text:
    Elsie Borneman, Appellant, v. John Hancock Mutual Life Insurance Company, Respondent.

      Argued October 26, 1942;
    decided December 3, 1942.

      Emanuel Boasberg, Jr., and Joseph Swart for appellant.
    In the absence of evidence that Brown intended to fracture the skull of the .insured the latter’s death must be deemed accidental. (Union Accident Co. v. Willis, 44 Okla. 578; Richards v. Travelers Ins. Co., 89 Cal. 170; Utter v. Travelers Ins. Co., 65 Mich. 545; Robinson v. Hawkeye Commercial Mens Assn., 186 la. 759; Brooks v. Continental Casualty Co., 128 So. Rep. 183; Patton v. Kansas City Life Ins. Co., 115 W. Va. 40; Stevens v. Casualty Co., 12 N. D. 463; Travelers Protective Assn. v. Fawcett, 56 Ind. App. 111; Gaynor v. Travelers Ins. Co., 12 Ga. App. 601; Travelers Co. v. Wyness, 107 Ga. 584; Clancy v. John Hancock Mut. Life Ins. Co., 156 Misc. Rep. 732.) Construction of the intentional injury clause should be in favor of the beneficiary. (Janneck v. Metropolitan Life Ins. Co., 162 N. Y. 574; Allen v. St. Louis Ins. Co., 85 N. Y. 473; Butler v. Watkins, 13 Wall. 456; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285.)

      Roy P. Ohlin and Charles F. Steele for respondent.
    Death of the insured resulted directly or indirectly, • wholly or partially, from injuries intentionally inflicted upon him. (Ryan v. Continental Casualty Co., 94 Neb. 35; Christian v. Metropolitan Life Ins. Co., 252 App. Div. 252; Rider v. Preferred Accident Ins. Co., 183 App. Div. 42; 230 N. Y. 530; Johnson v. Jefferson Standard Life Ins. Co., 52 Fed. Rep. [2d] 829; Northwestern Benevolent Society v. Dudley, 21 Ind. App. 327; People v. Hall, 260 App. Div. 421.)
   Finch, J.

This is an action for double indemnity benefits claimed to be owing under the terms of a life insurance policy, whereby the life of one Robert C. Borneman was insured in favor of plaintiff, his wife, with the provision that double indemnity should be paid if the insured’s death should result directly from injuries sustained by accidental means.

On the evening of July 21, 1939, the insured and a companion were in a tavern in the city of Buffalo. While there, the insured became engaged in an argument with one Brown. Subsequently the insured and his companion left the tavern and stood talking on the sidewalk just outside. About two minutes later Brown came out and the quarrel was resumed between Brown and the insured. There is testimony that Brown’s hand went out towards the insured, that the insured moved his shoulders as if to strike Brown, and that Brown then hit Borneman in the stomach with his right hand, followed with the left in the same place, and finally in the face with his fist, which blow knocked the insured over backwards. His head hit the pavement with such force that the witness heard a crack. Also, one of the front teeth of the insured was knocked out, and his lip was severely injured. In falling, the insured struck his head against the concrete pavement or upon a step going into the tavern, thereby receiving^ fracture at the base of the skull from which he died the following morning.

The beneficiary of the policy, the wife of the insured, brought this action to recover double indemnity under the accidental death provisions of the policy. These provisions contained a clause reading: “ * * * nor shall any such benefit be payable if death results, directly or indirectly, or wholly or partially, from any disease or bodily or mental infirmity, or from the inhaling of any kind of gas, whether voluntary or involuntary, or from self destruction, while sane or insane, or from injuries intentionally inflicted on the Insured by any person, while sane or insane, * *

It is undisputed that the death of the insured resulted directly from the fracture of his skull caused by hitting the skull upon the concrete pavement. It was stipulated that if a doctor was called he would testify that the insured died as the result of a fracture at the base of his skull caused by striking his head on the pavement.

The action was brought in the City Court of Buffalo, which adjudged the suit in favor of defendant, dismissing the complaint of plaintiff. Upon appeal from the City Court to the Supreme Court, Mr. Justice James reversed the City Court and ordered a judgment in favor of plaintiff. Upon appeal to the Appellate Division, the order of Mr. Justice James was reversed and the judgment of the City Court of Buffalo was reinstated and affirmed, with leave to appeal granted by the Appellate Division, certifying that in its opinion a question of law was involved which should be reviewed by the Court of Appeals.

Stated briefly, the question involved is whether, under the terms of the policy, it can be said that the death herein resulted, directly or indirectly, wholly or partially, from injuries intentionally inflicted on the insured by any person while sane or insane.

Upon this record a recovery may not be had if the intentional injuries inflicted upon the insured by Brown were the proximate cause of the death of the insured. This presents a question of fact and there is evidence to sustain the finding of the trial court and the Appellate Division that the proximate cause of the death was the blow struck by Brown, and that it was not an accident but a deliberate injury to Borneman that caused his death.

In addition to the facts given above, it appears that Brown was a former prizefighter, and it is a fair inference from the evidence1 that the punches inflicted by Brown were knockdown, knockout punches. Under such circumstances the fall of the insured, with the concomitant injuries from contact with the pavement, cannot be said to be so unforeseen, unexpected, or extraordinary as to permit us to say as a matter of law that it constituted an accident.

That Brown intended to punish the insured by inflicting injuries upon him is not open to doubt. But that Brown intended to kill the insured does not appear. Since the death of the insured under the circumstances of the evidence in this case cannot be said to be unforeseen, undisputed or extraordinary, the evidence presented a question of fact whether the blows struck by Brown were not a contributing proximate cause of the death of the insured. The connection between the intentional injuries and the dire result cannot be said as a matter of law to be too remote. The case of Lewis v. Ocean Accident & Guarantee Corporation (224 N. Y. 18, 21), presented the reverse of the case at bar. There the trivial cause was wholly out of proportion to the unexpected, unforeseen and extraordinary result. In that case, where a prick of a pimple on the face of the insured by the insured resulted in an infection which caused his death, the court called attention to the fact that in fixing the meaning of the word “ accident ” we must take that of the average man and then said: “ Such a man would say that the dire result, so tragically out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident. This test — the one that is applied in the common speech of men — is also the test to be applied by courts.”

Appellant argues that the act of Brown in striking the insured had no reasonable connection with the death of the latter, to an extent which would deprive the death of its accidental character. As argued by appellant in its brief (p. 24): The sole question in this case is whether Borneman’s death, so far as Brown was concerned, was accidental * * * We do not quarrel with defendant when it says that Brown must have hit him a hard blow, so hard in fact, as to swell his Up and knock out a tooth. We do insist, however, that such minor injuries had not the remotest connection with the fatal result * * *. Conceding that the blow was intentional, it is a non sequitur to say that the fractured skuU was intended. Strong evidence was needed to show that Brown intended to crack Borneman’s skull. The record is barren of any such proof.”

In answer, it is submitted, as previously stated, that there is evidence in this record to sustain the finding of the trial court and the AppeUate Division and to present a question of fact as to the connection between the intentional injuries inflicted and the death. There was nothing trivial about the blows inflicted upon the insured by Brown. Such blows were no mere slaps in the face or mild push which might have caused a person to süp and fall. On the contrary, the blows were knockdown and knockout punches by a former prizefighter. Under such circumstances, the fall of the insured, with the concomitant injuries from contact with the pavement, cannot be said to be unforeseen, unexpected or extraordinary.

Appellant also ruges that the record shows that Brown was so intoxicated at the time of the assault that he was not possessed of sufficient intelligence to form an intent to injure the insured. The record shows an utter failure of proof by appellant that Brown was so intoxicated as to be incapable of forming an intention. (Rider v. Preferred Accident Ins. Co., 183 App. Div. 42; affd., 230 N. Y. 530.) In addition, the language of the policy provides that the accidental death benefit shall not be paid if death results directly or indirectly from injuries intentionally inflicted by any person while sane or insane.

It follows that the judgment appealed from should be affirmed, with costs.

Lehman, Ch. J., Loughran, Rippey, Lewis, Conway and ¡Desmond, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: Conway, J. Lewis, J.

license: Public Domain

text:
    In the Matter of the Accounting of Hilda O. Seigle et al., as Executors of William R. Seigle, Deceased. Elizabeth S. Seigle, Appellant. Hilda O. Seigle et al., as Executors et al., Respondents.
    Submitted October 7, 1942;
    decided December 3, 1942.

      Richard H. Brown and Irving Goldberg for appellant.
    The executors failed to sustain the burden of proving payment of the note. (International Motor Co. v. Palmer, 92 Misc. Rep. 214; Orange County Trust Co. v. Miller, 149 App. Div. 292; 208 N. Y. 619; Hock v. Bernstein, 164 N. Y. Supp. 113; Lynch v. Lyons, 131 App. Div. 120.)

      Charles A. Voss for respondents.
    The presumption of payment of the note was sustained. (Nay v. Curley, 113 N. Y. 575; Lynch v. Lyons, 131 App. Div. 120.)
   Conway, J.

The claimant, the former wife of the deceased, from whom she had been divorced at the time of his death, has presented a claim in the sum of $7,500, evidenced by a promissory note in that amount. A separation agreement, antedating the divorce, provided that the deceased was to pay to the claimant the sum of $150,000 at the rate of $15,000 in each year. The yearly installments were to be paid in eight payments of $1,875 each on the first days of eight specified months. In the event that her husband died within the ten-year period, the claimant was to receive from his estate the balance of the $150,000 then unpaid. At the time of his death there had been paid to claimant under the separation agreement the sum of $73,125. ■ The balance of $76,875 with interest has been paid by his executors.

Upon the promissory note in claimant’s possession there is no minute of payment of principal or interest. The note was dated May 29, 1936, was payable on demand and was executed more than two years after the execution of the separation agreement on February 12,1934. The decedent died on December 26,1938.

The claimant introduced in evidence the promissory note and rested. There then arose the presumption that the claimant was the owner of the note and that it was unpaid.

The executors then offered in evidence six checks of decedent totalling the sum of $7,500. Except by their production, their dates and the amounts, there was no proof that they were, in anywise, related to the note. It is conceded by counsel that the claimant received payment of those checks.

The executors then offered in evidence the separation agreement and, upon their request, counsel for claimant conceded that certain checks of the face amount of $1,875 had been paid to claimant by decedent on account of payments required by the agreement. Counsel for claimant further conceded that the payments under the agreement were made regularly up to the time of decedent’s death and totalled $73,125. The executors then produced forty-four checks paid to claimant. Of those forty-four checks thirty-two were for $1,875 each, making a total of $60,000. The remaining twelve checks were in varying amounts. The total for the forty-four checks was $72,661.81. That was $463.19 less than the amount conceded to have been paid under the separation agreement. The claimant conceded that the payments of the six checks aggregating $7,500 represented payments other than those under the separation agreement.

