author: Lewis, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Benjamin Feldman, Appellant.
    Argued October 9, 1946;
    decided January 16, 1947.

      John McKim Minton and Rudolph Stand for appellant.
    I. The trial court committed prejudicial error in receiving evidence that the death of defendant’s mother-in-law was accomponied by the identical symptoms exhibited by defendant’s wife during her fatal illness and that both died the same way. (People v. Buffom, 214 N. Y. 53; People v. Molineux, 168 N. Y. 264; People v. Conrow, 200 N. Y. 356; People v. Kennedy, 164 N. Y. 449; People v. Friedman, 205 N. Y. 161; People v. Powell, 223 Mich. 633; People v. Razezicz, 206 N. Y. 249; People v. Harris, 209 N. Y. 70; People v. Loomis, 178 N. Y. 400; Boyd v. United States, 142 U. S. 450; Chaffner v. Commonwealth, 72 Pa. 60; People v. Collins, 144 Mich. 121; People v. Argentos, 156 Cal. 720.) II. The People failed to establish beyond a reasonable doubt that the strychnine poisoning from which the deceased died in the hospital resulted from any act or agency of the defendant. (People v. Harris, 136 N. Y. 423; Speights v. State, 41 Tex. Cr. App. 323.) III. It was a question of fact for the jury to determine whether or not a particular medicine bottle contained poison and the People’s experts were erroneously allowed to express their opinions on that subject. (People v. Taddio, 292 N. Y. 488; Ferguson v. Hubbell, 97 N. Y. 507; People v. Grutz, 212 N. Y. 72; People v. Creasy, 236 N. Y. 205; Donner v. Delaware & H. Canal Co., 164 Pa. 17; People v. Barber, 115 N. Y. 475.) IV. The trial court usurped the province of the jury in his argumentative instructions on the doctrine of reasonable doubt, and the charge as a whole inadvertently assumed the form of an advocate’s argument for conviction. (People v. Odell, 230 N. Y. 481; Weare v. United States, 1 F. 2d 617; People v. Ohanian, 245 N. Y. 227; Wallace v. United States, 291 F. 972; Adler v. United States, 182 F. 464; Paddock v. United States, 79 F. 2d 872.) V. Defendant’s guilt was not established beyond a reasonable doubt and his conviction rests upon circumstantial evidence which failed to meet the test imposed by law for that kind of evidence. The evidence completely “failed to show that defendant had a motive to murder his wife. (People v. Weiss, 290 N. Y. 160; People v. Fitzgerald, 156 N. Y. 253; People v. Bennett, 49 N. Y. 137; People v, Lewis, 275 N. Y. 33; People v. Fielding, 158 N. Y. 542; People v. Esposito, 224 N. Y. 370; People v. Giordano, 213 N. Y. 575; People v. May, 290 N. Y. 369; People v. White, 176 N. Y. 331; People v. Weiss, 290 N. Y. 160; People v. Taddio, 292 N. Y. 488.)

      Miles F. McDonald, District Attorney, Kings County {Kenry J. Walsh of counsel), for respondents.
    I. Decedent’s sister’s testimony was competent, relevant and material. It is one of the most potent factors denoting appellant’s guilt. (People v. Conroy, 97 N. Y. 62; People v. Place, 157 N. Y. 584; People v. Willett, 213 N. Y. 368; People v. Smith, 180 N. Y. 125; People v. Harris, 136 N. Y. 423.) II. Nor was the testimony proof of, or an attempt by indirection, to prove another crime, The trial court made plain to the jury that it. was not to consider decedent’s sister’s testimony of such a character. (People v. Barnes, 202 N. Y. 77; People v. Wagner, 245 N. Y. 143; People v. Lewis, 238 N. Y. 1; People v. Rodawald, 177 N. Y. 408; People v. Nitzberg, 287 N. Y. 183; People v. Rogers, 192 N. Y. 331.) III. Appellant’s criminal agency was proved beyond the shadow of a doubt. (People v. Crowley, 102 N. Y. 234; Kay v. Metropolitan Street. R. Co., 63 App. Div. 187; People v. Place, 157 N. Y. 584; People v. Hoch, 150 N. Y. 291.) IV. The jury’s province was not invaded by the expressions of the experts’ opinions. (Dougherty v. Milliken, 163 N. Y. 527; Noah v. Bowery Savings Bank, 225 N. Y. 284; People v. Youngs, 151 N. Y. 210; People v. Monat, 200 N. Y. 308.) V. The court’s charge on reasonable doubt was a fair exposition of the subject and could not have left any impression on the jury that the court was endeavoring to influence it. (People v. Guidici, 100 N. Y. 503; Newall v. Bartlett, 114 N. Y. 399; People v. Katz, 209 N. Y. 311; Brotherton v. People, 75 N. Y. 159; People v. Radcliffe, 232 N. Y. 249; People v. Bonifacio, 190 N. Y. 150; People v. Bennett, 49 N. Y. 137; People v. Harris, 136 N. Y. 423; People v. Razezicz, 206 N. Y. 249.) VI. The verdict rests upon a sound substantial basis. (People v. Soper, 243 N. Y. 320; Hendrickson v. People, 10 N. Y. 13; People v. Sutherland, 154 N. Y. 345.)
   Lewis, J.

The defendant stands convicted of murder in the first degree upon an indictment which charges that — “ * * * on or about the 7th, 8th and 9th days of December, 1943, in the County of Kings, [the defendant] wilfully, feloniously and of malice aforethought poisoned Harriet Feldman, by giving and administered (sic), to her a quantity of poison, to wit, strychnine, and as a result of said poisoning said Harriet Feldman died on December 9,1943.”

' A close examination of the record has led us to conclude that errors occurred upon the trial the cumulative effect of which may well have led to the judgment of conviction and thus prejudiced the defendant’s rights. In connection with the following’ summary of evidence the fact should be noted that the judgment of conviction rests upon circumstantial evidence — “ a process of decision by which a court or jury may reason from circumstances which are known or proved, to establish by inference the reality of the principal fact.” (People v. Taddio, 292 N. Y. 488, 489.)

The defendant is a pharmacist who for a period of years had been employed at a drugstore operated by the witness Hyman Euvinsky at 622 Livonia Avenue in Brooklyn. He married the decedent in 1940 when she was twenty years old and he was thirteen years her senior. Although the record does not tell us whether during the three years of their life together a child was'born of the marriage, it does appear that the decedent was pregnant at the time of her death and that her pregnancy was not accompanied by unusual illness.

At about nine o’clock on the night of December 7, 1943, when the defendant was on duty.at his place of business and the decedent was alone in their apartment she was called upon by her sister, Mrs. Theresa Kushner. At that time there were no indications that the decedent was ill. Within an hour after Mrs. Kushner left the decedent the witness Sophie Wiener who lived on the same floor heard a strange noise which led her to open a door leading into the outside hallway. As -she did so she saw the decedent standing in the doorway of the Feldman apartment apparently in distress. Upon going to her assistance she noted that the decedent’s body had stiffened, her face was drawn, “ her eyes were like big saucers, very big, and she kept crunging like that, shivering, her body shaking.” Her hands were clenched and drawn in toward her chest and her arms were bent from the elbows. After Mrs. Wiener had summoned by telephone the defendant, the decedent’s sister Mrs. Kushner, and the decedent’s attending physician, she was aided by two other neighbors in placing the decedent on a bed. Although the decedent was conscious her legs had stiffened with toes turned in and her hands were in a claw-like position with fingers, wrists and elbows bent. She repeatedly cried out “ I’m dying * * * The sooner I die the better * * * ■ Let me die now * * * I’m in terrible pain * * * Don’t touch my feet.” When the doctor arrived he found the decedent in a convulsion. Thereafter the defendant arrived at a time when his wife was suffering a second convulsion. According to the doctor’s testimony the •defendant was “ very anxious ”, he “ wanted to help her ”, and urged the doctor to “ call a consultant ”. When he suggested someone unknown to the doctor the latter suggested “ I would like to get my own man, if it is possible. ’ ’ Thereupon the attending physician called in consultation a second physician who arrived when the decedent was suffering a third convulsion. As a result of their consultation the doctors ordered the decedent removed to Beth-El Hospital where she arrived before midnight on December. 7th.

At this point in the narrative it should be said that, although the doctors who had been in attendance upon the decedent at her apartment the night of December 7th reached the conclusion (on a later date) that her illness on December 7th had been due to strychnine poisoning, and although the indictment charged that defendant administered strychnine to the decedent “ on or about the 7th, 8th and 9th days of December, 1943,” the prosecution made no effort by direct or circumstantial evidence to prove that the defendant caused poison in any form to be administered to the decedent on or before December 7th.

Although the hospital chart of December 8th shows that on decedent’s first day in the hospital she suffered two convulsions, the attending physicians expressed the opinion that on that day her condition showed improvement. However, in the late afternoon a consultation of three doctors prescribed for her two new types of medication — one was hytakerol, a medicine in tablet form containing a highly concentrated preparation of calcium; the other medicine was a liquid containing calcium chloride and elixir of lactate pepsin. The liquid medicine was to be put up in five or six bottles and administered by giving the patient the contents of one bottle every four hours. Concededly neither of the two medications then prescribed contained a poisonous ingredient which would cause death.

After the prescription for the two new medications had been written upon a single piece of paper one of the doctors handed it to the defendant and said to him: ‘ ‘ Mr. Feldman, I think you can get this hytakerol at Jacoff’s, and while you are about it you might as well make up the calcium chloride and the elixir of lactate pepsin there, too.” With the prescription in hand the defendant left his wife’s hospital room accompanied by his brother-in-law who drove him first to Jacoff’s drugstore where he purchased the hytakerol tablets. The defendant was then driven to Ruvinsky’s drugstore, where he .was employed, at which place he told his brother-in-law to wait outside. Upon entering the drugstore the defendant spoke of his wife’s illness and told his employer and the prescription clerk that he came in to prepare a prescription for her. He then went to the prescription counter in the rear of the store where, after asking the prescription clerk to help him, he prepared the liquid medicine which was pjit into six 6-ounce bottles.

