author: Lewis, J.

text:
    Heller & Henretig, Inc., Respondent, v. 3620-168th Street, Inc., Appellant.
    Argued January 10, 1951;
    decided April 12, 1951.

      William Sparago for appellant.
    I. The agreement dated March 5,1947, was not ambiguous; and it was prejudicial error to leave its meaning to the jury as a question of fact. (Saum v. Capital Realty Development Corp., 268 N. Y. 335; Colvin v. Post Mtge. Land Co., 225 N. Y. 510; Keller v. Erie R. R. Co., 183 n. Y. 67.) II. The Appellate Division erred in its ruling upon the prior appeal (274 App. Div. 1007, which became the law of the case upon the new trial) that even if the agreement was not ambiguous, the seller’s arbitrary refusal to execute the contract of sale would excuse that execution as a condition precedent to the payment of the brokerage commission. (Saum v. Capital Realty Development Corp., 268 N. Y. 335; Williams v. Ashner, 152 App. Div. 447; Fuller v. Bradley Contr. Co., 183 App. Div. 6, 229 N. Y. 605.) III. There was no proof by plaintiff that it had procured an acceptable purchaser of sufficient financial ability to go through with the proposed transaction. (Herron v. Cameron, 144 App. Div. 43; Mutchnick v. Davis, 130 App. Div. 417; Corbin v. Mechanics & Traders’ Bank, 121 App. Div. 744.) IV. Serious and prejudicial error was committed in admitting in evidence, over objection and denial of motion to strike out, testimony concerning discussions as to the amount of commissions prior to the execution of the agreement for brokerage of March 5, 1947.

      Myron Perla Gordon for respondent.
    I. The agreement regarding payment of commissions was not intended to defeat plaintiff’s right to commissions where there was a “ wilful default ” by the seller. In any event, the meaning of that agreement was a question of fact. (Wenig v. Glens Falls Ind. Co., 294 N. Y. 195; Evelyn Bldg. Corp. v. City of New York, 257 N. Y. 501; Taylor v. United States Cas. Co., 269 N. Y. 360; Price v. Spielman Motor Sales Co., 261 App. Div. 626; Reliable Press, Inc., v. Bristol Carpet Cleaning Co., 261 App. Div. 256.) II. The Trial Judge having specifically refused to charge that the seller’s arbitrary refusal to execute the contract of sale would excuse that execution as a condition precedent to payment of commissions, the holding to that effect by the Appellate Division upon the first appeal (274 App. Div. 1007) is now moot. In any event, there was no error in that ruling and defendant should not be permitted to take advantage of its own bad faith. (Pearce v. Knepper, 53 N. Y. S. 2d 845, 269 App. Div. 829.) III'. There was proof that plaintiff procured a purchaser ready and willing to purchase upon the agreed terms. The purchaser having been accepted by appellant, there was no need to prove his financial ability. (Rosenblatt v. Bergen, 237 N. Y. 88; Goldmann v. Goldmann Realty Corp., 227 App. Div. 28; Brand v. Nagle, 122 App. Div. 490.) IV. There was no error in admitting testimony as to discussions of commissions prior to the written agreement of March 5th.
   Lewis, J.

The problem presented by this appeal requires us to interpret a brokerage contract which governs the plaintiff’s right to commissions upon a sale of real estate which failed of consummation.

The plaintiff is a licensed real estate broker. The defendant is the owner of an apartment building in the borough of Queens, New York City, which in January, 1947, was listed for sale with the plaintiff. From the record before us it appears that when efforts by the plaintiff had produced a customer who indicated an interest in the defendant’s property and who — according to the broker’s testimony — was thereafter ready, able and willing to purchase the same, arrangements were made for the parties concerned to meet at an agreed place on March 5, 1947, to sign a contract of sale. Due to a misunderstanding which caused the transaction to be held in abeyance, no contract of sale was signed by the defendant seller and the plaintiff’s customer at the appointed time and place. However, at that appointed time and place a brokerage agreement was entered into between the defendant seller and the plaintiff broker which fixed the conditions under which plaintiff’s commissions were to be paid. That agreement has become the basis for the present action which the plaintiff as broker instituted against the defendant after the defendant refused to execute a contract of sale to plaintiff’s customer.

Insofar as material to our inquiry the contract in suit provides: “ It is hereby agreed that the said brokerage shall become due and payable only upon the actual closing of title and delivery of the deed under the said contract which is to be executed by the purchaser as aforesaid; that if for any reason whatsoever the contract of sale shall not be executed and delivered as aforesaid, or if the title shall not be closed and the deed be delivered under the contract of sale for any reason whatsoever except for the wilful default of the seller, the undersigned hereby agrees that there shall be no brokerage or compensation due to the undersigned.”

The excerpt from the brokerage contract quoted above clearly indicates that the parties to this action intended by their agreement to burden with conditions the right of the plaintiff to commissions as broker. Commissions were to be due plaintiff from the defendant as seller only in the event title was actually closed and a deed delivered and were expressly made subject to the occurrence of either of two contingencies which would deprive the plaintiff of brokerage:

(1) “ if for any reason whatsoever the contract of sale shall not be executed and delivered as aforesaid ” or

(2) “if the title shall not be closed and the deed be delivered under the contract of sale for any reason whatsoever except for the wilful default of the seller ”. (Italics supplied.)

The first of the two contingencies mentioned above relates to the signing of a contract of sale; the second contingency is independent of the first and relates to the closing of title. Manifestly, upon the occurrence of the first contingency the plaintiff would be entitled to no commissions. Upon the occurrence of the second contingency the plaintiff would be entitled to no commissions “ except for the willful default of the seller As the agreement makes the two contingencies separate and independent, the clause except for the wilful default of the seller ” clearly modifies and applies only to the second contingency relating to the closing of title.

The plaintiff conceded on the trial that its present action for brokerage commissions is based upon the writing' it signed on March 5, 1947, from which the excerpt quoted above was taken. In the absence of proof of bad faith in the execution of that agreement between the plaintiff as broker and the defendant as seller, and the agreement being unambiguous, as we conclude, it follows that — upon the defendant’s failure to execute a contract of sale — the plaintiff is bound by the provision to which it agreed that it would receive no brokerage or compensation if for any reason whatsoever ” a contract of sale was not executed and delivered.

Where, as in this case, the contracting parties have stated the terms of their agreement by language which makes clear their intention, our decision is governed by the rule that — ‘ ‘ The construction of a plain contract is for the court. The intention of the parties is found in the language used to express such intention. (Hartigan v. Casualty Co., 227 N. Y. 175.) If the court finds as matter of law that the contract is unambiguous, evidence of the intention and acts of the parties plays no part in the decision of the case. Plain and unambiguous words, undisputed facts, leave no question of construction except for the court. The conduct of the parties may fix a meaning to words of doubtful import. It may not change the terms of a contract. ” (Brainard v. New York Central R. R. Co., 242 N. Y. 125, 133; Friedman v. Handelman, 300 N. Y. 188, 190; Heller v. Pope, 250 N. Y. 132, 135; Cream of Wheat Co. v. Crist Co., 222 N. Y. 487, 493-494; and see Matteson v. Walker, 249 Ill. App. 404, 407.)

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

Loughran, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Conway, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Svend O. Sandgren, Respondent.
    Argued January 9, 1951;
    decided April 12, 1951.

      George B. De Luca, District Attorney (George Tilser and Berman J. Fliederblum of counsel), for appellant.
    I. The People proved beyond a reasonable doubt that decedent took all the precautions which the circumstances permitted to avoid defendant’s dogs. (People v. Brasch, 193 N. Y. 46; Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484; Schafer v. Mayor of City of N. Y., 154 N. Y. 466; Noble v. New York Central & H. R. R. R. Co., 20 App. Div. 40,161 N. Y. 620.) II. A person cannot be expected to avoid that which he does not know to exist. III. The sufficiency of circumstantial evidence is not to be determined by each individual circumstance, but rather by the circumstances taken as a whole. (People v. Gillette, 191 N. Y. 107.)

      Philip Segal and Samuel Segal for respondent.
    There were no facts or circumstances known or proved sufficient to support the findings, beyond a reasonable doubt, that decedent had taken all the precautions which the circumstances permitted to avoid the animals. (People v. Kennedy, 32 N. Y. 141; People v. May, 290 N. Y. 369; People v. Friedman, 302 N. Y. 75.)
   Conway, J.

This is an appeal by permission of a Justice of the Appellate Division from an order reversing a judgment of the County Court of Bronx County convicting the defendant of the crime of manslaughter in the second degree upon the verdict of a jury and dismissing the indictment upon the law.

