author: Loughran, J.

text:
    Leland S. Hoyt, Appellant, v. County of Broome, Respondent. John J. Bennett, Jr., Attorney-General, Intervener, Appellant.

      Argued April 21, 1941;
    decided May 22, 1941.

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

      C. L. Chamberlain, County Attorney (Warren M. Anderson of counsel), for respondent.
   Loughran, J.

This case calls upon us to say whether subdivision 1 of section 245 of the Military Law (Cons. Laws, ch. 36) is a constitutional enactment. The provisions thereof are as follows: “ 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. Notwithstanding the provisions of any general, special or local, law or the provisions of any city charter, no such officer or employee shall be subjected by any person whatever directly or indirectly by reason of such absence to any loss or diminution of vacation or holiday privilege or be prejudiced by reason of such absence with reference to promotion or continuance in office or employment or to reappointment to office or to re-employment. During the absence of any such officer or employee, while engaged in the performance of ordered military or naval duty as a member of the national guard or naval militia, or as a member of the reserve corps or force in the federal military, naval or marine service, he shall receive his salary or compensation as such officer or employee, provided the period of such absence in any calendar year does not exceed thirty days. 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.”

The complaint of the plaintiff alleges that between May 10, 1937, and September 1, 1940, he was employed as an investigator in the Department of Public Welfare of the defendant County of Broome at an annual salary of $1,120 payable semi-monthly at the rate of $93.33 per month; that in June, 1938, he was duly commissioned a second lieutenant in the Officers Reserve Corps of the United States Army; that in August, 1940, he was called into the Federal military service for the period from September 1, 1940, to August 31, 1941; that he was thereupon granted a leave of absence from the Department of Public Welfare of the defendant county and entered the Federal military service as a second lieutenant of the United States Army; that pursuant to subdivision 1 of section 245 of the Military Law he duly demanded payment by the defendant county of his salary as investigator in its Department of Public Welfare for the first thirty days of his Federal military service and that this demand was refused. Upon these allegations, the plaintiff asks judgment against the defendant county in the sum of $93.33, with interest from September 1, 1940.

The defendant county moved for judgment dismissing the complaint, asserting that the pleading cannot stand in the face of the following provisions of article VIII of the Constitution of the State: “No county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, ■ or private undertaking * * *.” (§ 1.) “ No county, city, town, village or school district shall contract any indebtedness except for county, city, town, village or school district purposes, respectively.” (§ 2.) (Cf. State Const. art. VII, § 8.) ,

The motion of the defendant county was granted by a judgment which directs “ that the complaint in this action be dismissed on the ground that it appears on the face of the complaint that said complaint fails to state facts sufficient to constitute a cause of action in that the cause of action alleged in said complaint was based on section 245, subdivision 1 of the Military Law of the State of New York, as amended, which said section 245, subdivision 1, of the Military Law, as amended, violates sections 1 and 2 of article VIII of the Constitution of the State of New York, and is therefore unconstitutional.” This judgment is now before us for review upon separate direct appeals taken by the plaintiff and by the Attorney-General pursuant to Civil Practice Act, section 588, subdivision 3. (See. Executive Law [Cons. Laws, ch. 18], § 68.)

The opinion of Special Term was that, “ Federal service is not a State or county purpose ” and that, therefore, the directed payment by the county constitutes a gift.” (175 Misc. Rep. 896, 900, 901.) We think this handling of the challenged statute failed in appreciation of its essential character.

The first thing to be noticed is that we have here no attempt by the Legislature to pledge the credit of the State to the general payment of a reward for past Federal military service. (Cf. People v. Westchester County Nat. Bank, 231 N. Y. 465.) We have here a statute which declared a rule for the future in respect of payment to certain government officers and employees of their salaries during the period of their permitted absence from the public service while engaged in the performance of ordered military or naval duty. The external aspect of the law does not at once bring to mind the foregoing constitutional denials of power to use the resources of the State in furtherance of private enterprise or business.

Indeed the words of the enactment plainly invoked other provisions of the State Constitution which were devised to secure the continuance in the public service of those who should be found competent to discharge the duties' thereof. (State Const. art. V, § 6; Matter of Social Investigator Eligibles Assn. v. Taylor, 268 N. Y. 233, 237.) If the legislative plan has a reasonable relation to the ends served by that constitutional principle, the statute is basically valid, though it may also foster war service to the nation or some other legitimate object which in itself alone would not constitute a State or municipal purpose.

We have held that pensions to municipal officers and employees are not grants of gratuities, but a recognition by the Legislature of an obligation founded upon the fidelity of services rendered for the State through its political subdivisions. (Matter of Wright v. Craig, 202 App. Div. 684; 234 N. Y. 548.) The reasoning on which that conclusion was reached was this: “In its relation to the betterment of the public service, through the incentive offered to faithful devotion to duty, and through the retirement rather than the retention in service at full pay of those servants who have outlived their usefulness, the purpose of granting pensions is a public purpose,’ and as affecting a municipality, ' a city purpose,’ within the definition of these terms as judicially adopted.” (Bischoff, J., in Hammitt v. Gaynor, 144 N. Y. Supp. 123, 126. See, too, Matter of Carr v. Roesch, 231 App. Div. 19; 255 N. Y. 614.)

The theorem espoused in these decisions appears to us to rule the present case. We agree with the Attorney-General that the same fundamental considerations are here involved and justify the challenged statute.

We add a word respecting the argument that the statute carries no guaranty that a capable employee will return to the public service at the end of his ordered military or naval duty: the power committed to the Legislature to regulate conditions of employment in municipal activities does not require that its exercise should be so far on a safe side.

The judgment and order should be reversed and the motion to dismiss the complaint denied, without costs.

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

Judgment and order reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Carrie B. Calkins, Appellant and Respondent, v. John W. Becker, Defendant, and C. E. Rogers et al., Respondents and Appellants.
    Argued April 15, 1941;
    decided May 22, 1941.

      Robert E. Cole for plaintiff, appellant and respondent.

      John W. Hollis for defendants, respondents and appellants.
   Per Curiam.

Special Term found as a fact that there was no delivery whatever of either of the instruments in question by the plaintiff to the defendant Rogers. These findings were affirmed by the Appellate Division. Hence there is no support for that court’s conclusion, That in so far as the twenty acre parcel is concerned plaintiff waived any condition imposed upon delivery of the contract by accepting the proceeds of the check of $324.00 as part of the purchase price after the time for performance of the condition had expired.”

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs to plaintiff-appellant in this court and in the Appellate Division.

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

Judgment accordingly.


text:
    In the Matter of the Accounting of Wirt P. Marks, as Temporary Administrator of the Estate and as Executor of Grace B. Walters, Deceased. Margaret A. Weldon, Appellant; Wirt P. Marks, as Administrator and Executor, et al., Respondents.
    Submitted April 14, 1941;
    decided May 22, 1941.
   Per Curiam.

The power of the court to award costs in all courts and to all parties in proceedings for the construction of a will is well established. (Matter of Rooker, 248 N. Y. 361; Matter of Kennedy, 279 N. Y. 255.) Such a grant of costs does not deprive the Surrogate of discretionary powers granted to him under section 278 of the Surrogate’s Court Act. (Matter of Staiger, 249 N. Y. 229.) Such costs do not include any allowances for counsel fee. That is a matter to be determined by the Surrogate. (Matter of Reimers, 264 N. Y. 62.) Robert E. Walters was not a party to any controversy determined, by decision of the courts below which could be reviewed upon the appeal to this court and was not a proper party to the appeal. The motion to amend the remittitur is granted to the extent that it will provide that no costs are awarded to him.

Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended by providing that no costs are allowed Robert E. Walters.


text:
    Frank Carmine, Respondent, v. Terrence Murphy et al., Individually and as Copartners under the Firm Name of Murphy and McMorrow, Defendants, and Terrence Murphy, Individually and as a Copartner in the Firm of Murphy and McMorrow, Appellant.
    Argued April 7, 1941;
    decided May 29, 1941.

      Irving Bader and Sidney I. Sicker for appellant.

      Harry M. Alfert and Anthony Valenti for respondent.
   Loughran, J.