As to what transpired while the defendant was compounding the prescription the testimony of both the proprietor Ruvinsky and the prescription clerk shows that on that night the drugstore was very busy. While the defendant was at work at the prescription counter the proprietor frequently passed back and forth near him. Meantime the prescription clerk aided him to the extent of preparing labels for the six bottles. In doing so he stood at the defendant’s side although he was not present when all six bottles were filled. From Ruvinsky’s testimony •it also appears that when he first acquired the drugstore there was on hand — kept with other poisons in a small cabinet near the prescription counter — a quantity of powdered strychnine which was never used also soluble strychnine sulphate in tablet form known as triturate tablets ”. Ruvinsky did not recall that in preparing the prescription the defendant used any utensil to grind strychnine tablets or to dissolve them. There is no evidence that any bottle from the poison cabinet containing strychnine was opened on the night of December 8th; nor is there evidence that the content of any bottle containing strychnine was reduced on that date.

When the defendant had completed preparation of the prescription he returned with his brother-in-law to the hospital and entered his wife’s room at about 10:30 p.m. (December 8th). He then delivered the six bottles of “ pinkish ” medicine to the nurse then on duty who placed them on a window ledge with other medicine and promptly administered to the decedent the contents of one of the bottles. Four hours later — at 2:30 a.m. (December 9th) — the nurse next on duty administered to the decedent the contents of the second bottle of medicine — which medication is claimed by the People to have contained the strychnine which caused decedent’s death. At 3:00 a.m. (December 9th) the decedent suffered a convulsion. She died at 4:00 a.m. on that date.

After directing the removal of the body to the hospital morgue the attending nurse disposed of the six bottles which had been brought by the defendant to his wife’s room — two of the bottles being empty, the remaining four bottles being full. The disposal thus made of the six bottles was in accord with usual hospital practice where special medication is prescribed for a patient. It is not claimed by the prosecution that the disposal thus made of the bottles was in any way dictated by the defendant. As no chemical analysis w-as ever made of the contents of any of the six bottles there was no direct proof that any one of them contained strychnine.

The body of the decedent, which had been buried on December 9,1943, without embalming, was exhumed on May 12,1944, when a post-mortem examination revealed that her organs contained 3.7 grains of strychnine — an amount three times the minimum ' lethal dosage.

Omitting reference to evidence introduced by the People to. establish that the defendant had a pecuniary motive for bringing about his wife’s death; that prior to and since his marriage to the decedent he had enjoyed with another woman-a friendship which was something more than platonic; and that consciousness of guilt was established by his alleged false statement on the date of his arrest (July 1, 1945) — that he had not gone to Ruvinsky’s drugstore on the night of December 8,' 1943 — I pass to the decisive issue which the jury was called upon to consider.

The trial judge charged — “In order for the prosecution to prevail in this case you must find beyond a reasonable doubt that the strychnine poison from which she allegedly died was taken at the hospital and at no other place; for if the prosecution has failed to satisfy you beyond a reasonable doubt that the poison was administered to her after the pinkish medicine was brought to the hospital, the defendant must be acquitted.”

The issue of fact thus defined by the trial court was not decided by the jury on direct evidence. The record contains no direct proof, as we have seen, that there was strychnine in any one of the six bottles of pinkish medicine ” which the defendant had prepared and brought to the decedent’s room. The jury’s decision rests upon the conflicting views expressed by experts — each of whom concededly was qualified — called by the People and by the defendant on the question as to how long ingested strychnine retains its lethal effect. All the experts agreed — and the prosecution offered no evidence to the contrary— that the decedent’s illness on the night of December 7th, before she was removed to the hospital, was due to strychnine poisoning. The experts disagreed, however, upon the decisive point as to whether her death in the early hours of December 9th could have resulted from strychnine which the experts agree was in her system on the night of December 7th. Upon that issue the People’s experts stated their opinion to be that the strychnine which caused decedent’s death was not ingested before she entered the hospital on the night of December 7th — twenty-eight hours before her death — but was in the bottle from which the last medication was administered to her at 2:30 a.m. on December 9th. Opposed to that view the opinion of experts sworn by the defendant was that the decedent’s death on December 9th could have resulted from strychnine ingested by her on the night of December 7th. Indeed, there was testimony by one of the defendant’s experts that he had known of a case where a patient took a lethal dose of strychnine and lived for thirty-six hours.

In that state of the record — where the judgment of conviction rests upon the jury’s adoption of one of two conflicting views expressed by experts upon a decisive issue of fact — we cannot say that the verdict of the jury was not influenced to defendant’s prejudice by permitting the introduction of evidence implying that defendant may have been guilty of killing his mother-in-law as well as his wife.

During the examination of the People’s witness, Sophie Wiener, she testified that she had known the decedent’s mother, Mrs. Berkowitz. Then occurred the following: “ Q. Do you remember when she died? A. Yes. Mr. Kern [attorney for the defendant]: Object to that. The Court: She may state when she died. I won’t permit any evidence other than that. Mr. Kern: I withdraw the objection. The Court: All right. You have heard my ruling, Mr. District Attorney. Mr. Cone [Assistant District Attorney]: I am mindful of that. I won’t' violate the law. The Court: Remember what I said. Don’t go into the mother’s death at all. You may prove when she died.” Thereafter when the decedent’s sister Mrs. Kushner was called by the People it was brought out by her testimony that after the defendant and the decedent were married in 1940 they came to live in the apartment occupied by the decedent’s mother, Mrs. Berkowitz. It also appeared that Mrs. Berkowitz died in August, 1941 — about eight months after the defendant and the decedent came to live with her. In the course of Mrs. Kushner’s examination she described how on December 8, 1943, the day after her sister had been taken to the hospital, and after the consultation .of three doctors had taken place she had seen one of the doctors deliver to the defendant a prescription and that she then left the hospital with the defendant. On their way out she and the defendant met her husband with whom she had a conversation which she described as follows: a I told my husband that they [the doctors] did not know what it was, but they are treating her, and I told him exactly how I found her, and she looked like my mother looked— ”.

At that point in her narrative the following colloquy occurred between the court and the witness: Never mind about your mother. Pass on to something else. Did you hear what I said? You obey the instruction of the court. Remember what I said to you. Leave all reference to your mother out of this case.”

In view of prior emphatic instructions by the court relating to references to the decedent’s mother and her death, the jury may well have gained the impression that there was something about that particular subject which, under the court’s ruling, was not for their ears. However, there came a time when the District Attorney requested a conference with the court. Thereupon, in company with opposing counsel, and after the jury had been excused from the room, the attorneys approached the bench for conference with the court. When that conference had ended and the jury had returned — and without further explanation at that time from the court — the witness Mrs. Kushner was questioned about a conversation she had with the defendant on the day. after the decedent’s funeral. Counsel for the defendant objected to that line of inquiry and took an exception when the court — still without explanation — overruled his objection. Then occurred the following: “ Q. Now you say you said to the defendant Feldman, ‘ Momma died that way? ’ A. Yes, ‘ and Harriet died that way, and after all, I have two children. Maybe we can find out what it is, and we could go further into the matter. I would not want my two children to be stricken that way,’ so he said — Q. Now before that, in the course of your talk to the defendant Feldman, did you have anything to say about feet? A. I said, ‘ They both cried, Don’t touch my feet ” ’.”

At this point in the examination counsel for the defendant again objected to the testimony. When his objection was again overruled he took an exception. The court then directed the District Attorney to start all over again ”. Thereupon Mrs. Kushner testified: “ I said, ‘ After all,’ I said, ‘ There should have been an autopsy. After all, I am the mother of two children,’ and I said, ‘ they both died the same way; don’t touch my feet ”, they cried, and the symptoms were identical,’ and I said, ‘ Maybe we could find out what it is and we can prevent such other occurrences.’ So he said, ‘ Your mother died from a heart attack, and Harriet died from tetany superimposed by pregnancy, and what has one got to do with the other? ’ I said,1 No it was too identical,’ and so he kept saying, ‘ No, no, no, your mother died from a heart attack, and Harriet died from tetany,’ and Dr. Ginsberg was there at that time.”

Attempt to justify admission of that testimony as evidence of a consciousness of guilt must fail. There was here no concealment of crime; too many other explanations for defendant’s refusal or disinclination to consent to an autopsy render it quite speculative as proof from which the fact of a guilty conscience may be deduced. In any event, the - danger of undue emphasis being attached to the testimony outbalances any legitimate probative force it could have had. The vice of the testimony, with special reference to the decedent’s outcries “ Don’t touch my feet ”, was that — in the light of other evidence that such outcries were characteristic symptoms of strychnine poisoning — it implied, and the jury were permitted so to conclude, that the decedent and her mother’— with both of whom the defendant had lived — had died of strychnine poisoning. The impression thus made upon the members of the jury was in their minds during the six days of the trial which followed. Then came the summation by the District Attorney in which he said to the jury: “ Was the body exhumed at the request of the defendant? Oh, no. No, sir! You remember the conversation about the autopsy? Do you remember the conversation at Mrs. Kushner’s house, the night she said to the defendant, Mama died that way. Harriet died that way.’ * * * They both cried, ‘ Don’t touch my feet! ’ They had identical symptoms. ’ ’

At this point in the District Attorney’s summation counsel for the defendant interposed an objection and moved for a mistrial which was denied, with exception. Even then the court made no attempt to explain its ruling. However, in his charge to the jury the Trial Judge made the following statement: The prosecution also points to the testimony of Mrs. Kushner and alleges therefrom that it has been established that shortly after the death of Mrs. Feldman she and the defendant had a conversation, during which she said to the defendant, in substance, that her mother’s death was also accompanied by the same symptoms as those exhibited by Mrs. Feldman during her fatal illness; that she said to the defendant that it was imperative that an autopsy upon the body of Mrs. Feldman be performed, in order to determine the true cause of death, and that if there was any inherited taint which blighted the Berkowitz family, the findings upon this autopsy would enable them to take precautionary measures to protect the other members of the family. Under no circumstances, gentlemen, are you permitted to infer, even to a remote degree, that Mrs. Berkowitz did exhibit such symptoms or that this defendant had had any hand in causing Mrs. Berkowitz’s death. You do not have any right.even to suspect that such was the case. It is averred that he later said he would consent to an autopsy. The only reason that this testimony was permitted to reach your ears was on the question of the defendant’s conduct when the alleged request for the autopsy upon his wife’s body was made.”

