text:
    In the Matter of the Claim of Milard Roper, Appellant, against H. C. Bohack Co., Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted July 19, 1945;
    decided October 4, 1945.

      Milard Roper, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (Isaac Frank of counsel), opposed.
   Motion dismissed on the ground that this court has no power to grant the relief prayed for.


source: Caselaw Access Project

license: Public Domain

text:
    Spear & Co., Inc., Respondent, v. Eleto Building Corporation et al., Appellants.
    Submitted July 19, 1945;
    decided October 4, 1945.

      Rudolph L. von Bernuth and Ernest J. Ellenwood for motion.

      Kenneth C. Newman and Benjamin Newman opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Morris Malinski, Appellant.
    Submitted October 1, 1945;
    decided October 5, 1945.

      David F. Price for motion.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by providing “ Judgment of conviction reversed and a new trial ordered.” Motion for reiargument denied.


text:
    The People of the State of New York, Respondent, v. Wayne T. Lonergan, Appellant.
    Submitted October 1, 1945;
    decided October 8, 1945.
   Motion by appellant to amend the remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: Upon this appeal there was presented and necessarily passed upon a question under the Constitution of the United States, viz: The defendant argued that the admission of the alleged confession in evidence constituted a denial of due process and a violation of his rights under the Fourteenth Amendment to the Constitution of the United States. This court held that the admission of the alleged confession in evidence was not a denial of due process or a violation of defendant’s rights under the Fourteenth Amendment to the Constitution of the United States. [See 294 N. Y. 942.J


text:
    In the Matter of the Claim of Ewald Schmidt, Respondent, against Wolf Contracting Co., Inc., et al., Appellants. State Industrial Board, Respondent. In the Matter of the Claim of George Knoob, Respondent, against Leon Neon Service Corp., et al., Appellants. State Industrial Board, Respondent. In the Matter of the Claim of Albert Van Gorder, Respondent, against Binghamton State Hospital et al., Appellants. State Industrial Board, Respondent. In the Matter of the Claim of Walter A. Marowski, Respondent, against Socony-Vacuum Oil Co., Inc., Appellant. State Industrial Board, Respondent.
    Submitted October 1, 1945;
    decided October 11, 1945.

      Edward R. Finch for motion.
    No one opposed.
   Motions denied, with $10 costs and necessary printing disbursements, upon the ground that appeals lie as of right.


text:
    Ruth H. Van Court, Respondent, v. Benjamin F. Jay et al., Individually and as Copartners under the Name of B. F. Jay & Company, Appellant.
    Submitted October 1, 1945;
    decided October 11, 1945.

      Louis Stone for motion.

      Alexander Slater opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Daniel H. Prior, Appellant. The People of the State of New Yoek, Respondent, v. Michael T. Smith, Appellant. (2 cases.) The People of the State of New York, Respondent, v. Daniel Willigan and John Willigan, Appellants.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motion by appellants for reargmnent denied. [See 294 N. Y. 405.]


text:
    The People of the State of New York, Respondent, v. George Phillips, Appellant.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motion by appellant to amend remittitur denied. [See 292 N. Y. 506.]


text:
    In the Matter of the Appointment of a Committee of the Person, Property and Estate of Anna Kaltman, an Alleged Incompetent Person. Anna Kaltman, Alleged Incompetent Person, Appellant; Meyer Alterman, as Special Guardian, Respondent.
    Submitted October 1, 1945;
    decided October 11, 1945.

      Meyer D. Siegel for motion.

      Ruth Lewinson and Meyer Alterman, special guardian, opposed.
   Motion dismissed with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Southern Kraft Corporation, Appellant and Respondent, v. Standard Capital Corporation, Respondent and Appellant.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motion by defendant-respondent and appellant for reargument denied, with $10 costs and necessary printing disbursements. [See 294 N. Y. 937.J


text:
    In the Matter of the City of New York, Appellant, against Emil Schoeck et al., Respondents, et al., Defendants.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motion by respondents to amend remittitur denied, without costs and necessary printing disbursements. The opinion clearly states that the retirement of the respondent does not become effective until the Board of Trustees of the New York Fire Department Pension Fund shall take action to that end. [See 294 N. Y. 559.]


text:
    In the Matter of William P. Clark, Appellant, against Harry W. Marsh, as Commissioner of Welfare of the City of New York, et al., Respondents.
    Submitted October 1, 1945;
    decided October 11, 1945.

      'Nathaniel L. Goldstein, Attorney-General (John R. Davison of counsel), for motion.

      George Dyson Friou opposed.
   Motion granted and appeal dismissed, with costs, and $10 costs of motion upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    James A. Taylor, Appellant, v. New York Central Railroad Company, Respondent.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motion by appellant for reargument denied, with $10 costs and necessary printing disbursements. [See 294 N. Y. 397.]


text:
    Margaret Emmons, as Limited Administratrix of the Estate of Stephen Emmons, Deceased, Respondent, v. Isidore Hirschberger, et al., Copartners under the Name of Market Trucking Company, Defendants. David Hirschberger, Individually, et al., Appellants.
    Submitted October 1, 1945;
    decided October 11, 1945.

      Leonard Wolfram for motion.

      Samuel E. Swiggett opposed.
   Motion denied, with $10 costs.


text:
    In the Matter of the Accounting of the Central Hanover Bank and Trust Company, as Trustee under the Will of Frederick A. Hoyt, Deceased. Central Hanover Bank and Trust Company, Individually and as Trustee, Appellant; Fredericka H. Haslup et al., Respondents.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motion by appellant for reargument denied, with $10 costs and necessary printing disbursements. ■ [See 294 N. Y. 373.]


text:
    In the Matter of the Probate of the Will of G. Frank Weeks, Deceased. Lotta N. Weeks, Appellant; Lionel E. Weeks, as Executor and Trustee under the Will of G. Frank Weeks, Deceased, et al., Respondents.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motions by respondents for reargument denied, with $10 costs and necessary printing disbursements. [See 294 N. Y. 516.]


text:
    The People of the State of New York, Respondent, v. Murray Winters, Appellant.
    Submitted October 1, 1945;
    decided October 11, 1945.
   Motion by appellant to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: Upon this appeal there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: The defendant argued that his conviction violated the right of freedom of speech guaranteed by the Fourteenth Amendment of the Constitution of the United States. This court held that the conviction aforesaid did not violate the right of freedom of speech guaranteed by the Fourteenth Amendment of the Constitution of the United States. [See 294 N. Y. 545.]


text:
    Helen E. Relihan, Respondent, v. Arthur M. Ferson. Appellant. Mathew P. Relihan, Jr., Respondent, v. Arthur M. Felson, Appellant.
    Submitted October 1, 1945;
    decided October 11, 1945.

      John M. Schneider for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs, and $10 costs of motion.


text:
    Mollie Eagle, Appellant, v. Benjamin Cherney et al., Respondents.
    Submitted October 1, 1945;
    decided October 11, 1945..
   Motion by appellant for reargument and to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 294 N. Y. 818.]


text:
    The People of the State of New York, Respondent, v. James B. Smith, Appellant.
    Submitted October 1, 1945;
    decided October 11, 1945.

      James B. Smith, in person, for motion.
    No one opposed.
   Motion denied on the ground that no appeal lies to this court.


author: Desmond, J.

text:
    Red Hook Cold Storage Co., Inc , et al., Respondents, v. Department of Labor of the State of New York et al., Appellants.
    Argued October 5, 1945;
    decided November 29, 1945.

      Nathaniel L. Goldstein, Attorney-General (.Irving Galt and Orrin G. Judd of counsel), for appellants.
    Plants specializing in fruit-grading, sorting and packing, and in preserving fruits in cold storage under mechanical refrigeration, are ‘ ‘ factories ’ ’ both under subdivision 9 of section 2 of the Labor Law and exclusive of statute. It was error to annul a determination of the Board of Standards and Appeals upholding administrative factory regulations prescribed for the safety of those exposed to the working hazards of such plants, their machines and appliances. (North Whittier Heights C. Assn. v. National L. R. Board, 109 F. 2d 76; Chester C. Fosgate Co. v. United States, 125 F. 2d 775; Minor Walton Bean Co. v. Michigan Unemployment Compensation Commission, 308 Mich. 636; State v. Christensen, 18 Wash. 2d 7; Park Floral Co. v. Industrial Commission, 104 Col. 350; Edkins v. Board of Education, 287 N. Y. 505; Matter of Kast v. Lacona Sand & Gravel Co., 250 App. Div. 679; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Board v. Hearst Publications, 322 U. S. 111; People v. Kent Stores, Inc., 248 App. Div. 763, 272 N. Y. 371.)