Plaintiff alleges that he sold and delivered certain alcoholic beverages to the defendants and demands judgment for an unpaid balance of the agreed price and reasonable value thereof. He concedes that no license to traffic in alcoholic beverages was ever issued to him by the State Liquor Authority pursuant to the provisions of the Alcoholic Beverage Control Law (Cons. Laws, ch. 3-B). Whether that fact nullifies his asserted cause of action is the question to be determined.

Section 100 of the Alcoholic Beverage Control Law makes this provision: “No person shall manufacture for sale or sell at wholesale or retail any alcoholic beverage within the state without obtaining the appropriate license therefor required by this chapter.” The statute prescribes six kinds of licenses to traffic in beer; five kinds of licenses to traffic in liquor; and four kinds of licenses to traffic in wines. Its provisions direct that no retail licensee (other than a club or hotel) shall sell any alcoholic beverage on credit and that no licensed wholesaler shall sell any such beverage for purposes of resale to any unlicensed person. (§ 100.) Additional “ prohibitions and restrictions ” relating to licensees are too extended for abridgement here. We think it can hardly be presumed that the Legislature intended that transactions so punctiliously forbidden were to be accompanied by no consequence other than the penal discipline imposed by section 130. (See Miller v. Ammon, 145 U. S. 421, 427.)

But we are not left to spell out the legislative purpose from the context and structure of the statute. (Cf. Fosdick v. Investors Syndicate, 266 N. Y. 130.) The above-mentioned restrictions and regulations are prefaced in section 2 by these telling words: It is hereby declared as the policy of the state that it is necessary to regulate and control the manufacture, sale and distribution within the state of alcoholic beverages for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to law. It is hereby declared that such policy will best be carried out by empowering the liquor authority of the state to determine whether public convenience and advantage will be promoted by the issuance of licenses to traffic in alcoholic beverages, the increase or decrease in the number thereof and the location of premises licensed thereby, subject only to the right of judicial review hereinafter provided for. It is the purpose of this chapter to carry out that policy in the public interest. The restrictions, regulations and provisions contained in this chapter are enacted by the legislature for the protection, health, welfare and safety of the people of the state. * * * ”

In the face of this declaration, we cannot escape the conclusion that the present case is not to be excepted from the general rule of law that no right of action can spring out of an illegal contract. (See Griffith v. Wells, 3 Den. 226; Hunt v. Knickerbocker, 5 Johns. 327; Pratt v. Short, 79 N. Y. 437, 446; American Store Equipment & Construction Corp. v. Dempsey’s Punch Bowl, Inc., 283 N. Y. 601; 6 Williston on The Law of Contracts [Rev. ed.], § 1764. Cf. Rosasco Creameries, Inc., v. Cohen, 276 N. Y. 274, and the cases there cited.)

The orders should be reversed and the motion to dismiss the complaint granted, with costs in all courts. The question certified should be answered in the negative.

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

Orders reversed, etc.


author: Rippey, J.

text:
    Irving Trust Company, as Trustee under the Will of Sarah A. P. Fay, Deceased, et al., Respondents, v. Anahma Realty Corporation, Appellant.

      Argued April 7, 1941;
    decided May 29, 1941.

      Roswell P. C. May, George Levitus and Arthur P. West for appellant.

      C. Murray Kavanagh for respondents.
   Rippey, J.

This action, at law, was commenced on December 7,1938, to recover judgment against the defendant for $8,499.96 and accrued interest on installments due on contract from October 1, 1937, to October 1, 1938. After answer containing denials and setting up various defenses either complete or partial, motion by plaintiffs under rule 113 of the Rules of Civil Practice to strike out the answer and for summary judgment for the plaintiffs for the amount demanded in the complaint was denied at Special Term. Upon appeal, the order was reversed by the Appellate Division, by a divided court, and motion granted. From the judgment entered upon the order of the Appellate Division, defendant appeals to this court.

On June 25, 1926-, plaintiffs’ predecessors were the owners of premises consisting of a four-story building and known as 336 Madison avenue in the city of New York, and defendant was the owner of premises adjoining the property of the plaintiffs on three sides, on which was located a twenty-story building known as the Canadian Pacific Building. On that date predecessors of plaintiffs, to whose rights and obligations plaintiffs have succeeded, and the defendant entered into an agreement whereby defendant was granted certain easements of light and air and certain restrictions were imposed upon plaintiffs’ premises in consideration of the payment by defendant of the sum of $8,500 annually in equal monthly installments until April 30, 1947, with right to extension for two consecutive terms of twenty-one years each on the same basis, subject, however, to certain conditions not here pertinent. The agreement was duly recorded in the office of the Register of the County of New York on July 31, 1926. It was recited in the agreement that it was the intent to grant to defendant, its successors or assigns, an easement of fight and air over said premises 336 Madison Avenue for the benefit of said Canadian Pacific Building and for that purpose to restrict the height of all buildings erected or to be erected on said premises 336 Madison Avenue,” etc. The sixteenth clause of the agreement provides that this agreement and the terms herein are to apply to and bind the successors and assigns of the respective parties hereto. The restrictions hereby imposed are for the benefit of the said Canadian Pacific Building and all successive owners thereof and shall be regarded as appurtenant to said building subject to the obligations hereby imposed and as a real covenant running with the land and binding upon the Lessor and the Lessee and all subsequent owners or persons interested in said premises 336 Madison Avenue for the term of this agreement.”

The fourteenth clause of the agreement provides that it is “ subject and subordinate to all present mortgages now of record affecting said Canadian Pacific Building and to any mortgage which Anahma, its successors and assigns, and any succeeding owner of the said Canadian Pacific Building may hereafter place thereon,” etc. At the time the agreement was executed, there were at least two mortgages on the property. On January 15, 1920, the then owner of the premises known as the Canadian Pacific Building, in order to secure the payment of bonds issued by it, executed and delivered to the Guaranty Trust Company of New York as trustee the mortgage which constituted the second lien upon the premises.

The light and air agreement also provided: “ Twelfth: In case of a bona fide sale, exchange or other disposition of Canadian Pacific Building by Anahma or by any succeeding owner and the assumption of this agreement by the bona fide purchaser or grantee of the said building, the liability of such bona fide purchaser or grantee shall be accepted in place and stead of the liability of Anahma thereafter accruing hereunder, or of a succeeding owner, as the case may be, and Anahma or a succeeding owner, as the case may be, shall automatically be relieved and released of any further liability hereunder from and after such sale and assumption by the bona fide purchaser or grantee.”

It is asserted in the answer and nowhere controverted in the record before us that on February 15, 1933, by a deposit agreement of that date, a bondholders’ committee was duly constituted for the protection of the rights and interests of the holders of the bonds secured by the second mortgage in which it was provided, among other things, that such committee was authorized and empowered to waive or suspend any default in the second mortgage, to consent or agree to any modifications or amendments in any or all of its terms, to consent or agree to the postponement of the payment of any interest thereon, and to instruct the trustee to institute foreclosure or other proceedings or to enter into possession of the Canadian Pacific Building as provided by the terms of the second mortgage; that on July 17, 1933, there had been deposited with such committee bonds in an aggregate face amount in excess of eighty-five per cent of the total issue outstanding and thereby the exercise of the powers and duties of the trustee under the mortgage indenture was wholly directed, limited and controlled by the bondholders’ committee until about April 19, 1938; that the said light and air agreement was acquired for the benefit of the Canadian Pacific Building so that light and air for numerous offices therein facing upon the three sides adjoining plaintiffs’ property through the open space over and above their property might be provided and the offices leased and that those offices would be without light and air and worthless as office space and income therefrom diminished unless the benefits granted in that agreement were preserved; that various leases with tenants of said Canadian Pacific Building contained provisions that in the event that changes were made to the building on plaintiffs’ premises of such a nature as to cut off the light and air therefrom, the tenants should have a right to terminate their respective leases; that the benefits granted and secured with said light and air agreement could be used and enjoyed only by persons who held the title and were in possession of the said building. It further appears that the bondholders’ committee and the holders of other mortgage liens in conjunction with other lienors and by the consent of the defendant held possession of the said building from July 17, 1933, to July 1, 1936, collected all income therefrom and paid the plaintiffs, as one of the operating expenses of the building, the installments due plaintiffs under the light and air agreement as they accrued, whereby the benefits of the agreement to the building were preserved.