True it is that the above-quoted admonition by the court was clearly phrased. We think, however, that the evidence of defendant’s'refusal to permit an autopsy upon the body of his wife, which came into the case in the manner described above, was not only of doubtful probative value as proof of the defendant’s consciousness of guilt but was prejudicial to the defendant’s rights before the jury. The present case is one Where circumstances incidental to the trial made the court’s admonition “ easy to give and hard to follow.” (People v. Robinson, 273 N. Y. 438, 445-446.) In this instance the court’s admonition came after there had been imbedded in the minds of the jury since the first day of the trial the suggestion that while the defendant and the decedent were living with her mother, her mother had died as the result of an illness in which she exhibited symptoms and forms of distress similar to those of which the decedent complained before her death. Although the court’s admonition was clear it cannot be said, with the degree of assurance to be desired in so close a case, that it erased from the jurors’ minds the words previously emphasized by the District Attorney in his summation — “ They both cried, ‘ Don’t touch my feet!’. They had identical symptoms. ” The implications to be drawn by the jury from that statement and manifestly intended were that while the defendant and the decedent were living with her mother, the mother had died of strychnine poisoning— the same death-dealing agency which the People charge was used by the defendant to exterminate his wife. As an accusatory statement, strongly suggestive of a criminal act by the defendant oilier than the one for which he was being tried, it was improper and prejudicial to his rights. (People v. Loomis, 178 N. Y. 400, 406; People v. Buffom, 214 N. Y. 53, 58-61; Boyd v. United States, 142 U. S. 450, 458; and see Warren on Homicide, § 213.) In the present case where, as we have seen, the judgment of conviction rests upon the jury’s choice between conflicting views of qualified experts on a decisive issue of fact, the statement of the District Attorney in his summation may have been “ * * * sufficient to resolve against [the defendant] any reasonable doubt that might previously have been entertained as to his guilt.” (People v. Loomis, supra, p. 406.)

These considerations, standing alone, have exerted strong influence upon our judgment that justice to the defendant’s rights requires a new trial. They are reinforced, however, by another incident at the trial which becomes decisive in its cumulative weight. One of the fundamental statutory rights accorded to the defendant is that he “ is presumed to be innocent, until the contrary be proved; and in case of reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. ’ ’ (Code Crim. Pro., § 389.) When the trial judge reached that point in his charge where he defined what was intended by the Legislature’s use of the phrase “ reasonable doubt ” he said — “ It is not a doubt based upon sympathy or a whim or prejudice or bias or a caprice, or a sentimentality, or upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty, namely, to convict another human being of the commission of a serious crime.”

While no judge is to be confined to the use of any precise verbiage, it is our thought that to define reasonable doubt by use of such characterization was not conducive to a fair and impartial consideration of the evidence.

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

Desmond, J.

(dissenting). The majority opinion is for reversal, on these grounds:

1. That it was prejudicial error to permit Mrs. Kushner, sister of the deceased, to testify to a conversation wherein Mrs. Kushner urged defendant to permit an autopsy and wherein Mrs. Kushner mentioned to defendant that Mrs. Berkowitz, the mother of the witness and of deceased, had exhibited before her death some of the same symptoms as deceased.

2. That this alleged error was not cured by the court’s instructions to the jury that the jurors were not to infer,* or suspect from the testimony above referred to, that defendant ‘1 had any hand in causing Mrs. Berkowitz’s death ”.

3. That this alleged error.was the more serious and requires a reversal here, because, we are told, the central fact issue in the case — as to whether deceased died from strychnine taken at the hospital an hour and a half before her death or at her home thirty hours before her death — had to be decided by the jury merely on a choice between the conflicting views of two sets of qualified experts.

4. That certain language in the court’s charge as to reasonable doubt was susceptible of implications unfavorable to defendant’s position.

We cannot agree to any of those four propositions. In our view, no error was committed on the trial and the jury’s verdict stands on evidence strong enough and convincing enough to leave the jurors without any reasonable doubt of defendant’s guilt.

1. The conversation between Mrs. Kushner and defendant on the day after the funeral, testified to by the former, is quoted in Judge Lewis’ opinion. In that conversation Mrs. Kushner did not accuse defendant of responsibility for the death of her sister or of her mother. She asked defendant to permit an autopsy so that the family, bereaved by the two deaths, might “ find out ” their cause. She pointed out to defendant that she (Mrs. Kushner) had two children of her own and that she did not want her two children “to be stricken that way ”. The cause of death was not then known, as to either the mother or the daughter. The reference to the mother’s symptoms, in this conversation, was a natural one, since it was the similarity of symptoms which troubled Mrs. Kushner and led her to desire further investigation into the two deaths. Defendant refused to consent to an autopsy. We do not understand that the majority is holding that it was error to receive the testimony as to that refusal. There is in the record other evidence, received without objection, given by the family physician that he, too, suggested to defendant, soon after the funeral, that the body be exhumed, for the same purpose.

It has always been held in this State that efforts to conceal a crime, or the evidence thereof, are “ proper subjects of consideration, as indicative of a guilty mind, and in determining the question of the guilt or innocence of the person charged ” (People v. Place, 157 N. Y. 584, 598; see People v. Buchalter, 289 N. Y. 181, 217). “It is to-day universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself ” (2 Wigmore on Evidence [3d ed.], § 276). “ Evidence of flight, concealment or analogous conduct is always admissible ” (People v. Reddy, 261 N. Y. 479, 486). This is an application, perhaps, of the more general rule that “ the demeanor of a prisoner at the time of his arrest, or soon after the commission of a crime, or upon being charged with the offense, is a proper subject of consideration in determining the question of guilt ” (Green field v. People, 85 N. Y. 75, 86). Such evidence, like evidence of flight, is taken1 ‘ upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances ” (Ryan v. People, 79 N. Y. 593, 601). The kinds of conduct properly suggesting consciousness of guilt are beyond enumeration, as Wigmore points out (Vol. II, [3d ed.], § 273 [1]). We think the refusal of a husband, to heed the entreaties of his wife’s sister — and the suggestion of the trusted-family physician — that an atitopsy be had to delve further into a mysterious death, is such conduct. In itself it does not establish guilt — there is much stronger proof here as we shall point out hereafter — but it is a circumstance from which the jurors could conclude that defendant was trying to prevent a scientific investigation of his wife’s death. The jurors might be satisfied with the husband’s explanation for his refusal, as given to the family.physician: that he had religious scruples against exhumation. They might, on the other hand, decide that it was a case of The wicked flee when no man pursueth ”, or they might attach to the incident no importance whatever. It was for them to say.

If, then, it was proper to let the jury hear about defendant’s rejection of the suggestion, it was right and fair that they should hear the whole of the conversation between defendant and his sister-in-law. Her statement of her reasons for wanting a post-mortem examination might be important to the jury in judging the significance of defendant’s refusal to permit it. Such a demand, if made without any show of reason, might well be ignored by a husband. But Mrs. Kushner’s reasons were weighty ones — or so the jury might think — and the husband’s spurning of so moving a supplication might be meaningful to a jury. The jury was entitled to hear the whole of the conversation and the reception of the whole thereof was not erroneous merely because it might start the jury thinking about another possible crime (see People v. Buehalter, supra, 289 N. Y. at pp. 217, 218).

As Judge Lewis points out, the District Attorney in his summation quoted to the jury the testimony of Mrs. Kushner, including the reference to the mother’s symptoms, and also reminded the jury that Dr. Ginsberg, too, had suggested a post-mortem examination. The District Attorney then argued to the jury that the defendant’s refusals amounted to concealment. We think that was fair argument. We have examined with care the several paragraphs of the prosecutor’s summation in which he discusses, and argues from, defendant’s answers to the proposals that the body be disinterred. We find nowhere in that summing-up speech, any suggestion, open or covert, that defendant was involved in the mother’s death also.

2. If there was any error in the admission of the proof of that conversation or in letting the District Attorney discuss it in summation, the error was cured by the trial judge’s clear and positive instructions to the jury, as quoted in Judge Lewis’ opinion. In plainest language the County Judge told the jurors, just before they retired to deliberate, that they must not infer or suspect that defendant had anything to do with the death of his mother-in-law. We are in duty bound to presume that those instructions effaced all prejudice (People v. Barnes, 202 N. Y. 77, 78; People v. Pacelli, 251 N. Y. 66, 67).

3. We are told that the prejudicial references to the mother-in-law’s death symptoms were all the more unfair to this defendant since this, so it is said, was a close case where the jury had to settle the principal issue of fact by balancing, one against the other, the more or less equally strong, but directly contradictory, opinions of the rival groups of experts. Surely it is not the law that experts always cancel each other out or that a defendant, merely by producing an expert to swear the other way, creates, as matter of law, a reasonable doubt of the validity of the opinion of the People’s expert. Such cases as People v. Harris (136 N. Y. 423), People v. Buchanan (145 N. Y. 1), and many others, show that it is for the jury to resolve such disputes and decide where the truth lies (see People v. Place, 157 N. Y. 584, 594). It was, of course, essential here that the People prove beyond a reasonable doubt that Mrs. Feldman, died from strychnine administered to her at the hospital. That a massive dose of strychnine killed her was established by the post-mortem findings (an autopsy was finally had pursuant to a court order). Unquestionably she had ingested some quantity of that drug at her home, thirty hours before her death. If that was the lethal drought, defendant could not be convicted here. It had to be shown that the fatal dose was swallowed at the hospital and that defendant was responsible for the presence of the strychnine in that dose. With his own hands he had filled the six bottles of prescribed medicine, so, if the poison was in one of those bottles, defendant put it there. What was left to prove was that the wife died from drinking the bottle of medicine which the nurse gave her at 2:30 a.m. on the morning of December 9th, a half hour before her fingers flexed, her body discolored and there began the final convulsions that continued until her death at 4:00 o’clock. Before the nurse furnished that dose, Mrs. Feldman had showed signs of improvement and approaching recovery. If that last attack resulted from the medicine, taken just before the onset of the attack, then, in all human probability, defendant was guilty of murder by poisoning. Three experienced, thoroughly qualified specialists testified for the People. Answering the same hypothetical question, each told the jury, flatly and positively, that the woman could not have lived for thirty hours with 3.7 grains of strychnine in her body. (One grain is fatal, it is agreed.) The fatal ingestion, they insisted, must have been at the hospital. They were certain that such a quantity of the poison would kill within a period of ten minutes to an hour. From the established facts, as related to them, they concluded that the poison was in the second bottle of medicine. The defense called two expert witnesses. Neither of them met the People’s proof head on. Neither gave testimony nearly as strong or positive as that of the People’s experts. Dr. Danzer, for defendant, would go no further than to say that death, under the circumstances,“ might have ” or “ could have ” resulted from strychnine taken before Mrs. Feldman went to the hospital. He pointed out that total elimination of strychnine from the system, by nature’s own methods, sometimes takes two or three days. He knew of cases where patients, having taken deadly doses of strychnine, lived for thirty-six hours afterward. Dr. Danzer did not say that he ever heard of a person living for thirty hours, or any other period, after taking 3.7 grains of strychnine. His opinion seemed to be that the other medicines (all nonpoisonous), given Mrs. Feldman at the hospital, necessarily retarded the action of the strychnine so that a day and a half elapsed before the woman died of the poison. To conclude from such theorizing that the poison was taken before admission to the hospital would be to conclude that no quantity of the drug, however great, could produce death in less than thirty to thirty-six hours. The witness did not go that far and the jury would not have been bound to go that far with him. The People’s witnesses were certain that 3.7 grains of strychnine would bring death in an hour or less. Dr. Danzer did not directly dispute that. His opinion was that, ordinarily, treatment such as Mrs. Feldman had at the hospital would slow up the fatal processes and keep the patient alive for twenty-eight hours or more. Defendant’s other expert, Dr. Melinos, was even less helpful to defendant’s cause. On cross-examination he admitted that it was “ improbable ” that the woman could have lived twenty-eight hours with 3.7 grains of strychnine in her system. The jurors were justified in accepting the clear, strong statements of the People’s technical witnesses, statements not broken down on cross-examination and not directly disputed by Dr. Danzer or Dr. Melinos.