      Benson 22. Frost and Richard F. Russell for respondents.
    I. Respondents are not engaged in manufacturing and the buildings used and occupied by them are not factories. (Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519; Shapp v. Bloomer, 181 N. Y. 125; Shannahan v. Empire Engineering Corp., 204 N. Y. 543; People ex rel. E. S. Dairy Co. v. Sohmer, 218 N. Y. 199; People v. Knickerbocker Ice Co., 99 N. Y. 181; Hartranft v. Wiegmann, 121 U. S. 609; Anheuser-Busch Assn. v. United States, 207 U. S. 556; Tide Water Oil Co. v. United States, 171 U. S. 210; Matter of Rheinstrom & Sons Co., 207 F. Rep. 119; People v. Stevens Co., 178 App. Div. 306; People v. Cross & Brown Co., 232 App. Div. 587.) II. Bespondents are not engaged in making, altering, repairing, finishing, bottling, canning, cleaning or laundering any article or thing in whole or in part within the meaning of the statute. (People v. Cross & Brown Co., 232 App. Div. 587; Anheuser-Busch Assn. v. United States, 207 U. S. 556; People ex rel. E. S. Dairy Co. v. Sohmer, 218 N. Y. 199; Kelly v. City of New York, 288 N. Y. 641.)
   Desmond, J.

The Department of Labor, on the assumption that the establishments of plaintiffs are “ factories ” within section 2, subdivision 9, of the Labor Law, issued and attempted to enforce certain departmental orders or regulations having to do with the health and safety of plaintiffs’ employees. Plaintiffs refused to comply, asserting that their places of business are not “ factories ”. The matter was reviewed by the State Board of Standards and Appeals, which upheld the Labor Department’s orders. Plaintiffs then brought this action, under section 111 of the Labor Law. Special Term decided in favor of plaintiffs. On appeal to the Appellate Division, Second Department, that court described the activities of plaintiffs and, concluding that the statutory definition did not cover the businesses conducted by them, affirmed the judgment. We granted leave.

Subdivision 9 of section 2 of the Labor Law is in part as follows: “ ‘ Factory ’ includes a mill, workshop or other manufacturing establishment and all buildings, sheds, structures or other places used for or in connection therewith, where one ox-more persoxis are employed at manufacturing, including making, altering, repairing, finishing, bottling, canning, cleaning ox-laundering any article or thing, in whole or in part * *

The testimony as to how plaintiffs carry on their (separate but similar) businesses was given by the managers of the two plants and is undisputed. Apples are picked by the farmer in the farmer’s orchard and there put into crates, then picked up by the farmer’s truck or another truck, then brought to the premises of one of the plaintiffs, unpacked and piled away until there is opportunity or order for their sale, whereupon they are taken into a packing room, dumped on a sizing machine and sorted into different grades by the sizing machine which is driven by a motor and carries the apples along on a moving belt dropping them into different bins for different sizes. Thereafter they are put into boxes, marked as to size and grade, and then, if they are not to be shipped out immediately, put back into the cold room ”. One of the plants (Germantown) handles pears also but does not grade the pears; in fact it grades only a small percentage of the apples, most of them being merely stored. In the grading operation apples are handled and inspected by employees who throw away the culls. As to the refrigeration of the apples that are kept in cold storage, the refrigeration machine is run by an engine and compressors, etc., that is, a refrigerant is run through the pipes. The sorting operation at the Germantown plant employs about twelve or thirteen people, including office employees, during the “ fill ” period, then drops down to about six after the fill is completed, then goes back up to twelve or thirteen during the packing operation. Besides,' four engineers work on the refrigerating apparatus. The only machines in the Germantown building are the power-driven grading machine, refrigeration machinery and elevator. The farmer continues to own the apples or pears all the time. The boxes in which the apples are packed are solid except that they have a slatted top.

The other (Bed Hook) plant has three refrigeration machines and its operations are essentially the same as that of the Germantown plant except that everything is on a somewhat larger scale. The Bed Hook plant has two apple grading machines. At neither plant is the fruit washed or cleaned. A small percentage of the fruit is “ fancy ” and is wrapped in sealed paper cartons, for sale in that form.

Plaintiffs say that these are merely storage warehouses. The State says they are factories ”, if not according to some of the usages of that word, at least “ factories ” within the fair meaning of the expanded definition in the statute. The Board of Standards and Appeals thought that the handling of fruit in these plants involved “ altering ” and finishing ” within the very words of the statutory definition, and, in any case, that the statute should be liberally construed since it is a safety statute. The alteration ” that the Board had in mind is that the apples, arriving in an ungraded mass, are sorted by machines into sizes and grades. The opinion of the Appellate Division points out that the word “ factory ” ordinarily means a place for fashioning raw material, by human labor and machinery, into a product suitable for use in a different form and holds that the eight so-called categories in the statutory definition did not expand the word factory ” to include this business because, said the Appellate Division, the fruit is not changed in any way but is merely stored, then shipped.

Originally the word ‘ ‘ factory ’ ’ in the Labor Law ' was defined as including also any mill, workshop or other manufacturing or business establishment where one or more persons are employed at labor ” (L. 1897, eh. 415, § 2). So long as the statute stood that way the courts held that factory ” meant only a place where manufacturing ” in the narrow sense was carried on, that is, where something was constructed or converted from raw or imperfect material into a finished article (Shannahan v. Empire Engineering Corp., 204 N. Y. 543, 548). This court, in the Shannahan case, said that the Labor Law in this connection should be read in a natural way. There the place of employment was a tugboat, navigating the Hudson Biver but claimed by plaintiff Shannahan to be a “ factory this court pointed out that the Legislature could not, by the word “ factory ”, have meant a vessel. In 1917 (ch. 694) the Legislature amended the statute to its present form (so far as here material), by adding the words including making, altering, repairing, finishing, bottling, canning, cleaning or laundering any article or thing, in whole or in part ”. It seems plain that the Legislature intended by that change to expand greatly the concept of “ manufacturing ”. The State does not claim that any cleaning is done in this" plant but it argues that what is done is “ altering ” or “ finishing ” and, further, that the opération is so close to “ bottling ” or “ canning ” that it is within the general meaning of the statute.

' It may be conceded that the operations of plaintiffs are not within the strict letter of the statutory definition. They seem, however, to be well within its intendment. Plaintiffs’ operations are something more than dead storage. The fruit is to some extent handled and sorted by machinery. The courts construe such statutes liberally in an endeavor to apply the Labor Law’s protections where protection is needed and where the operations conducted are of the sort as to which the Legislature wished to protect employees (see Surace v. Danna, 248 N. Y. 18, 21; Met. Life Ins. Co. v. Labor Relations Board, 280 N. Y. 194, 205). We should not force the Legislature, in its proper purpose of furnishing such protection in all appropriate situations, to continue adding new and precise language to describe accurately and closely every particular special operation. For instance, the statutory definition mentions *6 canning ’ ’. It is plain enough that an establishment engaged in canning or processing fruit is generally considered a canning factory ”, In fact, section 171 of the Labor Law, by an exception therein, shows that the Legislature intended to include such establishments within the definition of “ factory ”. Differences between such plants and those of plaintiffs are: first, that the fruits sent out from plaintiffs ’ places of business are not cleaned or changed in form or appearance and have no preservative added, and, second, the largest part of the operation here is warehousing. On the other hand, the commercial purpose is the same here as in “ canning factories ” and the necessity for protection is similar, so that the legislative policy should be the same.

As above stated, the Legislature in 1917 took the earlier definition of a “ factory ” and added the words: “ including making, altering ” etc., etc. Bespondents argue that the 1917 addition of the word “ including ” and the words which follow it, was for the purpose of limiting, not expanding, the concept of a “ factory ”, that is, that no place thereafter could be considered a * ‘ factory ’ ’, even though common speech would call it such, unless there was carried on therein one of these specified kinds of activity: “ making, altering, repairing, finishing, bottling,, canning, cleaning or laundering ”. In other words, the argument is that, with thos.e words added, the statute thereafter constituted a complete and categorical list of the only operations which were to be considered manufacturing ” under the factory safety laws. “ Including ” is a word of several shades of meaning depending on the context. It may be used in the sense to comprise or embrace; or to contain or to express the idea that a thing in question constitutes a part only of the contents of some other thing; as a word of enlargement; in other words ‘ to comprise as a part or as something incident or pertinent.’ (Words & Phrases [2nd Series], vol. 2, p 1006) ”, (Matter of Frey, 154 Misc. 421, 423; see Matter, of Goetz, 71 App. Div. 272, 275; Baker v. Schleyer, 233 App. Div. 584, 586). “ Including ” may be used to bring into a definition something that would not be there unless specified, or it may be used to show the meaning of the defined word by listing some of the things meant to be referred to, but not by such listing excluding others of the same kind. Considering the manifest legislative purpose of protecting workers exposed to machinery, rather than of legislating as to precisely classified businesses, we take the word including ” as being here used to show that the Legislature intended to broaden, not narrow, the concept of “ a factory ” and that the list of operations which follows was not intended for purposes of precise itemization, but more or less illustratively.