Defendant further alleges without contradiction that the bondholders’ committee effected on July 20, 1936, the substitution of the Colonial Trust Company as successor trustee under the trust agreement and directed said successor trustee to commence an action for the foreclosure of the second mortgage, which action was commenced on September 11, 1936, and instructed the trustee to refrain from cutting off, barring or foreclosing the light and air agreement and that the trustee acted in accordance with their direction, the result of which was the preservation of the rights and benefits under the light and air agreement to the trustee, to the holders of the second mortgage bonds and to any subsequent purchaser of the property. It is alleged by defendant that the property was sold on foreclosure on February 23, 1938, to the bondholders’ committee, subject to the provisions of the light and air agreement, and that such committee, when so purchasing the property, and the Fifth Madison Corporation, which was organized and created by said committee to take title thereto, had full knowledge of the existence of the agreement and that any sums remaining unpaid thereunder were a charge upon the premises and that no benefit had been derived by the defendant from such agreement since July 17, 1933, and never could be enjoyed by it but only by the person having title and possession of the premises for whose benefit it was executed and delivered. In the foreclosure action a receiver was appointed who collected, during the pendency of the action, all income of the property and paid all operating expenses thereof and it is alleged that none of the installments due under the light and air agreement subsequent to July, 1933, were paid by this defendant but on the contrary, were paid voluntarily either by the mortgagees, the bondholders’ committee, or by the receiver until the commencement of the action on October 5, 1937, by plaintiffs against defendant and one Parkinson as receiver of rents and profits of the premises in foreclosure to recover installments due under the agreement for the period from October 1, 1936, to October 1, 1937. In the last mentioned action, judgment was entered against defendant for the installments due dining that period on the theory that it was still the owner of the property and still held the title since there had been no sale and was still liable on the contract (281 N. Y. 798). The receiver was relieved from payment over to the defendant by a holding that the installments were not items of “ operating expense.”

The plaintiffs insist that all questions involved in the present action were necessarily adjudicated in their favor in that case. It has been held by the Appellate Division that the right of plaintiffs to recover from defendant for installments due up to the time of the sale of the property only was conclusively established under the decision in that action. We need not consider that question since appellant in its brief asserts that it “ accepts the determination of the court below as to its liability for payments accrued prior to the foreclosure sale, and confines its argument to the question of its liability for payments subsequently accrued ” and requests, upon this appeal, only that “ the judgment and order appealed from should be reversed in so far as they grant summary judgment for the payments accrued subsequent to February 23, 1938, the date of sale.” The allegations of the answer to which reference has been made together with other allegations thereof present questions of fact which may not be determined on a motion for summary judgment. The defendant through its answer by facts therein adequately and fully alleged seeks to maintain that the purchaser on .the foreclosure sale assumed the payment of the charges then due and thereafter to become due under the light and air agreement and that by virtue of the foreclosure proceedings, the taking and retention of possession and income from the property by the bondholders’ committee and later by the receiver and by the purchaser through the transfer of title, defendant was automatically relieved from the payment of any sums claimed to be due by the plaintiffs in this action under the terms of the light and air agreement.

The covenant to pay cannot be construed without reference to other provisions of the agreement. When the agreement is considered as a whole, that covenant may be qualified by other language used (Belmont v. Coman, 22 N. Y. 438). None of the provisions may be deemed to be wholly meaningless (McCarter v. Crawford, 245 N. Y. 43). Construction must follow in the light of the intention, position and changed position of the parties after a full disclosure of all the facts and circumstances which may have a bearing thereon. A determination in favor of the plaintiffs in this action might hold the defendant to a continuing liability, at least until April 30, 1947, and perhaps for forty-two years thereafter, for a period during which it neither has title to the Canadian Pacific Building nor may participate in any of the benefits to be derived from it or from the; agreement while the purchaser on foreclosure and its successors, upon compliance with the conditions mentioned in the agreement, will continue during the whole period to enjoy all of the benefits thereof. Unless necessary, construction should not be indulged which will produce such harsh results. The plaintiffs were not made parties in the second mortgage foreclosure action and the agreement, it is said, was not cut off but, on the contrary, was specifically saved. Depending upon the question of the intention of the parties and other circumstances suggested by the pleadings, it may be held that the grantee in the foreclosure proceedings became liable for the payments of installments due and to become due (Neponsit Property Owners Assn. v. Emigrant Industrial Sav. Bank, 278 N. Y. 248) and that the fight and air agreement was ah easement appurtenant to the Canadian Pacific Building and incapable of being separated therefrom and as a result would pass to the purchaser upon the sale together with the right to any remedy for any invasion thereof and subject to any liability arising thereunder (Pardee v. Steward, 37 Hun, 259; Clark v. Devoe, 124 N. Y. 120; Foote v. Metropolitan Elevated Ry. Co., 147 N. Y. 367, 374; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 291; Greenfarb v. R. S. K. Realty Corp., 256 N. Y. 130). An election was made by plaintiffs after foreclosure to continue the agreement as between themselves and the purchaser. The circumstances of such election may be such that plaintiffs may not be permitted to continue the agreement without looking to the party who has its benefits for payment of the installments which they seek (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 291). Determination of the issues in the present action depends, in part at least, upon events which occurred subsequent to the commencement of the prior action (281 N. Y. 798) and upon facts pleaded extrinsic of the written contract. Different questions of fact are tendered for decision. Whatever otherwise may be urged as to the finality of the determination in the prior action, it could not be held, in any event, that anything was finally adjudicated between the parties here involved concerning their rights and obligations accruing during the period subsequent to the sale of the premises.

Upon various issues presented by the pleadings in the present action we make no decision since we are convinced that the record does not present a case for summary judgment in whole or in part and that all the issues properly raised by the pleadings should be presented to a trial court.

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

Loughean, Finch, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., taking no part.

Judgment accordingly.


author: Finch, J.

text:
    David J. Breen et al., Respondents, v. Mortgage Commission of the State of New York et al., Appellants, Impleaded with Another.

      Argued April 8, 1941;
    decided May 29, 1941.

      Lewis F. X. Cotignola, Jess H. Rosenberg and Edward F. Keenan for appellants.

      John Holley Clark, Jr., for respondents.
   Finch, J.

This is a representative action brought by two mortgage certificate holders on behalf of all of the holders of certificates of participation in a certain bond and mortgage of $1,400,000 on improved realty. The complaint contains two alleged causes of action, one against the Mortgage Commission of the State of New York and its wholly owned subsidiary, The Mortgage Commission Servicing Corporation, and the other against a private corporation, The Mortgage Corporation of New York. Upon motion made by the Mortgage Commission and by its subsidiary, Special Term granted judgment dismissing the complaint as to them, but the Appellate Division reversed and denied the motion. The Mortgage Corporation of New York did not join in the motion to dismiss the complaint, and this appeal concerns only the first cause of action alleged in the complaint which is directed solely against the Commission and its subsidiary corporation. The questions certified to this court are: (1) whether the Supreme Court of this State has jurisdiction over the moving defendants, i. e., the Commission and its subsidiary; (2) whether the Supreme Court has jurisdiction over the subject matter of the action; and (3) whether the complaint alleges facts sufficient to constitute a cause of action against the Commission and its subsidiary.