To recapitulate then, the claimant had rested upon the promissory note and the presumption of non-payment. The executors had proved the payment by checks of $1,875 each of the sum of $60,000 under the separation agreement. The executors had proved the payment to claimant of checks totalling $7,500 which claimant conceded represented payments other than those due under the separation agreement. That left twelve checks produced by the executors, in varying amounts, totalling $12,661.81. As to those checks no proof, other than their production, was offered by the executors that they represented payments made under the separation agreement. No proof was offered by the executors that the checks produced were the only ones payable to claimant by decedent then in their possession.

The record discloses therefore three sets of checks: first, those for $1,875 each which concededly were payments under the separation agreement. Second, six checks totalling $7,500, concededly for some transaction or transactions between claimant and decedent other than that involved in the separation agreement. Third, twelve checks in varying amounts totalling $12,661.81. Finally, no proof was offered that the executors were not in possession of other checks payable by decedent to claimant.

The claimant sought to prove by oral testimony that the six checks totalling $7,500 were given by decedent for a purpose other than the payment of the note. Such testimony was correctly excluded upon objection, as violative of the Civil Practice Act, section 347.

The Surrogate rejected the claim, drawing the inference that the twelve checks totalling $12,661.81 were all payments under the separation agreement. The sole question presented is whether that inference was permissible under the facts as related. We think it was not. We think that on the contrary an inference was required, because of the then state of the record, that there were other transactions between claimant and decedent. If that be so then on all the facts presented there was a failure of proof of payment of the note.

It is true that there is a presumption that the checks totalling $7,500 were on account of an existing debt and a further presumption that there were no other dealings between the parties upon which such payments might have been made since the giving of the promissory note was prima facie evidence of an accounting and settlement of all demands between the parties up to the date of the note. (Matter of Callister, 153 N. Y. 294; Lynch v. Lyons, 131 App. Div. 120; Nay v. Curley, 113 N. Y. 575.) But that presumption only continued until the separation agreement and thirty-two checks for $1,875 each given thereunder were offered, by the executors. Then there was evidence of another transaction. When in addition the twelve checks were introduced by the executors in amounts as follows: $1,500, $352, $1,675, $1,725, $500, $1,445.06, $175, $500, $1,241.35, $700, $1,375, $1,473.40, two of which had been given prior to the date of the note and ten thereafter, there was proof that compelled an inference that there were still other transactions between the parties than those evidenced by the note and separation agreement. That was confirmed when the executors offered no proof that they had produced all the checks in their possession which had passed between decedent and claimant.

A presumption that there is but one transaction between parties, yields to proof that there were two. Proof then of checks admittedly not connected with the first transaction and not established to have been related to the second certainly raised no presumption that there were only two transactions but on the contrary then required an inference that there were more than two. That required the executors, on their own proof, to go forward with evidence to show that there were but two transactions. That burden was not met and there was, therefore, but one presumption remaining in the proceeding, viz., that the claimant was the owner of an unpaid promissory note.

The situation disclosed may present difficulty for the executors in this instance but it must be remembered that we are laying down general rules. Promissory notes are important commercial instruments and men may save their executors these difficulties by seeing to it that indorsements of payments are minuted and that the notes are cancelled when paid.

Order of the Appellate Division and decree of the Surrogate’s Court in so far as appealed from should be reversed and the matter remitted to the Surrogate’s Court for action in accordance with this opinion, with costs to the appellant payable out of the estate to abide the event.

Lewis, J.

(dissenting). I agree with the opinion by Judge Conway to the extent that it approves the ruling by the Surrogate which rejected, under the prohibition of section 347 of the Civil Practice Act, the offer of oral testimony by the appellant to prove that the six checks totaling $7,500, given to her by the decedent, were for a purpose other than payment of the note which is the basis of her present claim.

I dissent, however, from the view of the majority that upon the record before us the Surrogate was not justified in finding that the note of $7,500, made by the decedent and now held by the appellant as payee, has been paid. It impresses me that the majority opinion disregards the rule which limits the scope of our present inquiry on that branch of the case to the question whether there was any evidence from which the Surrogate could find that payment of the note had been made. (City of New York v. Wilson & Co., 278 N. Y. 86, 92.) Upon that phase of the problem the respondents-executors introduced in evidence six checks of amounts totaling $7,500. The appellant conceded that the proceeds of those six checks were credited to her personal account and that such checks were not received as payments to her by the decedent under their separation agreement but were payments in addition to those due thereunder. These conceded facts, with inferences fairly to be drawn from them, afforded a sufficient basis for the finding by the Surrogate, which has been approved by the Appellate Division, that the note of $7,500 had been paid.

The inference of payment of the $7,500 note which might have been drawn from the conceded facts mentioned above, is not a certainty — it is not uncontrovertible. But the inference to be drawn from those conceded facts was for the Surrogate, as trier of the facts, who found that the six checks in amounts totalling $7,500 delivered to the appellant were in payment of the note here in controversy. “ * * * when the process is to be had at a trial of ascertaining whether one fact had being, from the existence of another fact, it is for the jury to go through with that process.” (Hart v. Hudson River Bridge Co., 80 N. Y. 622, 623; Justice v. Lang, 52 N. Y. 323, 327-331.) It is that rule which prompted this court to approve the statement by Crouch, J., that —“ Inference is never certainty, but it may be plain enough to justify a finding of fact.” (Tortora v. State of New York, 269 N. Y. 167, 170.)

There being some evidence to support the finding of the Surrogate that the decedent had paid the note which is now the basis of the appellant’s claim against his estate, I dissent and vote to affirm the order of the Appellate Division.

Loughran, Finch and Rippey, JJ., concur with Conway, J., Lewis, J., dissents in opinion in which Lehman, Ch. J., and Desmond, J., concur.

Ordered accordingly.


author: Conway, J.

text:
    The People of the State of New York, Appellant, v. Tony Rakiec and Charles Shambrock, Respondents.
    Submitted October 26, 1942;
    decided December 3, 1942.

      Walter B. Reynolds, District Attorney, for appellant.
    Section 295-1 of the Code of Criminal Procedure applies to the defendant personally as well as other witnesses. (People v. Schade, 161 Misc. Rep. 212; People v. Wright, 172 Misc. Rep. 860; State v. Thayer, 124 Ohio St. 1; State v. Nooks, 123 Ohio St. 190; Reed v. State,
      44 Ohio App. 318; Matter of Schmidt v. District Attorney of Monroe County, 255 App. Div. 353.)

      J. R. Hoover for respondent.
    Section 295-1 of the Code of Criminal Procedure does not apply to the testimony of a defendant. (State v. Thayer, 124 Ohio St. 1; State v. Nooks, 123 Ohio St. 190; People v. Schade, 292 N. Y. Supp. 612; People v. Ryan, 274 N. Y. 151; Lake Shore & M. S. Ry. Co. v. Roach, 80 N. Y. 339.)
   Conway, J.

The two defendants were placed on trial for the crime of burglary in the third degree. Both were convicted. Under the order of the Appellate Division, there is no question here presented as to their guilt. The sole question is as to the scope and meaning of section 295-1 of the Code of Criminal Procedure. That section reads as follows:

“ § 295-1. Bill of particulars from defendant; when required; contents; failure to furnish.

In all cases where a defendant has been indicted by a grand jury, the prosecuting officer may, not less than eight days before the case is moved for trial, serve upon such defendant or his counsel and file a demand which shall require that if such defendant intend to offer, for any purpose whatever, testimony which may tend to establish his presence elsewhere than at the scene of the crime at the time of its commission, he must within four days thereafter serve upon such prosecuting officer and file a bill of particulars which shall set forth in detail the place or places where the defendant claims to have been, together with the names, post-office addresses, residences, and places of employment of the witnesses upon whom he intends to rely to establish his presence elsewhere than at the scene of the crime at the time of its commission. Unless the defendant shall, pursuant to such demand, serve and file such bill of particulars, the court, in the event that such testimony is sought to be interposed by the defendant upon the trial for any purpose whatever, or in the event that a witness not mentioned in such bill of particulars, is called by the defendant to give such testimony, may exclude such testimony, or the testimony of such witness. In the event that the court shall allow such testimony, or the testimony of such witness, it must, upon motion of the prosecuting officer, grant an adjournment not to exceed three days.”

What occurred was this: The District Attorney served a demand for a bill of particulars under section 295-1 upon each of the defendants. There was no compliance with that demand. Upon the trial the defendant Shambrock was sworn as a witness and attempted to establish by his own testimony his presence at a place other than the scene of the crime at the time of its commission and that his co-defendant was then with him and in his presence. Upon objection of the District Attorney the court excluded such testimony.

There is thus squarely presented the question whether section 295-1 of the Code of Criminal Procedure, is applicable to a defendant as a witness. We think it is not. In the view we take it is necessary to consider the question only from the standpoint of statutory construction.

The purpose of the statute was to prevent a defendant from obtaining acquittal of a crime of which he was guilty by calling a number of witnesses to testify to a false alibi with no prior opportunity afforded to the District Attorney to make any investigation of them or their story. As originally proposed, the statute was drafted by the committee on Criminal Courts and Procedure of the New York County Lawyers Association and approved by the American Bar Association. At the time of its adoption by our Legislature in 1935 (L. 1935, ch. 506) a similar statute had been adopted in the States of Michigan and Ohio. Like statutes have now been adopted in at least nine other states. The necessity for the legislation was evidently apparent over a considerable portion of the nation. What the defendant is required to do is to serve and file a bill of particulars setting forth in detail the place or places where he claims to have been at the time the crime was committed, together with the names, post-office addresses, residences, and places of employment of the witnesses upon whom he intends to rely - * * The purpose of the statute is to enable the District Attorney to learn something about those witnesses. That is not necessary as to a defendant. In this State, he is fingerprinted and investigated before trial.

If more than a reading of the language of the statute and a consideration of its purpose were necessary, rules of statutory construction would remove any doubt as to its applicability. Thus, section 393 of the Code of Criminal Procedure also relates to the testimony of a defendant. It reads as follows: “ § 393. Defendant as witness. The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him.” (Italics supplied.) The section is all inclusive. The enactment of section 393 in its original form (L. 1869, ch. 678) was a milestone in the progress of criminal jurisprudence and its object was to benefit the accused. (People v. Hoch, 150 N. Y. 291, 309.) Up to that time under the common law of England, which we adopted following the American Revolution, a defendant had no right to testify in his own behalf. (People v. Courtney, 94 N. Y. 490; People ex rel. Woronoff v. Mallon, 222 N. Y. 456.) Section 295-1 on the other hand, is contained in chapter III-A entitled “ Simplified Indictments,” all of the sections of which relate to form and- procedure. It is a sound rule of construction that in the absence of express language, it will be presumed that the Legislature did not intend to defeat the main purpose and object of another legislative enactment relating to the same subject (People ex rel. Wood v. Lacombe, 99 N. Y. 43), nor to make a radical change in long-established rules. (Seligman v. Friedlander, 199 N. Y. 373.)

