part in furnishing the “ pieces ” or guns used in the robbery with knowledge that they were intended for such use. If that is true Spielfogel is an accomplice as matter of law.

These guns, according to the witnesses for the People, were hidden in the toilet connected with the store where Malinski worked and were taken from that toilet by Malinski on the afternoon or early evening of February 15th.. Spielfogel admitted that he had put the guns in the store. On cross-examination the following questions were put to him, and he gave the following answers: “ Q. Now on your direct examination you said that you put the guns in the store, is that right? A. What do you mean? When they came out of the cellar? Q. I am asking you, did you say that? You said before, ‘ I put the guns in the store ’. Is that what you said? A. In the store? Q. Is that right? A. In the toilet in the store. Q. What? A. In the toilet. Q. You put the guns in the toilet in the store? A. Yes. Q. When was it that you put the guns in the toilet in the store? A. Saturday morning. Q. Plow many guns did you put in the toilet in the store? A. Four, to be exact. Q. And they were your guns? A. No, sir.”

Later he explained that though he went with Malinski to hide the guns “ it was not for that particular job,” and in answer to a question put to him by the court he said it was in connection with another matter or proposed holdup.

The evidence against Malinski is far stronger. The testi-' mony of Yellin and Spielfogel is in his. case corroborated by other witnesses who are not accomplices and he has signed a confession. If Ms confession is voluntary and was not made under the influence of fear produced by threats, his guilt has indeed been proven to a moral certainty. As to him the question then is whether the confession was admissible under the provisions of section 395 of the Code of Criminal Procedure and whether the defendant MalinsM had. a fair trial upon that question. i

MalinsM was taken into custody by two detectives at seven-thirty on the morning of Friday, October 23rd. He was taken,' not to police headquarters, but to the Hotel Bossert in Brooklyn. There he was compelled to strip so that the police could see whether there were any scars of bullet wounds on his body. Concededly, after the police had made that inspection he was not permitted to put on his clothes, but was compelled to remain in Ms “ shorts ” or “ B. V. D’s ” and blanket until five-thirty that evening. That afternoon an Assistant District Attorney visited the hotel room and saw that! Malinski was being held there without his outer clothing, but apparently did not object. MalinsM was kept at the hotel until the afternoon or evening of October 26th except for a visit with the police to a garage where the car used in the robbery was kept. During that time he complained of stomach ' trouble and asked for a doctor. That request was refused. At the police station to which he was taken on October 26th he was questioned by the District Attorney and then signed the ■ written confession. On the morning of October 27th — four days after the police took him into custody — he was arraigned ' in court.

This testimony is uncontradicted. The defendant Malinski testified that he was beaten while in the Hotel Bossert and that his confession was extorted from him under the influence of fear. The testimony in regard to the beating by the police is contradicted by the police officers. A question of fact is thus presented whether the confession was admissible under section 395 of the Code of Criminal Procedure.

The Legislature has commanded that “ The defendant must in all cases be taken before the magistrate without unnecessary delay (Code Crim Pro. § 165.) Here there has been a delay of four days. Except for the delay in arraigning a person arrested by the police, there would be no room for any claim that a confession made by the accused was extorted by threats or violence; We have said that “ the police are guilty of oppression and neglect of duty when they willfully detain a prisoner without arraigning him before a magistrate within a reasonable time. (Code Grim. Pro. § 165.) The conclusion is inescapable that they do this for the purpose of subjecting him to an inquisition impossible thereafter.” (People v. Mummiani, 258 N. Y. 394, 399.) The police lieutenant who .was primarily responsible for the delay claimed that though the defendant was seized by the police on the morning of October 23rd, he was not “ arrested ” until October 26th when he made his written confession and that he was arraigned as soon as possible thereafter. The Legislature has defined arrest as ‘ ‘ the taking of a person into custody that he may be held to answer for a crime.” Malinski testified, without contradiction, that at 7:30 in the morning of October 23rd two detectives ‘ put guns into my head and they said, ■ ‘ If you move, I will blow your brains out.’ ” They then put handcuffs on him and took him to the Hotel Bossert. That the detectives did seize him and take him to the Hotel Bossert is not open to' challenge. If the police officers were not exercising at that time their power to arrest, then it is- plain that they were committing a crime. If, as appears plain, they did “ arrest ” the defendant Malinski, then his confinement by the police at the Hotel Bos-sert, or any other place, without prompt arraignment was contrary to the express command of the statute and was unlawful. We may understand the impatience of police officers at the restrictions imposed upon them by law in obtaining evidence necessary to convict a person of whose guilt they are certain, though the guilt has not at that time been established. Undoubtedly, the unpunished murder, by men intent on crime, of a police officer who has sought to prevent the crime, weakens respect for the law, but lawlessness in law enforcement weakens it no less. Free men for centuries have cherished as an essential part of their liberty the right to prompt arraignment in court when seized by the police. The statute also has commanded that officers of the law shall accord that right to every person they arrest. Invasion of that right cannot be justified by proof, however convincing, that the person who asserts it is not worthy of his liberty, or that the officers of the law desire only to obtain the evidence required by law to convict men of whose guilt they are convinced.