Two Federal cases should be noticed, at least for the purpose of showing how other courts approach the problem of interpreting definitions in statutes intended to protect-industrial workers. In North Whittier Heights C. Ass’n v. National L. R. Board (109 F. 2d 76, 9th Circuit 1940, certiorari denied 310 U. S. 632), the question was whether certain workers were covered by the Federal Labor Belations Act or whether they came under the exemption of agricultural workers. The plant in question was in the business óf “ receiving, handling, washing, grading, assembling, packing and shipping the citrus fruit ”, that is, shipping out the fruit unchanged in form except as cleaned. The Circuit Court held that the men were not agricultural laborers but within the statute, saying this: “ when the product of the soil leaves the farmer, as such, and enters a factory for processing and marketing it has entered upon the status of industry ’ ” (p. 80). The court went on to say that there was thus as much need for Wagner Act protection as in any other industry. A quite similar case under the Federal Social Security Act is Chester C. Fosgate Co. v. United States (125 F. 2d 775, 5th Circuit 1942, certiorari denied 317 U. S. 639). There the same holding was made: that men working in a plant where citrus fruits were stored, cleaned and shipped were industrial and not agricultural workers.

In Matter of Mounting & Finishing Co. v. McGoldrick (294 N. Y. 104, 108), a few months ago, in construing the New York City sales tax and deciding whether certain transactions came within it, we said this: “ Of course, statutory construction is the function of the courts 6 but where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited ’ (Board v. Hearst Publications, 322 U. S. 111, 131). The administrative determination is to be accepted by the courts ‘ if it has “ warrant in the record ” and a reasonable basis in law ’ (same citation). ‘ The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body ’ (Rochester Tel. Corp. v. U. S., 307 D. S. 125, 146).”

The Department of Labor, we bold, did not exceed its powers when it dealt with these places of employment as “ factories ”, and so the judgments should be reversed and the complaint dismissed, with costs in all courts.

Loughban, Ch. J., Thaoheb, Dye and Medalie, JJ., concur; Lewis, J., dissents; Coxway, J., dissents upon the authority of Matter of Lazarus (Corsi), (294 N. Y. 613).

Judgments reversed, etc.


text:
    The People of the State of New York, Appellant, v. Edith Kaye, Respondent.
    Argued October 22, 1945;
    decided November 29, 1945.

      George J. Beldock, District Attorney (Henry J. Walsh of counsel), for appellant.
    I. The trial court did not misinstruct the jury. (People v. Shears, 158 App. Div. 577, 209 N. Y. 610; De Long v. Massachusetts Fire & Marine Insurance Company, 142 Misc. 654; People v. Noblett, 244 N. Y. 355; State v. Duerksen, 8 Okla. Crim. Rep. 601.) II. In view of the nature of the defense section 1307 of the Penal Law has no application to the facts of this case. (People v. Shears, 158 App. Div. 577, 209 N. Y. 610; People v. Meadows, 199 N. Y. 1; People v. Fitz-Gerald, 195 N. Y. 153; Parr v. Loder, 97 App. Div. 218.)

      Michael Kern for respondent.
    The trial court committed reversible error in its charge to the jury and in its refusal to charge as requested as to section 1307 of the Penal Law; in any event the court erred in taking from the consideration of the jury the evidence of lack of felonious intent and wholly nullified all of the evidence given in support of the defendant’s defense. (People v. Meadows, 199 N. Y. 1; People v. Shears, 158 App. Div. 577, 209 N. Y. 610; Parr v. Loder, 97 App. Div. 218; Ehrenreich v. Fox Film Corporation, 198 App. Div. 10; Van Vechten v. American E. F. Ins. Co., 239 N. Y. 303; People v. Fitz-Gerald, 195 N. Y. 153.)
   Desmond, J.

Defendant was convicted of the crime of larceny, first degree, for the theft of a lavaliere. There was evidence that the ornament was handed over to defendant by the victim, who relied on defendant’s assertion that it was to be used by her as “ security ” in connection with defendant’s plan and promise to help arrange a divorce between the owner of the jewelry and the latter’s husband. Defendant, it appears, did not in fact make any such “ arrangements ” but pawned the lavaliere. Before any criminal proceedings were commenced, however, she got the ornament out of pawn and returned it to its owner. The County Judge charged the jury that defendant could not be convicted except on a finding that she had taken it with the intention of appropriating it to her own use. He refused, however — and here arises the question of law on this •appeal to charge that “ if the jury believes that the defendant at the time of the taking of this jewelry intended to restore the property taken, that is a ground of defense, if the jewelry was actually restored before the commencement of a prosecution for the taking of the jewelry.” By that ruling, and others, the County Judge declared it to be the law that, while the return of the stolen gaud could be considered by the jury with the other facts in deciding whether or not there was an original larcenous intent, nonetheless, if such larcenous intent should appear from all the facts, the later return of the stolen piece would be of no avail as a defense. The Trial Judge thus, over defendant’s objection, practically eliminated from the case section 1307 of the Penal Law which reads as follows:

Intent to restore property no defense. The fact that the defendant intended to restore the property stolen or embezzled, is no ground of defense, or of mitigation of punishment, if it has not been restored before complaint to a magistrate, charging the commission of the crime.”

The Appellate Division reversed on the law and ordered a new trial. The majority of the justices thought that since the lavaliere had been returned to its owner before any prosecution was instituted, the jury should have been told that defendant’s intent so to return it, if the jury found such an intent, was a good defense under section 1307. The dissenting justices construed the statute differently. Its meaning, they wrote, is this: if property has been stolen or embezzled, intent to return it is no defense at all hut such intent is ground for mitigation of punishment if there has been an actual restoration before an information has been laid with a magistrate. The meaning of section 1307, said the dissenting opinion, is the same as if it consisted of two distinct propositions (like the California Penal Code, §§ 512 and 513): one proposition denying a “ defense ”, the other authorizing mitigation of punishment ”.

The meaning of section 1307 has not been declared in any opinion of this court. The Appellate Division opinions in this case differ as to the effect of People v. Shears (158 App. Div. 577, affd. without.opinion, 209 N. Y. 610). In the Shears case there had been an embezzlement by defendant of a check, wThich he had received in a fiduciary capacity but had cashed and used for his own ends. Before he was proceeded against in the criminal cause, Shears, or others on his behalf, made good in cash the amount of the peculation. On the trial County Judge Cease (later Chief Judge of this court) charged the jury much as the jury was charged in the present case, instructing that, once a larceny should be found to have been consummated, intent to return or actual return would be no defense. The Appellate Division’s opinion in the Shears case contains a holding, or a remark, that in that case there was really no “ restoration ” at all of the embezzled check since Shears, in cashing it, had consumed it and made restoration impossible. This court’s affirmance without opinion in that case did not necessarily imply approval of that restricted view. We consider People v. Shears sufficient authority for the court’s charge in the present case.

We realize that the construction now approved by us leaves the statute pretty much of a dead letter. Intent to return, with or without actual return, is no defense but the sentencing judge may consider such facts in mitigation of punishment ” — which he certainly could do without any statutory permission. But we find no reason for concluding that the Legislature, setting up this new law in 1881 (as § 549 of'its new “ Penal Code ”) meant any more than that. A “ draft of a Penal Code ” prepared by Commissioners in 1864, had, in its chapter headed “ Embezzlement ”, one section (610) quite like the present statute and another section (611) which said that restoration of embezzled property before prosecution was not to be “ a ground of defense to the indictment ”, but would be ground for mitigating the punishment, in the court’s discretion. In 1879, a special Senate Committee, reporting out another proposed Penal Code, included the first, hut omitted the second, of the two statutes so recommended in 1864 and included in the first a reference to “ stolen property ” as well as “ embezzled property ”. The Legislature in 1881 approved the 1879 draft, enacting the statute as we now find it on the books. Our question would of course be easier to answer had the 1864 proposals been adopted in their entirety. Nonetheless, we find no hint of any legislative intent to change the ancient rule that a thief may not purge himself of guilt, by giving back the plunder, before or after arrest. The purpose of the statute, couched in the negative, was to forbid and not to authorize, to deny a defense and not to provide one, to make it plain that once a theft had been proven, restitution was no concern of the jury-, but only a fact that the judge might consider in fixing the penalty. So construed, section 1307 is in accord with the law in other jurisdictions (see 2 Wharton on Criminal Law [12th ed.], §§ 1147 and 1316; 52 L. R A. [N. S.] p. 1019 et seq.; 29 C. J. S., Embezzlement, § 25, pp. 702 and 703; 18 Am. Jur., Embezzlement, § 26, p. 585, and 32 Am. Jur., Larceny, § 117, p. 1029).

The order of the Appellate Division should be reversed but, since the Appellate Division’s reversal was on the law alone, the case should go back to that court for a determination of the facts (Code Grim. Pro., § 543-a).

The order of the Appellate Division should he reversed and the case remitted to the .Appellate Division for disposition of the facts in accordance with section 543-a of the Code'of Criminal Procedure.

Lotxghran, Oh. J., Lewis, Conway, Thaoher, Dye and Medalie, JJ., concur.

Order reversed, etc.


author: Loughban, Ch. J.

text:
    Fred Linton, Appellant, v. Perry Knitting Company, Respondent.
    Argued October 1, 1945;
    decided November 29, 1945.