These considerations confirm us in our view that the statute is applicable only to witnesses other than the defendant. It is thus unnecessary for us to construe that portion of article I, section 6, of the New York State Constitution, which guarantees to the defendant the right to appear and defend in person and with counsel as in civil actions.”

The order should be affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    Gaetano Vastola, an Infant, by Dominick Vastola, His Guardian ad Litem, et al., Appellants, v. City of New York, Respondent, Impleaded with Others.
    Argued October 20, 1942;
    decided December 3, 1942.

      Samuel Spevack and Bernard Meyerson for appellants.
    The city of New York having allowed and led the public to treat and suppose the Bowery to be a public highway was bound to keep the street in a reasonably safe condition. (Priola v. City of New York, 237 App. Div. 827; 262 N. Y. 510; Schafer v. Mayor, 154 N. Y. 466; Saulsbury v. Village of Ithaca, 94 N. Y. 27; Sewell v. City of Cohoes, 75 N. Y. 45; Klepper v. Seymour House Corp., 246 N. Y. 85.)

      William C. Chanler, Corporation Counsel (Joseph F. Mulqueen, Jr., and Paxton Blair of counsel), for respondent.
    Bowery Walk and Henderson-Stratton Walk were private ways which the city was under no duty to pave or to keep in repair. Policing the walks, cleaning them and removing the garbage from the abutting buildings and exercising control over the traffic through the amusement district which the walks traverse do not justify the conclusion of law that the city was obliged to maintain the walks in a safe condition for people to walk over. (Speir v. Town of New Utrecht, 121 N. Y. 420; Johnson v. City of Niagara Falls, 230 N. Y. 77; Matter of Boardwalk Amusement Co., 271 N. Y. 341; People v. Sutherland, 252 N. Y. 86; Matter of Wallace Avenue, 222 N. Y. 139; Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596; Smith v. Smythe, 197 N. Y. 457; Jewhurst v. City of Syracuse, 108 N. Y. 303.)
   Per Curiam.

The infant-plaintiff, a pedestrian, was injured by reason of the presence of a triangular-shaped, hole approximately six or seven inches deep in the intersection of Henderson walk and Bowery walk at Coney Island. Neither street has been formally opened and the land involved is privately owned. The infant and his father brought actions alleging negligence on the part of the city of New York.

Bowery walk is about thirty-five feet in width and Henderson walk about twenty feet in width at their intersection. Neither has sidewalks nor curbs. The two streets pass through the amusement center of Coney Island. They are used by trucks which carry supplies to those, in business there except on Saturday and Sunday when the Police Department forbids such traffic. Thousands of people use these streets, especially during the summer. New York city policemen patrol them, serve summonses and make arrests for violations of law occurring thereon. Fire engines pass along them. Department of Sanitation trucks remove refuse of abutting occupants and employees of the department clean them. Beneath Henderson walk the city maintains a water main and a sewer, and upon the surface a manhole, so that the sewer beneath may be cleaned. At the center of the intersection the city maintains a fire hydrant. The city also maintains a street sewer drain there. To make repairs to pipes leading to the water main under Henderson walk a permit is required from the Highway Department after payment of a fee to the city.

Under those circumstances it was a question of fact for the jury whether the city had treated the two streets at their intersection as public streets and had taken control of and regulated them as it does other streets. If it had, then the city was chargeable with the same duties and imposed upon it were the same liabilities as if the streets had been legally opened. (Sewell v. City of Cohoes, 75 N. Y. 45; Schafer v. Mayor, 154 N. Y. 466, 471; Priola v. City of New York, 262 N. Y. 510.) The trial court left the question to a jury which found in favor of the plaintiffs. The verdict was a proper one and should be reinstated.

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

Lottghban, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., dissents.

Judgment accordingly.


author: Finch, J.

text:
    James M. Cooke, an Infant, by James J. Cooke, His Guardian ad Litem, et al., Appellants, v. Jeffrey S. Drigant, Defendant, and John Hancock Mutual Life Insurance Company, Respondent.

      Argued October 29, 1942;
    decided December 3, 1942.

      Richard J. Maloney and John C. Doyle for appellants.
    The trial court erred in setting aside the verdict as against the defendant insurance company, and in granting the motion for a directed verdict in its favor. (Mott v. Consumers’ Ice Co., 73 N. Y. 543; Seymour v. Greenwood, 6 H. & N. 359; Courtney v. Baker, 60 N. Y. 1; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Justice v. Lang, 52 N. Y. 323; Sharp v. Erie R. R. Co., 184 N. Y. 100; Galletta v. Taylor-Fichter Steel Const. Co., 232 App. Div. 256; Kanigher v. Schwerin Air Conditioning Corp., 280 N. Y. 751; Burdo v. Metropolitan Life Ins. Co., 254 App. Div. 26; 279 N. Y. 648; Metropolitan Life Ins. Co. v. N. Y. State Labor Relations Board, 280 N. Y. 194; Matter of Theyken v. Diplomat Products, Inc., 268 N. Y. 658; Davis v. Merrill, 133 Va. 69.)

      Walter L. Glenney and Chauncey L. Grant for respondent.
    The defendant insurance company did not control the individual defendant in the operation of his automobile and the rule of respondeat superior does not apply. (Fritz v. Krasne, 248 App. Div. 573; 273 N. Y. 649; Gutov v. Krasne, 285 N. Y. 595; Dunne v. Contenti, 167 Misc. Rep. 925; 256 App. Div. 833; Braice v. Saunders, 262 App. Div. 968: Brown v. John Hancock Mutual Life Ins. Co., 263 App. Div. 872; Natell v. Taylor-Fichter Steel Constr. Co., 257 App. Div. 764; 283 N. Y. 737; Sudowski v. Toledo Scale Co., 243 App. Div. 553; Howitt v. Hopkins, 219 App. Div. 653; 246 N. Y. 604; Malloy v. Scott, 248 App. Div. 882; Haykl v. Drees, 247 App. Div. 90; 272 N. Y. 577; Charles v. Barrett, 233 N. Y. 127;
      Hutchins v. John Hancock Mut. Life Ins. Co., 192 Atl. Rep. 498; Wesolowsky v. John Hancock Mut. Life Ins. Co., 162 Atl. Rep. 166; Holzworth v. Penn. P. & L. Co., 337 Pa. St. 235; Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574.)
   Finch, J.

Tins is an action to recover damages for injuries sustained by reason of the negligence of the individual defendant, Drigant. Drigant, a collection agent of the respondent insurance company, was driving his own car from his assigned collection area at One Hundred and Forty-second street, New York city, to the company’s office at One Hundred and Seventy-fourth street, when he ran down and injured the infant-plaintiff at the corner of Amsterdam avenue and One Hundred and Fifty-eighth street on the afternoon of September 18, 1937. His negligence is not disputed upon this appeal.

The infant-plaintiff and his father, suing for loss of services and medical expenses, recovered a jury verdict against both Drigant and the insurance company. The trial judge set the verdict aside and directed a verdict for the insurance company. The Appellate Division affirmed. The case comes here by way of leave to appeal by this court.

Whether there is any evidence to sustain the finding of the jury that defendant Drigant was an employee of the respondent insurance company and that the infant-plaintiff was injured while Drigant was acting within the general scope of his employment are the questions presented on this appeal.

The individual defendant, Drigant, had been employed by the respondent insurance company for approximately one year and three months prior to the accident on September 7, 1937. His work involved going from house to house collecting premiums for the respondent and soliciting new policies. He was limited to a “ debit ” territory in the borough of Manhattan, three blocks wide and four blocks long, running from One Hundred and Thirty-ninth street to One Hundred and Forty-second street between Convent avenue and Riverside Drive. He was the exclusive collecting agent for the respondent in that territory. In addition, he was, however, expected to solicit new insurance throughout the State.

The Company’s office, from which Drigant worked, was located on Broadway near One Hundred and Seventy-fourth street, approximately thirty-two blocks north of his debit area. Drigant was required to attend consultations at the office on three specified mornings of each week, and also to visit it one afternoon each week. It had become customary, but not obligatory, among the collectors to visit the office on Wednesday afternoons in order to prepare for the settlement of their accounts on Thursday morning. Drigant was on his way to such a Wednesday afternoon visit to the office when he ran down and injured with his own car, which he was, driving, the infant-plaintiff at the intersection of Amsterdam avenue and One Hundred and Fifty-seventh street, approximately halfway between the debit area and the office.

There were direct and inexpensive bus and subway transportation facilities between the debit area and the office. In fact Drigant testified without contradiction that he had used the busses or subway for going to and from the office for six to ten months before he owned an automobile.

Drigant was not required to operate an automobile and received no additional compensation therefor, and was not reimbursed for expenses incurred in its operation. The respondent insurance company knew, however, that he owned and operated an automobile, and required that it be covered with automobile liability insurance.

There is abundant evidence in the record to support the finding of the jury that Drigant was an employee of the respondent, rather than an independent contractor. Drigant was required to devote his whole time to the respondent’s business. He was assigned a specified debit area and was required to collect weekly premiums on industrial insurance therein. He had little discretion as to the time he would work or the methods he would use. A list of accounts were furnished him upon which he had to call. He had to comply with various regulations laid down by respondent for his guidance, and was required to visit the office periodically. His diligence was checked by his superior on inspection trips into his assigned collection area. From the foregoing facts, it may be inferred that respondent effectively regimented the activities of Drigant into a pattern of minute and detailed control so as to disprove the existence of any relationship other than that of employer and employee. (Matter of Electrolux Corp., 288 N. Y. 440.)

Upon the record, a close question of fact was presented as to whether Drigant’s operation of his car was within the scope of his employment for the respondent insurance company. The fact that he was not required to operate his own car and did so only at his own option and received no reimbursement therefor would indicate that the operation of the car was outside the range of the employment. (American Law Institute, Restatement of the Law of Agency, § 239, comment b.)

On the other hand, there is evidence that respondent was informed that the car was being used in its business and required that it be covered by liability insurance. While these last two facts, standing alone, would have little, if any, probative value, there is present in the case at bar the additional fact that Drigant was expected to solicit new business throughout the State wherever it might be found. There could be found, by the jury, in this requirement to solicit business over a large territory an inherent implied authority for Drigant to make use of the most efficient and adaptable means of transportation. The jury was further warranted in finding that this inherent requirement to make use of the most efficient means of transportation included the operation of an automobile. (Burdo v. Metropolitan Life Ins. Co., 279 N. Y. 648; Kanigher v. Schwerin Air Conditioning Corp., 280 N. Y. 751.)