The count of the indictment charging manslaughter reads A« follows: “ The said defendant, on the 1st day of July, 1947, in the Borough and County of Bronx, in the City of New York, being then and there the owner of mischievous animals, to wit, dogs, and then and there knowing their propensities, wilfully and unlawfully did suffer them to go at large and did keep said animals without ordinary care, and the said animals, while so at large, and not confined, did kill a human being, to wit, one Stanley Balaban, a male child of the age of eleven years, he, the said Stanley Balaban, having taken all the precautions which the circumstances permitted, to avoid said animals, in that, the said defendant, did keep said animals without ordinary care and did wilfully suffer them to go at large, and while so at large, and not confined, said animals did then and there bite, gnaw, chew, rip, tear, bruise and wound the said Stanley Balaban, thereby giving unto him, the said Stanley Balaban, divers mortal wounds and bruises, of which said mortal wounds and bruises, he, the said Stanley Balaban, at the Borough and County of Bronx aforesaid, from the said 1st day of July 1947, did languish and languishing did live, and on the said 1st day of July 1947, he, the said Stanley Balaban, at the Borough and County of Bronx aforesaid, of the said mortal wounds and bruises, did die.”

The section of the Penal Law under which such indictment was drawn is section 1052, which reads in part as follows:

“ § 1052. Manslaughter in second degree defined.

11 Such homicide is manslaughter in the second degree, when committed without a design to effect death:

“ 1. By a person committing or attempting to commit a trespass, or other invasion of a private right, either of the person killed, or of another, not amounting to a crime; or,

“.2. In the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual; or,

“ 3. By any act, procurement or culpable negligence of any person, which, according to the provisions of this article, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree.

“ Woman producing miscarriage. * * *

“ Negligent use of machinery. * * *

“Mischievous animals. — If the owner of a mischievous animal, knowing its propensities, wilfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, and not confined, kills a human being, who has taken all the precautions, which the circumstances permitted, to avoid the animal, the owner is guilty of manslaughter in the second degree.

“ Overloading passenger vessel. * * *

“ Persons in charge of steamboats. * # *

Persons in charge of steam engines. * * *

‘ ‘ Acts of physicians while intoxicated. * * *

Persons making or keeping gunpowder contrary to law. * * * ”

The Appellate Division in reversing the judgment of conviction and dismissing the indictment did so upon the ground that there was no proof that the deceased boy had taken all the precautions which the circumstances permitted to avoid the animals. (277 App. Div. 217, 221-222.)

The only, question before us on this appeal is whether the People made out a prima facie case. It is the law of this State that when the People establish that a defendant has caused the death of a human being as a result of his responsible action or inaction so as to bring it within one of the statutory definitions of punishable homicide, a prima facie case is made out and the People are entitled to go to the jury without more. "Whether such homicide is justifiable or excusable has always been a matter of defense and the burden of going forward with evidence to show justifiableness or excusability or guilt of a lesser degree of the crime proved prima facie, shifts to the defendant. Whether or not the defendant avails himself of his right to go forward with evidence, the over-all burden of establishing the guilt of the defendant beyond a reasonable doubt never shifts from the People who must bring the case within one of the statutory definitions of one of the divisions of punishable homicide. (People v. Riordan, 117 N. Y. 71; People v. Downs, 123 N. Y. 558, 564; People v. Stern, 201 App. Div. 687, appeal dismissed 237 N. Y. 514.) The issue before us then on this record and appeal is whether there are sufficient facts to support the finding, implicit in the jury’s verdict after hearing both sides, that the deceased had taken all the precautions which the circumstances permitted to avoid the animals. If there be such supporting facts, the Appellate Division was not warranted in‘dismissing the indictment.

It is not necessary for the purpose of this opinion to detail all of the distressing facts as to the manner in which the Balaban boy came to his death except insofar as they may be applicable to the law questions posed. Suffice it to say, that when the attention of a patrolman was called to the body of the deceased as it lay upon the street by some boys who had discovered it as it lay face downward and who could see six bull terriers chewing upon it, the patrolman started forward with his nightstick in his hand. He reached the body after having been attacked by one of the dogs and having beaten it off. His testimony then was as follows:

“ Well, as I was saying, when I bent over to investigate the body, two. dogs came at me. I swung at one with my nightstick. I struck him. The other one bit me as I indicated before here (indicating). I took my stick and I clubbed him off, this one on the thigh. With that all the other dogs joined the dog. They all came at me. I swung at them again and again. Every time I hit them they would just come right back again. The next thing, you know, one of them struck me under here or bit me right under here (indicating) .-

“ Q. You are indicating a point about three inches underneath the right armpit? A. Yes.
“ Q. Is that approximately correct? A. About here (indicating).
“ Q. Yes? A. Now, with that my hand got weak, just opened up and my nightstick fell out of it. With that I went down. ' As I went down I grabbed my throat with my left hand and I tried to get my gun out with my right hand. I was leaning over on the side this way (indicating) and I could see an arm with a blue shirt, a blue arm with a gun in its hand. A shot was fired.- * * * With that shot the dogs relinquished their attack. They gave me a chance to scramble up towards this arm which turned out to be Sergeant Werner of the 43rd Precinct. * * * ”

The medical examiner testified that he found many wounds upon the body of the deceased — too many to be counted. He found crescentic patterns and puncture wounds ” caused by dogs’ teeth. Among the many major wounds — all of which were caused by the dogs — the doctor stated that he found the left armpit gouged out, leaving the left' axillary artery and vein severed and that the third cervical vertebra of the neck had been fractured. These wounds, together with multiple lacerations and tears of the body, were given as the cause of death.

The trial court charged — without exception or request to charge — that the People were required to establish, to the same degree of certainty as all the other elements of the crime, that the Balaban boy took all the precautions which the circumstances permitted to avoid the animal[s].” There was no evidence that the deceased knew or should have known that there were dogs in the area or that the dogs were mischievous or vicious. There were no signs warning pedestrians or passersby of their presence or of their propensities. In addition, the deceased was not a trespasser, having every right to be upon a public street. It is common knowledge that dogs generally are not mischievous or vicious animals; that regardless of size and breed they are accepted and known as the friend and companion of man and especially of boys. (See Kennet v. Sossnitz, 260 App. Div. 759, 761, affd. 286 N. Y. 623; Patton v. State, 93 Ga. 111; Crowley v. Groonell, 73 Vt. 45, 47.) Under those circumstances the Balaban boy had no duty whatever to avoid ” the dogs. Certainly the Legislature never intended, as the majority opinion in the Appellate Division recognizes, that all persons must flee from dogs or other dom'estic animals on sight, or that the deceased in this particular case was to avoid under all circumstances the defendant’s dogs whose mischievousness and viciousness he did not know existed. He was under obligation to avoid them when and if he learned of their mischievous propensities and only then.

In addition, there was no evidence to show that the deceased annoyed the dogs or provoked their attack upon him. His body was found' alone, some fifty feet from the houseboat on which the defendant lived with eight bull terriers, clad only in khaki trunks, without weapon of any kind. There was no evidence to show that he had been near the houseboat, nor was there evidence of entry into it, nor of any blood near it. The lock on the houseboat door had not been interfered with and there was no indication that anyone had touched the window, the top of which was covered with dust.

On the other hand, turning our attention to what the defendant knew, there was an abundance of evidence that these dogs attacked other persons without any provocation. Thus, one Giunta, a thirteen-year-old boy, was bitten by one of the dogs on May 9,1946, while playing outside a public school where the defendant worked as custodian. Nellie ”, who was on the front seat of defendant’s car, stuck her head through the open window about four or five inches and bit Giunta on the upper arm. The dog so ripped his coat that one part of it remained in the car. Giunta testified that he did not molest or provoke the dog or put his hand into defendant’s car. He was treated by a physician and exhibited the wound on his arm at the time of trial. As a result of the attack the defendant gave the boy’s mother $25 to cover the doctor’s bill and the cost of the coat.

On August 27, 1946, one Keane and one Haynes, fourteen and fifteen years old, respectively, while attempting to “ sneak ” into the Castle Hill Pool, a commercial amusement place, through a hole in the fence near the defendant’s houseboat, were bitten in an unprovoked attack by Nellie ” and Iron Duke Keane was bitten on the right buttocks and Haynes on the left leg. The wound on Haynes’ leg was still visible at the time of trial. Haynes testified that they had seen the dogs running loose “ nearly all the time we went ” to the pool, and the Keane boy stated that the houseboat was open on occasion.