      William L. Clay for appellant.
    I. There has been no existing final judgment rendered on the merits determining the same cause of action between the parties and the dismissal of the prior action on motion for the grounds indicated was not res. judicata. (Merritt & C. D. & W. Co. v. T. & T. Co., 106 Misc. 247; Fogarty v. O’Reilly, 56 Misc. 192,123 App. Div. 923; Thorburn v. Gates, 103 Misc. 292, 184 App. Div. 443; Smith v. McNeal, 109 U. S. 426; Lipkind v. Ward, 256 App. Div. 74; Cook v. Conners, 215 N. Y. 175.) II. The allegations of the complaint and the affidavit submitted in opposition to defendant’s motion raised issues of fact which cannot be determined on motion. (Burrows v. Scherer, 228 App. Div. 673; Giannavola v. General Railway Signal Co., 244 App. Div. 65.) III. Plaintiff’s sole remedy in this action is the pending suit at common law and he has a right to maintain the action. (Matter of Goldberg v. 954 Marcy Corp.] 276 N. Y. 313; McNeely v. Carolina, 206 N. C. 568; Victory v. Francks, 146 Md. 368; Gay v. Hocking Coal Co., 169 N. W. 360; Bolosino v. Laclede, 124 S. W. 2d 581; Harris v. Southern Cast Iron Company, 162 So. 431; Evans v. Chevrolet Motor Co., 105 S. W. 2d 1087; McNeelly v. Sheppeard, 89 F, 2d 956; Harris v. Southern Carbon Company, 162 So. 430; Ramsay v. Sullivan Mining Co., 6 P. 2d 856.) IV. The complaint sets forth facts sufficient to constitute a cause of action. (Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Wainwright & Page v. Burr & McAuley, Inc., 272 N. Y. 130; Dyer v. Broadway Central Bank, 252 N. Y. 430; Burrows v. Scherer, 228 App. Div. 673; Saynes v. George Nowland Corp., 255 App. Div. 858.) V. The defense of res judicata is not tenable.

      Casper V. Baltensperger, Patrick S. Mason and Bernard Katzen for respondent.
    I. There is an1 existing and-final judgment determining the same cause of action between the parties! That judgment is a bar to' this action.. (Secor v. Sturgis, 16 N. Y. 548; Nathans v. Hope, 77 N. Y. 420; Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Baltimore S. S. Co. v. Phillips, 274 U. S. 316; De Coss v. Turner & Blanchard, Inc., 267 N. Y. 207; Miller v. United States Gypsum Co., 96 F. 2d 69; Cauldwell-Wingate Co. v. City of New York, 252 App. Div. 559, 278 N. Y. 477; Joannes Brothers Co. v. Lamborn, 237 N. Y. 207; Matter of Beckmann v. Talbot, 278 N. Y. 146; Matter of Costers Estate, 167 Misc. 937, 255 App. Div. 707, 280 N. Y. 598; Newton v. Wade, 239 App. Div. 742; Matter of New York State Labor Relations Board v. Holland Laundry Inc., 294 N. Y. 480; Wilson’s Executor v. Deen, 121 U. S. 525; Brundige v. Bradley, 294 N. Y. 345.) II. The court lacks jurisdiction of the subject matter of the action. (Matter of Goldberg, 276 N. Y. 313; Matter of Bishop v. Comer & Pollack, Inc., 251 App. Div. 492; delBusto v. DuPont deNemours & Co., 167 Misc. 920, 259 App. Div. 1070, 284 N. Y. 817; Scherini v. Titanium Alloy Co., 286 N. Y. 531; Schwartz v. Bausch & Lomb Optical Co., 263 App. Div. 1065, 291 N. Y. 765; Hurd v. Republic Steel Corp., 268 App. Div. 936.) III. The complaint does not set forth facts sufficient to constitute a cause of action. (Nulie v. Hardman, Peck & Co., 185 App. Div. 351; Basso v. Clark & Son, Inc., 108 Misc. 78; Volk v. City of New York, 259 App. Div. 247; Culhane v. Economical Garage, Inc., 195 App. Div. 108; Kuhn v. City of New York, 274 N. Y. 118; Morris v. Muldoon, 190 App. Div. 689.)
   Loughban, Ch. J.

A motion made before trial by the defendant for dismissal of the complaint was denied at Special Term. The Appellate Division reversed and granted the motion. The complaint in an earlier action between- the same parties had been finally dismissed by a judgment that stood unreversed. In the view of the Appellate Division, that former judgment was a bar to the present action.

The grounds of the defendant’s attack upon the complaint in the earlier action were that (1) the cause of action was barred by the Statute of Limitations and (2) the Workmen’s Compensation Law of the State of New York provided the exclusive remedy of the plaintiff and the exclusive liability of the defendant. The objection that the Workmen’s Compensation Law was the sole remedy did not go to the jurisdiction of the court (as the plaintiff thinks) but went to the sufficiency of the earlier complaint as the statement of a cause of action (see Barrencotto v. Cocker Saw Co., 266 N. Y. 139). Hence no question in respect of the power of a court conclusively to determine its own jurisdiction was here presented.

The former judgment Avas a final determination that for either of two several legal reasons the allegations of the earlier complaint were without more quite ineffectual. Such a determination, whether right or wrong, is a bar to another action for the same cause, unless the defects or omissions adjudged to be present in the one action are corrected or supplied by the pleadings in the other (Joannes Brothers Co. v. Lamborn, 237 N. Y. 207). The complaint now before us is virtually a copy of its predecessor. Hence dismissal of the present action AAras validly directed, even if the judgment in the earlier action was not a judgment on the merits — a point that we do not decide. (Cf. Civ. Prac. Act, § 482; Richard v. American Union Bank, 253 N. Y. 166; Brick v. Cohn-Hall-Marx Co., 283 N. Y. 99, 104; 2 Freeman on Judgments [5th ed.], §§ 745, 746, 747; Restatement, Judgments, §§ 49, 50.)

The judgment should be affirmed, without costs.

Lewis, Conway, Desmond, Thaohee, Dye and Medaule, JJ., concur.

Judgment affirmed.


author: Conway, J.

text:
    Philippe Faingnaert, as President of New York Household Placement Association, et al., Appellants, v. Paul Moss, as Commissioner of Licenses of the City of New York, Respondent.
    Argued October 3, 1945;
    decided November 29, 1945.

      I. Maurice Wormser, William E. Vogel and Frank X. O’Donnell, Jr., for appellants.
    I. The provisions of section 185 of the General Business Law do not regulate, control or affect the fees which may be charged by employment agencies to employers. (Matter of Corporate Employment Service, Inc., v. Moss, 263 App. Div. 14, 287 N. Y. 794; National Employment Exchange v. Geraghty, 60 F. 2d 918.) II. Any ambiguity in section 185 of the General Business Law, as amended, should be resolved in favor of the plaintiffs. (Fajans v. Macy & Co., 163 Misc. 182.) III. The total 10% fee limitation ordered by the defendant is unreasonable, arbitrary, discriminatory, confiscatory and unconstitutional under both the Federal and State Constitutions. (Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; Federal Waste Paper Corp. v. Garment Center Capitol, 268 App. Div. 230; Kelly-Sullivan, Inc., v. Moss, 174 Misc. 1098; Wallace v. Hudson-Duncan & Co., 98 F. 2d 985; Lakeland Highlands Canning Co. v. Mayo, 28 F. Supp 44; Telluride Power Co. v. Public Utilities Commission, 8 F. Supp. 341; Southwest Utility Ice Co. v. Liebmann, 52 F. 2d 349; Eighth Avenue Coach Corporation v. City of New York, 286 N. Y. 84; Boomer v. Olsen, 143 Neb. 579; Olsen v. Nebraska, 313 U. S. 236; Adams v. Tanner, 244 U. S. 590; Matter of Jacobs, 98 N. Y. 98; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187.)

      Ignatius M. Wilkinson, Corporation Counsel (Richard L. Baltimore, Jr., and James Hall Prothero of counsel), for respondent.
    I. The express, unambiguous and unequivocal language of the statute compels a construction consonant with the respondent’s position that the gross amount charged, from any and all sources, cannot exceed 10%. (London Guarantee & Acc. Co. v. Jacobson, 241 Mass. 255; Metropolitan Life Ins. Co. v. Rouillard, 92 N. H. 16; State v. Hallenberg-Wagner Motor Co., 341 Mo. 771.) II. The gross fee to be charged by an employment agency may not exceed the amounts set forth in subdivision 1 of section 185 of the General Business Law. (Olsen v. Nebraska, 313 U. S. 236; Buchanan v. Tilden, 18 App. Div. 123; Cook v. Phillips, 56 N. Y. 310.) III. The objectionable consequences which would ensue from the appellants’ construction of the statute, as contrasted with respondent’s, counsel acceptance of the latter’s interpretation. (Watertown Imp. & Const. Co. v. City of Watertown, 145 Misc. 398; Matter of Rouss, 221 N. Y. 81; Matter of Emerson v. Buck, 230 N. Y. 380; Ewen v. Thompson-Starrett Co., 208 N. Y. 245; People ex rel. Royal Bank of Canada v. Loughman, 226 App. Div. 593, 254 N. Y. 512; People ex rel. Nechamcus v. Warden, 144 N. Y. 529.)
   Conway, J.