Likewise the contention that Drigant was acting outside the physical orbit of his employment must fail since it is undisputed that he was proceeding on the most direct route between his assigned collection area and the office of the respondent. The verdict of the jury cannot be said, therefore, to be without substantial evidence in its support and was erroneously set aside.

The judgments, so far as appealed from, should be reversed, with costs in this court and in the Appellate Division and the verdict of the jury as against the defendant, John Hancock Mutual Life Insurance Company, reinstated.

Lehman, Ch. J., Lotjghran, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


author: Loughban, J.

text:
    In the Matter of Marcus D. Kogel, Appellant, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Respondents.
    Argued October 8, 1942;
    decided December 3, 1942.

      Bernard Tomson for appellant.
    In the determination of the differential pursuant to section 245 of the Military Law, army allowances for quarters and rations should not be considered. (Henn v. Mt. Vernon, 198 App. Div. 152; United States v. Mills, 197 U. S. 223; Briggs v. United States, 75 C. Cls. 627; Jones v. United States, 60 C. Cls. 552; United States v. Jackson, 302 U. S. 628; Carter v. United States, 79 C. Cls. 166; Hollister v. United States, 92 C. Cls. 137.)

      Benjamin Wiener and Herman Goldman for Henry W. Boyce, amicus curiæ.

    Commutation of quarters and rations received by an officer in the armed forces is a reimbursement of the expenses incurred by the officer, and is not salary or compensation paid to such officer for the ' performance of military duties. (United States v. Phisterer, 94 U. S. 219; Odell v. United States, 38 C. Cl. 194; Hollister v. United States, 92 C. Cl. 137; Henn v. City of Mount Vernon, 198 App. Div. 152.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John C. Crary, Jr., of counsel), amicus curise.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Paxton Blair and Oscar L. Tucker of counsel), for respondents.
    The dominant purpose of section 245 of the Military Law (Cons. Laws, ch. 36) is to give those to whom it is applicable a differential which will maintain their income after entry into military service at the level it was before entry into such service. It is not designed to make entry into military service profitable, and should not be so construed as to produce such a result. (State ex rel. Shea v. Billheimer, 178 Ind. 83; People ex rel. Bockes v. Wemple, 115 N. Y. 302; Matter of Adams v. McKenzie, 177 Misc. Rep. 486; Mangam v. City of Brooklyn, 98 N. Y. 585; Matter of Brooklyn Edison Co., v. Davidson, 269 N. Y. 48; Price v. County of Erie, 221 N. Y. 260; People v. Ryan, 274 N. Y. 149; Surace v. Danna, 248 N. Y. 18; McLean v. United States, 226 U. S. 374; United States v. Mills, 197 U. S. 223; Hovey v. De Long Hook & Eye Co., 211 N. Y. 420.)
   Loughban, J.

At the times here in issue section 245 of the Military Law (Cons. Laws, ch. 36) made these provisions: Every officer and employee of the state or of a municipal corporation or of any other political subdivision thereof who is a member of the national guard or naval militia, or a member of the reserve corps or force in the federal military, naval or marine service, shall be entitled to absent himself from his duties or service while engaged in the performance of ordered military or naval duty, and while going to and returning from such duty. * * * If the period of such absence in any calendar year exceeds thirty days he shall receive for the period of absence in excess of thirty days such part of his salary or compensation as such officer or employee as equals the excess, if any, of such salary or compensation paid to him for the performance of such duty.”

For some time prior to February 13, 1941, the petitioner was a reserve officer in the United States Army. On that date he was ordered to report for active duty. He was then employed by the city of New York as Medical Superintendent of the Queens General Hospital. He had received from the city a cash salary of $4,500 per annum and family maintenance of the conceded value of $2,250 per annum. The parties have stipulated that from February 13, 1941, “ the petitioner has received from the United States Government base pay and longevity pay at the rate of $3,300 per annum, and has received, in addition thereto, from the United States Government a cash allowance for quarters at the rate of $100 per month and a cash allowance for subsistence at the rate of $54 per month.”

On these facts, the controversy is one as to the determination of the differential to which the petitioner is entitled under the foregoing provisions of the Military Law. In the words of the statute he is to have such part of his salary or compensation as such [civil] officer or employee as equals the excess, if any, of such salary or compensation paid to him for the performance of such [military] duty.” The city of New York maintains that the phrase salary or compensation ” as thus used twice in the same sentence must be given like effect in both instances by a construction which will award to the petitioner either (1) the difference between his civil cash salary plus the value of his civil maintenance and his army cash salary plus the cash allowances for subsistence and quarters; or (2) the difference between his civil cash salary and the total of his army base pay and longevity pay. The Appellate Division adopted the first of these alternatives. A single sentence sufficed to state the ruling. The purpose of the act,” said the court, can be fully served only by including ' subsistence and quarters ’ within the term compensation in the military service as well as in the civil service.” (264 App. Div. 898.) We find ourselves unable to assent to this short solution of the case.

The sums received by the petitioner for his army subsistence and quarters were money allowances ” (20 Amer. & Eng. Encyc. of Law [2d ed.] p. 644; U. S. Code, tit. 37, §§ 9, 10). This term allowances ” embraces everything that may be recovered from the government by a soldier in consideration of his enlistment and services, except his stipulated monthly compensation designated as pay. (United States v. Landers, 92 U. S. 77, 80, 81. See United States v. Jackson, 302 U. S. 628, 631.) This term “ pay ” means regular compensation as distinguished from allowances for subsistence and quarters and the like. (United States v. Mills, 197 U. S. 223, 227, 228.) In United States v. Phisterer (94 U. S. 219) the court said: “ Quarters are expected to be furnished by the government to its officers; when it cannot thus furnish, it allows them to be obtained otherwise, and pays a money compensation therefor, called commutation. This is upon the assumption, first, that the officers are actually engaged in the public service; and, second, that such quarters are necessary to the discharge of their duty. It is upon the latter, idea that commutation for fuel and quarters is not allowed to officers when in the field.” (p. 224.)

In the light of these propositions of Federal Law, the scope and application of the foregoing words of our Military Law seem to us to be entirely plain. The “ salary and compensation ” for military service referred to therein must be taken to mean the regular “ pay ” of an army officer as distinguished from the allowances ” which he may receive in substitution for subsistence, quarters and like military essentials which are usually supplied by the government in kind.

The value of maintenance furnished to petitioner and his family by the city of New York was part of his salary or compensation for services as an employee of the city. (Civil Service Law, § 50, subd. 13; Cons. Laws, ch. 7.)

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, Ch. J., Finch, Rifpey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    In the Matter of Mary C. Sullivan, as Administratrix with the Will Annexed of the Estate of James J. Sullivan, Deceased, Appellant. Martin T. Manton, Respondent.
    Argued October 7, 1942;
    decided December 3, 1942.

      Homer I. Harris and Samuel L. Greenberg for appellant.
    The defense of prior proceeding pending is unavailing for the reason that the parties, the issues, and the relief available, in the two proceedings, are not the same. (Corporate Investing Co. v. Mt. Vernon Metal Products Co., 206 App. Div. 273; General Investment Co. v. Interborough R. T. Co., 118 Misc. Rep. 11; 200 App. Div. 794; 235 N. Y. 133; Matter of O’Flyn, 174 Misc. Rep. 1025; Matter of Chanler, 175 Misc. Rep. 1029; Matter of Brodezky, 130 Misc. Rep. 297; Matter of Hopkins, 161 Misc. Rep. 680.)

      James E. Denning for respondent.
    A decree in the accounting proceeding binds the parties here. (Chester v. Buffalo Car Mfg. Co., 183 N. Y. 425; Sexton v. Sexton, 64 App. Div. 385; 174 N. Y. 510; Matter of Fletcher, 173 Misc. Rep. 711; Matter of Hodgman, 140 N. Y. 421; Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14; Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111.) There are no significant differences in remedies. (Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N. Y. 304; Matter of Rubin, 168 Misc. Rep. 81; Matter of Fitzpatrick, 17 N. Y. Supp. [2d] 280; Matter of Hyde, 149 Misc. Rep. 291; Maloney v. Hearst Hotels Corp., 274 N. Y. 106; People ex rel. Rutland R. R. v. State Tax Comm., 243 N. Y. 543; Nicholson v. Greeley, Square Hotel Co., 227 N. Y. 345; Caponigri v. Altieri. 165 N. Y. 255; Matter of Gardner, 173 Misc. Rep. 202; Colson v. Pelgram, 259 N. Y. 370; Corporate Investing Co. v. Mt. Vernon Metal Products Co., 206 App. Div. 273.)
   Per Curiam.

James J. Sullivan died on December 20, 1935, and letters testamentary upon the probate of his will were issued to Martin T. Mantón and Edward W. Sullivan on January 31, 1936. In October, 1937, upon petition of Mary C. Sullivan, the residuary legatee of said deceased, the executors were ordered to render an account of their proceedings as such executors. Thereafter the executors filed their accounts and sought judicial settlement. Mary C. Sullivan filed objections to the account on June 27, 1938, including, among others, the objections as. explained by a bill of particulars and the account that the executors had failed to account for 1,867 shares of preferred capital stock of the National Cellulose Corporation which the objector claimed belonged to the estate of the deceased and should properly be included in the account of the executors as one of the assets of the estate. The issue thus arising was referred by the Surrogate to a referee on December 1, 1938, to hear and determine, and hearings were in progress before the referee and the matter was undetermined at the time of the institution of the pending proceeding.

After the hearings which were being held before the referee had apparently been concluded but before he had rendered his decision and report, one of the executors was removed from his office as such and the other executor resigned and the letters testamentary of both executors were revoked, whereupon, on June 30, 1941, Mary C. Sullivan was duly appointed as administratrix with the will annexed of the goods, chattels 'and credits of James J. Sullivan, deceased, which remained unadministered, letters of administration were issued to her on that day, she entered upon the discharge of her duties as such administratrix and is still acting as such. She, thereupon, as such administratrix, instituted this proceeding against Martin T. Mantón for a discovery of assets of the estate of said deceased under section 205 of the Surrogate’s Court Act, alleging that Mr. Mantón was withholding from her as such administratrix 1,867 shares of the preferred capital stock of the National Cellulose Corporation which belonged to the estate. Respondent pleaded, as a defense, the pendency of the accounting proceeding. Motion was thereupon made by respondent to dismiss this proceeding on the ground that the petitioner’s right to the property therein sought was the subject matter of a pending proceeding or, in the alternative, to refer it to the referee before whom the objections in the accounting proceeding were pending. The Surrogate denied the motion. Upon appeal, the Appellate Division, Second Department, unanimously reversed the order of the Surrogate and dismissed the petition with costs.