On September 29,1946, a Mrs. Eoyston, while attending a dog show at the Westbury Kennel Club, was bitten on the leg by Nellie The attack was unprovoked and the wound was of such severity it remained open for two months. Doctor Shindell, a veterinarian, as a result of this attack, went, on the following day, to the defendant’s houseboat for the purpose of examining the dogs to see if they had rabies. He approached the boat, and seeing no sign of life, called out defendant’s name. In response he received a ‘ ‘ chorus of dog barks ’ ’ and with that a dog came running down the gangplank towards him. Knowing that he was in danger and pretending to show no fear, the doctor backed up slowly. After the dog went back to the houseboat, the doctor turned and ran as fast as I could for my car.” The doctor stated that in this instance when the dog came close to him, it crouched low and stalked and that ordinarily a house dog will bark, or if it is a small dog he will snap at your heels, but they will not stalk and crouch and go for you. No house dog I have seen will do that.” In addition, according to the expert testimony of this witness, one of the worst things one could do to 11 avoid ’ ’ a vicious dog would have been to turn one’s back and run. Certainly that would have been a natural form of avoidance by the Balaban boy. Dr. Shindell had had thirty-two years’ experience in handling dogs," part of which time he had spent in the Army handling “ defense dogs ”. Other witnesses, called by defendant, gave it as their expert testimony that a vicious dog was one who would bite without provocation.

One Cohan, a correction officer in the department of correction, whose home was two blocks from the houseboat, testified to being annoyed by the defendant’s dogs in June, 1946, while he was walking along one of the streets in the neighborhood in the company of two of his married neighbors. Later in the following September, after seeing several white bull terriers running loose, he went to defendant’s home to complain. Seeing one of the dogs, he called out. This is his testimony as to what followed:

* * * Then suddenly a mess of dogs poured out of an open doorway on the houseboat and down the gangway heading for us with teeth bared, lips drawn back and snapping and, well, charging at us, attacking us at a terrific pace and, well, we were just cornered practically. Well, I looked around and luckily I found a cudgel next to me, a stout mahogany piano leg or table leg, I don’t remember which now, I picked it up and started warding them off, and they would come up there closer and closer and I knew that I would have to wait until they were almost upon me to make sure that I got them good so that they wouldn’t get me. * * *

“ And as they got close to me, snapping and growling and coming towards me, I swung at them with the club that I had picked up and, well, I don’t Ioioav how long that Avent on, but in the meantime as I was swinging at them I fought my way back towards the car, and Mr. Risbano Avas beside me and Ave got into the car and shut the door and stood there for a couple of minutes; just stood there recuperating.”

All these repeated and ferocious attacks were made without any provocation whatever. Defendant knew of all those episodes. He so testified. In fact, he admitted on the witness stand that on twenty different occasions he brought his dogs to be examined at the department of health as a result of ten separate . complaints that his dogs had bitten human beings.

It may be well to point out here that the Legislature has made a very strict rule in section 1052 of the Penal Law as to persons who have mischievous animals when they know them to have mischievous propensities. If such a person (a) wilfully suffers it to go at large or (b) keeps it without ordinary care, and the animal while so at large kills a human being, the owner is guilty of manslaughter. The Legislature did not provide that the animal had to be vicious or ferocious nor did the Legislature say that the owner had to be culpably negligent in keeping it so that it became at large. Yet in the same section in subdivision 3, the Legislature provided that manslaughter would be committed by one, under the circumstances there declared, who was guilty of any act, procurement or culpable negligence. The Legislature thus had in mind, in this same section, negligence which was culpable and negligence which flowed from lack of ordinary care and provided that when one kept a mischievous animal, knowing its propensities, and the animal went at large by lack of ordinary care and death ensued, the owner who failed to exercise such ordinary care was guilty of manslaughter. When we seek to determine whether or not ordinary care has been exercised the test is the foreseeability of the risk. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 344-345; O’Neill v. City of Port Jervis, 253 N. Y. 423, 434; Kennet v. Sossnitz, 260 App. Div. 759, 763-764, supra.) The reason for this legislative action no doubt is historical. In civil cases it has always been the rule that the liability of an owner of a ferocious animal, whether ferae naturae or domitae (see 28 C. J. S., p. 52) which attaches for injury done to a third person, is absolute where such animal is kept with the owner’s knowledge of its ferocious propensities, and it is not shown that the person injured voluntarily or consciously did anything to bring about the injury. Muller v. McKesson (73 N. Y. 195, 199-202) and Molloy v. Storm (191 N. Y. 21, 24-25) each of which cites and collates many cases and authorities; see, also, Yackel v. Nys (258 App. Div. 318); Crowley v. Groonell (73 Vt. 45, 47, supra). In the Molloy case (supra) at pages 24-25, we said: It is, probably, the fact, regarding the various instructions to the jurors, that the trial court applied the strict rule of liability, adopted in cases where ferocious animals, whether ferae naturae, or domitae, are kept, with the owner’s knowledge of their ferocious propensities. In such cases, no distinction seems to be made between the two classes of animals, (Addison on Torts, 22, 230, 4th Eng. ed.), and the liability, which attaches for any injury done, is absolute; unless it can be shown that the person injured voluntarily, or consciously, did something to bring about the injury.”

The gravamen of the crime in the case at bar is the killing of a human being by mischievous animals which were kept without ordinary care by their owner who knew of their propensities. It must be remembered that one of the foundation stones of organized society — of' civilization — is the safeguarding and preservation of human life. The evil which this particular statute aims to prevent is the killing of a human being by a mischievous animal. This evil, we may note, has not only been known to man for countless centuries but is one which he long ago recognized and sought to prevent.

No doubt the law in civil cases led the Legislature in cases, of homicide to use the words mischievous animals ” and “ ordinary care ”. The word mischievous, since it is not as strong as the words vicious and ferocious, indicates again the severity of the rule laid down by the Legislature in section 1052. The word mischievous has a definite meaning in the cases. Thus in Evans v. McDermott (49 N. J. L. 163, 164-165, 166) it was said:

‘ ‘ An action can be maintained against the owner by a party injured, upon evidence that a dog, with the knowledge of the owner, had a mischievous propensity to bite mankind, whether in anger or not. In either case, the person bitten would suffer injury. A mischievous propensity is a propensity from which injury is the natural result.” (Emphasis in original.)

“ The conclusion is that the plaintiff below, having shown by his proof that on several previous occasions the dog in question had bitten various persons on the hand, with the knowledge of the defendant, he was entitled to recover, even if the habit did not proceed from a ferocious nature, but was the result of a mischievous propensity.” (See, also, Crowley v. Groonell, 73 Vt. 45, supra; Dranow v. Kolmar, 92 N. J. L. 114; Liberman v. Drill, 94 N. J. L. 387.)

There was no evidence in this case that the boy had ever been in that area before or that he knew of the presence of these dogs or of their propensities or the danger. There were no signs warning of their presence. Giving the word avoid ” its common and ordinary meaning, it is obvious that the Legislature did not intend, and indeed could not have intended, that the deceased was required to avoid a danger which he did not know existed. The jury considered the circumstances, on the question of the deceased’s conduct when he came into contact with the dogs, as they were required by the charge to do. Taken as a whole, the evidence established a factual pattern from which the jury could conclude that this young, obese, unarmed, shoeless and unclad eleven-year-old boy, ignorant of the propensities of the dogs, was attacked with such suddenness that he, a child, was overcome with terror and fright and fell helpless where his body was found.

Since the distinction between exceptions and provisos in statutes and the effect, upon the order of proof in an action, of the rule requiring the negativing of exceptions but not of provisos, was not urged in the trial court or argued before us, we do not consider or pass upon it. (See People v. Devinny, 227 N. Y. 397; Harris v. White, 81 N. Y. 532; Rowell v. Janvrin, 151 N. Y. 60; People v. Stedeker, 175 N. Y. 57; People v. Bradford, 227 N. Y. 45; Fleming v. People, 27 N. Y. 329; United States v. Cook, 17 Wall. [U. S.] 168; Shelp v. United States, 81 F. 694; Evans v. United States, 153 U. S. 584; Ex Parte Hornef, 154 Cal. 355; State v. Connor, 142 N. C. 700; State v. Abbey, 29 Vt. 60.)

The order of the Appellate Division dismissing the indictment on the law should he reversed and the case remitted to that court for decision upon the facts. (See Code Crim Pro., § 543-a.)

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Order reversed, etc.

       Old Testament, Exodus, chapter 21, verses 28, 29: “ If an ox gore a man or a woman that they die: then the ox shall be surely stoned, and his flesh shall not be eaten but the owner shall be quit.
      “But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death.”


text:
    Industrial Export & Import Corp., Appellant, v. Hongkong & Shanghai Banking Corp., Respondent.
    Argued January 2, 1951;
    decided April 12, 1951.