“ An unfair trial, especially in a criminal case, is a reproach to the administration of justice and casts grave responsibility not only upon the prosecuting officer but also upon the trial judge.” (People v. Wolf, 183 N. Y. 464, 472.) The defendants may be depraved creatures who have committed a heinous crime. Nonetheless, until condemned by a jury after a fair trial and upon competent evidence they are, entitled to the benefit of the presumption of innocence and to assert all those rights and privileges which have been formulated for the protection of the innocent by the Constitutions of the State and nation, by statutes, and by age old judicial decisions. The courts cannot permit either the prosecuting attorney or the police to decide whether the public interest would be advanced by disregard of the safeguards imposed by law for the protection of an accused. Such safeguards become valueless if they may be violated with impunity when judges or law enforcement officers conclude that otherwise a guilty man might escape punishment.

In this case there can be no doubt that the police officers flagrantly disregarded the provisions of section 165 of the Code of Criminal Procedure by holding the defendant Malinski at the Hotel Bossert and postponing arraignment until after they had obtained a written confession. Their explanation may show that their conduct was due solely to zeal in seeking evidence through which the guilt of the defendants could be established at a trial. It furnishes no justification for their wrong. We are told that even though that may be true and even though the lawless conduct of the police in that respect may have furnished the police with opportunity to obtain the confession, nevertheless, the confession was properly admitted in evidence and could be given weight by the jury if the jury found that it was not induced by fear.

In this State we have repeatedly held that the evidence otherwise competent may not be rejected on the ground that it was obtained by unlawful means. (People v. Defore, 242 N. Y. 13.) A confession which is not incompetent under the provisions of section 395 of the Code of Criminal- Procedure is not to he rejected because the accused was unlawfully detained by the police without arraignment for the purpose of obtaining the confession. in determining whether a confes-; sion has been obtained as a result of a heating, or is voluntary, the circumstance that it was obtained while arraignment was illegally delayed for no apparent reason except that the police needed a confession in order to have competent proof of the commission of a crime; should he considered by the jury.” (People v. Alex, 265 N. Y. 192, 194.) We must examine the record in this case to determine if there has been a fair trial in this case of the question whether the confession under the circumstances here disclosed was obtained as a result of threats or violence.

The Assistant District Attorney who tried the case has stated in the summation what occurred at the Hotel Bossert while Malinski was being detained there and what effect should, in his opinion, be given by the jury to what there occurred. Without analyzing the testimony to determine the accuracy of what was said in the summation I quote the parts that seem to me most significant:

it * * ⅝ Why this talk about being undressed? Of course they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology — let him sit around with a on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking. McNally took one look at him and said, ‘ Come here ’ — just a little tough what do you know about it? ’ Six o’clock in the evening after he was picked up he told the whole thing. ’ ’ (Italics are mine.)

In a recent case in the Supreme Court of the United States in which a judgment of conviction in a Federal court was challenged on the ground that at the trial a confession was admitted in evidence though obtained while the accused was detained by law enforcement officers in violation of a statute requiring prompt arraignment, the Supreme Court said: In formulating such rules of evidence for federal criminal trials the court has been guided by considerations of justice not limited to the strict canons of evidentiary relevance. Quite apart from the Constitution, therefore, we are constrained to hold that the evidence elicited from the petitioners in the circumstances disclosed here must be excluded. For in their treatment of- the petitioners the arresting officers assumed functions which Congress has explicitly denied them. They subjected the accused to the pressures of a procedure which is wholly incompatible with the vital but very restricted duties of the investigating and arresting officers of the G-overnment' and which tends to undermine the integrity of the criminal proceeding. ⅜

⅞ * * The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. * * #.

“ ⅜ ⅝ * Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for tire innocent but also in securing conviction of tbe guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘ third degree ’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application. * * ⅜.

⅝ ⅞ The record leaves no room for doubt that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made. Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. ⅞ * *.

“ * ⅝ * We are not concerned with law enforcement practices except insofar as courts themselves become instruments of law enforcement. We hold only that a decent regard for the duty of courts as agencies of justice and custodians of liberty forbids that men should be convicted upon evidence secured under the circumstances revealed here. In so doing, we respect the policy which underlies Congressional legislation. The history of liberty has largely been the history of observance of procedural safeguards. And the effective administration of criminal justice hardly requires disregard of fair procedures imposed by law.” (McNabb v. United States, 318 U. S. 332, at pp. 341-345, and 347.)

We cannot close our eyes to the fáct that our frequently and solemnly repeated admonitions to law enforcement officers that they are not above the law and may not in their zeal to obtain convictions hold, without arraignment, persons suspected of crime in order to have opportunity to obtain confessions, are often unheeded.