Plaintiffs charge that certain acts and omissions on the part of the Mortgage Commission and of its subsidiary constitute a breach of their fiduciary obligations to certificate holders and that, therefore, the Commission and its subsidiary are liable for the damage caused. The complaint was dismissed by Special Term on the ground that the action, if maintainable at all, may be brought only in the Court of Claims. (Court of Claims Act, §§ 8, 9; Laws of 1939, ch. 860.) The problem, therefore, is to determine who is the real defendant in the case at bar. If the real defendant is the State, then, of course, it may be sued only as it has consented to be sued, to wit, in the Court of Claims. (Adler, Inc., v. Noyes, 285 N. Y. 34.) In many of these cases the problem presented for determination is whether the action is against an agency of the State, or whether it is against a public official in his personal capacity. In the latter event, the action may be brought in any court of original jurisdiction where it can be maintained against the public official as a private person, whereas if the action is brought against the public agent in his. official status, the claim is in fact against the State and may be maintained only in accordance with the consent of the State, i. e., in the Court of Claims. (Pauchogue Land Corp. v. Long Island State Park Commission, 243 N. Y. 15.) In the case at bar plaintiffs make no attempt to name the members of the Commission as parties defendant. On the contrary, except as to the second alleged cause of action against a private corporation, with which we are not now concerned, the defendants named in the complaint are only the Commission itself and its subsidiary corporation. It is necessary to determine, therefore, the relationship between the Commission and its subsidiary on the one hand and the State on the other. The Commission was created by an act of the Legislature in the following language: “An agency, to be known as mortgage commission of the state of New York * * * is hereby created. Such commission shall be a body corporate and politic.” (Mortgage Commission Act, L. 1935, ch. 19, § 2.)

The foregoing language leaves no room for doubt as to the status of the Commission as a mere agency of the State, created in the exercise of its police power to meet the public emergency existing with respect to certificated mortgages. The expenses of the Commission are to be met out of a revolving fund appropriated by the Legislature. (Mortgage Commission ACL as amd. L. 1935, ch. 290, §§ 24, 26.) The moneys constituting the fund may be paid out by the State Comptroller only for the “ lawful purposes ” of the Commission, and only upon duly audited claims. (§ 26.) These moneys are used for the benefit of the people of the State and for the purpose of carrying out the governmental functions of the Commission. The moneys are the property of the State and until expended remain public moneys. (Matter of People [Westchester Title & Trust Co.], 268 N. Y. 432, 443.) The Commission has no property of its own which it holds other than as agent of the State, and to permit a judgment against the Commission to be placed in the hands of the Sheriff for execution would permit him to levy upon and seize the property of the State. It is plain that a judgment obtained against the Commission would be against the State, since the Commission is only an agent of the State, different in no material respect from other commissions, all of which have been identified with the State (e. g., Pauchogue Land Corp. v. Long Island State Park Commission, supra). Therefore, unless some special ■ circumstance exists which would take the case at bar out of the general rule, it follows that the action against the Commission could not be maintained except in accordance with the consent of the State as given in the Court of Claims Act.

Plaintiffs-respondents urge, however, that a different principle is applicable here, on the ground that there has been a waiver of immunity to suit on the part of the State by reason of the provision in the Mortgage Commission Act empowering the Commission to sue and be sued.” (§4, subd. 1.) From the fact that the Legislature has granted to the Commission the right to sue and has granted to certificate holders and others the right to sue the Commission in proper cases, it does not follow that the State has consented to be sued for a claim against it in the Supreme Court of the State rather than in the Court of Claims. Statutes in derogation of the sovereign immunity of the State to suit are strictly construed. (Smith v. State, 227 N. Y. 405, 410.) In providing that the Commission might sue and be sued there was opened to the Commission and others a forum other than the Court of Claims for the determination of various claims arising out of the administration of the certificated mortgages. Since the Commission is a State agency, no forum except the Court of Claims might otherwise have been open for actions involving the Commission. And the Court of Claims would not have been in a position to afford relief, for its jurisdiction is restricted to judgments sought to be obtained against the State (Court of Claims Act, § 9), and the litigation in which the Commission might be involved as a necessary part of the administration of the certificated mortgages generally would not involve questions of liability on the part of the State. Thus, there might have resulted a situation in which no court would have been open for such litigation, and the very purposes for which the Commission was created might have been frustrated. In the light of the foregoing, the inclusion of the “ sue and be sued ” clause did not amount to a consent on the part of the State to be subjected to a judgment obtained in an action brought in any court other than the Court of Claims. So extraordinary a consequence may not be held to have been intended by the Legislature when otherwise the language used is satisfied in the light of the problem stated above. It follows that the vesting in the Commission of the power to sue and be sued ” in connection with the administration of certificated mortgages does not amount to a consent by the State to answer elsewhere than in the Court of Claims a charge of liability for the alleged misconduct of the Commission in the administration of certificated mortgages.

PlaintiEs-respondents also urge that the determining factor is the fact that the action at bar is upon a claim in contract for breach of fiduciary obligations rather than against the State for the torts of its agents. Defendants-appellants, on the other hand, urge the converse of that proposition. This dispute as to whether the suit is in contract or in tort is irrelevant, for in either event the liability sought to be imposed is a liability on the part of the State. L-The essential question is whether the State has consented to a determination of its liability in the manner chosen by plaintiffs^} The State has not so consented. Whether the action is in contract or in tort may be of some consequence in determining the question of substantive law as to whether the State is liable for the acts of its agents: that question cannot be reached until it is first determined that the State has consented to be sued in the forum elected by the claimant. (Smith v. State, 227 N. Y. 405.) It is the latter question which is involved in the case at bar, for regardless of whether the liability be deemed in contract or tort, the State has not consented to have its liability determined outside of the Court of Claims. It follows that the Supreme Court had no jurisdiction to entertain the action against agents of the State.

The subsidiary corporation was organized pursuant to the authority of the Commission “ to organize a subsidiary corporation or corporations wholly owned and controlled by it and with trust powers only * * (Laws of 1935, ch. 19, § 4, ¶ 19.) So far as the case at bar is concerned, there is no difference between the status of the wholly owned

and wholly controlled subsidiary corporation and that of the Commission itself. (Cf. Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. .381.)

Attention may also be called to the fact that the action is now being prosecuted against two entities which no longer exist. The existence of both the Commission and of its subsidiary corporation has been terminated and their functions transferred to the Superintendent of Insurance. (Laws of 1939, ch. 944.)

The order of the Appellate Division should be reversed and the judgment of the Special_Term affirmed, without coáts. The first certified question should be answered in the negative. The remaining questions need not be answered.

Lottghran, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., taking no part.

Ordered accordingly.


author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Gabriel Bartelini, Appellant.
    Argued April 18, 1941;
    decided May 29, 1941.

      Abraham J. Gellinoff, Francis D. Saitta, Sylvester Cosentino and Dennis K. Keller for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld of counsel), for respondent.
   Lewis, J.

In the early morning of October 30, 1930, Frank LaScala was shot while standing at the corner of Lenox avenue and One Hundred and Twenty-first street in New York city. He died from bullet wounds six hours later. More than nine years thereafter the present defendant, Gabriel Bartelini, was indicted for the homicide and was convicted in the Court of General Sessions of murder in the first degree. Upon this appeal by the defendant the District Attorney, with commendable frankness, concedes that, without proof of dying declarations by the decedent, there could have been no judgment of conviction. Accordingly, our inquiry goes to the question whether the proof of dying declarations, when considered with relevant evidence, was sufficient to support the jury’s finding of defendant’s guilt beyond a reasonable doubt. ■'

Reference should be made at the outset to the testimony of the People’s witness, Arthur Donaldson, who was the only eye witness to the homicide. Shortly after midnight on October 30, 1930, Donaldson was walking southward on the west side of Lenox avenue. As he reached the northwest corner of Lenox avenue and One Hundred and Twenty-first street he saw across the street on the southwest corner a man facing westerly beckoning to someone in a candy store to come out. Immediately there emerged from the store a man who proved to be the decedent, Frank LaScala. He advanced to within eight feet of the man who had beckoned to him, when suddenly the latter fired two shots at LaScala and then ran to an automobile which was parked on One Hundred and Twenty-first street. As the assailant mounted the running board the car moved westerly toward Seventh avenue and disappeared.

At this point the fact should be stated that although Donaldson had seen the face of the man who fired the shots and fled, and although he was able to describe the assailant as a man of dark complexion, thin and of a height about five and one-half feet, he was not able, when called as a witness upon the trial, to point out the assailant, although we assume the defendant was present before him.