      Herbert G. Feinson and Joseph Lew for appellant.
    I. The Appellate Division overlooked that a hazard of double liability is not sufficient to prevent recovery by plaintiff. (Petrogradsky Mejdunarodny Kommerchesky Bank v. National City Bank of N. Y., 253 N. Y. 23; Coler v. Corn Exch. Bank, 250 N. Y. 136, 280 U. S. 218; Newhall v. Longacre Bank, 248 N. Y. 252; Scheffer v. Erie Co. Sav. Bank, 229 N. Y. 50.) II. The Appellate Division overlooked that plaintiff’s first cause of action is on the unused letter of credit. (Kerr S.S. Co. v. Chartered Bank of India, Australia & China, 292 N. Y. 253.) III. The Appellate Division overlooked that plaintiff’s second cause of action is for damages for refusing to permit plaintiff to use, prior to February 12, 1946, the $7,000 it purchased and paid for. IV. This is a case of unjust enrichment on an unused letter of credit. The law of New York governs. (Singer v. Yokohama Specie Bank, Ltd., 293 N. Y. 542; Banque Mellie Iran v. Yokohama Specie Bank, Ltd., 188 Misc. 346, 274 App. Div. 768; Union Nat. Bank of Chicago v. Chapman, 169 N. Y. 538; Pritchard v. Norton, 106 U. S. 124; Meacham v. Jamestown, F. & C. R. R. Co., 211 N. Y. 346; Richard v. American Union Bank, 241 N. Y. 163; Central Hanover Bank & Trust Co. v. Siemens & Halske AG., 15 F. Supp. 927, 84 F. 2d 993.) V. The law of China does not bar recovery in New York. (Central Hanover Bank & Trust Co. v. Siemens & Halske AG., 15 F. Supp. 927, 84 F. 2d 993; South American

      Petroleum Corp. v. Colombian Petroleum Co., 177 Misc. 756; Plesch v. Banque Nationale de la Republique d’Haiti, 273 App. Div. 224, 298 N. Y. 573; Bollock v. Societe Generale, etc., en France, 263 App. Div. 601; Myles v. Cuba R. R. Co., 182 Misc. 169,182 Misc. 175; Moscow Fire Ins. Co. v. Bank of New York & Trust Co., 280 N. Y. 286, 309 U. S. 624; Reilly v. Steinhart, 217 N. Y. 549; Sliosberg v. New York Life Ins. Co., 217 App. Div. 685.)

      Thomas J. Minturn and George W. Kilgus for respondent.
    I. The rights of the parties are governed by the laws of China. (Balee v. Hidalgo Co. Water Improvement Dist. No. 4, 229 App. Div. 660; W erfel v. Zivnostenska Banka, 287 N. Y. 91.) II. Under laws of China the funds are blocked and plaintiff cannot recover at the present time. III. The burden was on plaintiff to prove its right to recover under the Chinese law. (Crashley v. Press Pub. Co., 179 N. Y. 27; Savage v. O'Neil, 44 N. Y. 298; Farrell v. Farrell, 142 App. Div. 605; Schweitzer v. Hamburg-Amerikanische Packetfahrt AG., 149 App. Div. 900; Banking Law, § 204-a, subd. 3, par. [a].) IV. Plaintiff has not shown a proper demand. (Silverman v. National City Bank of N. Y., 133 Misc. 201; Stevens v. First Nat. Bank of Painted Post, 259 App. Div. 34; Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420.)
   Lewis, J.

This action involves a transaction in international exchange which took place just prior to the outbreak of World War n.

At the close of a jury trial in Supreme Court both parties moved for a directed verdict. Thereafter the Trial Justice directed a verdict in favor of the defendant dismissing the complaint for failure of proof, without prejudice". At the Appellate Division the judgment entered at Trial Term was affirmed, two Justices dissenting.

The record discloses the following undisputed facts: The plaintiff, Industrial Export and Import Corp., is a New York corporation whose officers and sole stockholder, at the time the transaction here involved took place, were residents of Shanghai, China. The business of the plaintiff corporation — the importatian of leather into China — was carried on from Shanghai. The defendant Hongkong’ & Shanghai Banking Corp. is a British corporation organized in the Colony of Hongkong with branches in Shanghai and New York City.

In April, 1941, in accord with an “ agreement ” between the United States and China, a fund of American dollars was created in China to be used for the purpose of facilitating and increasing-imports into that country. A board, called the Stabilization Board of China — an instrumentality apparently created under a plan formulated by the Governments of United States, Great Britain and China — was established as an agency of the Chinese Government to control the fund mentioned above and the rate of exchange and to regulate imports so that they would meet essential requirements of the Chinese people. Persons wishing to import goods into China to be paid for by American dollars were required to obtain those dollars from the Stabilization Board or from a bank designated by the board.

In October, 1941, plaintiff desired to import into China a quantity of “ sole leather butts ” to be paid for with American dollars. To that end, on October 15,1941, plaintiff made written application to the Shanghai branch of the defendant bank for $14,000 in American dollars to pay for such imports. The fact will become important that by that application plaintiff agreed to resell to the Bank at the rate at which purchased any or all of the aforementioned foreign exchange acquired pursuant to this application in the event that the foreign exchange herein applied for is subsequently found not to have been used for the purpose of financing imports as described herein. ’ ’ Thereafter the defendant bank submitted to the Stabilization Board plaintiff’s application with several others and in doing so defendant agreed to resell to the Stabilization Board at the rate at which purchased any or all of the foreign exchange not used as specified therein. On November 19,1941, the board informed defendant in Shanghai that plaintiff’s application had been approved to the extent of 7,000 American dollars. On November 21, 1941, the Stabilization Board of China cabled Federal Beserve Bank in New York directing it to pay defendant’s New York office for the account of its Shanghai office a sum of American dollars which included 7,000 American dollars to be available for imports to be made by plaintiff. Upon receiving notice from its New York office that the American funds were available, defendant’s Shanghai office notified plaintiff that its request for American funds had been approved to the extent of $7,000 and that immediate cash payment (in Chinese dollars) was necessary. Thereupon, on December 3, 1941, plaintiff filed an application with defendant at Shanghai requesting it to issue a letter of credit for the 7,000 American dollars to Lubell-Hochmeyer, Inc., in New York City, which sum was to be paid Lubell-Hochmeyer upon presentation of proof of shipments to plaintiff in China. With this application plaintiff delivered to defendant bank at Shanghai a check for 132,544.38 Chinese dollars, that amount of Chinese currency being the equivalent of 7,000 American dollars at the then current rate of exchange. In accord with instructions by the Stabilization Board, the defendant bank converted plaintiff’s check into specie Chinese dollar notes and deposited that currency in the bank vaults as one of the board’s designated depositories in Shanghai. On December 4, 1941, defendant’s Shanghai office cabled its New York office to issue to Lubell-Hochmeyer in New York City a letter of credit in the amount of $7,000.

Shortly after the arrangements outlined above had been completed, there occurred the Japanese attack on Pearl Harbor; the merchandise covered by the letter of credit was never shipped from the United States to China and the letter of credit — which had a terminal date of February 15, 1942 — expired unused. During the war, which broke out on December 8, 1941, the Japanese took over defendant’s Shanghai branch; the officers and personnel of plaintiff’s corporation were interned and were not released from concentration camps until August, 1945. In the meantime on April 1, 1944, the Central Bank of China had been appointed trustee to liquidate the affairs of the Stabilization Board. On February 12, 1946, the Central Bank of China notified all banks that all funds furnished by the board prior to December 8, 1941, u for goods which were never imported to China should not be dealt with pending the examination of the affairs of the Board.”

By this action plaintiff seeks judgment against the defendant for 7,000 American dollars, the theory of the action being for money had and received by the defendant to the use of the plaintiff, no part of which has been paid although duly demanded.” It thus becomes necessary to our decision to determine whether, upon the facts disclosed by this record, the law to be applied is that of China or the United States.

At the Appellate Division — where the Trial Term judgment was affirmed — the majority held that “ * * * This was a Chinese transaction in its inception and completion and on this record the Board’s regulations are applicable.” (See 275 App. Div. 390, 391-394.) The minority opinion did not hold that the law of the United States was applicable but rather that the defendant had the burden of going forward with evidence to establish “ * * * the defenses that plaintiff has sued the wrong party, that plaintiff is not the real party in interest, or that plaintiff is precluded from recovery by Chinese law as it existed in 1941, or by Chinese exchange restrictions now in force.” (See id., p. 397.)

We agree with the courts below that, as to the transaction here involved, the law of China is controlling. As far as plaintiff is concerned the entire transaction took place in China. Reduced to its simplest terms, the transaction was as follows: Plaintiff has deposited with the defendant bank, under rules and regulations of the Stabilization Board of China, Chinese currency in amount equivalent to 7,000 American dollars which served as the basis for issuance of the letter of credit for which arrangements outlined above were made. The amount of Chinese currency thus deposited with the defendant in Shanghai, was earmarked for the Stabilization Board of China and was deposited and kept in the form of specie notes in vaults of the defendant bank, as one of the board’s prescribed depositories in Shanghai for Chinese National dollar payments of exchange approved by the board and according to its instructions. The only act to be performed by the defendant bank in New York was to issue there the letter of credit. Such a letter of credit was issued in New York but it expired before it was used. Had the letter of credit been used, as was originally intended, the Chinese dollars would have become the property of the Stabilization Board of China, not of the defendant bank. Inasmuch as the letter of credit expired before it was used, the plaintiff corporation — subject to any requirements of the law of China — may become entitled to receive back in China the Chinese dollars which it had deposited as a basis for the issuance of the letter of cerdit. Clearly, the transaction took place in China. Plaintiff is not suing upon the letter of credit, nor for any breach of agreement to issue the letter of credit, nor for any failure to perform any agreement relating to the letter of credit. In those circumstances we agree with the courts below that the law of China is applicable. (Werfel v. Zivnostenska Banka, 287 N. Y. 91; and see Balee v. Hidalgo Co. Water Improvement. Dist. No. 4, 229 App. Div. 660.)