The plaintiffs, an association of employment agencies and two of the agencies, bring this action for a declaratory judgment declaring that the defendant Commissioner of Licenses is acting contrary to law in attempting to limit the fees charged by agencies in providing domestic or Class “ A employment (General Business Law, § 185, subd. 1). They ask further for a declaratory judgment, declaring that they have the legal right to charge a fee to employees for whom employment is provided in an amount not exceeding 10% of the first month’s salary or income, and a similar fee to employers for services rendered to said employers in obtaining applicants to fill positions for them. They ask further that if section 185 of the General Business Law be “ interpreted to restrict the total gross fees to be charged to both employers and employees to an amount not to exceed for any single engagement ten (10%) per centum of the first month’s salary ”, that it be declared unconstitutional as violating the 14th Amendment of the Federal Constitution and article I, sections 1, 6 and 11 of the New York State Constitution.

The conduct of business employment agencies in New York City is governed by the provisions of article 11, sections 170-192, of the General Business Law, and the defendant, as Commissioner of Licenses, is charged with the enforcement of those provisions. Special Term found that for many years prior to May 12,1944, the plaintiffs, with the knowledge of the defendant, “ had been charging a sum not exceeding 10% of the first month’s wages to applicants for employment and a similar charge not exceeding 10% of the first month’s wages of said applicant for employment has been charged to employers who engaged the services of plaintiffs ” and that for many years prior to May 12, 1944, other licensed employment agencies in New York City “ had been charging sums in varying amounts exceeding 10% of the first month’s wages to applicants for employment and to employers who engaged the services of these agencies.” It further found that on May 12, 1944, for the first time, plaintiffs and other domestic and household employment agencies in the city of New York, were summoned to the office of the defendant and advised orally that, under penalty of suspension or revocation of their licenses, they could not charge an amount greater than the total amount of 10% of the first month’s salary or income for providing employment in class A ’, as set forth in subdivision 1 of Section 185 of the General Business Law of the State of New York to both employees for whom employment is provided, and to employers.” The question presented here concerns the interpretation of that section. The plaintiffs contend that the statute merely places a 10% ceiling on the fee to be charged to the employee and that there is no attempt to regulate the fee to be charged to the employer. Defendant contends, on the other hand, that while the plaintiffs’ position was correct under the section as it existed prior to the amendment of May 20, 1942, the statute as it now reads compels the interpretation that there is a 10% limitation on the fee which the agencies may collect for any single employment, whether it be from the employee or the employer or both. That reasonable men may differ on the proper construction of the statute is made clear by the fact that the defendant commissioner is now urging a construction, under threat of suspension or revocation of license, which is exactly the opposite of that which he made and under which he administered the law for nearly two years prior to his present construction. Before so drastic and abrupt a change in the conduct of a recognized business, we think the legislative intention should be clear and unequivocal. Article 11 of the General Business Law is penal in character providing that any person violating the provisions of section 185 shall be deemed guilty of a misdemeanor and that, upon conviction of any licensed person for any violation, such person shall be subject to a fine or imprisonment for not more than one year or both and further providing for cancelation and revocation forthwith of the license by the mayor or commissioner of licenses. The construction should, therefore, be a strict one and it seems to us should be in favor of plaintiffs until such time as the Legislature clearly makes a contrary direction.

General Business Law, section 185, subdivision 1, as it existed prior to the 1942 amendment and as it now reads, is as follows:

Section Prior to the Amendment
“ § 185. Fees charged by persons conducting employment agencies 1. The gross fees of licensed persons charged to applicants for employment as lumbermen, agricultural hands, coachmen, grooms, hostlers, seamstresses, cooks, waiters, waitresses, scrubwomen, laundresses, maids, nurses (except professionals) and all domestics and servants, unskilled workers and general laborers, shall not in any case exceed ten per centum of the first month’s wages, and for all other applicants for employment, shall not exceed the amount of the first week’s wages or salary unless ¿he period of employment is for at least one year, and at a yearly salary, and in that event the gross fee charged shall not exceed five per centum of the first year’s salary, except when the employment or engagement is of a temporary nature, not to exceed in any single contract one month, then the fee shall not exceed ten per centum of the salary paid.” (Emphasis supplied.) „
Section Applicable to the Instant Gase
“§ 185. Fees charged by persons conducting employment agencies 1. For the purpose of placing a ceiling over the fees charged by persons conducting employment agencies, the classes of employment furnished by them shall be grouped as follows: Class ‘ A ’ employment — meaning and including employment as lumbermen, agricultural hands, seamstresses, cooks, waiters, waitresses, scrubwomen, laundresses, maids and other domestic servants, nurses (except professional), unskilled and untrained manual workers and general laborers; and class 1 B ’ employment — meaning and including any employment (except theatrical engagements) not included in class 1 A ’. The gross fee charged by any person conducting an employment agency shall not for any single engagement exceed ten per centum of the first month’s salary or income for providing employment m class ‘ A nor exceed the amount of the first week's salary or wages for providing employment in class ‘ B ’ unless the computed first year’s salary or income to be derived is equivalent to twenty-five hundred dollars or more, in which event the gross fee shall not exceed, in per centum of the computed first year’s salary or income, a rate equal to one-one thousandth of said salary or income, and in no event shall exceed a rate of five per centum of such salary or income.” As amended by Laws of 1942, chapter 908, section 1, effective May 20, 1942. (Emphasis supplied.)

It was found that the “ class of employment provided by ¡he plaintiffs herein is grouped as class ‘ A ’ employment within the provisions ” of the above section.

The history of the section does not cast much light upon the question of its interpretation. Section 185, subdivision 1 (L. 1910, ch. 700), was derived from sections 173 and 183 of the General Business Law (L. 1909, ch. 25). Section 173 was, in turn, derived from chapter 432 of the Laws of 1904 as amended by chapter 327 of the Laws of 1906, and section 183 was derived from chapter 328 of the Laws of 1906. In none of those statutes does there appear any language which could be interpreted as an attempt to control the amount of fees charged to employers, or “ applicants for help ” as they are called. There is provision, however, for a limitation on the amounts of fees to be charged “ applicants for employment ”.

Returning to the wording of the section as it now” stands, plaintiff's here point to the use of .the singular in the provision “ The gross fee charged,” etc. They urge that if the 10% fee were to be divided between the employee and employer there would be two separate fees. They point also to the use of the words for providing employment ” and this does seem a cogent argument for the interpretation that only employees were referred to. In other sections of article 11, i.e., section 171, subdivision 2 (definition'of “ employment agency ”) and in section 187 (receipt for fees paid) there is a differentiation between applicants for help and applicants for employment. These same terms were used in the earlier statutes above referred to (L. 1904, ch. 432, § 5; L. 1906, ch. 327, § 1; L. 1906, ch. 328, § 5). There is a difference in language between the provision in the present section 185, subdivision 1: “ The gross fee charged by any person conducting an employment agency shall not for any single engagement exceed ten per centum of the first month’s salary or income for providing employment * * * ” (emphasis supplied) and the language in the present section 171, subdivision 7, which provides, in part: “7. The term 1 fee ’ means and includes any money or other valuable consideration paid or promised to be paid for services rendered or to be rendered by any person conducting an employment agency * * * ” (emphasis supplied). It would seem that the fee referred to in section 185, subdivision 1, was a more limited fee that the one defined in section 171. It was to be a fee paid for providing employment and thus to be paid by an employee.

We think, however, that plaintiffs are in error in urging that no regulation of the amount of fees charged employers was intended. The expressed purpose of the present section T85, subdivision 1 (“ For the purpose of placing a ceiling over the fees charged' by persons conducting employment agencies * * # ”) would clearly indicate such an intention. The provisions of General Business Law, section 186, make the legislative intention even more certain. That section reads, in part, as follows: “3. If an employee furnished to an employer fails to remain one week in the position, the gross fee charged to said employer shall not exceed three-fifths of the maximum set forth in section one hundred eighty-five of this article for the class of employment provided, or a new employee shall be furnished to the employer if the employer so elects.” (Emphasis supplied.) Subdivision 1 of section 186 deals with a return of fees to the employee in the event of termination of the employment. We cannot agree with plaintiffs’ contention that no intention to fix fees is indicated by section 186, because that section deals with a return of fees. The sections must be read together, and section 186 serves to make clear the meaning of section 185, subdivision 1.

The conclusion is inescapable that some control over fees charged to employers was intended by the very fact of amendment, and the change in language. To say that some control over the fees charged employers was intended does not mean, however, that we must sustain defendant’s position. It seems to us that the intention of the Legislature was to .continue the limit of 10% on the fees charged employees and to provide a limit of 10% on the fees charged employers. In other words, an employer may be charged an amount not in excess of 10% in addition to the fee (again not in excess of 10%) charged the employee. There is nothing in the expressed purpose of the section that forbids such interpretation. A “ ceiling ” is provided, though it is a higher ceiling than that urged by defendant. The only difficulty lies in the use of the words “ single engagement ” (“ The gross fee charged . . . shall not for any single engagement . . . ”). That means, we think, that it is a single engagement ' when the agency obtains help - for the employer and a single engagement when the agency obtains employment for the employee. Plaintiffs must stand or fall on that interpretation of the statute. There is no merit in their contention that if the statute be ambiguous, effect should be given to the practical interpretation given the statute by those entrusted with its enforcement. The present section was effective on May 20,1942. The defendant acquiesced in the charging of fees of 10% or more to employers until May 12, 1944, when he advised plaintiffs that they could charge only a total fee of 10%. That was a period of less than two years and would not constitute a “ practical construction . .. acquiesced in by all for a long period of time ” within the meaning of the authorities (Matter of City of New York, 217 N. Y. 1, 13).