The People had to prove that the poison was in the second bottle. We think the People proved that, to the hilt. But there was much other proof against defendant. Since this is a dissenting opinion, we will not analyze those corroborations but merely list them: defendant’s greed for money, his attentions to another woman, his disparaging remarks about his wife (see People v. Benham, 160 N. Y. 402), his false statements when questioned by the police and by the prosecutor. Those items form a background for the undisputed showing that Mrs. Feldman died from a triple-strength, fatal drought of strychnine, and for the strong evidence, above described, that the baneful substance came from a bottle which had been filled by defendant as he stood at his prescription counter, with strychnine right at hand and no one there to watch what he did. Of course all that was not direct but circumstantial evidence, but such is the only kind of proof available against secret poisoners (see People v. Harris and People v. Buchanan, supra; People v. Benham, supra). And it was circumstantial evidence of such quality and quantity as to be “ the higher form of evidence ” (People v. Place, supra, 157 N. Y. at p. 594; see People v. DeMartini, 218 N. Y. 561, 566).

4. The County Judge, in his charge, told the jury that a reasonable doubt was not one based “ upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty * * # That was, of course, rather a free translation of the language of People v. Barker (153 N. Y. 111, 115): “ nor is it a mere subterfuge to which resort may be had in order to avoid doing a disagreeable thing ”. The County Judge’s language here was racier and more colorful, but it meant the same thing. Whether the phrasing was fortunate or not, the idea was the thing and “ there is no rigid rule as to the manner of doing it ” (People v. Hughes, 137 N. Y. 29, 40). This was a long and thorough trial. We should not lightly assume that the jurors were so weak of will and judgment as to let their verdict in a capital case be influenced by a single lurid phrase.

The judgment of conviction should be affirmed.

Loughran, Ch. J., Conway, Dye and Fuld, JJ., concur with Lewis, J.; Desmond, J., dissents in opinion in which Thacher, J., concurs.

Judgment of conviction reversed, etc. ,


source: Caselaw Access Project

author: Dye, J.

license: Public Domain

text:
    Stanley Clarke, as Trustee of Associated Gas and Electric Company, Appellant, v. Adolph Greenberg et al., Respondents.
    'Argued October 4, 1946;
    decided January 16, 1947.

      Harold Harper, Ben A. Matthews and Vincent P. Uihlein for appellant.
    I. A stockholder who puts himself forward as the champion of the corporation or of other stockholders as a class, is, with respect to all funds coming into his hands as a result of that championship, a fiduciary for the corporation or the class. Moneys received in settlement of an action brought on behalf of the corporation are subject to the fiduciary principle. They are not to be appropriated by a single stockholder. (Meinhard v. Salmon, 249 N. Y. 458; Young v. Higbee Co., 324 U. S. 204; Craftsman Finance & Mortgage Co. v. Brown, 64 F. Supp. 168; Whitten v. Dabney, 171 Cal. 621; Loeb v. Berman, 217 Cal. 716; Denicke v. Anglo California Nat. Bank, 141 F. 2d 285.) II. Dictum that the stockholder might settle his individual damage was not intended to apply to the corporation’s cause of action. If it was so intended, it is contrary to the accepted law that the stockholder in such an action asserts no individual claim. (Brinckerhoff v. Bostwick, 99 N. Y. 185; Potter v. Walker, 276 N. Y. 15; Hichins v. Congreve, 4 Russell 562; Hanford v. Story, 2 Simmons & Stuart 195; Continental Securities Co. v. Belmont, 206 N. Y. 7; Remy Beverages v. Myer, 56 N. Y. S. 2d 828; Brock v. Poor, 216 N. Y. 387; Hall v. Crailo Sweets, Inc., 177 Misc. 120, 262 App. Div. 866; Chaplin v. Selznick, 293 N. Y. 529.) III. A stockholder’s action is not like a creditor’s action in which the plaintiff, albeit he purports to represent a class, is the owner of a cause of action in his own right. Hence, the cases that have permitted a creditor-plaintiff, prior to intervention, to obtain settlement of his own claim and retire from the litigation, are not applicable. (Hirshfeld v. Fitzgerald, 157 N. Y. 166; Farnsworth v. Wood, 91 N. Y. 308.) IV. It is no answer to the fiduciary obligation of the stockholder-plaintiff that, prior to judgment, he has the management of the action and can discontinue at pleasure. By the acceptance of money on the corporation’s cause of action he is irrevocably committed. (Manufacturers Mutual Fire Ins. Co. v. Hopson, 176 Misc. 220, 262 App. Div. 731, 288 N. Y. 668.)

      Milton Paulson, William E. Haudek and Leonard I. Schreiber for respondents.
    I. The stockholder-plaintiff in a derivative suit is not a fiduciary and may therefore privately settle his action. (Hanford v. Story, 2 S. & S. 196; Hirshfeld v. Fitzgerald, 157 N. Y. 166; Dresdner v. Goldman Sachs Trading Corp., 240 App. Div. 242; Brinckerhoff v. Bostwick, 99 N. Y. 185; Hirshfeld v. Fitzgerald, 157 N. Y. 166; Grant v. Greene Consolidated Copper Co., 169 App. Div. 206, 223 N. Y. 655; Security Trust Co. v. Pritchard, 201 App. Div. 142; Earl v. Brewer, 248 App. Div. 314, 273 N. Y. 669; Manufacturers Mut. Fire Ins. Co. v. Associated Gas & Electric Co., 176 Misc. 220, 262 App. Div. 731, 288 N. Y. 668.) II. The complaint states no facts to sustain the conclusion that respondents received more than they were entitled to in equity and good conscience.
   Dye, J.

The challenge to the within complaint, for failure to state a cause of action, raises the question of whether a plaintiff in a stockholder’s derivative action may be required to account to the corporation for moneys received in private settlement for discontinuance of the action.

The complaint alleges that the defendants commenced a stockholder’s derivative action in behalf of the Associated Gas & Electric Company (called ageco) entitled “ Greenberg v. Mange, et al.” in which it was alleged that the defendants, as officers and directors, had so mismanaged its affairs that the company and its stockholders were damaged and prayed that an accounting be had, and that the court ‘ ‘ impress a trust in favor of the Company (ageco) upon all secret profits and gains obtained by any of the defendant directors ”, etc. No individual relief was asked except reimbursement for expenses. Later and before trial, a stipulation was made settling and discontinuing the action without notice to other stockholders and without approval of the court, by the terms of which Green-berg executed releases in his individual and representative capacity and transferred and delivered his stock, having a market value of $51.88, to the defendant directors, and defendants herein received from them the sum of $9,000.

The complaint in this action alleges that the defendants received the money “ to the use of, and in trust for ageco that they had failed to account to it or its trustee, the plaintiff herein, and had accordingly unjustly enriched themselves in the sum of $8,948.12 which, in equity, should be paid over to the plaintiff, and prayed judgment accordingly.

The Appellate Division unanimously affirmed the dismissal of the complaint by the Special Term which relied upon Manufacturers Mutual Fire Ins. Co. v. Hopson (176 Misc. 220, affd. 262 App. Div. 731, affd. 288 N. Y. 668) in which we refused to set aside a stipulation settling a stockholder’s derivative suit and revive the action. That case was limited to the right to discontinue and it did not consider whether the moneys received in settlement were impressed with a trust in favor of the corporation for which an accounting should be made.

The very nature of the derivative suit by a stockholder-plaintiff suing in the corporation’s behalf suggests the application of the fiduciary principle to the proceeds realized from such litigation whether received by way of judgment, by settlement with approval of the court, which presupposes stockholders’ approval, or by private settlement and discontinuance of the action at any stage of the proceeding. Such action, we have held, belongs primarily to the corporation, the real party in interest (Teich v. Lawrence, 291 N. Y. 245; Koral v. Savory, Inc., 276 N. Y. 215; Continental Securities Co. v. Belmont, 206 N. Y. 7) and a judgment so obtained, as well as the proceeds of a settlement with court approval, belongs to it and not the individual stockholder plaintiffs (Earl v. Brewer, 248 App. Div. 314, affd. 273 N. Y. 669; Gerith Realty Corp. v. Normandie National Securities Corp., 266 N. Y. 525). While the stockholder-plaintiff, with such others as join with him, controls the course of the litigation at all stages of the proceeding before final judgment, he does not bind the' nonparticipating stockholders by bis action, or deprive them of their own right of action against the unfaithful directors, nor is he subject to their interference (Manufacturers Mutual Fire Ins. Co. v. Hopson, 176 Misc. 220, affd. 262 App. Div. 731, affd. 288 N. Y. 668; Hirshfeld v. Fitzgerald, 157 N. Y. 166; Brinckerhoff v. Bostwich, 99 N. Y. 185). When, however, success crowns his effort, the amount received is in behalf of and for the account of the corporation. This is so because the action belongs primarily to it. The manner and method by which such success is accomplished whether by way of judgment, settlement with court approval or by stipulation of the parties, makes no substantial difference in the interest of the corporation upon distribution of the proceeds. Requiring an accounting for moneys received in a private settlement introduces no new element. It simply amounts to a logical application of a fundamental principle .inherent in the representative relation. When one assumes to act for another, regardless of the manner or method used in accomplishing a successful termination, he should willingly account for his stewardship. The plaintiff-stockholder, in good conscience, should not be allowed to retain the proceeds of a derivative suit discontinued by stipulation, to his individual use, in opposition to the corporation, any more than the proceeds of a judgment or a settlement with court approval.