Perhaps the remedy is hy legislation providing that in the courts of this State, as in the Federal courts, evidence obtained by flagrant violation of the rights of the individual must be excluded. However persuasive may he the reasons which have led the Federal courts to adopt that rule, we cannot do so. The contrary rule of evidence has been so long established hy repeated decisions of this court and has been the subject of' so many debates in the Legislature and in the Constitutional Convention of 1938 that change of the rule now by the court, without legislative sanction, would be an encroachment upon the legislative field. The confession is admissible if the jury find that the confession is not made under the influence of fear produced by threats. ’ ’ The function of this court in reviewing a judgment resting in part upon a confession, obtained by unlawful means, is confined to the inquiry whether there has been a fair trial of this issue at which the prosecution has presented testimony which would enable the triers of the fact to determine that issue fairly and truly.” (People v. Mummiani, supra, p. 398.)

Here we are agreed that a finding by the jury that the defendant’s confession, though obtained while he was unlawfully detained without arraignment, is not against the weight of the evidence. The officers of the law deny that they beat the defendant or threatened.him. Whatever may have been the motive of the police in taking Malinski to the Hotel Bossert instead of to a police station or jail, we find no basis for any inference that the police believed that the hotel was an appropriate place where a person could, without too much risk of discovery, be beaten in order to compel a confession. Nonetheless, in this case, as in People v. Mummiani (supra, pp. 399-400) the conclusion is inescapable ’ ’ that the police delayed the arraignment of the defendant “ for the purpose of subjecting him to an inquisition impossible thereafter ” at which he might be induced to make a confession by resort to what the Supreme Court of the United States has described as “ those reprehensible practices known as the ‘ third degree ’ which, though universally rejected as indefensible, still find their way into use.” There can be no fair trial of the issue whether the confession is voluntary where the jury is not properly informed that the detention was ■unlawful and that they must take that fact into consideration. That has not been done in this case.

It is true that in the charge of the court the jury was informed that “ it was the duty of the police to arraign the defendant before the nearest Magistrate without unnecessary delay and further if a police officer fail or refuse to perform such duty, he is guilty of a misdemeanor,” and that “if you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinski, including the one made in the early hours of October 27th at the Bath Beach station house.” That instruction is not sufficient where, as in this case, the evidence produced by the People conclusively shows that the police flagrantly disobeyed the express mandate of the law. Even if there had been question in this case that the delay in arraignment. was not ‘ ‘ unnecessary 5 ’ within the meaning of section 165 of the Code of Criminal Procedure, that question was not properly submitted to the jury. I have quoted what the Assistant District Attorney told the jury in his summation. The jury was urged to find that the police act properly when they hold a suspect incommunicado in order to induce him to incriminate himself before he can get a smart mouthpiece to preach about his rights and sue out writs.” Worse than that the jury was informed that it was “ quite proper police procedure ” to keep a man undressed for hours in order to “ let him think he is going to get a shellacking ” and thus perhaps to obtain a confession under the influence of fear induced by threats,” even though the threats be implied rather than expressed.

Failure of counsel to interrupt the summation by objection to these remarks, though counsel did interrupt by objection to other statements, indicates, it is urged, that these comments of the District Attorney did not seem important to counsel. Counsel did, however, move at the close of the summation for a mistrial because of these statements, and the trial court in denying the motion failed to indicate in any way that there was no justification for the comments of the District Attorney and that the jury must disregard them.

The prosecuting attorney is an officer of the State and he speaks to the jury with added weight because of his office. His remarks here went nnrebuked by the conrt and the jury was not informed even that if the defendant made bis confession because be believed be might “ get a shellacking ” it wonld be inadmissible. We are loath to believe that the police did actually act as the Assistant District Attorney says they did. We certainly cannot say that the police did not do so and we should not hesitate to reverse a judgment which is the result of a trial at which the jury was led to believe that such practices were lawful and proper. A great citizen and a great jurist has said:

“ An expert Bar, tenacious of its rights and also aware of their limitations can aid the courts by keeping within the lines and by not attempting to play off-side. Let us not talk simply of rules of procedure in the desire to obtain the appropriate punishment of crime and the enforcement of law, but make it our concern that trials of criminal cases shall be less a game to please the spectators than a serious and successful effort to deal promptly and efficiently with a precise charge with no right infringed and no nonsense tolerated.

“Liberty and law — one and inseparable! The noblest endeavor of democracy to safeguard the one by intelligence in the other! ” (Presidential address of Charles Evans Hughes to the American Bar Association, 1925.)

The judgment should be” reversed and a new trial ordered.

Lewis, DesmoND and Thacheb, JJ., concur with CoNway, J.; Lehmajst, Ch. J., dissents in opinion in which LotjghbaN and Rippey, JJ., concur.