Nor can plaintiffs succeed on this record in their attack on the constitutionality of the section. A limitation upon fees charged to employers would not deny plaintiffs equal protection of the laws since all agencies in the same class are treated alike. (Matter of Sacharoff v. Corsi, 294 N. Y. 305, 312.) Plaintiffs emphasize an alleged violation of the due process clause. There is no finding and no request to find that the statute, if interpreted in accordance with defendant’s contention, would be confiscatory. There is, therefore, no reviewable question. (See Cohen, The Powers of the New York Court of Appeals, p. 317.)

The judgments should be reversed, with costs in the Appellate Division and in this court, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion.

Loughban, Ch. J., Lewis, Desmond, Thacheb, Dye and Medalie, JJ*., concur.

Judgments reversed, etc.


author: Lewis, J.

text:
    The People of the State of New York, Despondent, v. Thomas Levan, Appellant.
    Argued October 23, 1945;
    decided November 29, 1945.

      Rudolph Stand, Irving Mendelson, Lucius L. Delany and Louis Wendel for appellant,
    I. The trial court committed prejudicial error in refusing to permit the defendant to testify directly as to his intent and motive in visiting the home of the deceased on the night of the homicide. (Kerrains v. People, 60 N. Y. 221; 1 Wharton on Criminal Evidence [10th ed.], § 24; Thurston v. Cornell, 38 N. Y. 281; McKown v. Hunter, 30 N. Y. 625; Noonan v. Luther, 206 N. Y. 105; State v. Wright, 40 La. An. 589; State v. Hall, 132 N. C. 1094; People v. Smith, 172 N. Y. 210; 2 Wigmore on Evidence [3d ed.], § 581; Underhill on Criminal Evidence [4th ed.], § 138.) II. The prosecutor’s summation transcended the hounds of proper argument and was prejudicial to the appellant’s rights. (People v. Fielding, 158 N. Y. 542; People v. Manganaro, 218 N. Y. 9; People v. Esposito, 224 N. Y. 370; People v. Mull, 167 N. Y. 247.)

      Frank 8. Hogan, District Attorney (Whitman Knapp and Richard G. Denser of counsel), for respondent.
    I. The defendant’s guilt was proved beyond a reasonable doubt. II. The trial court did not improperly limit the defendant’s testimony. III. The alleged errors in the prosecutor’s summation do not warrant disturbing the judgment. Conceding that defendant’s army status should not have been alluded to, it can hardly be said, particularly in the light of the court’s instructions, that the incident involved anything approaching reversible error. (Horowitz v. United States, 262 F. 48.) IV. None of the remarks on summation now challenged — viewed in the light of the innocuous chcracier of most of them, of the closing address as a whole, of the court’s rulings and instructions and of the reaction of defense counsel — can be deemed of the sort affecting the judgment. (People v. Sexton, 187 N. Y. 495; People v. Slover, 232 N. Y. 264; People v. Cummins, 209 N. Y. 283; People v. Conklin, 175 N. Y. 333; People v. Doody, 172 N. Y. 165; People v. Wolf, 183 N. Y. 464; People v. Mull, 167 N. Y. 247.)
   Lewis, J.

On April 9, 1944, at 12:25 a.m., Joseph Dawkins, returning from his night-shift employment, entered his apartment at 419 West 128th Street, New York City. There he discovered the dead body of his wife, Anna Dawkins, lying on the kitchen floor. The defendant, Thomas Levan, stands convicted of murder in the first degree upon a finding by a jury that the death of Anna Dawkins was accomplished by him while he was engaged in the commission of a felony. (Penal Law, § 1044, subd. 2.) The jury made no recommendation of life imprisonment under section 1045-a of the Penal Law.

The defendant did not deny the fact that he killed Anna Dawkins. Nor is it denied that after the killing he took with him from the Dawkins apartment several bottles of whiskey, a number of items of jewelry and at least $27 in currency which belonged to the decedent.

The theory of the. prosecution was that the killing of Anna Dawkins was the act of the defendant committed while he was engaged in the commission of a robbery. The defendant, testifying in his own behalf, claimed that the decedent’s death was accidental. His demánd for a reversal of the judgment of death and for a new trial rests upon alleged errors at the trial which he claims prejudiced his rights before the jury.

From evidence adduced by the prosecution it appears that Joseph Dawkins, the victim’s husband, became acquainted with the defendant in the summer of 1943 while both were employed in a factory at Edgewater, New Jersey. They worked together until December, 1943, when the defendant was inducted into the armed forces. Prior to his induction the defendant had been a frequent visitor at the Dawkins’ apartment. There had been occasions when Dawkins had driven the defendant to and from their work. The defendant had borrowed small sums of money from Dawkins, which loans were repaid. There had been dice games in which Dawkins had participated with the defendant and their friends. When the defendant had been in the army only a short time he telephoned Dawkins asking for a loan of $8. Dawkins promptly wired the money to the defendant at Camp Devens, Massachusetts. Two days later he saw the defendant in New York City and from that time until Saturday night, April8, 1944 — the night of the homicide — Dawkins saw the defendant every day.

On that Saturday night, a few minutes before midnight, Dawkins left his place of employment accompanied by five co-employces and proceeded by automobile to his home. Arriving there at about 12:25 a.m. of the following day — April 9th — his companions remained in the parked car while he mounted the stairs to his third floor apartment to obtain a bottle of whiskey which he was to share with them. As he entered his apartment Dawkins noticed that lights were turned on in all the rooms except the kitchen. He went first to his bedroom where he had left four bottles of whiskey. They were missing. He then proceeded through the apartment and found beds “ torn up ” in both bedrooms. As he entered the hall near the kitchen he saw the body of his- wife lying on the kitchen floor with her head immersed face down in a pot of water. After lifting her head from the Avater he ran doAvnstairs to his companions Avho returned -with him to the apartment. He then called the police.

From testimony given by the deputy chief medical examiner for the city of New York it appears that the death of Anna Dawkins had occurred at least íavo hours and not more than seven hours prior to his arrival at 2:45 a.m. of April 9th. The cause of death was found to he “ traumatic asphyxia ” — a combination of strangulation and the immersion of the victim’s head. Except for the presence on the floor of the body and an aluminum pot partially filled with water there was no disorder in the kitchen which gave evidence of a previous disturbance. When the medical examiner turned the body over blood was exposed on the floor and a cut over the decedent’s left eye was noticed. A subsequent search of the apartment revealed that currency, various articles of jewelry and other items of personal property were missing.

No clue was found which pointed to a solution of the crime until a week after its occurrence when Dawkins met the defendant in front of a theatre on 125th Street. At that time Dawkins noticed a scratch on the defendant’s left cheek. He inquired as to the cause of the scratch and was told by the defendant that it had been received in “ a fight ” with a woman. His suspicion being aroused Dawkins left at once to summon the police. Upon his return with a police officer the defendant had disappeared. Then followed a search of the neighborhood which led to a house at 122 West 127th Street where the defendant was rooming and where it was disclosed that on the occasion of his arrival on the night of Saturday, April 8th, he had displayed two bundles containing four quarts of liquor and a quantity of jewelry. There was also evidence of an occasion when a woman who was sharing a room with the defendant was overheard warning him to “ keep quiet, Big1 Jim [Dawkins] is looking for you ”. On another occasion the defendant had told a tenant in the rooming house that if anyone should ask if a soldier was staying there she should deny it. Wheii the tenant expressed curiosity the defendant explained — “ The woman that I fought with is dead.” Further inquiry by the tenant as to whether he had killed a woman brought forth from the defendant the answer — “ No, I didn’t kill the woman but the man killed the woman that was with me.” These suspicious circumstances caused the defendant’s arrest. His indictment and trial followed.