To succeed here, the respondent must show that there is another action pending between the same parties for the same relief. The test to be applied is whether a determination in the other pending proceeding would be res judicata in the second. In the accounting proceeding, Mrs. Sullivan has been cited and appears only in her individual capacity. Only as her individual interest may appear would she be bound by the determination in the accounting proceeding. In the discovery proceeding, she represents all claimants of the estate. No person interested as creditor or otherwise in the decedent’s estate would be bound by her citation and appearance as an individual on the accounting nor would any claimant be bound by the decree on the accounting in the absence of citation or voluntary appearance after full disclosure of the facts by the accountant and the presence of an opportunity to the claimant to appear and be heard. “ * * * an adjudication for or against a person litigating an issue solely in his individual right or interest does not conclude him in a subsequent prosecution respecting the same issue to which he is a party only in a representative capacity.” (City Bank Farmers Trust Co. v. Silberberg, 280 N. Y. 424, 429.) We need not consider other grounds urged by appellant for reversal.

The order of the Appellate Division should be reversed and that of the Surrogate affirnled, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


author: Lehman, Ch. J.

text:
    In the Matter of the Will of Frank M. Bauer, Deceased. Annie E. Helck et al., Appellants. Edna W. Bauer, Individually, et al., Respondents.

      Argued October 19, 1942;
    decided December 3, 1942.

      Richard Steel for appellants.
    As a matter of law, it must be presumed that the testator intended the legacy under paragraph fourth to be paid in full. (Matter of Pennock, 285 N. Y. 475; Matter of Neil, 238 N. Y. 138; McManus v. McManus, 179 N. Y. 338; Matter of Anderson, 143 Misc. Rep. 250.) Testator intended to charge his entire estate .with the payment of the legacies bequeathed under paragraphs third and fourth of the will. (Matter of Herborn, 189 App. Div. 319; Matter of O’Brien, 170 Misc. Rep. 792; 258 App. Div. 1044; 284 N. Y. 604; Richardson v. Richardson, 145 App. Div. 540; McCorn v. McCorn, 100 N. Y. 511.)

      J. George Levy for Edna W. Bauer, individually, respondent.
    The Appellate Division properly held as a matter of law that the Surrogate erred in granting priority to appellants’ general legacies over respondents’ specific legacies in the absence of any language in the will revealing such intention to prefer, either expressly or by implication. (Matter of Dooley, 154 Misc. Rep. 743; Matter of Silsby, 229 N. Y. 396; Matter of Smith, 254 N. Y. 283; Matter of Selner, 261 App. Div. 618; Chase Nat. Bank v. Chicago Title & Trust Co., 164 Misc. Rep. 508; Richardson v. Hall, 124 Mass. 228; Miller v. Huddleston, 3 Mac. & G. 513; Towle v. Swasey, 106 Mass. 100; Matter of Cameron, 278 N. Y. 352; Matter of Weed, 213 Wis. 574.) The Appellate Division properly held as a matter of law that the rule authorizing a preference on the ground of dependency or consideration applies only in the case of abatement of general legacies. This rule cannot be invoked here since respondents’ legacies were specific. (Matter of Cameron, 278 N. Y. 352; Matter of Neil, 238 N. Y. 138; Bliven v. Seymour, 88 N. Y. 469; Taylor v. Dodd, 58 N. Y. 335; Prager v. N. J. Fidelity & P. G. Ins. Co., 245 N. Y. 1.) The Appellate Division properly held as a matter of law that in the absence of express or implied provision in the will to the contrary, respondents’ specific legacies should not abate for the benefit of appellants’ general legacies. (Fries v. Osborn, 190 N. Y. 35; Matter of Uhl, 174 Misc. Rep. 438; Winner v. Carroll, 169 Wash. 208; Hibler v. Hibler, 104 Mich. 274; Spong v. Spong, 3 Bligh N. S. 84; Conron v. Conron, 7 H. L. Cases 168.)

      Max E. Sanders and David L. Shandalow for Margaret Coleman et al., respondents.
    Preference may not be granted to the appellants’ general legacies resulting in an abatement of the respondents; specific legacies. (Matter of Security Trust Co., 221 N. Y. 213; Matter of Beecroft, 146 Misc. Rep. 344; Matter of Werle, 91 Misc. Rep. 398; Matter of Cameron, 278 N. Y. 352; Matter of Malone, 143 Misc. Rep. 657; Matter of Smallman, 138 Misc. Rep. 889; Matter of Crouse, 244 N. Y. 400; Matter of Baker, 157 Misc. Rep. 904; Matter of Hochster, 166 Misc. Rep. 621; 256 App. Div. 844.) The testator did not express or imply an intent to prefer the appellants over the respondents or to charge their legacy against the entire estate. Matter of Weaver, 253 App. Div. 24; 278 N. Y. 605; Matter of Watson, 262 N. Y. 284; Matter of Skidmore, 148 Misc. Rep. 569; Matter of Durand, 250 N. Y. 45; Matter of Silsby, 229 N. Y. 396; Matter of Levy, 160 Misc. Rep. 394; 252 App. Div. 816; Matter of Smith, 254 N. Y. 283; Matter of Selner, 261 App. Div. 618; Matter of Pennock, 285 N. Y. 475; Matter of Lloyd, 166 App. Div. 1; Matter of Neil, 238 N. Y. 138; Matter of Tuozzolo, 141 Misc. Rep. 251; Matter of Brewster, 144 Misc. Rep. 888.) The expressed intention of the testator was to prefer the respondents. (Matter of Hochster, 166 Misc. Rep. 621; 256 App. Div. 844; Matter of Hopner, 148 Misc. Rep. 748; 242 App. Div. 652; Matter of Durand, 250 N. Y. 45; Matter of Oakley, 157 Misc. Rep. 463.)
   Lehman, Ch. J.

The testator, Frank M. Bauer, died on July 20, 1938. His will, admitted to probate on July 23, 1938, was executed on May 5, 1938, less than three months before his death. In the third paragraph of his will the testator bequeathed to a cemetery the sum of $1,500, the income of which is to be used for the care and maintenance of his burial plot in the cemetery. In the fourth paragraph the testator provided: I give and bequeath the sum of Twenty Thousand Dollars ($20,000) to my aunts Annie E. Helck and Mary L. Helck, equally, or if either of them shall predecease me, to the survivor of them.” The legatees were half-sisters of the testator’s mother and were the testator’s nearest kin. In the fifth paragraph of his will the testator provided:

“ I give and bequeath all of my stock of the firm of Pfaltz & Bauer, Inc., a New York Corporation, including all to which I may be entitled at the time of my death, as follows, to wit:

“ A
To each of the following persons, so much thereof that after receiving my said bequest he or she shall own sufficient stock (including any stock owned by him or her at the time of my death) to constitute the proportion of the total authorized and issued capital stock of said Corporation set forth opposite his or her name respectively, to wit: (a) Margaret Coleman, twenty percent (20%); (b) Dr. Ehrich Loewenstein, ten percent (10%); (c) John Coffey, one percent (1%); (d) John Vollrath, five percent (5%); (e) Charles Rawson, five percent (5%); (f) Mildred Anderson, one percent (1%).
“B
“ To my wife, Edna Warner Bauer, all the- rest, residue and remainder of said stock.”

In the sixth paragraph he left his residuary estate to his wife. He had married her about six months before his death.

The testator at the time he made the will and at the time of his death, owned 1,980 shares of stock of Pfaltz & Bauer, Inc., out of the capital stock of 2,000 shares which the corporation had issued, and ownership of the remaining twenty shares was in dispute. He had transferred to the corporation the house in which he lived. A life insurance policy in the amount of $65,000 on which he had borrowed about $20,000 was payable to the corporation. The stock he owned in the corporation was valued at $69,300. All his other property, including cash and debts due to him, had a value of about $3,000, a sum totally insufficient to pay even taxes and administration expenses. The executors borrowed the money to pay these charges from the corporation which was entitled to the proceeds of the insurance policies.

In proceedings for the settlement of their accounts the executors have asked for “ a construction and determination as to whether the legacy to the Lutheran Cemetery under paragraph ‘ Third ’ of the will of the decedent herein and the legacies to Annie E. Helck and Mary L. Helck under paragraph Fourth ’ of the will of the decedent herein are preferred and are entitled to payment prior to the specific legacies mentioned and described in paragraph ' Fifth ’ of said will.” The Surrogate held that it was the intention of the said testator * * * to prefer ” the legacy to the cemetery for the perpetual care of the cemetery plot and the legacies to Annie E. Helck and Mary L. Helck, and that “ said legacies are entitled to payment prior to the legacies mentioned and described in the paragraph numbered 1 Fifth ’ of said will.” The Appellate Division modified the decree of the Surrogate by striking therefrom the provision for the payment of the legacies to Annie E. Helck and Mary L. Helck, as provided in paragraph numbered Fourth of said will, prior to the payment of the legacies of corporate stock as provided in paragraph numbered Fifth. No appeal was taken from that part of the decree which granted priority of payment of the legacy to the cemetery. The right of the cemetery to priority of payment of a legacy for the maintenance of the testator’s burial plot may depend upon different considerations from those upon which the right of priority of payment of legacies to the testator’s aunts depends.

The value of all the testator’s property, with the exception of the stock of Pfaltz & Bauer, Inc., which he owned, was, as we have said, totally insufficient to pay taxes and the administration expenses. For years before his death the testator used his stock ownership and control of Pfaltz & Bauer, Inc., as a convenient means of carrying on all his affairs, both personal and business. He regarded himself as the sole owner of the corporation and in many matters he completely disregarded the distinction between the corporate business and property and his private affairs and property. He voted a salary to himself which was credited to him on the corporate books, but when he desired for his personal use sums of money in excess of the amount standing to his credit on the corporate books he would overdraw his accounts. The commingling of his personal property and affairs with the corporate property and affairs is illustrated strikingly by the fact that though he transferred to the corporation the house in which he lived, he paid no rent to the corporation, and by the fact that the corporation was the beneficiary of the insurance policy upon his life.