The question is raised by defendant’s brief as to who has the burden of proving the Chinese law. It is defendant’s contention that inasmuch as China is not one of the nations whose laws are based upon the English common law, the burden was upon the plaintiff to establish that it is entitled to recover under the laws of China. In support of that argument defendant cites Crashley v. Press Pub. Co. (179 N. Y. 27), and Savage v. O’Neil (44 N. Y. 298). The plaintiff relies on Cuba R. R. Co. v. Crosby (222 U. S. 473) as support for its argument that in dealing with rudimentary contracts or torts made or committed abroad, such as promises to pay money for goods or services, or battery of the person or conversion of goods, courts would assume a liability to exist if nothing to the contrary appeared. A close examination of the opinion in that case discloses that the rule it announces supports the position of the defendant-appellant in the case at bar. The case involved a suit by an employee against his employer for injuries resulting from a defective machine. The accident occurred in Cuba. In the course of the opinion it is said (per Holmes, J.) at page 478: “ * * * when an action is brought upon a cause arising outside of the jurisdiction it always should be borne in mind that the duty of the court is not to administer its notion of justice but to enforce an obligation that has been created by a different law. Slater v. Mexican National R. R. Co., 194 U. S. 120,126. The law of the forum is material only as setting a limit of policy beyond which such obligations will not be enforced there. With very rare exceptions the liabilities of parties to each other are fixed by the law of the territorial jurisdiction within which the wrong is done and the parties are at the time of doing it. * * * [p. 479] We repeat that the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well founded belief that it was a cause of action in that place. The right to recover stands upon that as its necessary foundation. It is part of the plaintiff’s case, and if there is reason for doubt he must allege and prove it. * * * ”

We believe the rule of the Crosby case (supra) has application to our present problem and that where, as here, it appears that the transaction involved was not an ordinary commercial transaction but one in which the parties were operating under particular Chinese laws and regulations pertaining to foreign exchange, the burden is upon the plaintiff to establish its right to recover under the Chinese law. (Christie v. Cerro de Pasco Copper Corp., 214 App. Div. 820, affd. 243 N. Y. 557; Crashley v. Press Pub. Co., 179 N. Y. 27, supra.)

In the absence of proof by the plaintiff as to the exact legal relationship between the plaintiff, the defendant, and the Stabilization Board created by this particular transaction under the laws of China, it is impossible to determine whether plaintiff’s cause of action is against the defendant as an independent party to the transaction, or against the Stabilization Board on the theory that the defendant acted merely as agent for the board, in which event the board should be named as defendant. However, even if we assume that the defendant bank acted independently in the transaction and that the plaintiff might properly demand from it the return of its money, it does not follow that plaintiff is entitled to the relief it seeks in this action. Defendant, although not required to do so, produced evidence that in 1946, the Central Bank of China •— successor to the Stabilization Board of China — notified defendant as follows:

The Stabilization Board of China at its final meeting on March 31, 1944, adapted a resolution appointing the Central Bank of China as its trustee as from April 1, 1944, for the purpose of handling the unfinished business of the Board.

It has come to our notice that certain of the appointed and/or approved banks hold margin accounts in foreign currencies in the names of importers representing exchange provided by the Board prior to December 8, 1941, in respect of which the goods were never imported to China. It would appear, therefore, that the Board may have claims in respect of these margin accounts. We therefore notify you that these margin accounts should not be dealt with pending examination of the affairs of the Board by the Central Bank of China, which it hopes to undertake as soon as practicable.”

It would thus seem that, under the laws of China, the funds in question are temporarily blocked and plaintiff cannot recover at the present time.

We have seen that when in 1941 the plaintiff, as an importer, wished to import merchandise into China to be paid for in American dollars, it was required of plaintiff as such importer that it submit to the rules and regulations of the Stabilization Board. Indeed, upon this subject there is undisputed testimony from plaintiff’s own witness — the secretary-treasurer of the corporation and the husband of its president, who was its sole stockholder — that in 1941, when this transaction had its inception, American dollars could not be acquired in China “ except with the approval of the Stabilization Board ”. Presumably that was the reason why the plaintiff, in making its written application to the defendant bank “ * * * for Foreign Exchange to Finance Imports Permitted by the Stabilization Board of China ” agreed “ unconditionally ” to resell to the bank at the rate at which purchased any or all foreign exchange acquired pursuant to its application in the event that the foreign exchange then applied for was subsequently found not to have been used for the purpose of financing imports as described in the application. This agreement by the plaintiff — made “ unconditionally ” as one of the bases of its application and in compliance with the Stabilization Board’s rule, mentioned above — is disregarded by the plaintiff. In our view, however, it is a decisive factor to be considered. The record makes it clear that in this transaction the defendant bank merely acted under instructions from the Stabilization Board as to refunds and repayments. It further appears from undisputed testimony by a witness for the defendant that the 132,544.38 Chinese dollars delivered by plaintiff to the defendant, were “ in accordance with the instructions of the Board, deposited and kept in the form of specific [sic] notes in the vaults of the [defendant] bank as one of the Board’s prescribed depositories in Shanghai of Chinese National dollar payments for exchange approved by the Board and instructions that such deposit should be made by the bank was contained in the Board’s instructions ”. Thus, under the rules and regulations of the Stabilization Board, defendant cannot turn over the Chinese dollars in its possession without the approval of that board. Nor can the defendant bank pay to plaintiff 7,000 American dollars as that would be a breach of the plaintiff’s agreement which provided that those American dollars were to be used only for the purpose of importing merchandise into China — which never did eventuate.

Furthermore, in view of the fact that the letter of credit for 7,000 American dollars expired and no shipment of merchandise purchased with the proceeds thereof was ever made to China, the plaintiff is prevented from claiming that sum in American dollars by reason of its agreement made in 1941 as part of its application to the defendant in Shanghai for foreign exchange: “We agree not to require from the Bank actual delivery of the foreign exchange herein requested until such time as shipping space covering the imports described herein has been obtained and confirmation to this effect has been received from the shippers abroad.”

In view of the circumstances hereinbefore mentioned, including the agreements by the plaintiff upon which its application for foreign "currency was based; and it appearing that, within the terms of the transaction, there have been no imports of merchandise into China, the defendant bank would not be required to comply with plaintiff’s demand to pay to it 7,000 American dollars — as claimed in the complaint herein —■ since American dollars were to be made available only under plaintiff’s agreement and the express terms of its application to the defendant and only for the specific purpose of import into China.

Nor do we believe that, under the provisions of the ban mentioned in the notice by the Central Bank of China quoted above, the defendant bank can properly return to plaintiff at the present time the Chinese funds —132,544.38 Chinese dollars — which the defendant holds as an authorized depository for the Stabilization Board. Until the appropriate Chinese authorities have finished their “ pending examination of the affairs of the Board ” and have unblocked the funds here involved, the defendant bank may not legally deal in these accounts.

The courts below have rightly held that plaintiff has failed to prove that, under the laws of China, it is presently entitled to obtain the relief demanded in its complaint. The phrase without prejudice ”, inserted in the judgment entered at Trial Term which stands affirmed as it comes to us, will enable the plaintiff to establish in a new action its right, if any, under applicable law, to recoup funds with which it parted in 1941 when it arranged with the defendant in Shanghai for issuance of a letter of credit payable to Lobell-Hochmeyer, Inc., in New York upon presentation of proof of the shipment of certain goods to the plaintiff.

The judgment should be affirmed, with costs.

Loughban, Oh. J., Conway, Desmond, Dye, Fuld and Fboessel, JJ., concur.

Judgment affirmed.

       Wherever italics appear in this opinion they are supplied unless otherwise indicated.


author: Fboessel, J.

text:
    The People of the State of New York, Respondent, v. Camilo Weston Leyra, Appellant.
    Argued January 8, 1951;
    decided April 12, 1951.