The People’s case rests chiefly upon oral and written confessions by the defendant in the first of which he implicated an acquaintance, “ Arthur Jones ”, as the guilty party. On the day following his first oral statement he was told that his finger prints had been identified on an aluminum pot found at the scéné of the crime. Upon being so informed the defendant gave a second version of the killing in which he said that on the night it occurred he hád been on his way to the Dawldns ’ apartment and had “ heard Mrs. Dawldns screaming.” Upon entering the apartment he saw “ Arthur Jones sticking her head in this pot of water.” He told Jones not to do that and then “ went over and picked up the pot.” His third version of the crime was given shortly thereafter. From that statement and from one recorded by a stenographer and given by him subsequently in response to questions by an assistant district attorney, it appears that on the night of the homicide he went alone to the Dawkins’ apartment and was admitted by Mrs. Dawkins. After telling her he was trying to locate her brother, who was a sergeant in the army, he asked her to lend him $20 which she refused to do stating that he already owed her that amount. Later, at his request, she went into the kitchen to prepare refreshments for him. While there, when she again refused to lend him money, they “ started wrestling ”. In the affray which followed she scratched his face and he in turn choked her and struck her four or five times with a blackjack which he had taken from his pocket. When she fell to the floor he filled a pot with water and, in an effort to revive her, he picked her head up, and he kept putting it in and out of the water until she stopped bubbling. ’ ’ He then left his victim on the floor and went through the apartment from which he took $27 or $28 in cash, several bottles of whiskey, various articles of jewelry, the decedent’s keys and a camera. With only minor variations this version of the crime was in accord with the defendant’s own testimony when he took the witness stand to give the only evidence produced in his defense. From' his recital it appeared that while Mrs. Dawkins and he were “ teasing each other ” she not only refused to lend him $20 but she made a persistent effort to collect the debt he already owed her by trying to extract money from his “ back pocket ”. It is the defendant’s claim that he resisted that effort and that in the melee which followed he drew his blackjack and dealt blows upon her head which prostrated her. After he sensed what he* had done, according to his own testimony, the following occurred — And I said, I done killed this woman ’. And I started out. I said, £ I done killed her. I might as well go ahead on and take something.’ I started rambling through the house, and took some jewelry and some other stuff. And I took the keys.”

The record at hand thus gives evidence of a degree of moral depravity which has led to a shocking crime. But if we are to deal with such behavior according to applicable forms of law — “ A criminal, however shocking his crime, is not to answer for it with forfeiture of life or liberty till tried and convicted in conformity with laAV ”. (People v. Moran, 246 N. Y. 100, 106.) In this instance Ave find prejudicial error at the trial AAhich deprived the defendant of substantial rights and requires reversal of the judgment of death and a new trial.

On direct examination the defendant Avas asked by his counsel— £í Q. When you went up to see Anna Dawkins that night, did you intend to go up there to steal money from her? A. No, sir, I didn’t intend— Mr. Herman [the assistant district attorney] : I object to the question, your Honor. The Court: Sustained. Mr. Mendelson: Respectfully except.”

Thereafter defense counsel persisted, without success, in his effort to introduce into evidence testimony by the defendant shoAving his intent in going to the DaAvkins’ residence' — as appears from the folloAAnng excerpt: ££ Q. Tommy, AAhat was your intention when you Avent up to the DaAArkins’ home on — A. My intention — Mr. Herman: Objection. Mr. Mendelson: Wait a minute. May I finish the question, your Honor? Q. — Saturday night or Sunday morning? Mr. Herman: Objection, your Honor. The Court: Sustained. Mr. Mendel-son: I respectfully except. Q. What did you go up there for, Tommy? Mr. Herman: I object to that. The Court: That is the same thing in another form, isn’t it? Sustained. Mr. Mendelson: I respectfully except.”

The District- Attorney, with commendable frankness, states in his brief —££ We believe the court might well have permitted the defendant to answer these questions.” He takes the position, however, that the error was harmless because the jury might have inferred from eAudsnce already in the case that the defendant’s intent in going to the Dawkins’ apartment was not to commit a robbery."

We cannot extenuate the error, as suggested by the District Attorney. There was no denial by the defendant, prior to the ruling, of an intent to rob. He did not have to depend upon inferences from the evidence to establish that his intention was not robbery. The trial court had already indicated that the jury would be called upon to determine whether the defendant was guilty of a felony murder. The case presented by the prosecution had proceeded upon the theory that when the killing of Anna Dawkins occurred at the hands of the defendant he was engaged in the commission of a felony — viz., a robbery. (Penal Law, § 1044, subd. 2.) In such circumstances this court has had occasion to rule that — “ Generally speaking murder in the first or second degree connotes the specific or particular intent to kill, while manslaughter in the first or second degree is felonious homicide when the intent to kill is absent. But when one engaged in the commission of a felony, Ms mind being fatally bent on miscMef but without a design to effect death, kills a human being, at common law, the killing is said to be with malice aforethought and so murder, and the Penal Law attaches to the act the consequences of murder in the first degree * * * the gist of robbery is larceny by force from the person (Penal Law, §§ 2120, 2122), and * * * the gist of larceny is the talcing and carrying away of personal property of another with the specific intent to steal such property (Penal Law, § 1290). If on an indictment for larceny or robbery the testimony leaves uncertain the intent with which the accused took the property, the jury should be instructed to give the defendant the benefit of the doubt.” (People v. Koerber, 244 N. Y. 147,152,153-154.) (Emphasis supplied.)

Again it has been said that “ Whenever intent becomes material, its quality or persistence — the deranging influence of fear or sudden impulse or feebleness of mind or will — is matter for the jury if such emotions or disabilities can conceivably have affected the thought or purpose of the actor.” (People v. Moran, supra, p. 103. See, also, People v. Roper, 259 N. Y. 170, 176-177; People v. Cummings, 274 N. Y. 336, 337.) In the present case the defendant’s intention when he entered the Dawkins apartment may well have been a vital issue before the jury in the determination of the extent and degree of his crime. Long ago the courts of this State recognized the principle that “ * * * when the motive of a witness in performing a particular act, or making a particular declaration, becomes a material issue in a cause, or reflects important light upon such issue, he may himself be sworn in regard to it, notwithstanding the difficulty of furnishing contradictory evidence, and notwithstanding the diminished credit to which his testimony may be entitled as coming from the mouth of an interested witness.” (Kerrains v. People of the State of N. Y., 60 N. Y. 221, 229. See also, Noonan v. Luther, 206 N. Y. 105, 107-108; Thurston v. Cornell, 38 N. Y. 281, 287; 2 Wigmore on Evidence [3d ed.], § 581.) Testimony by the defendant as to what his intent was would not have been conclusive but it was competent. (Noonan v. Luther, supra, p. 108.) To borrow from language already quoted from People v. Koerber (supra, p. 152) —it was within the defendant’s legal rights, in view of the case presented by the prosecution, to state to the jury whether, when he sought and obtained admission to the Dawkins home, “ * * * his mind [was then] fatally bent on mischief but without a design to effect death * * * (Emphasis' supplied.) (See Wharton on Criminal Evidence [11th ed.], Vol. I, § 315; Yol. III, § 1207.)

As the error to which we have referred leads to a reversal and a new trial, we direct attention — as a.counsel of caution — to an incident which occurred just before the case was submitted to the jury and which may well have prejudiced the defendant’s right to a fair trial. An excerpt from that portion of the record taken during the summation by the Assistant District Attorney shows the following: “ Mr. Herman [the assistant district attorney] : Now, this defendant appears here in this court room in an Army uniform. I don’t suppose the fact that he wears this uniform means a thing, as far as any effect on your judgment, gentlemen. But bear in mind that he shouldn’t have been here at all. There are many men wearing this uniform and doing their duty in other parts of the world beside Harlem and New York City — Mr. Stand: That is objected to. We object to that statement as being grossly improper, as injecting into this case a matter which is highly inflammatory and distinctly a collateral issue. The Court: Well, the evidence in the case is that this defendant, a few days before New Years, left. Camp Devens without a furlough, where he had been inducted in the Army of the United States, and came to New York. And he remained in New York without reporting back to duty until — has never, as a matter of fact, reported back for duty by reason of his arrest in this case around the 16th of April. Disregard the other statement about other soldiers being on the other side. He was absent without leave, or he was a deserter — I don’t know which — but he was not in the Army from a few days before New Years, and has never been in the Army since, although he was inducted there. And he was not on furlough at the time he came to New York. That is in the evidence, isn’t it? Mr. Stand: That is correct, your Honor; but no effort should be made to unduly prejudice the jury against the defendant because of those facts. ’ ’

There was thus injected into the case an issue which did not relate itself to the crime for which the defendant was being tried. In Viereck v. United States (318 U. S. 236), the Supreme Court of the United States has recently had occasion to condemn similar improprieties. There the prosecuting attorney in his summation had suggested to the jury that they had a duty to perform arising from the fact that the nation was then at war — a fact entirely unrelated to the issue on trial. The court, per Mr. Chief Justice Stone, said (pp. 247-248):

“ As the case must be remanded to the district court for further proceedings, we direct attention to conduct of the prosecuting attorney which we think prejudiced petitioner’s right to a fair trial, and which independently of the error for which we reverse might well have placed the judgment of conviction in jeopardy. In his closing remarks to the jury he indulged in an appeal wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice. The trial judge overruled, as coming too late, petitioner’s objection first made in the course of the court’s charge to the jury.

“ At a time when passion and prejudice are heightened by emotions stirred by our participation in a great war, we do not doubt that these remarks addressed to the jury were highly prejudicial, and that they were offensive to the dignity and good order with which all proceedings in court should be conducted. We think that the trial judge should have stopped counsel’s discourse without waiting for an objection. ‘ The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ Berger v. United States, 295 U. S. 78, 88. Compare New York Central R. Co. v. Johnson, 279 U. S. 310, 316-18.”