The testator had these facts in mind when he made his will with general legacies of $20,000 to his aunts and specific legacies of the corporate stock to others. There can hardly be room for doubt that the testator intended that the general legacies and the specific legacies should both be paid, but the general legacies must fail completely unless they may be paid out of funds in the corporate treasury. In holding that the general legacies must fail, the Appellate Division said: The question to be decided is: May general legacies be charged against specific legacies where there is no specific direction or directions to that effect implied from the language used in the will. * * * Although the gift of $20,000 to the aunts seems to have been really intended as such ‘ unless the testator sought to mock ’ his aunts (Matter of Herborn, 189 App. Div. 319, 321), yet, in the absence of language indicating or from which it may be inferred to the contrary, it must be held that specific legacies are adamant to invasion by the general legacies.”

We view in other manner the problem presented upon this appeal. The intention of the testator is clearly expressed that his aunts should be paid the sum of $20,000. To discover that intention we need not resort to extrinsic evidence of the testator’s affection for his aunts or of his sense of responsibility towards them. That intention is expressed plainly on the face of the will. The testator’s express intention,must, nevertheless, fail unless the gift may be paid out of the moneys in the corporate treasury of Pfaltz & Bauer, Inc. We think that the question we must decide is: Has the testator directed either in express terms or by clear implication that the gift to his aunts should be paid out of moneys in the corporate treasury?

A testator does not usually designate in express terms the source from which legacies should be paid. He assumes correctly that general legacies will be paid out of moneys or property in his estate available for such purpose. Here the testator knew that no money or property would be available unless payment were made out of the corporate funds, for, as we have pointed out, he had commingled his personal property with the corporate property and had provided that the proceeds of the policies insuring his life should be paid to the corporation. The testator in his life had disregarded the corporate entity, and when he made a gift to his aunts with knowledge that the gift will fail unless payment is made out of corporate moneys, his intention that the corporate entity should be disregarded to the extent necessary to permit payment of the gifts out of moneys in the corporate treasury which for practical purposes belonged to him, is unmistakably apparent.

To give effect to an intention so clearly indicated the courts may disregard the corporate entity of a one-man ” corporation. Instances of such disregard are found in Matter of Bush (124 Misc. Rep. 674); Matter of Dunigan (177 Misc. Rep. 212). (See article entitled The Incorporated Individual: A Study of the One-Man Company,” by Professor Warner Fuller, 51 Harvard Law Review, p. 1373, at p. 1397 et seq.)

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division to all parties appearing separately and filing separate briefs payable out of the estate. (See 289 N. Y. 840.)

Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur; Conway, J., taking no part.

Ordered accordingly.


text:
    Irma Rosen, Respondent, v. Equitable Life Assurance Society of the United States, Appellant, and Samuel Rosen, Respondent.

      Argued October 8, 1942;
    decided December 3, 1942.
    The following question was certified:
    “ Upon the facts presented in this record was the order properly made? ”

      William G. H. Acheson for appellant.
    Upon the facts presented the order of interpleader was properly made. (Rothstone v. Norton, 231 App. Div. 59; 256 N. Y. 601; White v. White, 194 N. Y. Supp. 114; Matter of Chatham Phenix Nat. Bank, 232 App. Div. 598; Davis v. Modern Industrial Bank, 279 N. Y. 405; Crane v. McDonald, 118 N. Y. 648.)

      Max Kavenoff for Samuel Rosen, respondent.
    The order of interpleader was erroneously granted where the facts presented clearly indicate that the plaintiff does not have a cause of action against the defendant insurance company. The mere assertion of a claim and the consent of the plaintiff did not warrant the order of interpleader. (Pouch v. Prudential Ins. Co., 204 N. Y. 281; Mitchell v. Catlin & Powell Co., 71 Misc. Rep. 450; Schoenholtz v. New York Life Ins. Co., 234 N. Y. 24; Eltonhead v. Travelers Ins. Co., 177 App. Div. 170; Fink v. Fink, 171 N. Y. 616; Rothstone v. Norton, 231 App. Div. 59; 256 N. Y. 601; Post v. Emmett, 40 App. Div. 477; Considine v. Considine, 255 App. Div. 876; Davis v. Modern Industrial Bank, 279 N. Y. 405; American Motorists Ins. Co. v. Oakley, 172 Misc. Rep. 319.)
   Lehman, Ch. J.

The defendant Equitable Life Assurance Society-executed and delivered to Isidore Rosen two policies of retirement annuity.” Under the terms of the policies death benefits were payable upon the death of the annuitant to the beneficiary named in the policies. Rosen died on September 28, 1941, while these policies were in effect. After his death his wife, the plaintiff Irma Rosen, began an action to recover the proceeds of the policies, alleging in her complaint that on the 17th day of October, 1940, the said Isidore Rosen duly assigned said policy of insurance and the proceeds therefrom to this plaintiff.” Notice of said assignment was duly given to the defendant company.

The defendant company admitted in its- answer that the defendant has received due notice and proof of the death of the annuitant, and that there have become due as the proceeds ” of the policies the sums claimed by the plaintiff, but it denied on information and belief that the deceased annuitant assigned the policy and the proceeds to the plaintiff. The defendant insurance company then moved for an order of interpleader substituting Samuel Rosen as defendant in this action and discharging the defendant insurance company from liability to the plaintiff or to said Samuel Rosen upon payment of the proceeds of the policy into court to the credit of this action. The court is empowered to grant such relief pursuant to the provisions of section 287 of the Civil Practice Act to a defendant against whom an action to recover upon a contract * * *

is pending upon proof by affidavit that a person not a party to the action makes a demand against him for the same debt or property without collusion with him.”

The proof by affidavit ” submitted by the defendant shows that upon the death of the annuitant both the plaintiff and Samuel Rosen, a brother of the annuitant, filed proofs of death of the annuitant and claimed the proceeds of the policies; and that Samuel Rosen is the beneficiary of each of the said policies of record as of the date of death of the annuitant.” Upon that proof the court granted the defendant's motion for an order interpleading Samuel Rosen as defendant. The interpleaded defendant appealed from that order to the Appellate Division. By a divided vote the Appellate Division reversed on the law and the facts ” the order granting the motion for an interpleader. In its memorandum the Appellate Division stated: Other than the bald allegation in plaintiff’s complaint that the policies were assigned to her and the repetition thereof by the insurance company, no facts are shown indicating the validity of the alleged assignment. The mere assertion of a claim by another without alleging anything whatever on which to base it is not enough to warrant interpleader.” (Citing Pouch v. Prudential Ins. Co., 204 N. Y. 281, and other cases.) The dissenting judges voted to affirm “ on the authority of Pouch v. Prudential Ins. Co. (204 N. Y. 281, at p. 286).” (263 App. Div. 1015.) The insurance company has appealed from the order of reversal by permission of the Appellate Division which has certified to us the question: Upon the facts presented in this record, was the order properly made? ”

In Pouch v. Prudential Insurance Co. (supra) a motion for an order of interpleader was made by the defendant insurance company in an action brought by the widow of an insured, claiming as beneficiary of the policies insuring the life of her deceased husband. The “ proof by affidavit ” there submitted by the defendant showed that, without collusion by the defendant, “ a claim was also made by one Eliza Hargreaves, as administratrix of the goods, chattels and effects which were of Robert H. Pouch, deceased, who claimed to be entitled to the moneys due under said policy on the ground that she was the administratrix of said estate.” The plaintiff in opposition to the motion to interplead the administratrix of the estate of the insured submitted proof by affidavit that she was the assignee and beneficiary of the policy, and that her rights as beneficiary under said policy have never been questioned by either defendant or any other person.” (p. 283.) The defendant did not deny that statement or attempt to show that it had any possible defense to the plaintiff’s cause of action, or that there was any possible basis for the claim to the same debt made by the administratrix of the estate. The court at Special Term nevertheless granted the motion made by the defendant insurance company for an order of interpleader. The plaintiff appealed from that order. Under these circumstances this court answered in the negative a certified question: “ Has the court, on this, record power to grant an interpleader? ”

This court pointed out in its opinion in that case that the provisions of section 820 of the Code of Civil Procedure (now Civ. Prac. Act, § 287) for interpleader by order were intended not [as] a new, but [as] a concurrent and more simple remedy ” than the older, action of interpleader. Either remedy may be granted or withheld in accordance with the sound discretion of the court. To invoke the discretion of the court a defendant must show not only that he is “ indifferent between the claimants ” but also that he is ignorant or in doubt which is the rightful one, and is in real danger or hazard by means of such doubt from their conflicting claims.” (p. 284.) The gist of the decision in Pouch v. Prudential Ins. Co. (supra), lies in the phrase on p. 286: While it has never been held that it is necessary to sustain an interpleader to show that a claimant will probably succeed in establishing his claim, a mere assertion of claim by another without alleging anything whatever on which to base it is not enough.”

In that case, as we have said, there was not only a complete failure to show that there was any substance to the claim made by the administratrix of the insured, but it appeared affirmatively that the rights of the plaintiff as beneficiary of the policy were not questioned. The problem there presented was whether a defendant who did not question the right of the plaintiff to recover a debt admittedly due from the defendant could withhold payment to the plaintiff upon the bald assertion that a claim for the debt had been made by a third party, and could obtain an order substituting the third party as defendant in his place without showing any possible basis for the claim of the interpleaded defendant. Here the problem is quite different. In the case we are now reviewing the plaintiff’s right to recover is seriously questioned not only by the defendant insurance company but by another claimant for the same debt. Concededly the defendant could not pay the plaintiff without strong probability .that it would be compelled to pay the same debt also to the other claimant. The proof by affidavit presented by the defendant insurance company shows beyond possible doubt that the insurance company has good reason to question the claim of the plaintiff. The plaintiff, far from opposing the motion of the insurance company for an order of interpleader, expressly consented to such an order. It is the claimant Rosen who challenged the right of the insurance company to such an order and appealed to the Appellate Division.

The defendant should not, in fairness, be required at its peril to decide the questions of fact or of law upon which the validity of the conflicting claims of the wife and the brother of the deceased may depend. It should not be called upon to ferret out the facts which lie behind a family controversy. It cannot pay either claimant without subjecting itself to suit by the other.’ Unless the defendant insurance company can substitute Samuel Rosen as party-defendant it will be compelled to assert and prove the validity of the claim of Samuel Rosen to the proceeds of the policy as a defense in the action now pending against it brought by the plaintiff. If unsuccessful in its defense in the pending action, it may still be compelled to assert and prove the validity of the plaintiff’s claim as a defense to an action which might thereafter be brought by Samuel Rosen. The statute was intended to give protection to a defendant under such circumstances, leaving the litigation of the controversy to the parties to the controversy who are interested in its outcome. In our opinion the insurance company is, in these circumstances, entitled to the relief which was granted to it at Special Term.

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 against the defendant Samuel Rosen. The certified question should be answered in the affirmative.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    The People of the State of New York ex rel. Ambroad Equities, Inc., Appellant, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    Argued October 20, 1942;
    decided December 3, 1942.