Continuing with Donaldson’s testimony, when he heard the two reports and saw two flashes at the instant of the shooting, he hastened to the store where he found LaScala slumped down behind a counter bleeding profusely and in physical distress. Recognizing that his condition was grave, Donaldson, aided by the witness Hillick, a police officer, and by Mamikoff, a taxicab driver, rushed the victim to Harlem Hospital where he arrived at about twelve-thirty a. m. and was at once placed upon an operating table in the emergency room. There his first dying declaration was made which is presently to be considered.

Another of the People’s witnesses, Irving Bosenthal, a taxicab driver, at the time of the murder was “ cruising ” in his cab northward on Lenox avenue. As he approached One Hundred and Twenty-first street he heard a report “ like a gun shot ” and turned “ to where the report was coming from.” As he did so he saw a man, ten feet from the southwest corner of Lenox avenue and One Hundred and Twenty-first street, running northward to the curb where he entered the driver’s seat of a Ford sedan and the car moved away. Bosenthal did not see the face of the man who ran from the scene of the shooting.

In the testimony of each of these two men is the important item of proof that when the decedent came out from the store only one other person was there — the man who had beckoned to him — and that it was that one man alone who fled from the scene to the parked car.

From this narrative given by the only witnesses who were near the scene of the crime when it occurred, we pass to a consideration of the evidence by which the decedent’s dying declarations were proved. Upon this branch of the People’s evidence the defendant’s challenge places emphasis upon vital inconsistencies between testimony received at the trial of the present case in November, 1940, and the sworn testimony upon the same subject and by the same witness given nearly ten years before — in 1930 — at a hearing before a magistrate. As the inconsistencies relate themselves to proof essential to the People’s case, the testimony will be set forth at some length.

The first dying declaration made by the decedent and received in evidence was given in response to questions addressed to him by the People’s witness O’Connor, a detective, who was assigned to investigate the case on the night of the murder. O’Connor arrived at the hospital at about twelve-forty-five a. m. and first questioned the decedent while the latter was lying upon the operating table in the emergency room: “ Q. What was the first question you asked of the injured man lying on the table? * * * A. I asked the injured man did he feel that he was going to die from the injuries he received. Q. What was the answer, if any, which he made to you? A. He says, 1 Don’t you see I am going out? I feel rotten.’ Q. Did you ask him a question after that? A. I said to him, What do you mean by going out? ” ’ Q. Did he answer that question? A. He says, ‘ I mean I am going to die.’ * * * Don’t you see the blood on my mouth and clothing? ’ * * * Q. What was the next question you asked of this injured man? * * * A. Now, when I said to him, Now, you are shot and somebody shot you. Why don’t you tell me who shot you and I can help you out? ’ * * * Q. Will you tell us what bis answer was? A. He said, Maxie, the Weasel, and Bobby shot me.’ * * * Q. Did you ask him any further questions after that? A. I did. I asked him did he mean ‘ The Weasel ’ from Harlem, and he says — he described The Weasel ’ to me, and I said to him, Who is Bobby? Do you know his last name? ’ He said ‘ Bobby Bartelini.’ * * * I asked him why did they shoot him, and he said he was away, and when he got out he went around looking for Bobby, who was a friend of his; and he went asking questions about Bobby, where he was, and he went talking about Bobby to other people, and Bobby never did send him anything to prison when he was in prison, and he was asking about that. Q. Now, after the answers made by this injured man — I am repeating the question, Mr. O’Connor — in which he told you in substance that a person called ' The Weasel ’ and Bobby Bartelini had shot him, will you tell us what further questions you asked of him with reference to the shooting and what answers were made? A. I asked him how did it happen. He said he was in a candy store on 121st Street and Lenox Avenue, when Bobby come — a girl come to the store, come to the door, and asked him that somebody wanted him outside. * * * When he went to the door, he opened the door and looked out, and saw Bobby and ‘ The Weasel,’ and Bobby called him outside the store, and when he walked — took a few steps outside the door, Bobby shot him.”

Following this declaration the decedent was removed from the emergency room to an X-ray room and thence to a bed in a ward where at one-thirty a. m. Detective O’Connor again questioned him. This latter declaration, however, was excluded upon the ground that the decedent had indicated he did not then believe he was about to die.

During the cross-examination of the witness O’Connor there was received in evidence a transcript of testimony given by O’Connor at a hearing in the- Homicide Division of City Magistrates’ Court, Borough of Manhattan, on December 12, 1930. The hearing involved Maxie Lowenstein, known as The Weasel,” who was charged with having killed the decedent LaScala. From the transcript of testimony thus introduced in the present record it appears that O’Connor had testified in 1930 that on the night of the homicide he had questioned the decedent in the emergency room at the hospital at twelve-thirty a. m. At that time he had asked the decedent, “ Do you believe you are going to die? ”— to which the decedent replied, No, not now.” That statement, made by O’Connor under oath and only six weeks after the dying declaration was made, varied on a vital point, as we shall see, from the sworn statement by the same witness, quoted above, made nearly ten years later on the trial the record of which we now review. If O’Connor’s testimony given in 1930 was to be believed, viz., that at the time the decedent made the declaration in the emergency room of the hospital at twelve-thirty a. m. he did not believe he was about to die, it follows that the decedent’s first dying declaration was not admissible as such.

O’Connor’s explanation of the conceded inconsistency in his two statements is that in his testimony before the magistrate in 1930 he was referring to the decedent’s declaration given at one-thirty a. m., the hour of which he mistakenly gave as twelve-thirty a. m. If that explanation is to be accepted it creates an added inconsistency because in 1940 he testified that the questioning at one-thirty a. m. was conducted by him after the decedent had been removed to a ward bed; in 1930 he testified that he questioned the decedent at twelve-thirty A. m. while he was on an operating table in the emergency room.

Evidence was also received of a dying declaration made by the decedent to bis father, the witness Pietro LaScala, who arrived at the hospital at about two a. m. and went directly to the bedside of his son. He was asked: Q. Did you, after you first came to the bedside where your son Frank was lying, ask him what was the matter? * * * A. Yes. * * * Q. What was his answer? A. (In English) He says, Papa, I die.’ Q. Did you ask him any question after that? A. I said, ‘ What happened? ’ Q. And did he answer that? A. He said, ‘ I got shot.’ Q. Did you ask him any other questions? * * * A. I said, Who shot you? ’ He said, ‘ Bobby.’ Q. Now, did he say anything about another person besides a. Bobby? A. (In English) He says another fellow, but I don’t remember the name. Q. Did you ask him any other questions as to how he came to be shot? * * * A. He said he was at 121st Street and Lenox Avenue by a candy store, and a girl went over to call him, saying that ‘ Somebody wanted to speak to you.’ Q. What else did your son Frank tell you? A. He went outside and he recognized a Bobby, and before he spoke to him he shot him.”

Among exceptions to the conventional rule which prohibits the receipt in evidence of hearsay statements is the rule which governs the admission of dying declarations. Here the general rule yields to the exception as a matter of public necessity in aid of the administration of criminal law in the punishment of the guilty and the protection of the innocent. If we look for the basis upon which rests this exception, we find it in the assumption, born of experience, that the approach of death produces a state of mind in which the utterances of the dying person are to be taken as free of ordinary motives to mis-state. * * * The situation supplies a circumstantial probability of accuracy equivalent to that of the tests of oath and cross-examination.” (See 5 Wigmore on Evidence [3d ed.], § 1438, p. 230 et seq. and collated cases.) The fact that the exception has as its basis only the assumption mentioned above, and the further fact that the declarant is unsworn and free from harassment by cross-examination, prompted the statement made on behalf of this court that “ Dying declarations are dangerous, because made with no fear of prosecution for perjury and without the test of cross-examination, which is the best method known to bring out the full and exact truth.” (People v. Falletto, 202 N. Y. 494, 499.) It is for those salutary reasons that extreme caution is required of the trial court before a dying declaration is received in evidence — the fundamental requirement being that “ preliminary to the admission of such evidence * * * there must be clear proof of the certainty of speedy death, and that the declarant had no hope of recovery.” (People v. Falletto, 202 N. Y. 494, 500; People v. Smith, 104 N. Y. 491, 493, 495; People v. Kraft, 148 N. Y. 631, 635; People v. DelVermo, 192 N. Y. 470, 487, 488; People v. Sarzano, 212 N. Y. 231, 234; People v. Ludkowitz, 266 N. Y. 233, 238, 243.)