It should be said that in the case now before us. the jury was told by the court “ * * * you are not going to convict this defendant because there are other men on the other side being shot, or serving their country. You are not to convict him on that theory at all.” We cannot say, however, with assurance that the jury did disregard the clear implications from the emphasis placed by the prosecuting attorney upon the damning fact that the defendant had absented himself without leave from his military duties in a time of war. The virus thus implanted in the minds of the jury is not so easily extracted.

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

Loughran, Ch. J., Conway, Desmond, Thacher and Dye, JJ., concur; Medalie, J., taking no part.

Judgment of conviction reversed, etc.


author: Thacher, J.

text:
    American Distilling Company, Appellant, and Craftsmen Finance & Mortgage Co., Inc., Intervener, Respondent, v. Russell R. Brown, Respondent.
    Argued October 3, 1945;
    decided December 6, 1945.

      Eugene A. Sherpick, Harold B. Medina, William Gilbert and Bichard T. Davis for appellant.
    I. The courts of this State have jurisdiction over ■ suits brought under section 16, subdivision (b), of the Securities Exchange Act of 1934. (Hauben v. Morris, 255 App. Div. 35, 281 N. Y. 652; Elliott v. Steinfeldt, 254 App. Div. 739.) II. Every principle of statutory construction requires that jurisdiction in a section 16, subdivision (b), proceeding be. governed by the specific jurisdictional provisions set forth in that section and not by the general provisions of section 27. (People v. Ahearn, 196 N. Y. 221; People ex rel. Knoblauch v. Warden, 216 N. Y. 154; United States v. Chase, 135 U. S. 255; Ginsberg & Sons v. Popkin, 285 U. S. 204; Wright v. Securities and Exchange Commission, 112 F. 2d 89.) III. The act (48 Stat. 896) in the matter of the jurisdiction of suits, clearly makes a distinction between those suits which must be brought by the Securities and Exchange Commission and those which must be brought by private citizens.

      William G. Mulligan and Milton Kaplan for defendant-respondent.
    I. The parties litigant do not dispute the meaning of section 27, which is a part of the same title in which section 16 appears, and on the face of the statute it is plain that the Federal courts have exclusive jurisdiction. The mandate in section 27 vesting exclusive jurisdiction in the Federal courts is a specific provision which controls the general comprehensive reference to choice of forum in section 16, subdivision (b). (United States v. Chase, 135 U. S. 255; Deckert v. Independence Corp., 311 U. S. 282.) II. Only by recognizing exclusive Federal jurisdiction according to the plain meaning of section 27 can the jurisdictional provision of that section be given any effect at all. (Lockerty v. Phillips, 319 U. S. 182; Wright v. Securities and Exchange Commission, 112 F. 2d 89; Carpenter v. Danforth, 52 Barb. 581; Von Au v. Magenheimer, 126 App. Div. 257, 196 N. Y. 510; Pennsylvania Co. for Insurances v. Deckert, 123 F. 2d 979.) III. The legislative history of the act shows that Congress intended to confer on the Federal courts exclusive jurisdiction over private rights of action including actions under section 16, subdivision (b).

      Milton Pollack for plaintiff-intervener, respondent.

      Roger 8. Foster, Louis Loss and Arden L. Andresen for Securities and Exchange Commission, amicus curies, in support of respondent’s position.
    I. The New York Supreme Court is not a “ court of competent jurisdiction ” within the meaning of section 16, subdivision (b). (Deckert v. Independence Corp., 311 U. S. 282; Reynolds v. Enterprise Transportation and Transit Co., 85 N. E. 110.)
   Thacher, J.

This is an action brought in the Supreme Court of the State by the plaintiff corporation to recover from the defendant, one of its officers and directors, profits alleged to have been realized by him from purchases and sales of plaintiff’s common stock within periods less than six months. Plaintiff’s right to recover is predicated upon section 16, subdivision (b), of the Act of Congress of June 6,1934 (48 U. S. Stat. 896; II. S. Code, tit. 15, § 78p, subd. [b]), known as “ Securities Exchange Act of 1934.” This section creates the right of the issuer of securities to recover such profits from its officers and directors and provides: “ Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by.the issuer ”. Section 27 of the same Act (U. S. Code, tit. 15, § 78aa) confers upon the Federal courts exclusive jurisdiction of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder.” Section 27 also fixes the venue of such suits in the Federal courts.

In the courts below the suit was dismissed, upon defendant’s motion, for lack of jurisdiction, two Justices dissenting in the Appellate Division.

The controversy arises from the apparent inconsistency between the express provisions of section 16, subdivision (b), authorizing suits in any court of competent jurisdiction ”, and the provision of section 27, conferring upon the Federal courts exclusive jurisdiction ‘ ‘ of all suits in equity "and actions at law brought to enforce any liability or duty created by this title ”, language which in terms comprehends the liabilities created by section 16, subdivision (b), of the Act, and by other sections of the Act which also create new liabilities and grant to private suitors the right to enforce them ‘ ‘ in any court of competent jurisdiction ”. (See § 9, subd. [e], and § 18, subd. [a] of the Act.)

But this inconsistency is more apparent than real. The phrase “ in any court of competent jurisdiction ” does not proprio vigore include or exclude any court but leaves to determination elsewhere the question of competent jurisdiction and, if sections 16, subdivision (b), 9, subdivision (e), and 18, subdivision (a), are read with section 27, it is quite clear that the latter section, if it is to have any force, withholds from the State courts jurisdiction to entertain suits to enforce liabilities created by the Act. Nor does this conclusion denude the phrase in section 16, subdivision (b), relating to jurisdiction, of all meaning, for it still has application to courts within the Federal system some of which would have jurisdiction to entertain the lawsuit and some of which would not.

This literal reading of the Federal statute is shown tó be its intended meaning by the debates in both Houses of Congress before its final passage upon a conference report. From these debates it appears that exclusive jurisdiction in the Federal courts was intended by the provisions of the House bill. Section 26 of the House bill, which finally emerged as section 27 of the Act, was expressly amended by the insertion of the word “ exclusive ” so that it might have that effect. The bill was considered as reported by the Committee on Interstate and Foreign Commerce. Mr. Rayburn, the Chairman of that Committee, proposed the amendment providing exclusive jurisdiction in the Federal courts and in so doing stated: Mr. Chairman,.! have only this to say — that we thought the bill as drawn meant exclusive, but in order that it may be entirely clear we offer this amendment.” (78 Cong. Rec., part 8, p. 8099.) When the bill passed'the House it did not contain provisions such as those contained in section 16 of the Act; it did however contain in section 8, subdivision (e), provisions which were subsequently enacted in section 9, subdivision (e), and also in section 17 provisions which were enacted in section 18 of the Act. These provisions contained the same clause as section 16, subdivision (b), providing for suit “ in any court of competent jurisdiction ”.

When the bill was considered in the Senate the question of exclusive or non-exclusive jurisdiction in the Federal courts was debated and the word “ exclusive ” in section 27 was omitted with deliberate purpose to throw the question into conference with the House. The following relates to that section (78 Cong. Bee., part 8, p. 8571):

“ Mr. Stbiwbb. Mr. President, may I have the attention of the Senator from Florida and the Senator from South Carolina respecting one or two clarifying amendments ? I shall not as yet offer the amendments, but on page 51, in line 11, in the section of the bill which provides jurisdiction of offenses and suits, we find, commencing with line 9, the language as follows:

“ The District Courts of the United States, and the United States courts of any Territory, and the Supreme Court of the District of Columbia shall have jurisdiction of violations of this act —

“ And so forth.

“ I have no personal interest in the matter, but it is my recollection that it was the intention of the committee to give to the Federal district courts exclusive jurisdiction of violations under the act, and if that is the purpose of the committee it has not been effectuated by the language used. Am I wrong in that recollection? '

“ Mr. Fletcheb. There was no such intention; the intention was just to the contrary. The committee did not feel like limiting the jurisdiction to the Federal courts.

“ Mr. Stbiwbb. In other words, the purpose of the committee was to give jurisdiction either to the Federal court or to the State courts of general jurisdiction?

“ Mr. Fletcheb. Yes.

Mr. Byenes. May I say to the Senator from Oregon that the language in the bill is the same as that in the Securities Act of 1983. The House bill provides for exclusive jurisdiction in United States courts. If the Senate provision is adopted, the matter may then be considered in conference.

“ Mr. Stbiwbb. I have no objection to make concerning it. I will say, though, that my own recollection was contrary to the advice I am now receiving.”

When the Senate and House bills went to conference, Senators Fletcher and Byrnes participated as members of the Conference Committee. The conferees agreed to incorporate the House provision for exclusive jurisdiction and to add the provisions of section 16 which had its origin in the Senate. It was thus enacted. The fact that section 27 is not irreconcilable with section 16, subdivision (b), and the legislative purpose disclosed by the proceedings in Congress constrain us to conclude that the statute did not confer jurisdiction upon the courts below to entertain this action.

The judgment should be affirmed, with costs.

Loughean, Oh. J., Lewis, Conway, Desmond and Dye, JJ., concur; Medalie, J., taking no part.

Judgment affirmed.