The complaint, we believe, states a cause of action.

The judgments should be reversed and the motion to dismiss the complaint denied, with costs in all courts.

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ., concur.

Judgments reversed, etc. [See 296 N. Y. 993.]


author: Per Curiam.

text:
    William Weinert et al., as Stockholders of March Gold, Inc., Suing on Behalf of Themselves and on Behalf of All Other Stockholders of Said Corporation, Respondents, v. Edward G. Kinkel et al., Appellants, et al., Defendants.
    Argued November 14, 1946;
    decided January 16, 1947.

      Theodore Kiendl, William R. Meagher, Alfred L. Becher, Howard S. Tuthill and James 0. Moore for appellants.
    I. The facts found do not warrant the conclusion of law that appellants violated their fiduciary duties. (Dalury v. Resinas, 183 App. Div. 456, 229 N. Y. 513; Rhodes v. Ocean Accident & Guarantee Corp., Ltd., 235 App. Div. 340; Continental Bank & Trust Co. v. W. A. R. Realty Corp, 265 App. Div. 729; Leshay v. Tomashoff, 267 App. Div. 635; Stamabelis v. Mickros, 136 Misc. 46; Meinhard v. Salmon, 249 N. Y. 458; Preston v. Loughran, 58 Hun 210; Inglehart v. Thousand Island Motel Co., 109 N. Y. 454; Leavenworth v. Chicago, Rock Island & Pacific Ry. Co., 134 U. S. 688; Skinner v. Smith, 134 N. Y. 240; Twin-Lick Oil Co. v. Marbury, 91 U. S. 587.) II. The absence of March Gold, Inc., as a party is fatal to the judgment. (Moral v. Savory Inc., 276 N. Y. 215; Flynn v. Brooklyn City R. R. Co., 158 N. Y. 493; Holmes v. Camp, 227 N. Y. 635; Brady v. Meenan, 204 App. Div. 390; Whalen v. General Mining, Milling & Power Co., 249 App. Div. 601; Greaves v. Gouge, 69 N. Y. 154; Niles v. N. Y. C. & H. R. R. R. Co., 176 N. Y. 119; Teich v. Lawrence, 291 N. Y. 245; Continental Securities Co. v. Belmont, 206 N. Y. 7; Norman v. General American Transportation Corp., 181 Misc. 233, 267 App. Div. 758; Monohan v. Kenny, 248 App. Div. 159; Chaplin v. Selznick, 186 Misc. 66, 293 N. Y. 529.)

      Frank G. Raichle for respondents.
    I. Appellants violated their fiduciary duties. II. The absence of March Gold, Inc., is not fatal to the judgment. (Cohen v Dana, 287 N. Y. 405; Norman v. General American Transportation Corp., 181 Misc. 233, 267 App. Div. 758.)
   Per Curiam.

This stockholders’ derivative action against directors of a Delaware corporation was commenced after the corporation had been dissolved for nonpayment of taxes; although temporarily revived during part of the time during which the present action was in progress, the corporation thereafter forfeited its .charter for a second time, and it is not now, and for some time has not been, a body corporate. The evidence clearly establishes defendants’ breach of their duty as directors. The sole question of consequence upon this appeal is whether the dissolved corporation is an indispensable party and whether its absence as a party defendant is fatal to the judgment rendered.

The technical argument made by appellants disregards realities and should not prevail. It has been recognized that the court may dispense with the presence of a defunct corporation in a derivative action, if the circumstances warrant such exercise of its equitable powers. (Cohen v. Dana, 287 N. Y. 405, 410-411; Norman v. General American Transportation Corp., 181 Misc. 233, affd. 267 App. Div. 758; O’Brien v. O’Brien, 238 Mass. 403; 13 Fletcher on Corporations, § 5997.) Such circumstances are here present. As observed by the learned referee, the defendant directors dominated and controlled the board; they were residents of New York; the corporation’s business was done here; and, as provided by the by-laws and authorized by the certificate of incorporation, the corporate meetings were held in this State. Beyond that, the fictitious corporate person disappeared upon dissolution, and whatever assets it might have had at that time belonged thereafter, in equity at least, to the stockholders who are thus the equitable owners of this claim against defendants. Hence, as the referee remarked, the presence of a representative of the artificial person would add no material element to the litigation.”

Nor is there danger of double liability against defendant directors, for the judgment herein provides for the appointment of a receiver “ to distribute * * * among the persons entitled thereto ” all payments “ on the judgment rendered herein against the said defendants ”. Express sanction for that procedure is to be found in section 977-b of the Civil Practice Act. The procedure” adopted not only achieved the purpose of the statute, but satisfied the reasonable requirements of the case.

When this action was commenced, there was no corporation in existence, either by statutory provision for continuation after dissolution, or otherwise. Being a nonentity, therefore, tne defunct corporation could not be made either party plaintiff or defendant. Its subsequent resuscitation for some purpose — which is nowhere clearly described — was not such a rebirth for all purposes as should defeat a meritorious cause of action commenced in compliance with logical procedure.

The judgment should be affirmed, with costs.

Loughran, Oh. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ., concur.

Judgment affirmed.


author:
Lewis, J.
      Desmond, J.

text:
    William Carbone, Jr., an Infant, by William Carbone, Sr., His Guardian ad Litem, et al., Respondents, v. Mackchil Realty Corporation, et al., Appellants. Joseph Muzio, an Infant, by Michael Muzio, His Guardian ad Litem, et al., Respondents, v. Mackchil Realty Corporation, et al., Appellants. Silvesta Festa, Jr., an Infant, by Silvesta Festa, Sr., His Guardian ad Litem, et al., Respondents, v. Mackchil Realty Corporation, et al., Appellants.
    Argued October 10, 1946;
    decided January 16, 1947.

      Donald Gallagher for appellants.
    I. The only duty owed by defendants was to refrain from willfully injuring plaintiffs. (Ralff v. Long Island R. R. Co., 292 N. Y. 656; Simmons v. Poughkeepsie Savings Bank, 282 N. Y. 626; Nilsen v. Long Island R. Co., 268 App. Div. 782; Fabisiak v. Empire Steel Partition Co., 255 N. Y. 593; Panunzio v. State, 266 App. Div. 9; Mendelowits v. Neisner, 258 N. Y. 181; Zaia v. Lalex Realty Corp., 287 N. Y. 689; Meyer v. Pleshkof, 277 N. Y. 576; Vega v. Lange, 248 App. Div. 521.) II. A trespasser or licensee takes the premises as he finds them. (Garthe v. Ruppert, 264 N. Y. 290; Rosado v. Perch Realty Corp., 239 App. Div. 373; Breeze v. City of New York, 275 N. Y. 528; Bennett v. City of Mt. Vernon, 243 App. Div. 119.) III. Defendants were not guilty-of any affirmative negligence. (Avery v. Morse, 149 Misc. 318; Parker v. Oswego Construction Co., 80 Misc. 295; Paquet v. Barker, 250 App. Div. 771.) IV. The judgment of the Appellate Division is not supported by the law. (Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Mendelowitz v. Neisner, 258 N. Y. 181; Ralff v. Long Island R. R. Co., 292 N. Y. 656; Morse v. Buffalo Tank Corp., 280 N. Y. 110; Keenan v. Lawyers Mortgage Co., 280 N. Y. 525; Kendzior v. Lehigh Valley R. R. Co., 280 N. Y. 761.)

      Joseph A. Romano and Frank A. Tate for respondents.
    L-Although the doctrine of attractive nuisances does not apply in this State, the jury is entitled to take into consideration the well-known propensities of children to climb about and play and be drawn to objects which could be regarded as attractive nuisances in the course of play. (Boylhart v. DiMarco & Riemann, Inc., 270 N. Y. 217; Bowers v. City Bankers Farmers Trust, 282 N. Y. 442; Collentine v. City of New York, 279 N. Y. 119; Parnell v. Holland Furnace Co., 234 App. Div. 567, 260 N. Y. 604; Parkes v. New York Telephone Co., 120 Misc. 459.) II. Defendants created the dangerous condition by their affirmative act. III. Defendants had actual knowledge of the dangerous condition of the foundation. IV. The liability of defendants was clearly established. (Walsh v. Fitchburg, R. R. Co., 145 N. Y. 301.) Under the circumstances, the jury was warranted in finding that the children were licensees. (Vaughan v. Transit Development Co., 222 N. Y. 79; McCann v. Thilemann, 36 Misc. 145, 74 App. Div. 630; Nicholson V. Erie Ry. Co., 41 N. Y. 525; Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 362.) V. Defendants were heedless of warnings of the' dangerous condition of the foundation. (Polykranas v. Krausz, 73 App. Div. 583; Phaler v. Rae, 168 N. Y. S. 583; Nilsen v. Long Island R. R. Co., 268 App. Div. 782.)
   Lewis, J.

The infant plaintiffs in these three actions suffered personal injuries while climbing upon or playing near the foundation walls of a demolished building which stood on premises owned by the defendant Mackchil Realty Corporation and leased by the defendant Kay Dunhill, Inc. For injuries suffered by each infant when one of the walls collapsed and for the cost of incidental care and loss of services resulting to his parent, the plaintiffs in each action were awarded judgments at Trial Term against both defendants. Those judgments have been affirmed at the Appellant Division, one justice dissenting.