      Harry G. Anderson and Frederick W. Scholem for appellant.
    1. The alleged confessions were obtained by unlawful methods and their admission in evidence constitutes reversible error. (People v. Lewis, 238 N. Y. 1; People v. Crossman, 184 App. Div. 724; People v. Kurtz, 42 Hun 335; United States v. Bayer, 331 U. S. 532; People v. Reilly, 224 N. Y. 90; People v. Wolcott,
      51 Mich. 612; Commonwealth v. Taylor, 5 Cush. [Mass.] 605; People v. Randazzio, 194 N. Y. 147; People v. Fernandez, 301 Ñ. Y. 302; People v. Esposito, 287 N. Y. 389; People v. Valletutti, 297 N. Y. 226; People v. Levan, 295 N. Y. 26; People v. Williams, 292 N. Y. 297; People v. Kennedy, 159 N. Y. 346.) II. The alleged confessions were obtained by hypnosis and their receipt in evidence constitutes reversible error. (People v. Valletutti, 297 N. Y. 226; People v. Barbato, 254 N. Y. 170; People v. Weiner, 248 N. Y. 118; People v. Kennedy, 159 N. Y. 346.)

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. (People v. Lewis, 238 N. Y. 1; People v. Joyce, 233 N. Y. 61; People v. Perez, 300 N. Y. 208; Lyons v. Oklahoma, 322 U. S. 596; People v. Alex, 265 N. Y. 192; People v. Doran, 246 N. Y. 409; People v. Trybus, 219 N. Y. 18; People v. Elmore, 277 N. Y. 397; People v. Deacons, 109 N. Y. 374; People v. White, 176 N. Y. 331; People v. Buffom, 214 N. Y. 53; People v. Furlong, 187 N. Y. 198; People v. Kennedy, 159 N. Y. 346; People v. Randazzio, 194 N. Y. 147.) II. The verdict of the jury was warranted by the evidence. No errors of law were committed by the trial court. The verdict and judgment should, therefore, be sustained. (People v. Becker, 215 N. Y. 126; People v. Chapman, 224 N. Y. 463; People v. Peller, 291 N. Y. 438.)
   Fboessel, J.

On the afternoon of Tuesday, January 10, 1950, Camilo Leyra, Sr., seventy-five years old, and Catherine, his wife, eighty years old, were found dead in their rear apartment on the first floor of premises 105 Quincy Street, Brooklyn. Death resulted in each case from a fractured skull, caused by several blows from a hammer. Their son, Camilo Leyra, Jr., fifty years old, is the defendant in this action. He now stands convicted of the murder of both parents, and has been sentenced to death on each of said convictions.

The verdict rests largely upon alleged confessions of the defendant. If they were properly received in evidence, followed by proper instructions from the court, the verdict would be clearly warranted, and we could not interfere with the execution of sentence for these brutal crimes. The conclusion is inescapable, however, that grave and prejudicial errors were committed with respect to these alleged confessions, so fundamental in nature as to require a reversal and a new trial. To hold otherwise would ordain the rule that the fundamental rights of a defendant to a fair trial under, our laws may be deliberately disregarded if the evidence, however improper, points to the defendant’s guilt. Such a course will simply mean in the long run the abolishing of all forms of law taught by experience to be necessary to the protection of the innocent (People v. Marendi, 213 N. Y. 600, 619, 620.)

It appears from the evidence in this record that defendant led a somewhat unusual life. He worked for his father as a salesman in the latter’s business; at the same time he was separately engaged, on the father’s premises, in a partnership with one Herrschaft who was also an employee of the father; defendant also worked as night bartender in a cabaret or night club in the Greenwich Village section of New York City. For at least a year prior to the time in question, defendant claimed he had slept but four hours a night. He had a wife and three children who lived in their home in New Jersey, and whom he visited regularly at least once a week, usually over Saturday night; at the same time, however, he maintained an apartment in Greenwich Village which he shared with his paramour.

Although suspicion was not at first directed toward defendant, it was not long before the attention of the police focused upon him. He was subjected to their routine questioning on the evening of the homicides and on the following day, Wednesday, and, while a written statement was taken from him containing no admissions, he was not detained. He denied all knowledge with respect to the crimes, and told the police of his movements on the day of their commission, which included a visit to his wife in New Jersey in the morning, and attendance at his office in the afternoon, thereby tending to establish an alibi. Inasmuch as his father had not appeared at his office that day, defendant, his partner, Herrschaft, and his cousin, Valdes, called at the father’s home at about 3:30 p.m., when the homicides were discovered. Defendant appeared visibly shocked by the discovery, and later stated that he had been fearful for his parents’ safety due to the deterioration of the neighborhood, and because they had had some trouble with people in the vicinity.

Because of a statement made to the police by defendant’s paramour with respect to defendant’s new clothing, the police inquiry continued, and defendant was taxed with discrepancies in his alibi. After accompanying detectives on Thursday morning to various places in Manhattan to check his statements, he remained in the custody of the police for all practical purposes until he was arraigned on Saturday morning, two days later. There is no evidence that the police offered him any violence during that time, but he was subjected to much questioning by detectives. Among them was Captain Meenahan, the officer in charge of the homicide squad, who questioned him intermittently from two o’clock Thursday afternoon, throughout the night, and until about nine o’clock Friday morning. In relation to later events, it may thus be noted that defendant had no sleep whatever that night.

During this questioning, defendant made a number of very damaging admissions, to the effect, contrary to his previous statements, that, although his memory was not entirely clear, he thought he must have been at his parents’ home on the preceding Tuesday morning, at or about the time of the commission of the homicides. He told of arguments with his father over the preceding week end, and said, “ Let me think this thing out. ’ ’ After numerous other admissions, defendant finally said, “ I must have been there; I remember; definitely I was there. * * * I am certain I was there — Captain, I was there. * * * Captain, it was me. Who else could it be % ” He then described how he met his mother at the door, giving all the details of that episode, but did not admit the homicides.

At about 9:00 a.m. he was taken by detectives to attend the funeral of his parents, and upon his return to the police station signed a consent to remain in police custody. Thereafter he was taken by two detectives to a hotel in Brooklyn where he went to a barbershop, had lunch, and was allowed to go to bed for an hour and a half, after which the detectives awakened him and returned him to the police station at about 5:00 p.m,

Defendant’s principal assignments of error relate to the events which took place subsequently that evening, when he is alleged to have made several confessions. He claims (1) that these alleged confessions were obtained by unlawful methods and their admission in evidence constitutes reversible error; (2) that the court’s instructions were erroneous, and (3) that the alleged confessions were obtained by hypnosis and their receipt in evidence was prejudicial error.

Not content with the admissions already made by defendant to Captain Meenahan, the latter, at about 7:00 p.m. on that evening, introduced defendant to a physician, who is also a specialist in neurology and psychiatry, a psychologist, and one who uses the technique of psychoanalysis in his practice. This doctor, unconnected with the police department or the prosecutor’s office, had been called to the police station by the District Attorney, who" outlined the case to him. The doctor had also been 11 briefed ’ ’ by Captain Meenahan, as is manifest from the questions he asked. He agreed to talk to defendant upon condition that there be no one else in the room; he knew, however, that the room was wired and that the interview would be electrically recorded by a recording machine, which was specially set up that day. The police and the District Attorney were in the basement of the police station, where they overheard the entire interview and permitted it to continue uninterruptedly.

The doctor spent an hour or an hour and a half with defendant. A transcript of the recorded interview shows that he told defendant at the outset: “ I’ll tell you what the purpose of my talk to you is. I want to see if I can help you. ’ ’ To this defendant answered: Yes, Doctor.” The doctor asked him about his sinus condition and the treatment he had had, and in the course of the interview said: “I’m your doctor.” The transcript further discloses that on at least forty occasions the doctor in one way or another promised to help defendant, and on one occasion said: “ I know you are in a little trouble. We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things that we aren’t really responsible for. I want to see whether or not you did something but which you’ve done in a fit of temper or anger. Do you understand me? A. Yes.” Defendant told the doctor he was “ very tired. I had two hours sleep. Just now they woke me up. That’s since Tuesday. Well, there were questions, after questions after questions by the thousands. * * * The only thing is I’m very tired. I didn’t feel as tired before I went to bed as I do now. You know (interruption) ”. This interruption was said to be noise, but no one knows what else defendant said here. It happened numerous times throughout the recording. So with whispers, identified by the doctor as sounds made by defendant when he did not speak audibly. In these respects the statement is definitely incomplete. Defendant then stated that his sinus was bothering ” him “ something terrible ”, and that for the past two years he had averaged over a hundred hours of work a week without vacation. After more conversation, the following took place':

Q. I want you to recollect and tell me everything. I am going to make you remember and recollect back and bring back thoughts — thoughts which you think you might have forgotten. I can make you recollect them. It’s entirely to your benefit to recollect them because, you see, you’re a nervous boy. You got irritable and you might have got in a fit of temper. Tell me, I am here to help you. A. I wish you could, Doctor.
“ Q. I am going to put my hand on your forehead and as I put my hand on your forehead, you are going to bring back all these thoughts that are coming to your mind. I am going to keep my hand on your forehead and I am going to ask you questions and now you will be able to tell me. ”

This technique — of promising help, such as We’ll help ”, “ Everybody will help you ”, We’re with you one hundred percent ”, We’ll play ball with you placing his hands on defendant’s head; making ” him recollect; minimizing the homicides by suggesting they were done in a fit of temper, saying, “ Morally, you are not to be condemned, right? A. Right ”; commanding defendant to look at him, to open and close his eyes; suggestions to defendant as to what he should say — runs all through the transcript of the recording.