      David L. Weissman, Casper Gottdiener and Herbert S. Goodman for appellant.
    The appellant was “ a person aggrieved ” at the time of the commencement of the proceeding and continued to be such even after the conveyance and the payment of the tax by the purchaser. (People ex rel. Ruppert Realty Corp. v. Cantor, 115 Misc. Rep. 519; 204 App. Div. 863; Matter of Walter, 75 N. Y. 354.) Whether or not the appellant continued to be aggrieved after the conveyance and the payment of the tax by the purchaser is immaterial. (People ex rel. City of New York v. Keeler, 237 N. Y. 332; People ex rel. Allied Owners Corp. v. Sexton, 257 App. Div. 215; 281 N. Y. 853; New York Electric Lines Co. v. Gaynor, 167 App. Div. 314; 218 N. Y. 417.) The proceeding, having been instituted by a person aggrieved, could not be dismissed for any change of status of such person. (Civ. Prac. Act, § 82; People ex rel. Northchester Corp. v. Miller, 288 N. Y. 163; People ex rel. Ruppert Realty Corp. v. Cantor, 115 Misc. Rep. 519; 204 App. Div. 863; People ex rel. Crompton Building Corp. v. Sexton, 258 App. Div. 1046.)

      Harold J. Treanor for The Real Estate Board of New York, Inc., amicus curiæ.

    After institution of a proceeding, a sale of the premises involved does not deprive the petitioner of the status of a party “ aggrieved.” (Cons. Laws, ch. 60, § 290; People ex rel. 342 East 57th St. v. Miller, 262 App. Div. 132; 287 N. Y. 682; Hamilton Manufacturing Co. v. City of Lowell, 74 A. L. R. 1213; 175 N. E. Rep. 73; People ex rel. Ruppert Realty Corp. v. Cantor, 115 Misc. Rep. 519; 204 App. Div. 863; People ex rel. N. Y. City Omnibus Corp. v. Miller, 282 N. Y. 5.)

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg, Arthur A. Segall and Anthony Curreri of counsel), for respondents.
    Relator, although a party “ aggrieved ” by the assessment at the time the writ of certiorari issued, lost its status as a party aggrieved, by its subsequent conveyance of the property and because the taxes were paid by the vendee. The proceeding was properly dismissed. (Matter of Walter, 75 N. Y. 354; Matter of Burke, 62 N. Y. 224; Matter of Phillips, 60 N. Y. 16; New York Electric Lines Co. v. Gaynor, 167 App. Div. 314; 218 N. Y. 417; Dickinson v. Springer, 246 N. Y. 203; People ex rel. Pechtold v. Bogart, 122 App. Div. 872; People ex rel. Lyman Realty Corp. v. Miller, 99 N. Y. L. J. 2283; People ex rel. Shaw v. Eklund, 96 N. Y. L. J. 1951.)
   Lehman, Ch. J.

Real property at that time belonging to Rialto Estates, Inc., was assessed at the value of $250,000 upon the assessment rolls of the city of New York for the tax year 1936. An application was made in due time to the proper officers to correct such assessment. In June, 1936, after application for correction had been denied, Rialto Estates Inc., “ claiming to be aggrieved ” by the assessment, presented to the Supreme Court a petition for a writ of certiorari to review the assessment, as provided in section 290 of the Tax Law (Cons. Laws, ch. 60).

The proceeding for the review of the assessment for the year 1936 was consolidated with proceedings for the review of assessments upon the same property in other years. The consolidated proceeding was tried in April, 1941. Then it appeared that the petitioner had sold the property, and on June 12, 1936, a few days after the petition for review was presented by Rialto Estates, Inc., the petitioner had conveyed the property to the purchaser subject to taxes.” The new owner thereafter paid the taxes for the year 1936, but is not a party to the certiorari proceeding. A motion was then made to dismiss the proceeding for the review of the assessment for the year 1936, on the ground that it appears that the relator is not the real party in interest and is not a person aggrieved by the assessment. The justice at Special Term denied the motion to dismiss and ordered that the assessment be reduced. The defendant respondents appealed to the Appellate Division from that order “ in so far,as said final order failed to dismiss the proceedings for the year 1936.” Upon that appeal they did not challenge the decision of the court at Special Term that the property had been over-valued. The Appellate Division, Mr. Justice Dore dissenting, reversed the order of the Special Term so far as appealed from, holding that the appellant was not aggrieved.

It is not questioned that Rialto Estates Inc., was the owner of the property and was aggrieved by the assessment at the time the assessment rolls were filed, at the time application for correction of the assessment roll was made, and at the time the petition for review of the assessment was filed. The proceedings were properly instituted by the only person at that time authorized to begin them. The statute contains no express provision that a petition presented, in strict compliance with the statute, by the proper person, who thereafter without reserving a right to refund of any overpayment of the tax, conveys the property to another person who pays such tax, must be dismissed. We are told, however, that even without such express provision in the statute the proceedings must under such circumstances be dismissed because the petitioner has no longer any interest in the refund, and the person having such interest is not a party to the litigation. We do not agree with that contention.

In certiorari proceedings only the question whether the tax assessment is valid can be litigated. If the assessment is vacated or reduced after the tax has been paid, refund must be made to the person entitled thereto. Even where the final order in a certiorari proceeding directs that the refund should be paid to one of the parties to the proceedings, other parties to that proceeding may thereafter show a superior equitable right to a refund. (People ex rel. 1200 Madison Ave. Corp. v. Miller, 287 N. Y. 685.) We express no opinion upon the question whether or not the appellant may be able to show a right to the refund. If there is dispute whether the appellant or some other person is entitled to it, that dispute must be decided in appropriate proceedings in the Supreme Court, to which all interested persons are parties. We decide only that the court at Special Term properly denied the motion to dismiss proceedings to review a tax assessment where such proceedings have been commenced in strict accordance with the terms of the statute by the person authorized by the statute to commence them.

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

Loughban, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


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    In the Matter of the Claim of Gordon M. Stickle, Respondent, against Westcott Garage et al., Appellants.
    Argued October 6, 1942;
    decided December 3, 1942.

      Harry Wareham and Frank L. Ward for appellants.
    The decision of the Industrial Board is justified on the evidence and on the law. (Cons. Laws, ch. 67, §§ 22, 118, 123; Cons. Laws, ch. 31, §§ 19, 27; Matter of Whitmyre v. International B. M. Corp., 274 N. Y. 61; Schaefer v. Buffalo Steel Car Co., 250 N. Y. 507; D'Anneo v. Sperry Gyroscope Co., 259 App. Div. 766; Ullman v. Keller, 218 App. Div. 796; Stockdale v. International Railway Co., 265 N. Y. 534; Ingberg v. Zimmerman, 261 N. Y. 551.)

      Albert Orenstein for respondent.
    The claim was settled and compromised by agreement of all the parties and the approval of the referee, with full knowledge of all the facts. (Berman v. Reliance Metal Spinning & Stamping Co., 187 App. Div. 816, Matter of Cretella v. New York Dock Co., 263 App. Div. 180; Fisher v. Genesee Construction Co., 187 App. Div. 850.) Claimant owned a vested right in the proceeds of the settlement. (Matter of Miller v. Pierson & Williams, 227 App. Div. 675; 253 N. Y. 541.)
   Per Curiam.

At any time before final payment to a claimant of a settlement agreed upon following a factual controversy between the carrier and claimant, the department may make such decision or order in the premises as in its judgment is just and proper including one disapproving payment of the unpaid balance of the settlement. (Workmen’s Compensation Law, § 123 [Cons. Laws, ch. 67]; Matter of Whitmyre v. International Business Machine Corp., 274 N. Y. 61.)

Matter of Miller (227 App. Div. 675, affd., 253 N. Y. 541) is not in conflict. There a widow obtained an award for the death of her husband and thereafter died. Her administratrix sought payment to her estate of the amount of the award unpaid at the time of her death. Clearly the right of the widow to the award had vested in her and no limitation of Workmen’s Compensation Law, section 123, was intended or effected by the decision.

The order of the Appellate Division should be reversed and the decision of the State Industrial Board affirmed without costs.

Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


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    The People of the State of New York, Respondent, v. Christ Popoff, Appellant.

      Argued October 15, 1942;
    decided December 3, 1942.

      Richard Klugherz for appellant.
    The evidence was insufficient. There was no proof of intent to defraud the insurer of the building. (People v. Lashkowitz, 257 App. Div. 518; People v. Lewis, 275 N. Y. 33.) Keough was an accomplice as a matter of law. (People v. Clougher, 246 N. Y. 106; People v. Richardson, 222 N. Y. 103; People v. Swersky, 216 N. Y. 471; People v. Warder, 231 App. Div. 215; People v. Elbroch, 250 App. Div. 583; Luck v. State, 67 S. W. Rep. [2d] 302.)

      Carl J. Hynes, District Attorney, for respondent.
   Per Curiam.

The record of evidence offered in support of charges under section 220 and section 222, subdivision 5, of the Penal Law, and contained in the first and fourth counts of the consolidated indictment, lacks the essential proof of the defendant’s knowledge of the .existence of fire insurance coverage upon the contents of the building in which the Cosmo Restaurant was located and of which building the defendant Peter Gregor was one of the lessees. (People v. Shields, 266 N. Y. 200; and see 3 Bishop on New Criminal Procedure [2d ed.] 1249, 1250; Curtis on The Law of Arson, § 76, p. 92; Ruling Case Law, p. 520.)

In support of charges set forth in the second count of the consolidated indictment we find no evidence which suffices under section 399 of the Code of Criminal Procedure to corroborate that part of the testimony of the accomplice Panageotatos (hereinafter referred to as Burdabas ”) which relates to acts committed within the restaurant on the night of January 28,1940, and ascribed by him to the defendant. Nor is there evidence from which the jury could find that the liquid in the cans, said by Burdabas to have been carried by him and the defendant into the restaurant on that night, was inflammable. The only evidence upon that subject was given by Burdabas who repeatedly testified positively that he did not know what was in the cans.

As to count five of the consolidated indictment, the People rely upon the testimony of Burdabas which recites an alleged confession made to him by the defendant on February 5, 1940, viz., that he (the defendant) had gone to Watertown on the preceding night when he had entered the Cosmo Restaurant where he committed acts which amounted to an attempt to commit arson. Such testimony lacks the requisite support of “ additional proof that the crime charged has been committed.” (Code Grim. Proc. § 395.) The testimony by the People’s witness Keough does not, in our view, satisfy the requirements of the statute last above cited.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Lotjghban, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    George Shaw, Appellant, v. Roovers Bros., Inc., et al., Respondents.
    Argued October 26, 1942;
    decided December 3, 1942.