Although counsel for the plaintiffs-respondents in their brief before us have conceded that the rule of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301) has never been questioned in this .court, they deny its application to the case now before us. We are told that the site of the foundation walls where the infant plaintiffs were injured was more of an allurement to children than was the turntable involved in the Walsh case (supra) and that the evidence adduced from plaintiffs’ witnesses of actual or constructive knowledge by the defendants that after one of the walls had become undermined there were occasions when children were seen at play at or near the undermined wall, was sufficient in law to establish actionable negligence by the defendants and sustains the judgments we now review. Having reached a contrary conclusion as to the probative value of plaintiffs ’ evidence to establish actionable negligence by the defendants, we cite from the record additional facts to make clear the problem here involved:

The accident occurred in the city of Mechanicville, on premises which have been in possession of the defendants since 1937. The land comprises a corner lot bounded by Hudson Street on the west and Hill Street on the south. From its frontage on Hudson Street the defendants’ land extends easterly on a level grade for about 150 feet to a point where it drops off abruptly down a steep embankment to a creek which forms part of the easterly boundary. Li 1929 the defendants’ predecessor in title erected a factory building on the level westerly portion of the lot facing Hudson Street. At that time there were left standing at a point northeast of the factory and about 15 feet west of the top of the easterly embankment, four foundation walls which had once supported a barn long since demolished. The foundation walls, which surrounded a 21'x25' area, were not near the two public streets which bound the defendants’ land but were in the rear portion of the lot —170 feet back from Hudson Street and 150 feet from Hill Street. The footings of the four foundation walls were of concrete — in some places 2 feet thick — surmounted by courses of brick so set as to produce a wall-thickness of 16 inches. In the process of constructing the factory building in 1929 a tile drainpipe — installed to carry rain water from a portion of the factory roof — was laid underground extending eastward from the factory and under the foundation walls to the embankment along the easterly boundary. At the point where the discharge end of the drainpipe emerged from the embankment it was left protruding from the slope about one foot thus permitting any water to drain down the bank to the creek below. Although at that time in 1929 the embankment was of solid earth at the point where the drainpipe protruded, the discharge of water during the years eroded the soil back from the embankment to an extent sufficient to form a gulley which in 1942 had reached and undermined one of the foundation walls. Meantime the drainpipe had broken at a point inside the walls where on occasions rain water was discharged inside the foundation.

On October 16,1942, the three infant plaintiffs — two of whom were fourteen and one of them thirteen years of age — entered defendants’ land in search of a place to play and found their way back to the site where the foundation walls were standing. When two of the boys had climbed upon one of the walls and the third boy was about to mount it the wall collapsed causing injury to each boy for which recovery has been had in these actions. Although two of the three infant plaintiffs had never before been on the defendants’ premises there was evidence that children had been seen playing at or near the site of the foundation walls. Opposed to that evidence the defendants called two employees who testified that they had repeatedly “ chased ” children away from that part of defendants’ premises which lies east of the factory building and near the site of the foundation walls. The plaintiffs also introduced evidence that defendants had knowledge prior to the accident that one of the foundation walls was undermined.

When the three infant plaintiffs came upon defendants’ property they were uninvited. Motivated as they were by their own curiosity, or by a desire for amusement in no way connected with business or other relations with the defendants, it cannot be said that the defendants’ failure in this instance to prohibit their intrusion was in any sense an invitation. Giving to the' infant plaintiffs every favorable inference which may be had from the evidence they were at most bare licensees.

The duty impressed by law upon the defendants in those circumstances has been repeatedly the subject of decision by this court: “ Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself. * * * Toward mere trespassers ,or bare licensees the rule is well settled that the only duty owing to them by the owner or occupier of land is to abstain from inflicting intentional, wanton or wilful injuries unless he maintains some hidden engine of destruction, such as sprjng guns or kindred devices, upon his property.” (Mendelowitz v. Neisner, 258 N. Y. 181, 184; see, also, Vaughan v. Transit Development Co., 222 N. Y. 79, 82; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86, 92-93; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 243; Weitzmann v. Barber Asphalt Co., 190 N. Y. 452, 456-457; Birch v. City of New York, 190 N. Y. 397, 403-405; Sterger v. Van Sicklen, 132 N. Y. 499, 505-506; Larmore v. Crown Point Iron Co., 101 N. Y. 391, 394-395.)

More recent decisions attest our adherence to that rule and its application to circumstances where, as in the present case, the injured licensees'were infants. (Breeze v. City of New York, 275 N. Y. 528; Meyer v. Pleshkopf, 271 N. Y. 576; Morse v. Buffalo Tank Corp., 280 N. Y. 110, 115-120; Simmons v. Poughkeepsie Savings Bank, 282 N. Y. 626; Rosenfeld v. Matthews Co., 282 N. Y. 755; Zaia v. Lalex Realty Corp., 287 N. Y. 689; and see Flaherty v. Metro Stations, Inc., 202 App. Div. 583, affd. 235 N. Y. 605; Olsen v. Fennia Realty Co., 246 N. Y. 641.)

Within the purview of that rule of law it should be noted that the personal injuries for which the infant plaintiffs have recovered in the cases now before us were not caused by contact with any construction designedly arranged by the defendants to fend against or harm intruders; nor were those injuries due to any wanton act by the defendants. The record is devoid of proof that at the time of the accident the defendants, by any affirmative act, changed conditions existing at the site of the foundation or created new perils there. (Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289, 292-293.) The foundation walls were privately owned structures in which conceivably there was a degree of useful value to the defendants, the disposition of which was a matter of their own choice. When the infant plaintiffs found their way through defendants’ premises to the foundation walls and chose to use that site for their own amusement they accepted the risk- of any peril which their choice involved. When two of the boys bent upon adventure climbed to the top of a wall which had been undermined and weakened through the years, their weight caused its collapse. The record contains no evidence, however, that the harm which befell them during that escapade was due to active participation by the defendants in the event. In the circumstances disclosed by the record the defendants were not required as a matter of legal duty so to maintain the foundation walls upon their own property — far removed from lanes of public travel — as to withstand the weight of boys bent upon adventure who came upon the premises uninvited and for purposes of their own -unrelated to the defendants’ business.

We are thus led to conclude that the exception recorded in behalf of the defendants to the denial of their motion, made at the close of the evidence, for a nonsuit and the dismissal of the complaint, was well taken.

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

Desmond, J.

(dissenting). I see no ground for reversal here. The jurors were instructed by the court that if they found that the infant plaintiffs were trespassers there could be no recovery. They were told further that, if plaintiffs were licensees, defendants would be liable only for “ active negligence ”. The verdict for plaintiffs thus imported findings by the jury that plaintiffs were not trespassers but licensees, and that defendants’ negligence was active ”. Both these conclusions were licit, on the proof here.

As to plaintiffs’ status as licensees there was, as Judge Lewis points out, evidence that children were, to defendants’ knowledge, in the habit of playing around the old foundation walls.

As to “ active ” negligence: that expression, difficult to define, ordinarily means something more than a failure to repair (Mendelowitz v. Neisner, 258 N. Y. 181) or a continuation of some open and apparent danger (Garthe v. Ruppert, 264 N. Y. 290). But when a landowner has actual or implied knowledge of the presence of an infant licensee on Ms business premises, the landowner must conduct that business with such care as not to injure the infant, and a contrary course may be considered active negligence. That is the substance of Barry v. N. Y. C. & H. R. R. R. Co. (92 3N. Y. 289) which case has been followed in later decisions of this court (Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 362; Skzypek v. Long Island R. R., 249 App. Div. 629, affd. 275 N. Y. 508; Zambardi v. South Brooklyn Ry. Co., 281 N. Y. 516). It should be followed here.

Loughhan, Ch. J., Conway, Thacher, Dye and Fuld, JJ., concur with Lewis, J.; Desmond, J., dissents in opinion.

Judgments reversed, etc.


text:
    In the Matter of Samuel Shillitani, Appellant, against Lewis J. Valentine, as Police Commissioner of the City of New York, et al., Respondents.
    Argued November 18, 1946;
    decided January 16, 1947.

      Millard E. Theodore for appellant.
    I. The appeal taken by the police commissioner should have been dismissed because he was not an aggrieved party. (Hooper v. Beecher, 109 N. Y. 609.) II. Petitioner did not use his telephone either to commit or attempt to commit the crime of book-making or any other crime. (People v. Edelstein, 231 App. Div. 459; People ex rel. Collins v. McLaughlin, 128 App. Div. 599; Whalen v. Stuart, 194 N. Y. 495; Neva-Wet Corp. v. Never Wet Processing Corp., 277 N. Y. 163; York Mortgage Corp. v. Clotar Constr. Corp., 254 N. Y. 128; Bamman v. Erickson, 288 N. Y. 133.) III. The police commissioner was neither a necessary nor a proper party. (Bus Depot Holding Corp. v. Valentine, 288 N. Y. 115; People v. Galpern, 259 N. Y. 279.)

      John J. Bennett, Corporation Counsel {Seymour B. Quel of counsel), for Police Commissioner of the City of New York, respondent.
    I. The police commissioner is a proper party to this proceeding. In any event, petitioner having joined the police commissioner as a defendant may not object to his participation in the proceeding. (Charter of City of New York, § 435; People ex rel. Restmeyer v. New York Telephone Co., 173 App. Div. 132; People ex rel. Hiegel v. New York Telephone Co., 119 Misc. 61; Matter of Manfredonia v. New York Telephone Co., 183 Misc. 770; Matter of Cullen v. New York Telephone Co., 106 App. Div. 250; Matter of Montario v. New York Telephone Co., 181 App. Div. 893, 224 N. Y. 571; Matter of Dees Cigarette & Automatic Music Co. v. New York Telephone Co., 184 Misc. 269; Lindlois Realty Gorp. v. County of Suffolk, 278 N. Y. 45.) II. The police commissioner was aggrieved by the order at Special Term and his appeal to the Appellate Division was proper. (Matter of Electrolux Corp., 286 N. Y. 390; Assalone v. Hazel, 270 N. Y. 580.) III. The evidence overwhelmingly supports findings to the effect that petitioner was using his telephone to a large extent for unlawful activities in violation of Penal Laws (§§ 986, 991) and to further illegal gambling operations. Defendants’ refusal to approve the restoration of or to restore telephone service under such circumstances was fully justified. (Pocket Books, Inc., v. Meyers, 292 N. Y. 58; Harrington v. Harrington, 290 N. Y. 126; Bammam v. Erickson, 288 N. Y. 133; People v. Goldstein, 295 N. Y. 61.)