The admissibility of dying declarations does not depend upon any particular form of expression. “ There is no unyielding ritual of words to be spoken by the dying.” (Shepard v. United States, 290 U. S. 96, 100.) If, however, it appears that the declarant “ had any expectation or hope of recovery, however slight it may have been, and though death ensued in an hour afterwards, the declarations are inadmissible.” (Commonwealth v. Roberts, 108 Mass. 296, 301; and see 1 Greenleaf on the Law of Evidence [15th ed.], § 158.) 11 The declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him, that the speaker is giving expression to suspicion or conjecture, and not to known facts.” (Shepard v. United States, supra, p. 101.)

These rules — the product of long experience by the courts — make it clear how important is the requirement that a dying declaration becomes competent as evidence only in the event there is clear proof that the declarant was conscious of impending death and had abandoned all hope of living. In the record at hand the assurance that such requirement was fulfilled is shaken by a conceded conflict in the testimony given by Detective O’Connor upon whose statement alone reliance must be placed to determine whether on the night of the homicide the declaration by the decedent in the hospital emergency room at twelve-thirty a. m. was made when he was in extremis and had abandoned hope of living. Six weeks after the declaration was made O’Connor had testified under oath that at that hour and place he asked the decedent, “ Do you believe you are going to die? ” To that question the decedent answered, No, not now.” Nearly ten years after the declaration was made the same witness testified upon the present trial that, at the same hour and place, viz., at twelve-thirty A. m. in the hospital emergency room, he asked the decedent did he feel that he was going to die from the injuries he received ” and that the decedent then said, “ Don’t you see I am going out? I feel rotten. * * * I mean I am going to die.”

Both of these recitals of what was said by the decedent at a given time and place cannot be true. Upon the present record the inconsistency of these two statements of what was said by the decedent is not reconciled. Doubt is thus cast upon their admissibility. However, we have reached the conclusion that the preliminary testimony was sufficient to warrant the admission in evidence of O’Connor’s recital of the dying declaration made by the decedent at twelve-thirty a. m. on October 30, 1930. But the evidentiary value of the declaration itself is weakened by the fact that at one point in his statement the decedent said, Maxie, the Weasel, and Bobby shot me.” As bearing upon the accuracy of that statement we have seen that, according to undisputed evidence by the only two witnesses who were near the scene of the homicide, only one man confronted the decedent as he emerged from the store and that it was that one man — unidentified upon the trial — from whose hand the flash of gun fire was seen.

Likewise, but with even greater doubt, we conclude that the second dying declaration, which was made by the decedent to his father and was prefaced only by the decedent’s statement, Papa, I die,” was properly received in evidence. Without discussing the evidence in detail, it may be said that the convincing qualities of this second declaration were also weak when considered in the setting of circumstances disclosed by the record. In that connection it will be remembered that in his statement to his father, as in his prior declaration to O’Connor, the decedent, after naming the defendant as his assailant, mentioned “ another fellow but I don’t remember his name.”

It is thus made clear that the judgment of conviction rests upon two dying declarations which, as accusatory statements, are not only of doubtful admissibility but are neither clear nor satisfactory.

With this state of the record in mind we reach a consideration of a ruling which we regard as erroneous and which so prejudiced the defendant’s rights as to require a new trial in the interest of justice. At the close of the charge to the jury counsel for the defendant made the following request: I ask your Honor to charge that the dying declaration, when admitted into evidence, is not to be regarded as having the same value and weight as the testimony of a witness given in open court, under the sanction of an oath and under the tests and safeguards which are there provided.” In response to that request the trial judge ruled: “ The Court: I decline to charge in the language requested. I think I have covered that subject in my charge to the jury, and I think they understand it.”

Wb believe the language of the request to be a precise statement of the rule relating to the weight which sh;uld be given to a dying declaration. Indeed, the request appears to have been framed in the language of Vann, J., writing for this court in People v. Falletto (supra, p. 498). It is true that the trial judge had made brief reference in his charge to dying declarations and the care with which they should be considered. We do not think, however, that he had covered the subject,” as his ruling suggests. (See People v. Ludkowitz, supra, pp. 242, 243; People v. Kraft, 148 N. Y. 631, 635.) In any event we cannot say, in this case, where a judgment of conviction of murder in the first degree rests upon two dying declarations of doubtful admissibility and weak probative value, that the ruling last mentioned above did not prejudice the defendant’s rights.

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

Finch, Conway and Desmond, JJ., concur with Lewis, J.; Lehman, Ch. J., Loughran and Rippey, JJ., concur in result.

Judgment of conviction reversed, etc.


author: Desmond, J.

text:
    In the Matter of the Claim of Mildred M. Leahy, Respondent, against The City of New York, Appellant. State Industrial Board, Respondent.

      Argued April 8, 1941;
    decided May 29, 1941.

      William C. Chanler, Corporation Counsel (James Hall Prothero, Paxton Blair and Samuel A. Bloom of counsel), for appellant.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for State Industrial Board, respondent.
   Desmond, J.

Claimant-respondent has been awarded workmen’s compensation benefits for an injury sustained by her while working for defendant-appellant, the City of New York. Claimant was engaged as a telephone operator and receptionist in one of the offices of the city’s Board of Water Supply. Her work in itself was not one of the hazardous employments listed in the Workmen’s Compensation Law (Cons. Laws, ch. 67). The Industrial Board found, however, that the Board of Water Supply of the City of New York operates waterworks, a hazardous employment (Workmen’s Compensation Law, § 3, subd. 1, group 7), and that the work of claimant was “ incidental ” thereto. These findings of fact are supported by testimony.

The city contends that the Workmen’s Compensation Law covers only those municipal employees actually engaged in hazardous employments and not those whose work is found to be incidental to such an employment

Section 3, subdivision 1, of the Workmen’s Compensation Law lists the hazardous employments in which compensation for injuries and deaths shall be payable. The first fifteen groups are lists of specific employments, including “ Operation of Waterworks.” Group 16 covers all employments by the State of New York. Then comes Group 17. Any employment enumerated in the foregoing groups and carried on by a municipal corporation or other subdivision of the state, notwithstanding the definition of the term ' employment ’ in subdivision five of section two of this chapter.” (The reference to subdivision 6 of section 2 was necessary to exclude the requirement that the employer’s business or occupation had to be carried on by him “ for pecuniary gain.”)

If the employer here were a private corporation operating a waterworks the claim would unquestionably come within the provisions of the Workmen’s Compensation Law. Whatever doubt existed as to this before 1916 was resolved by the amendment in that year of section 2, subdivision 4, of the law (see L. 1916, ch. 622) to include not only claims of employees actually engaged in hazardous work for an employer but also the claims of all the employees in the service of an employer whose principal business was that of conducting a hazardous employment. (Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401.)

We are of the opinion that group- 17 of section 3 of the Workmen’s Compensation Law makes the coverage of municipal employments co-extensive with that of the private employments covered by the law. Since private employees engaged in work in connection with hazardous employments are within the scope of the law, municipal employees similarly engaged are also entitled to benefits under the law. Here it has been found as fact that claimant was doing work incidental to a hazardous employment. In view of the testimony in the record to that effect, we cannot say as matter of law that claimant was not so engaged.