The doctor was making some progress in breaking down defendant and getting some admissions, knowing that defendant was under “ tension ”, “ pale ”, his mouth was “ dry ”, and despite defendant’s frequent “ I can’t remember “ Doc, I’m trying so hard “ Doctor, I’m exhausted, so please be patient.” The doctor kept at him: “ See, I can make you talk very truly. I can give you an injection now.” Near the end of the interview the following occurred:

Q. You have a much better chance to play ball (Noise) than if you say you don’t remember. If you tell me that you were in a fit of anger, that you were angry, that you just swung the hammer, but if you tell me that you don’t remember, then you will be working against yourself. Where will it get you? A. At that point there, I was so mad. I was like white hot metal. I was so mad. I was never mad at anyone in my life * * * (Noise) * * *
*‘ Q. Do you feel better? * * * (Noise) * * * Do you want coffee? A. I drank coffee all night long * * * (Noise) * * * ” (asterisks sic).

What happened during these “ Noise ” periods, we do not know; why the doctor suddenly asked defendant after an interruption, Do you feel better? ”, followed by another interruption, is unexplained. In any event, the doctor continued with this significant question: Q. These people are going to throw the book at you unless you can show that in a fit of temper you got so angry that you did it. Otherwise they toos [toss] premeditation in and it’s premeditation. See? ” The import of this language should not be overlooked.

After some more coffee, defendant asked to speak to Captain Meenahan, whereupon he made a full and detailed confession to both homicides, in the course of which he stated he lost his temper and was overcome by a fit of anger and rage. Following his confession to Captain Meenahan, he told his partner, Herrschaft, who had been directed by a detective to be present, that he “ did it.” Thereafter and during the same evening, defendant again confessed these crimes to two assistant district attorneys, who took the written statement from him offered in evidence. He was fingerprinted that night and arraigned the next morning.

The chief issue raised by defendant at the trial is concerned with the claim that defendant was hypnotized by the doctor; that all of the confessions of Friday evening were made under that hypnotic influence; and that they were involuntary and untrue. He denied that he killed his parents, and asserted that he did not know what happened within a few minutes of the time he started talking to the doctor and the following Sunday morning, when he claims to have recovered volition and memory while in jail. He further stated that the doctor had made various gestures, first with his hands and then with some object, after which he recalled nothing. After defendant testified, followed by two psychiatrists who were called on his behalf, one of whom stated that the doctor’s actions could have been nothing but hypnotism, the doctor was called in rebuttal, asserting unequivocally that he had not hypnotized this defendant.

Since the issue of hypnotism was one of fact concerned largely with the credibility of defendant as against that of the doctor, and that issue was quite fully and impartially presented to the jury, there is no reason why we should now interfere with that finding (People v. Peller, 291 N. Y. 438, 446). Because the jury decided adversely to defendant on this issue, however, it does not necessarily follow that the confessions obtained Friday evening were voluntary within the meaning of section 395 of the Code of Criminal Procedure or that there was no violation of the requirements of due process; and because defendant denied having made these confessions, he is not precluded from contending that in the event it be determined that he did make them, they were in violation of constitutional and statutory safeguards. (U. S. Const., 14th Amendt.; N. Y, Const., art. I, § 6; Code Crim. Pro., § 395; People v. Joyce, 233 N. Y. 61, 71; Lee v. Mississippi, 332 U. S. 742, 744-745; Ashcraft v. Tennessee, 322 U. S. 143,151-154; White v. Texas, 310 U. S. 530, 532.)

We are thus squarely confronted with the question as to whether or not the admissions in defendant’s statement to the doctor were properly received and submitted to the jury, as evidence from which they might determine his guilt. We think not, and, under the circumstances here disclosed, the trial court should have so determined as a matter of law; it is the duty of the court to reject a confession if a verdict that it was freely made would be against the weight of the evidence. (People v. Doran, 246 N. Y. 409; People v. Valletutti, 297 N. Y. 226.) Bearing in mind the undisputed setting in which this interview was arranged and recorded, while defendant was in custody of the police; defendant’s physical and mental condition at the time, already alluded to; the psychiatrist, calling himself defendant’s doctor, playing upon the latter’s natural fears and hopes, pressing his hands upon defendant’s head with accompanying commands, and suggesting details to an unwilling mind by persistent and unceasing questioning; informing defendant that he was not morally responsible; making deceptive offers of friendship and numerous promises, express and implied; giving assurances in a pseudo-confidential atmosphere of physician and patient; and all the attendant circumstances taken together — this interview was a subtle intrusion upon the rights of defendant and was tantamount to a form of mental coercion, which, despite the good faith of the prosecution, we may not countenance here. No such intrusion may be sanctioned in a system of law which is based upon the presumption of innocence, surrounded by the constitutional safeguards afforded to every individual. The doctor here did not tell defendant that he had been called into the case by the District Attorney; that the latter and the police were listening to their conversation; that defendant could have his own doctor or lawyer or anyone else present: he conspicuously omitted to tell defendant that he was under no duty to speak or that anything he might say could be used against him (see People v. Fernandez, 301 N. Y. 302, 333; People v. Esposito, 287 N. Y. 389, 398).

We are, of course, not unmindful of the fact that some of these circumstances, standing alone, such as defendant’s being in custody of the police (Murphy v. People, 63 N. Y. 590; People v. Perez, 300 N. Y. 208), or mere failure to warn defendant that he was under no obligation to speak or that anything he might say could be used against him (People v. Randazzio, 194 N. Y. 147), would not constitute ground for excluding his confession. But here we have much more. Moreover, while deception alone, or a mere violation of confidence by a doctor in the sense that he has voluntarily disclosed to the police a confidential communication received in the usual practice of his profession, may not render a confession invalid (see People v. Wentz, 37 N. Y. 303; People v. Buffom, 214 N. Y. 53, 56, 57), this court is unwilling to assent to the doctrine that representatives of the State may thus employ a relationship they established between the doctor and this defendant, which is of a character that our public policy holds privileged (Civ. Prac. Act, § 352), in order to obtain a confession out of defendant’s own mouth without warning and under the circumstances here disclosed (People v. Fernandez, supra; People v. Esposito, supra; People v. Furlong, 187 N. Y. 198, 212). If a physician may be thus used, then why not a lawyer or a clergyman? The essential fairness which is supposed to form the warp and woof of our fabric of justice would certainly be wanting if practices such as these were to be approved (see People v. Levan, 295 N. Y. 26).

We have held that an involuntary confession is by its very nature evidence of nothing (People v. Valletutti, supra, p. 231). Moreover, our Federal Constitution (14th Amendt.) is a bar to the conviction of any individual in our courts of justice by means of a coerced confession (Ashcraft v. Tennessee, supra). We have a like provision in section 6 of article I of our State Constitution. A denial of due process has been defined as the failure to observe that fundamental fairness essential to the very concept of justice. * * * Such unfairness exists when a coerced confession is used as a means of obtaining a verdict of guilt.” (Lisenba v. California, 314 U. S. 219, 236-237.) Not only is the use of a coerced confession in obtaining a conviction a violation of due process, but, if such confession is admitted in evidence, that is sufficient to void the conviction regardless of other evidence which might nevertheless demonstrate guilt (Malinski v. New York, 324 U. S. 401, see, Note, 93 L. Ed. 115; Watts v. Indiana, 338 U. S. 49; Turner v. Pennsylvania, 338 U. S. 62; Harris v. South Carolina, 338 U. S. 68; Haley v. Ohio, 332 U. S. 596; Ashcraft v. Tennessee, supra; Chambers v. Florida, 309 U. S. 227).

We recognize that due process is not lacking where upon facts permitting different conclusions it is left for the jury, under a proper submission, to say whether or not there was coercion (Malinski v. New York, supra; Lisenba v. California, supra; Lyons v. Oklahoma, 322 U. S. 596), but here the method employed is not controverted and the statement itself is beyond dispute, for it is recorded. The transcript of the recording clearly discloses that the interview took place in an atmosphere of the utmost pressure, and in a manner and with a skill possible only to an experienced psychiatrist, unfamiliar with an accused’s fundamental rights. As the prosecutor said of this psychiatrist in his summation: with his superior mental powers, his studies of psychology, he was able to accomplish what a browbeating policeman might not have been able to obtain.” This was an eloquent tribute to the efficacy of mental coercion over physical.