      Irving W. Young, Edward F. Snydstrup, Jordan B. Bassett and Ralph W. Brown for New York Telephone Company, respondent.
    I. On the undisputed facts petitioner’s use of his telephone was for activities in violation of the Penal Law and he has no clear legal right to compel the furnishing of telephone service to.be so used. (Matter of Leitner v. New York Telephone Co., 277 N. Y. 180; Matter of Pruzan v. Valentine, 282 N. Y. 498; Bamman v. Erickson, 288 N. Y. 133; People ex rel. Allen v. Hagan, 170 N. Y. 46; People v. McGuire, 275 N. Y. 521; People v. Goldstein, 295 N. Y. 61; Matter of Stewart v. Department of State, 174 Misc. 902, 260 App. Div. 979; People ex rel. Restmeyer v. New York Telephone Co., 173 App. Div. 132; Will-son v. Manhattan Railway Co., 2 Misc. 127, 144 N. Y. 632.) II. The determination by the Appellate Division that respondent police commissioner was entitled to a final order dismissing the petition as against him on the merits furnishes no ground for reversal. (Brown v. Manufacturers Trust Co., 278 N. Y. 317; Matter of Cullen v. New York Tel. Co., 106 App. Div. 250; People ex rel. Restmeyer v. New York Telephone Co., 173 App. Div. 132; People ex rel. Hiegel v. New York Telephone Co., 119 Misc, 61; Matter of Manfredonio v. New York Telephone Co., 183 Misc. 770.)
   Per Curiam.

Since the record justifies the conclusion that petitioner was engaged in conduct violative of section 986 of the Penal Law, it follows that he failed to establish — in this proceeding under article 78 of the Civil Practice Act — a clear legal right to the relief sought. Under the circumstances of this case, there was no warrant for compelling the telephone company to reinstate its service for petitioner.

In our view, however — though the Police Commissioner may have a deep and real interest in law enforcement — neither he nor any other law enforcement agent may, by reason thereof, be regarded as an indispensable, necessary or proper party or one permitted to intervene in a proceeding such as the present (Civ. Prac. Act, §§ 193, 193-b, 211).

Neither the Police Commissioner nor the Police Department is given any authority by statute to pass upon or regulate applications for telephone service, or to require a telephone company to withhold or discontinue its service. Approval of the commissioner is not a statutory condition precedent to the granting of the relief sought by appellant, and there is no warrant or need for any direction to him in this proceeding.

Whether or no service should be terminated or discontinued, is a decision that must be made by the telephone com-, pony. That power — as well as duty — rests with' the public utility, and it may not delegate the one or avoid the other. True, the company is free to consult with the Police Department or with- any other law enforcement agency, and may be guided in its action by the advice received. But whether the action is justified or warranted must be determined by the telephone company upon the facts presented. That being so, the telephone company is the only indispensable, necessary or proper party in a proceeding such as that before us.

The order should be affirmed, with costs to the respondent New York Telephone Company.

Loughban, Ch. J., Lewis, Desmond, Thacheb, Dye and Fuld, JJ., concurConway, J., taking no part.

Order affirmed, etc, [See 296 N. Y. 857.]


text:
    In the Matter of the Arbitration Between Broadway-40th Street Corporation, Appellant, and President and Directors of Manhattan Company, Respondent.
    Argued November 21, 1946;
    decided January 16, 1947.

      Chester Rohrlich and I. Howard Lehman for appellant.
    I. Section 1452 of the Civil Practice Act applies notwithstanding any delay in seeking arbitration under the agreement. II. Petitioner was not in default under the terms of the lease; any delay was attributable as much to respondent as to it; the timetable was subsidiary and did not go to. the substance of the arbitration agreement.

      Ralph H. Wiener and Henry L. Flattau for respondent.
    I. Having failed to comply with the lease, the landlord is in no position now to ask the court to overlook its fault in not invoking arbitration within the time agreed upon. II. There is no indication to be found that in enacting section 1452 of the Civil Practice Act, the Legislature had the slightest intention to rewrite contracts of arbitration or to make it impossible for parties to agree that action with respect to arbitration must be taken on or before a specified critical date.
   Per Curiam.

Section 1460 of the Civil Practice Act provides that an arbitration award, to be entitled to enforcement under article 84 of the Civil Practice Act, must be subscribed by the arbitrators within the time limited in the submission or contract, if any ”. In the present case it is undisputed that no steps initiating arbitration were taken until after expiration of the dates specified in the lease provision for the making of the arbitration award, and there is no claim that the parties agreed to extend the time for rendering the award or that the objection was waived. No valid award could be made in such circumstances, and petitioner therefore is not entitled to an order directing arbitration (cf. Johnson v. Crawford, 212 Pa. 502; Brotherhood of Railway & Steamship Clerks v. Norfolk Southern Ry. Co., 143 F. 2d 1015; Sturges, Commercial Arbitrations and Awards, p. 523). We agree with the Appellate Division that section 1452 of the Civil Practice Act has no application where, as here, the contractual provisions for arbitration have expired by their own terms.

The order should be affirmed, with costs.

Loughean, Oh. J., Lewis, Conway, Desmond, Thacheb, Dye and Fttld, JJ., concur.

Order affirmed.


author: Thacher, J.

text:
    Joseph L. Murphy, Appellant, v. Edith A. Murphy, Respondent.
    Argued October 11, 1946;
    decided January 16, 1947.

      Elijah T. Bussell for appellant.
    I. The reversal was not on the facts. (Hart v. Blabey, 287 N. Y. 257; Schnibbe v. Glenn, 252 N. Y. 7; Matthews v. Truax, Carsley & Co., 265 N. Y. 6; McDougall v. Shoemaker, 236 N. Y. 127; Caldwell v. Nicolson, 235 N. Y. 209; People ex rel. Sheffield Farms Co., Inc., v. Lilly, 295 N. Y. 354.) II. The reversal on the law was error. (Holmer v. Holmer, 253 N. Y. 498; Vernes v. Vernes, 232 App. Div. 707.)

      Bichard F. Bussell and Benson B. Frost for respondent.
    I. The trial court properly denied a decree of separation to plaintiff. (Weaver v. Weaver, 74 App. Div. 591, 178 N. Y. 621; Pearson v. Pearson, 230 N. Y. 141; Kennedy v. Mayor, 79 N. Y, 361; Smith v. Smith, 273 N. Y. 380; De Vide v. De Vide, 186 App. Div. 814; Avdoyan v. Avdoyan, 265 App. Div. 763; Donohue v. Donohue, 180 App. Div. 561; Averett v. Avefett, 189 App. Div. 250, 232 N. Y. 519.) II. Defendant was entitled to a decree of separation. (Holmer v. Holmer, 253 N. Y. 498; Avdoyan v. Avdoyan, 265 App. Div. 763; Barbieri v. Barbieri, 249 App. Div. 854; Carulla v. Carulla, 259 App. Div. 1013; Rosenthal v. Rosenthal, 254 N. Y. 634; Hoffmann v. Hoffmann, 224 App. Div. 28; Stevens v. Stevens, 125 Misc. 451, 214 App. Div. 785; Dionysius v. Dionysius, 200 App. Div. 842.) III. The reversal by the Appellate Division was. upon the law and facts. (Risk v. Risk, 202 App. Div. 299; Holmer v. Holmer, 253 N. Y. 498; Rosenthal v. Rosenthal, 254 N. Y. 634.)
   Thacher, J.

In this matrimonial action the husband, seeking a legal separation, alleged cruel and inhuman treatment by his wife. The wife denied his allegations and counterclaimed for a separation, alleging abandonment and failure to support. The action was tried before a referee who held the evidence insufficient to warrant a decree of separation in favor of either party, upon the ground that the proven acts of the wife did not amount to cruel and inhuman treatment within the contemplation of the law, and the husband did not leave the wife without cause or provocation or fail to support her. The referee found that, after an attempted reconciliation which had failed: ‘ ‘ Defendant became very bitter toward the plaintiff, cursing him and calling him very vile names daily, and frequently in the presence of their daughter, Ellen. That she refused to cook any more meals for him and he had to cook his own meals and wash the dishes afterward. That she would put salt in his sugar; pour water in the gas tank of his car; enter his clothes closet each day and tie his clothing into knots and throw the pieces onto the floor and trample upon them. That defendant also .tore up all pictures plaintiff had of his daughter, Marie Eider, by his first marriage, and of her baby. That she also destroyed a new dictionary Marie had given plaintiff. That she also assaulted the said Marie in the public street of said village as a result of which Marie had her arrested. That she called State Troopers to the home and threatened plaintiff with arrest. That as a result of the treatment plaintiff was receiving in his home he moved out into a small cabin they had in the back yard in or about June, 1944. That defendant continued her same conduct toward the plaintiff while he lived in the cabin. She would enter each day after he had gone to his work and scatter his bed clothing about and his wearing apparel. That she would leave the doors and windows open. That on one Sunday near Christmas time in 1944, and while plaintiff and his said daughter, Marie, were coming out of church after service, they saw defendant sitting in her car and waiting for them. Fearing trouble they turned down a side street. That defendant went around another way and confronted them. There in the presence of many people coming from church the defendant in a loud voice called plaintiff and his said daughter many vile names and cursed them. That plaintiff and his daughter made no reply to her but kept on walking away from her. That living conditions in the cabin continued so bad that plaintiff moved away to other quarters in said village in October, 1944.”

The wife appealed, but the husband did not. The Appellate Division modified by striking from the judgment the provision denying the wife a separation on the ground of abandonment and inserting in place thereof a provision granting her a separation on the ground of abandonment, and affirmed the judgment as so modified. This determination was stated to have been upon the law and the facts, but the court did not specify the findings of fact which were reversed or modified. We are therefore required to presume that the questions of fact were not considered by the Appellate Division. (Civ. Prac. Act, § 602.)

The decision of the court below was predicated upon the conclusion that, plaintiff having acquiesced in the decision and judgment denying him a separation, it followed as a matter of law that, however provocative and objectionable his wife’s misconduct may have been, she was nevertheless entitled to a separation from him. This was not a correct .conclusion of law. Unless no misconduct short of cruel and inhuman treatment will ever justify a husband in living apart from his wife, the findings of the referee could not be rejected as legally irrelevant to the decision. Cruel and inhuman treatment is not the only “ justification ” which may be pleaded in defense to an action for separation predicated upon allegations of abandonment and failure to support. (Williams v. Williams, 130 N. Y. 193, 197; cf. Mirizio v. Mirizio, 242 N. Y. 74.) We find nothing to the contrary in Holmer v. Holmer. (253 N. Y. 498) since the trivial misconduct of the wife in that case was no possible justification for the husband’s abandonment and failure to support. If the findings of the referee are approved by the Appellate Division, the fact that the husband did not fail to support his wife, coupled with the circumstances under which he moved into the cabin in the back yard and later to other quarters in the village, might give rise to a possible inference that the husband did not intend permanently to desert his wife or that the evidence was not sufficient to establish that fact. On the present state of the record this court is without power to draw any such inference or to pass upon any question of fact.