Appellant maintains that the Industrial Board and the Appellate Division could not have arrived at the conclusion which they reached without resorting to Group 18 ” and that group 18 is never applicable to municipal employments, citing Matter of Stoerzer v. City of New York (267 N. Y. 339) and Matter of Hayes v. City of New York (280 N. Y. 743). The decisions below in this case, however, make no mention of group 18. Further, when the language and purpose of group 18 are considered the reason for the omission is apparent. Group 18 sets up an entirely new class of hazardous employments. The pertinent language of that group is as follows: all other employments * * * notwithstanding the definition of employment in subdivision five of section two, not hereinbefore enumerated, carried on by any person, firm or corporation in which there are engaged or employed four or more workmen or operatives regularly * * The purpose of adding this new group (L. 1918, ch. 634 [then group 45 of § 2]) was to remedy the evil which then existed in that the employments theretofore listed did not include all hazardous employments. (Matter of Stoerzer v. City of New York, supra.) The Stoerzer case (p. 343) merely holds that if a municipal employee would not have been entitled to benefits under the Workmen’s Compensation Law before group 18 was added, “ the remedy [of group 18] should not be construed to be applicable to municipal employees in the absence of language clearly bringing them within its scope.” Matter of Hayes v. City of New York (256 App. Div. 111; affd., 280 N. Y. 743) holds nothing to the contrary. In that case claimant was a city-employed inspector of markets. Her work for the city required her to be at the market but she was not a market worker within the meaning of group 14, section 3, subdivision 1, of the Workmen’s Compensation Law, nor was her work incidental to that of any city employees who were doing market work. In the present case, claimant would have been entitled to workmen’s compensation benefits had group 18 never been added. Her claim to benefits rests on group 17 and group 7 as construed in Matter of Dose v. Moehle Lithographic Co. (supra). The Stoerzer case (supra), which construed group 18, and Matter of Hayes (supra) are, therefore, not in point.

The order should be affirmed, with costs.

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

Order affirmed.


text:
    Beverly J. Reynolds, Respondent, v. Eagle Pencil Company, Appellant.
    Argued April 10, 1941;
    decided May 29, 1941.

      David N. Aberman, Melvin Kleeblatt and Samuel Blumberg for appellant.

      Philip Handelman for respondent.
   Lewis, J.

The plaintiff demands judgment for the amount of a reward offered by the defendant for information leading to the arrest and conviction of any person responsible for an assault committed upon the plaintiff himself and upon another person named in the offer. The defendant, by its answer, admits that it offered the reward but denies an allegation in the plaintiff’s complaint that in giving information which led to the arrest and conviction of his assailants he acted upon defendant’s offer.

This issue of fact, among others tendered by the pleadings, was tried without a jury in Municipal Court of the City of New York, where it was resolved favorably to the defendant and the complaint was dismissed upon the merits. An order of affirmance by the Appellate Term followed. Upon appeal therefrom the Appellate Division reversed, one justice dissenting, and directed judgment for the plaintiff for the relief demanded in the complaint, without stating in its order whether its reversal was upon the law or the facts, or both. In view of the circumstance last mentioned we are required by statute (Civ. Prac. Act, §§ 602, 620) to treat the reversal by the Appellate Division as being upon the law. Accordingly there arises the implication that the Appellate Division has examined the facts as determined by Municipal Court and affirmed by the Appellate Term, and is satisfied therewith. (Larkin v. New York Tel. Co., 220 N. Y. 27, 33; Gang v. Gang, 253 N. Y. 356, 358.)

We are thus constrained to determine plaintiff’s legal right to the reward in suit upon a basis which includes the fact that in giving information which led to the arrest and conviction of his assailants the plaintiff did not act upon the defendant’s offer. That fact defeats the plaintiff’s legal right to the reward. It eliminates an element which is essential to a contract of the type here involved, as to which it has been said, “ * * * there must be mutual assent, or * * * offer and consent to the offer. The motive inducing consent may be immaterial, but the consent is vital. Without that there is no contract.” (Fitch v. Snedaker, 38 N. Y. 248, 251.)

There being some evidence upon which the trier of the facts could find that the plaintiff did not manifest an intention to accept the defendant’s offer of an award (See 1 Williston on Contracts [Rev. ed.], § 66, p. 190; Williams v. West Chicago St. R. R. Co., 191 Ill. 610, 618, 620); and by reason of the form in which the record comes to us for review, we affirm the judgment of the trial court. (Karl v. State of New York, 279 N. Y., 555, 559; and see Cohen, “ Powers of New York Court of Appeals,” § 164, pp. 440, 441.)

The judgment of the Appellate Division should be reversed and the judgments of the Appellate Term and of the Municipal Court affirmed, with costs in this court and in the Appellate Division.

Loughban, Finch, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Rippey, J., taking no part.

Judgment accordingly.


text:
    Michael J. Bakopoulos et al., Appellants, v. Bank of Athens Trust Company et al., Respondents.
    Argued April 9, 1941;
    decided May 29, 1941.

      Jacob J. Lesser and H. Lesser for appellants.

      Alexander D. Diamond and Charles E. Elbert for respondents.
   Finch, J.

The question in the case at bar is whether the plaintiffs are entitled to a trial by jury or whether they may be deemed to have waived their right thereto. There is no dispute as to the facts. After the commencement of the 'action, attorneys for the plaintiffs served upon the attorneys for the defendants a note of issue for the March, 1939, term of the court together with a demand for a jury trial. Neither this note of issue nor the demand for a jury trial was filed with the clerk of the court. A month thereafter, attorneys for the plaintiffs served upon the attorneys for the defendants another note of issue together with another demand for a jury trial for the April, 1939, term of the court. The second note of issue and demand for a jury trial were duly filed with the clerk of the court, but on the clerk’s call of the calendar a year later, no one answered and the case was marked off. The plaintiffs then made a motion to restore the case to the jury reserve calendar. The motion was granted by Trial Term, but upon appeal the Appellate Division modified the order so as to strike the case from the jury calendar and to place it upon the non-jury calendar for trial.

Two questions have been certified to this court: First, •whether the plaintiffs have waived their right to a jury trial, and second, whether the court at Trial Term should have granted the motion to restore the case to the jury .calendar in view of section 426 of the Civil Practice Act. It is contended by defendants-respondents that the failure .of the plaintiffs to file with the clerk of the court the first demand for a jury trial constituted a waiver under the provision of section 426 of the Civil Practice Act. Unless there has been such a waiver, plaintiffs are entitled to a trial by jury. The statute provides:

“ Trial by jury; how waived. A party may waive his right to the trial * * * by a jury, in any of the following modes:
i< * * *
“5. In the actions specified * * * by the party first serving a copy of a note of issue failing to serve therewith a written notice demanding trial by jury and failing to file a copy of such notice with the county clerk within three days after service thereof. * * * If none of the parties to the action serves and files a notice demanding a jury trial as herein provided, and a note of issue be filed, the action shall be placed upon the calendar for trial of actions at law without a jury.” (Civ. Prac. Act, § 426.) (Italics added.)

We fail to find in the case at bar any act by plaintiffs which constitutes a waiver of the right of a trial by jury. By serving a written demand for a jury trial with their two notes of issue plaintiffs have obviously asked for a jury trial and have done nothing to indicate a waiver thereof. Defendants-respondents point to the fact that the first demand for a jury trial was not filed “ within three days after the service thereof.” The intent of the Legislature was to deny a jury trial only in those cases where a party fails to give notice of his intention that the trial of the action should proceed before a jury. In the case at bar, the failure of the plaintiffs to file the first note of issue and the demand for a jury trial which had been served therewith was no more than a delay in going forward with the trial of the case Mere delay in proceeding with the action is not sufficient, but there must be some act of waiver, either by directly waiving the right or else by failing to give notice that it was preserved. When plaintiffs served their first note of issue, it was accompanied by a demand for a jury trial. That the demand was not filed within three days does not matter, for the note of issue was not filed and the case was not placed upon any calendar. The statute refers to the failure to file the demand where the note of issue is filed. In that event, the party plainly relinquishes his right. Here the plaintiffs insisted on their right to a jury trial at each succeeding stage of the litigation. It may be that plaintiffs tarried in proceeding to trial, but at no time did they by any act of commission or of omission, as provided in the statute, indicate a willingness to waive their right that whenever the case should be reached for trial, the trial be before a judge and a jury. Since there has been no waiver, it follows that the cause should have been restored to the jury reserve calendar.

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

The first certified question is answered in the negative and the second in the affirmative.

Loughran, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Rjppey, J., taking no part.

Ordered accordingly.


text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Opening and Extending of Exterior Street and Other Streets in the Borough of the Bronx. Mabel Poillon et al., Appellants.

      Argued April 8, 1941;
    decided May 29, 1941.

      Thomas E. Shea for appellants.