Torture of the mind is just as contrary to inherent fairness and basic justice as torture of the body. A confession by which a person forfeits his life must be grounded on reasoned and voluntary choice. We would have to close our minds to the plain import of what occurred to deny that here was a deliberate attempt to extract a confession through the ceaseless pressure of a skillful psychiatrist by his peculiar technique, claiming to be defendant’s doctor, promising to help him, giving assurances and at the same time conducting an unrelenting interrogation of the exhausted accused. Aside from constitutional objections, we have not yet reached the stage where medical science, represented by an accord among its experts, establishes the trustworthiness of a confession induced by the means here adopted (see 3 Wigmore on Evidence [3d ed.], § 841a; People v. Forte, 279 N. Y. 204, 206). Due process of law guaranteed by our State and Federal Constitutions commands that no such practice as i revealed by this record shall send an accused to his doom, regardless of the brutality of the crimes with which he is charged.

While it is true that the statement in question was admitted as part of the People’s case by way of rebuttal on the issue of hypnotism, yet, for the reasons hereinbefore assigned, the admissions contained therein should not have been received and permitted to go to the jury as evidence from which they might determine defendant’s guilt. Although defendant vacillated with respect to his objections to this statement to the doctor, his counsel did attack it on the broad ground that defendant’s will was wholly subservient by reason of hypnotism. Although the attack on that ground was rejected by the jury, this failure did not militate against his right to claim that his confession was nevertheless involuntary, particularly in view of the fact that after the court’s charge his counsel excepted to the whole charge of the Court on the question of a valid confession In any event, in a capital case we have the power to order a new trial in the interests of justice, whether or not an exception shall have been properly taken in the court below (Code Crim. Pro., § 528).

Whether the coercion which we find implicit in defendant’s statement to the doctor extended over and into the later confessions to Meenahan, Herrschaft and the assistant district attorneys remains a question of fact for determination by the jury, and this question was never properly submitted to them. These confessions should have been separately considered in the light of the coercion existing at the time of defendant’s state- ' ment to the psychiatrist, and only if the jury were satisfied beyond a reasonable doubt that such coercion had ceased to influence defendant could they consider the later confessions. Only thus would due process of law be accorded defendant (Lyons v. Oklahoma, supra).

Another alleged infirmity in defendant’s statement to the doctor is urged upon us. It is said that this statement contained promises of leniency which might be attributed, under the circumstances, to the District Attorney (Code Crim. Pro., § 395; People v. Kurtz, 42 Hun 335; People v. Reilly, 224 N. Y. 90). The court at first instructed the jury that “ There is no claim here that the District Attorney induced this defendant to make a confession upon the promise that he will not be prosecuted therefor.” Defendant’s counsel duly excepted, and requested an appropriate charge from the court, which might eliminate premeditated murder. After some colloquy the court agreed, withdrew its original instructions in this respect, and then charged the jury in effect that they had to find a promise of complete immunity by the doctor or none at all, and only if the jury found that the former induced the confession might they acquit. While this may have been inadvertent on the part of the trial court, this instruction, to say the least, was misleading and did not cure the original instruction excepted to by defendant and which the court agreed to correct, and may well have been detrimental to defendant, particularly in the light of the doctor’s statement to him that “ unless you can show that in a fit of temper you got so angry that you did it * * * it’s premeditation. See?” People v. Mleczko, 298 N. Y. 153, 162; Code Crim. Pro., § 528.) Moreover, here again the jury should have been instructed to consider separately the later confessions, in the light of any promise that may have been made during defendant’s statement to the doctor (Lyons v. Oklahoma, supra).

While portions of the closing statements of the prosecutor relating to defendant’s criminal record, and statements of the doctor concerning defendant’s guilt and that he was lying, of Which the learned court below took cognizance, were highly improper, they and other errors assigned require no further comment in view of the conclusion we have reached. However shocking the crimes of which defendant was convicted, his life may not be forfeited in the light of the foregoing prejudicial errors, which deprived him of his substantial rights, accorded under our laws (People v. Moran, 246 N. Y. 100, 106; People v. Levan, supra; People v. Mleczko, supra; People v. Samuels, 302 N. Y. 163, 173).

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

Loughran, Oh. J., Lewis, Conwat, Desmond, Dte and Fuld, JJ., concur.

Judgments of conviction reversed, etc.


text:
    Joseph Axelrod et al., Appellants, v. Edgar Krupinski et al., Respondents.
    Argued February 28, 1951;
    decided April 12, 1951.

      Ralph Stout and Bernard Braun for appellants.
    I. Upon the evidence the question of defendants’ negligence was one of fact; and the court below erred in dismissing the complaint upon the ground that there was no evidence of actionable negligence. (Osipoff v. City of New York, 286 N. Y. 422; De Wald v. Seidenberg, 297 N. Y. 335; Amend v. Hurley, 293 N. Y. 587; Payne v. City of New York, 277 N. Y. 393; O’Neill v. City of Port Jervis, 253 N. Y. 423; Wood v. Socony-Vacuum Oil Co., 259 App. Div. 1106.) II. The owner of the car was not a passenger therein at the time of the accident, and defendants are, therefore, responsible to her in any event for their negligent conduct. (Mills v. Gabriel, 259 App. Div. 60.)

      Walter L. Glenney for respondents.
    I. No negligence of defendant driver was the proximate cause of the accident. II. Plaintiff driver was not free from contributory negligence. (Brown v. Associated Operating Co., 165 App. Div. 702; Hudson v. Church of Holy Trinity, 250 N. Y. 513; Rohrbacher v. Gillig, 203 N. Y. 413; Piper v. New York Central & H. R. R. R. Co., 156 N. Y. 224.) III. The findings that defendant driver was negligent and that plaintiff driver was free from negligence are contrary to law.
   Fboessel, J.

Plaintiffs, husband and wife, recovered a judgment for damages arising out of an automobile accident. The husband sued for personal injuries. The wife, owner of the car operated by the husband, claimed property damages.

The accident occurred at about 34th Street on the West Side Highway, an elevated expressway in New York City, when plaintiffs’ car came in contact with defendants’ automobile. It appears from the evidence favorable to plaintiffs that the husband was operating his wife’s automobile in a southerly direction at a moderate rate of speed and in a reasonable manner, driving in the extreme right-hand lane of this highway; that the operator of a motor vehicle immediately ahead of him suddenly swerved out into the middle lane, whereupon plaintiff was confronted with defendants’ car (owned by defendant MacRae, who was not a passenger, and operated by defendant Krupinski), which was parked in the roadway; plaintiff was unable to avoid the ensuing collision. Defendant Krupinski, who is an accountant, in answer to plaintiff husband’s inquiry as to why he was there, replied: “ ‘ Just parked.’ ”

According to Krupinski’s claim, he had engine trouble; after waiting about five minutes he went some six blocks to the 40th Street exit to telephone for assistance to his father-in-law, the owner of the car he was driving; the latter lived in Flushing, some ten or more miles distant. Krupinski was absent for about twenty or twenty-five minutes on this errand, leaving his wife, baby and mother-in-law in the car, and returned just in time to see the accident.

His wife and her mother, who could testify to very little concerning the actual facts of the accident, stated they were very nervous while they waited for him because of the constant traffic. It is clear that, although Krupinski’s passengers remained in the car, it was otherwise left unattended for the entire period of his absence while heavy traffic conditions obtained, and no attempt was made to signal or warn others approaching of the obstruction thus created.

Upon this record the Appellate Division erred in holding, as a matter of law, that defendants had been guilty of no actionable negligence (see Greenstein v. Kahan, 298 N. Y. 784). One who “ parks ” his car on an express highway ought reasonably to foresee possibility of danger. If Krupinski was indeed “ ‘ Just parked ’ ” he was simply foolhardy; if he was in difficulty, he should have made some effort to guard against such a foreseeable accident as occurred here, as, e.g., he might have requested his wife or mother-in-law, who were twenty-four and fifty years of age, respectively, to give some adequate warning to approaching motorists while he sought for prompt nearby aid or otherwise arranged for such aid while he gave warning, but he did nothing in this respect. He simply left the car for the better part of half an hour to summon aid from Flushing. Whether he exercised the care that a reasonably prudent person should have under all the circumstances was a question of fact. Moreover, even though it should be determined that Krupinski and plaintiff husband were both negligent, plaintiff wife may nevertheless be entitled to recover (Mills v. Gabriel, 259 App. Div. 60, affd. 284 N. Y. 755).

However, inasmuch as the Appellate Division failed to comply with subdivision 2 of section 602 of the Civil Practice Act, its decision must be treated as one on the law, and the case must therefore be remitted to that court for its determination on the facts (Matter of City of New York [Brooklyn-Battery Tunnel Plaza], 300 N. Y. 331; Rubin v. Prudence Bonds Corp., 297 N. Y. 250; Civ. Prac. Act, § 606).

The judgment of the Appellate Division, reversing the judgment of Trial Term on the law and dismissing the complaint should be reversed, without costs, and the case remitted to the Appellate Division “ for determination upon the questions of fact raised in that court ” (Civ. Prac. Act, § 606). Costs in the Appellate Division to abide the event.

Loughban, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Judgment reversed, etc.