Since the wife’s appeal could not be determined upon the law alone, the judgment of the Appellate Division should be reversed and the case remitted to the Appellate Division for determination of the questions of fact raised in that court, without costs.

Loughran, Oh. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Judgment reversed, etc.


author: Lottghbae, Ch. J.

text:
    In the Matter of the Arbitration between Henry Behrens, Appellant, and Gertrud Feuerring et al., Respondents.
    Argued October 16, 1946;
    decided January 17, 1947.

      William J. Bloch for appellant.
    I. The arbitrators had no power to consider the validity or enforcibility of the contract. Questions of the existence and enforcibility of the contract were not within the scope of the controversy before the arbitrators. (Matter of Aqua Mfg. Co. v. Warshaw & Sons, Inc.,
      179 Misc. 949, 266 App. Div. 718, 290 N. Y. 929; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F. 2d 978.) II. As a matter of law, arbitrators have no power or jurisdiction to consider the question of the existence or validity of the contract from which they derive their powers. (Dodds v. Hakes, 114 N. Y. 260; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Matter of Sheffield Farms, 264 App. Div. 843; Matter of Young v. Crescent Development Co., 240 N. Y. 244; Jones v. Welwood, 71 N. Y. 208; Hoffman v. Greenberg Co., 109 Misc. 170; Matter of General Silk Importing Co., 200 App. Div. 786, 234 N. Y. 513; Halstead v. Seaman, 82 N. Y. 27; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Kramer & Uchitelle, Inc., 288 N. Y. 467; Matter of Gruen [Carter], 173 Misc. 765, 259 App. Div. 712; Matter of Metro-Goldwyn-Mayer, 150 Misc. 408, 242 App. Div. 674.) III. The agreement and stipulation of the parties deprived the arbitrators of jurisdiction over the question of the validity or enforcibility of the contract. (Morse v. Morse Dry Dock & Repair Co., 249 App. Div. 764; Faruolo v. Faruolo, 253 App. Div. 750; Dodds v. Hakes, 114 N. Y. 260; Halstead v. Seaman, 82 N. Y. 27; Matter of Marchant v. Mead-Morrision Mfg. Co., 252 N. Y. 284; Matter of Sheffield Farms Co., 264 App. Div. 843.) IV. The arbitrators exceeded their powers, made a determination that was beyond the scope of the submitted controversy, and failed to decide the controversy submitted. (Dodds v. Hakes, 114 N. Y. 260; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Matter of Sheffield Farms Co., 264 App. Div. 843; Matter of Young v. Crescent Development Co., 240 N. Y. 244; Jones v. Welwood, 71 N. Y. 208; Herbst v. Hagenaers, 137 N. Y. 290; Hoffman v, Greenberg Co., 109 Misc. 170; Matter of General Silk Importing Co., Inc., 200 App. Div. 786, 234 N. Y. 513; Halstead v. Seaman, 82 N. Y. 27.) V. The misconduct, bias and partiality of one of the arbitrators requires that the award be vacated. Thereby the arbitrators became functus officio and lost jurisdiction over the proceedings. (Matter of American Eagle Fire Ins. Co. v. New Jersey Ins. Co., 240 N. Y. 398; Jacobowitz v. Herson, 268 N. Y; 330; Matter of Knickerbocker Textile Corp. v. Sheila-Lynn, Inc., 172 Misc. 1015; Matter of Eitingon, 248 App. Div. 700; Matter of Shirley Silk Co. v. American Silk Mills, 257 App. Div. 375.)

      Alexander Pfeiffer for respondents.
    I. The entire controversy and dispute of the parties having been submitted to arbitration, in accordance with their agreement for final decision by the arbitrators and in view of the unanimous affirmance below, the Court of Appeals will not review the award. It could not be set aside even if there were errors both of fact and of law. (Matter of Bolton, 295 N. Y. 734; Moore v. Eadie, 245 N. Y. 166; Matter of Burke, 191 N. Y. 437; Matter of Wilkins, 169 N. Y. 494; Matter of Delma Engineering Corp. [Johnson Contr. Co.], 267 App. Div. 410, 293 N. Y. 653; Matter of Pine St. Realty Co., Inc., v. Coutroulos, 233 App. Div. 404; Masury v. Whiton, 111 N. Y. 679; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Matter of Friedheim. [International Paper Co.], 265 App. Div. 601; Sweet v. Morrison, 116 N. Y. 19; Itoh & Co., Ltd., v. Boyer Oil Co., Inc., 198 App. Div. 881; Berizzi Co., Inc., v. Krauss, 208 App. Div. 322; Newburger v. American Surety Co., 242 N. Y. 134.) II. The arbitrators in their award merely found that the appellant had failed to sustain his claim for damages for breach of contract. They did not find that the agreement was fraudulently entered into. They could have done so under the broad provisions of the agreement, the order of submission to the arbitrators, and the settled law of this State. The defense of fraud may be set up, particularly in an arbitration to a claim of damages for the breach of the contract. (Matter of Shirley Silk Co. v. American Silk Mills, 257 App. Div. 375; Sloima Snaider [Mano Hoffner Fur Corp.], 269 App. Div. 271.) III. In view of the broad provisions of the agreement containing the arbitration clause and the order directing arbitration which required the arbitrators to determine any and all controversies, disputes and matters of difference which may have arisen among the parties under the agreement, the arbitrators had the right to pass upon the question of fraud in the inducement of the agreement. (Matter of Kahn, 284 N. Y. 515; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Delong v. Stanton, 9 Johns 38; Almacenes Fernandes S. A. v. Golodetz, 148 F. 2d 625.) IV. There never was a stipulation, as claimed by appelIant, that the question of the validity or enforcibility of the agreement containing the arbitration clause because of fraud and frustration was not to be considered by the arbitrators. V. There was no evidence of misconduct on the part of one of the arbitrators. Appellant waived any such claim. The claim that respondents’ counsel represented such arbitrator at the time of the arbitration is without any basis in fact. (Matter of Newburger v. Rose, 228 App. Div. 526, 254 N. Y. 546; Matter of Knickerbocker Textile Corp. v. Sheila-Lynn, Inc., 172 Misc. 1015, 259 App. Biv. 992; Turner v. New York Central & H. R. R. Co., 168 App. Div. 359; Matter of Bridgeman & Holtzman v. Gondek, 235 App. Div. 129; Matter of Tutein, Inc., v. Hudson Valley Coke & Products Corp., 230 App. Div. 419; Publishers’ Assn. v. N. Y. Typographical Union No. 6, 168 Mise. 267; Proges v. United States Mortgage & Trust Co., 203 N. Y. 181.)
   Lottghbae, Ch. J.

By contract dated November 12, 1941, the parties fixed their respective interests in the assets of a Pennsylvania corporation and agreed that its business would be carried on by them'as joint adventurers. Capital for the enterprise was to be supplied by the respondents. The appellant was to contribute technical skill and experience in management. Provision for arbitration was made in this text: “ All disputes which may arise between the two parties regarding the application or interpretation of this agreement and of the legal relations connected therewith, which shall not be settled by way of amicable agreement, shall, to the exclusion of any court of law, be arbitrated with final effect by a board of arbitration consisting of three persons.”

In December, 1941, the respondents wrote the. appellant a letter repudiating the contract. In January, 1942, they refused a demand for arbitration of his claim of a breach of their commitment to him. In March, 1943, he obtained at Special Term an order directing the arbitrators to determine “ any and all controversies, disputes and matters of difference which may have arisen among the parties under the said contract ”. Upon appeal by the respondents to the Appellate Bivision, that order was affirmed. We then denied a motion for leave to appeal to this court.

At the Special Term and again on the hearing before the arbitrators, the respondents contended that the contract had been induced by fraud of the appellant and that performance on his part became an impossible thing when the United States entered the war, since he was a German refugee then residing here on a visitor’s visa. A majority of the arbitrators made a report in this form: “ The claim of Henry Behrens [the appellant] against Gertrud Feuerring and Alfred Schwabaeher [the respondents] for damages for breach of contract is not sustained, and is disallowed.” This determination was confirmed at Special Term by an order which the Appellate Division has affirmed and the case is now here by our leave.

In its recitals, the order for arbitration asserts that “ the written agreement dated the 12th day of November, 1941, was duly signed and delivered and constitutes a valid and subsisting contract among the parties hereto ”, The argument for the appellant takes that provision to be an adjudication in his favor upon the claims of fraud and disability which the respondents had made against him. From that viewpoint, the only question before the arbitrators was the amount of damages that were necessarily to be paid by the respondents for their repudiation of the contract. We cannot adopt that position.

The finding by the Special Term of the existence and validity of the agreement of November 12, 1941, was not a measure of the authority of the arbitrators. On the contrary, that finding was no more than a rejection by the court of an argument whereby the respondents had attacked the agreement of November 12, 1941, as a mere preliminary writing which was not meant to be binding until its terms were put into a more formal document. The extent of the powers of the arbitrators was fixed by the command of the court which called upon them to resolve “ any and all controversies, disputes and matters of difference which may have arisen among the parties under the said contract ”. Thereby the arbitrators were commissioned to say whether the respondents were let out of the contract when the war excluded performance thereof by the appellant — an issue which was clearly a dispute of the kind described in the above arbitration clause. (Cf. Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76.) For all we know, the arbitrators did not take account of any other phase of the controversy.

But however that may be, the report of the arbitrators does not appear to be based upon any finding that the contract was induced by fraud on the part of the appellant. Hence we do not reach the question whether the issue as to such fraud was cognizable by the court on the motion to compel arbitration, rather than by the arbitrators (see Matter of Cheney Bros. v. Joroco Dresses, Inc., 245 N. Y. 375; Matter of Kahn [National City Bank], 284 N. Y. 515, 523; Boudin v. Clarren, 289 N. Y. 724). In that state of the record there is no warrant for an inference of usurpation of power by them or other abuse of their office (cf. Fudickar v. Guardian Mutual Life Ins. Co., 62 N. Y. 392, 403, 404; Matter of Bolton, 295 N. Y. 734).

The charges of bias made by the appellant against one of the arbitrators are not established as matter of law.

The judgment should be affirmed, with costs.

Lewis, Conway, Desmond, Thagher, Dye and Fuld, JJ., -oncur.

Judgment affirmed. [See 297 N. Y. 472.]