      William C. Chanler, Corporation Counsel (Joseph F. Mulqueen, Jr., Julius Isaacs and Eugene L. Brisach of counsel), for respondent.
   Lewis, J.

This is a condemnation proceeding involving the acquisition by the city of New York of certain property rights possessed by the owners of lands which abut upon the Mott Haven Canal.

For a long period of years Mott Haven Canal was maintained as a navigable, private waterway extending from the bulkhead line of the Harlem river at One Hundred and Thirty-fourth street northerly to One Hundred and Forty-fourth street between Park and Rider avenues in the borough of The Bronx. As the canal was peculiarly adapted to water-borne commerce in coal and bulk materials the owners of abutting lands, to which attached easements of rights of way over the waters of the private canal, installed docks, coal pockets and various freight handling devices by which advantage was taken of the commercial value of their' properties. In 1899 that portion of the canal between One Hundred and Thirty-eighth and One Hundred and Forty-fourth streets was acquired and filled for the purpose of opening a street later known as Canal place. Upon this appeal we are concerned with the remaining segment of the canal between East One Hundred and Thirty-fifth and One Hundred and Thirty-eighth streets which was not closed until 1936. In that year, to accommodate the widening of East One Hundred and Thirty-fifth street, the city of New York instituted the present proceeding by which are condemned certain property rights of the appellants as owners of lands abutting upon the canal. The present record is not clear as to the character of property taken. We assume, however, that the proceeding does not involve the acquisition of title to the appellants’ lands. It extinguishes those easements by which the appellants enjoyed rights of ingress and egress in the waters of the canal and thus calls for an appraisal of damages caused to the appellants by the extinguishment of those easements.

The evaluation of property rights thus acquired was the subject of proof at Special Term where findings were made which are set forth in a memorandum decision by the court upon which rests a decree which has been unanimously affirmed by the Appellate Division. Although the proceeding comes here on appeal by our leave, the scope of our inquiry may not include the value of the property acquired — which is a question of fact — unless the find-, ings are based upon an erroneous theory of law. (Matter of City of New York [Fourth Avenue], 255 N. Y. 25, 27.) We think that in fixing the amount of the awards now challenged Special Term adopted, and the Appellate Division has approved, dn erroneous theory of law which has prejudiced the appellants’ rights.

The ruling by Special Term contains the following statement: “ The decision of this court is predicated upon the representation made in open court that in place of this 55 feet-wide canal there will be substituted * * * a street of the same width fully improved and not subject to assessment by means of a local assessment area as against the abutting owners for such improvements. This leaves for determination by the court the one question of quantum of damages that is the amount these abutting owners are damaged by reason of the change from a canal to a street. * * * Taking up for disposition damage claim of the abutting owner, the court finds that the damage-'by reason of the change from a canal to a street amounts to $1,000 for each twenty-five feet of land abutting on the canal.” (Emphasis supplied.)

The Condemnation Law (Cons. Laws, ch. 73) makes provision by section 13 for the appointment of commissioners to ascertain the compensation to be made to owners of real property (including easements [see § 2]) taken by condemnation, and section 14 states that “ in fixing the amount of such compensation, they [the commissioners] shall not make any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use for which the property is to be taken, or the construction of any proposed improvement connected with such public use.”

The appellants argue that in fixing the awards to which they are entitled in this proceeding Special Term erred when, contrary to the express provisions of the statute quoted above, it considered benefits to the appellants’ land which it ruled would result from a proposed' public improvement. We have been unable to find any statute or provision of the New York City Charter (effective January 1, 1938) or the Administrative Code (L. 1937, ch. 929), and none has been cited by counsel, which makes inapplicable to this case section 14 of the Condemnation Law. We do not, however, agree with the interpretation of that statute now urged by the appellants.

In appraising the damages due to the extinguishment of an easement, only nominal direct damages may be allowed for the taking of the easement itself but consequential damages may be awarded for injury to the abutting land to which the easement attached. (Newman v. Metropolitan Elevated Ry. Co., 118 N. Y. 618, 625, 628; Bookman v. N. Y. Elevated R. R. Co., 137 N. Y. 302, 304, 305; Sutro v. Manhattan Ry. Co., 137 N. Y. 592, 593; Cook v. N. Y. Elevated B. B. Co., 144 N. Y. 115, 118, 119; 8 Carmody’s New York Practice [part 2], pp. 1615-1618, and cases collated in 13 American and English Annotated Cases, p. 622.) As bearing upon that rule it is to be noted that section 3370 of the Code of Civil Procedure, which preceded section 14 of the Condemnation Law, was adopted in 1890. (L. 1890, ch. 95.) Prior to that time both the Rapid Transit Act and the General Railroad Law (L. 1875, ch. 606, § 20; L. 1850, ch. 140, § 16) had provided that commissioners of appraisal shall not make an allowance or deduction on account of any real or supposed benefits which the party in interest may derive from the construction of the proposed railroad.” The language thus employed was judicially interpreted as prohibiting the consideration of benefits in appraising direct damages, but not in appraising consequential damages. (Newman v. Metropolitan Elevated Ry. Co., supra; Bohm v. Metropolitan Elevated Ry. Co., 129 N. Y. 576, 591.) In the case last cited the court said (p. 591): “ It is not offsetting injury against benefits. It is discovering whether in reality there has been any injury to the remaining land.” It was also held that “ Between this rule and the statutory provision [L. 1875, ch. 606, § 20; L. 1850, ch. 140, § 16] there is no conflict.” (Newman v. Metropolitan Elevated Ry. Co., supra, p. 628.) When the Legislature employed in section 3370 of the Code of Civil Procedure, and later in section 14 of the Condemnation Law, language which is identical with that which -previously had been interpreted in the Newman case (supra), we may assume it intended that such language would be given a similar interpretation. (Pouch v. Prudential Ins. Co., 204 N. Y. 281, 288; Orinoco Realty Co. v. Bandler, 233 N. Y. 24, 30.)

It follows, we think, that in appraising the consequential damages which have resulted to the appellants’ properties, Special Term was not precluded by section 14 of the Condemnation Law from considering the benefits resulting to the appellants’ lands by reason of any public improvement which the record may show has been legally authorized. (Bohm v. Metropolitan Elevated Ry. Co. supra, p. 591; Newman v. Metropolitan Elevated Ry. Co., supra, p. 628; and see Matter of City of New York, 190 N. Y. 350, 360; Matter of Manhattan Ry. Co. v. Stuyvesant, 126 App. Div. 848, 849, 850.)

We conclude, however, that in determining the amounts of awards now challenged, Special Term erroneously accepted as an influential factor a “ representation made in open court ” that in place of the private canal — in the waters of which the appellants’ properties enjoyed easements — the city is to substitute an improved street free from local assessments for such improvement. The record before us contains no proof of official action which affords authorized assurance that an improved street will be constructed by the city upon the filled prism of Mott Haven Canal between East One Hundred and Thirty-fifth and One Hundred(and Thirty-eighth streets. We must assume from the language employed in the decision that upon the trial herein some “ representation ” was made in open court that such improvement would be made. But in the record at hand such a representation is not set forth. We are not informed by whom it was made, nor is there evidence that it was authorized by agencies empowered by law to commit the city to such a project.

The determination of the amount of the awards to the appellants for the loss of easements in the canal and for consequential damages, should not be influenced by any plan or proposal by the city to substitute an improved street for Mott Haven Canal, in the absence of proof that the construction of such street has been authorized as required by law and has progressed to such a stage that the appellants will be protected in the event the city should default in completing such improvement. What was written for this court by Finch, J., in Matter of City of New York (Northern Blvd.) (281 N. Y. 48, 53) is quite as applicable here: To allow damages to this claimant before proposed and tentative plans come to fruition would bring into the proceeding highly speculative and imaginary elements, which would produce results unfair alike both to the claimant and the city.”

The order of the Appellate Division and the decree of the Special Term in so far as appealed from should be reversed, without costs, and the matter remitted to the Special Term for further proceedings in accordance with this opinion.

Loughran, Finch, Rippey, Conway and Desmond, JJ., concur: Lehman, Ch. J., taking no part.

Ordered accordingly.