      Ralph Stout, Stephen Callaghan and Harold A. Gates for appellant.
    The trial court erred in dismissing the complaint. (Osipoff v. City of New York, 286 N. Y. 422; Richards v. Wiener Co., 207 N. Y. 59; Anthony v. American Glucose Co., 146 N. Y. 407; New Market Savings Bank v. Gillette, 100 Ill. 254; Commercial Casualty Ins. Co. v. Roman, 269 N. Y. 451; Klauder v. Gabriels, 162 App. Div. 715; Halpin v. N. Y. Railways Corp., 250 App. Div. 613; 276 N. Y. 545; Oakes v. Cattaraugus Water Co., 143 N. Y. 430; Hall v. Herter Bros., 83 Hun, 19; Bath National Bank v. Sonnenstrahl, Inc., 249 N. Y. 391.)

      William S. Over end and Samuel A. Feir for respondents.
    The trial court properly dismissed the complaint. (C. N. Bank v. Clark, 139 N. Y. 307; Merchants Nat. Bank v. Clark, 139 N. Y. 314; First National Bank v. Wallis, 150 N. Y. 455; Brownless Co. v. Gandy, 125 Miss. 71; Main Read Grande Co. v. York, 89 Me. 54; Maynicke v. Central Realty Bond & Trust Co., 104 App. Div. 624; Cook v. Pettit, 252 App. Div. 881; Freifeld v. Groh’s Sons, 116 App. Div. 409; Van Vleet v. Jones, 75 Hun, 340; Flour City Nat. Bank v. Shire, 88 App. Div. 401; Prudential Ins. Co. v. Snyder, 142 Misc. Rep. 150; Engel v. Simmons, 230 App. Div. 454; 257 N. Y. 612; Stanton v. Granger, 125 App. Div. 174; 193 N. Y. 656.)
   Per Curiam.

The plaintiff produced evidence sufficient to sustain the special verdict, and the trial judge erred in dismissing the complaint. We may not review the order setting aside the verdict on the ground that it is “ against the weight of the evidence ” as well as on the ground that it is contrary to law.”

The judgments should be reversed-and a new trial granted, with costs to the appellant to abide the event.

Lehman, Ch.- J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    Sophie Prokopowicz et al., Appellants, v. 11 West 42nd Street, Inc., Defendant, and Otis Elevator Company, Respondent.
    Argued October 27, 1942;
    decided December 3, 1942.

      Robert R. Bauman and Arthur L. Obre for appellants.
    A prima fade case of negligence as to the elevator company was clearly made out. It was accordingly error to dismiss the complaint. (Dzkowski v. Reynoldsville Carting Co., 216 N. Y. 173; African Metals Corp. v. Bullowa, 288 N. Y. 78; Wanamaker v. Otis Elevator Co., 228 N. Y. 192; MacPherson v. Buick Motor Co., 217 N. Y. 382; Shannahan v. Empire Engineering Carp., 204 N. Y. 543; Marus v. Central R. R. Co., 175 App. Div. 783; Corbett v. Scott, 243 N. Y. 66; Pine Grove Poultry Farm v. Newton By-Products Mfg. Co., 248 N. Y. 293; Transportation Line v. Hope, 95 U. S. 297; Scott v. Churchill, 15 Misc. Rep. 80; 157 N. Y. 692; Piehl v. Albany Ry. Co., 19 App. Div. 471; Sweet v. Perkins, 123 App. Div. 910; 196 N. Y. 482.)

      Bertrand L. Pettigrew and Chauncey L. Grant for respondent.
    The elevator was not shown to have been inherently dangerous nor was any negligence on the part of said defendant respecting the construction and installation of said elevator, shown, and the evidence presented no issue as to that defendant for the consideration of the jury. (Rosenfeld v. American Ins. Co., 260 App. Div. 697; People v. Creasy, 236 N. Y. 205; Travis v. Rochester Bridge Co., 188 Ind. 79; Berg v. Otis Elevator Co., 231 Pac. Rep. 832; G. C. P. Fire Relief Assn. v. Sonneborn Sons, 263 N. Y. 463; Trust Co. v. Lewis Auto Sales, Inc., 306 Ill. App. 132; Bergstresser v. Van Hoy, 142 Kan. 88; Foster v. Ford Motor Co., 139 Wash. 341; Olds Motor Works v. Shaffer, 145 Ky. 616; Wissman v. General Tire Co., 327 Penn. St. 215; MacPherson v. Buick Motor Co., 217 N. Y. 382; Lynch v. International Harvester Co., 60 Fed. Rep. [2d] 223.)
   Per Curiam.

Even without direct proof that the installation of an additional safety device on electrical elevators was customary in 1926, a question of fact is presented whether the defendant Otis Elevator Company acted negligently in failing to install such device under the circumstances shown by the evidence produced by the plaintiff.

The judgments should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed.


text:
    Nicholas Bertini et al., Respondents, v. John R. Murray, Doing Business under the Name of John R. Murray & Son et al., Defendants, and Knickerbocker Ice Company et al., Appellants.
    Reported below, 262 App. Div. 893.
    Submitted November 30, 1942;
    decided December 10, 1942.

      Irving Lemov for motion.

      Irving J. W. Marx opposed.
   Per Curiam.

In accordance with the provisions of section 590 of the Civil Practice Act, as amended by chapter 297 of the Laws of 1942, alternative appeals may be taken from the final judgment either to the Appellate Division or to the Court of Appeals. Appeals may not be taken to both courts.

The motion to dismiss the appeal to this court is granted and the appeal dismissed, with costs and ten dollars costs of motion, unless the appellants, within ten days, serve notice upon the respondents that they have abandoned the appeal to the Appellate Division, taken before the amendment to section 590 of the Civil Practice Act took effect, and are willing to stipulate that such appeal shall be dismissed, with costs and, further, perfect the appeal to this court within twenty days after such notice has been served.


text:
    The Water Power and Control Commission, Appellant and Respondent, v. Niagara Falls Power Company, Respondent and Appellant.
    Argued June 1, 1942;
    decided December 10, 1942.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Timothy F. Cohan and Jack Goodman of counsel), for plaintiff, appellant and respondent.
    The interest of the State in the waters of the Niagara river conforms to the requirements of section 634 of the Conservation Law. (Cons. Laws, ch. 65). (Matter of Commissioners of State Reservation at Niagara, 37 Hun, 537; 102 N. Y. 734; Niagara Falls Power Co. v. Water Power & Control Comm., 267 N. Y. 265; Appraisers, 33 N. Y. 461; Crill v. City of Rome, 47 How. Pr. 398; People ex rel. Niagara Falls Power Co. v. Smith, 70 App. Div. 543.) Chapter 513 of the Laws of 1892, chapter 477 of the Laws of 1893 and chapter 968 of the Laws of 1896 did not confer any lawful rights to divert and thus do not exempt defendant from the operation of section 634 of the Conservation Law. (Matter of Niagara Falls Power Co. v. Water Power & Control Comm., 267 N. Y. 265; Illinois Central R. R. Co. v. Illinois, 146 U. S. 387; Coxe v. State, 144 N. Y. 396; Matter of Long Sault Development Co., 212 N. Y. 1; St. Anthony Falls Water Power Co. v. St. Paul Water Comm, 168 U. S. 349.)

      Joseph M. Proskauer, Randall J. LeBoeuf, Jr., Warren Tubbs and J. Alvin Van Bergh for defendant, respondent and appellant.
    The defendant has a corporeal hereditament to divert the waters of the Niagara river, arising as an incident to its riparian ownership and as a result of direct statutory grants. (United Paper Board Co. v. Iroquois Pulp & Paper Co., 226 N. Y. 38; Squaw Island Freight Terminal Co. v. City of Buffalo, 246 App. Div. 472; 273 N. Y. 119; Waterford Electric L., H. & P. Co. v. State, 208 App. Div. 273; 239 N. Y. 629; Danes v. State of New York, 219 N. Y. 67; People ex rel. Niagara Falls Hydraulic Power & Mfg. Co. v. Smith, 70 App. Div. 543; 175 N. Y. 469; Niagara County I. & W. S. Co. v. College Heights L. Co., 111 App. Div. 770; Donnelly v. United States, 228 U. S. 243; Strather v. Lucas, 12 Pet. 410; Sears v. City of Akron, 246 U. S. 242; First Construction Co. v. State, 221 N. Y. 295.)

      Maurice P. Davidson, Charles Poletti, George Stephens Reid, Jesse Freidin and Harvey T. Mann for Power Authority of State of New York, amicus curiæ.

    The State has inalienable sovereign ownership of the waters of the Niagara river. Consequently, such diversion rights as defendant may exercise are subject to the reserve power of the State to regulate and control the use of the ' water in behalf of the public. (United States v. Appalachian Electric Power Co., 311 U. S. 377; Matter of Commissioners of the State Reservation at Niagara, 37 Hun, 537; 102 N. Y. 734; Niagara Falls Power Co. v. Water Power & Control Comm., 267 N. Y. 265; People v. Tibbetts, 19 N. Y. 523; People v. Canal Appraisers, 33 N. Y. 461; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 52; Pike Rapids Power Co. v. Minneapolis, St. Paul & S. S. M. R. Co., 99 Fed. Rep. [2d] 902; Crill v. City of Rome, 47 How. Pr. 398; Shively v. Bowlby, 152 U. S. 1; Lewis Blue Point Oyster Cultivating Co. v. Briggs, 198 N. Y. 287; Smith v. City of Rochester, 92 N. Y. 463; Illinois Central R. R. Co. v. Illinois, 146 U. S. 287.) The legislative acts of 1892 and 1896 were intended to confer upon defendant’s predecessors no diversion rights superior to those of owners of riparian lands at common law. They did not constitute irrevocable grants nor attempt to alienate the State’s sovereign powers. (New York Power & Light Corp. v. State, 230 App. Div. 338; Niagara Falls Power Co. v. Water Power & Control Comm., 267 N. Y. 265; 296 U. S. 609.)
   Per Curiam.

We affirm the judgment below but on the sole ground that defendant is, by the terms of section 634 of the Conservation Law (Cons. Laws, ch. 65), exempted from the licensing requirements of that section, as having some right lawfully and previously acquired,” with the State’s consent, to divert water from the Niagara River for power purposes.

Since the statute itself thus excludes defendant from its coverage, and because the State itself is not a party to this litigation, we make no determination as to the particular nature and extent of defendant’s rights or privileges as acquired from the State or as riparian owner, or as to the effect thereon of the State’s reserved right to control, regulate or license, through appropriate legislation, the diversion of water from the Niagara River at and near Niagara Falls. (See Niagara Falls Power Co. v. Water Power & Control Commission, 267 N. Y. 265.)

The judgment should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.