text:
    The People of the State of New York ex rel. Michael Sedlak, Appellant, against John F. Foster, as Warden of Auburn State Prison, et al., Respondents.
    Argued April 20, 1949;
    decided June 2, 1949.

      Raymond J. Mino for appellant.
    I. Relator has sufficiently established that the judgment of conviction fails to satisfy the requirements of due process and is, therefore, void. (Foster v.
      Illinois, 332 U. S. 134; Canizio v. New York, 327 U. S. 82; United States v. Steese, 144 F. 2d 439; People v. McLaughlin, 291 N. Y. 480; Johnson v. Zerbst, 304 U. S. 458; United States v. Haupt, 136 F. 2d 661; People v. Youlio, 214 App. Div. 793; People v. Molineux, 168 N. Y. 264; People ex rel. Moore v. Hunt, 258 App. Div. 24; Powell v. Alabama, 287 U. S. 45.) II. Since the judgment of conviction fails to satisfy the requirements of due process, and there is no other remedy at hand, habeas corpus is the proper remedy. (Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People ex rel. Harrison v. Jackson, 298 N. Y. 219.)

      Nathaniel L. Goldstein, Attorney-General (William S. Elder, Jr., Wendell P. Brown and Herman N. Harcourt of counsel), for respondents.
    I. Habeas corpus is not the proper procedure to attack a judgment of conviction upon the alleged ground that the prisoner had not been advised of his right to counsel. (People ex rel. Martine v. Hunt, 266 App. Div. 822, 294 N. Y. 651; Matter of Hogan v. Court of General Sessions, 296 N. Y. 1; People ex rel. Stevens v. Morhous, 269 App. Div. 461; People ex rel. Harrison v. Jackson, 298 N. Y. 219; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; Canizio v. New York, 327 U. S. 82.) II. It will be presumed that appellant was advised of his right to counsel upon his arraignment. (People ex rel. Kruger v. Hunt, 257 App. Div. 917; People ex rel. Stubkjaer v. Morhous, 266 App. Div. 695; People ex rel. Asaro v. Morhous, 268 App. Div. 1016; People ex rel. Montagno v. Morhous, 267 App. Div. 797, 292 N. Y. 678; People ex rel. Johnson v. Foster, 271 App. Div. 809, 296 N. Y. 1060; People ex rel. Albanese v. Hunt, 266 App. Div. 105, 292 N. Y. 528; Foster v. Illinois, 332 U. S. 134.)
   Conway, J.

On September 26,1927, in the Kings County Court, the relator entered a plea of guilty to the crime of robbery in the first degree and on November 28, 1927, he was sentenced to a term of fifteen to twenty years imprisonment. He was paroled on three different occasions in succeeding years, but each time was declared delinquent and returned to prison. Finally the Parole Board determined that he be held for full maximum which will not expire until September 28, 1947. ’ ’

About seventeen years after the imposition of his sentence, relator made a motion in the Kings County Court, in the nature of a writ of error coram nobis, to vacate and set aside the 1927 judgment of conviction on the ground that he had then been deprived of his constitutional right to counsel. After a hearing on January 10, 1945, at which relator appeared with an attorney, the motion was denied.

On August 8, 1945, relator obtained a writ of habeas corpus in the Supreme Court, Cayuga County, directed to the Warden of Auburn State Prison. In his petition for the writ relator alleged that his 1927 conviction was illegal and unlawful on the ground above stated. Special Term sustained the writ and, by order dated December 21, 1945, directed that relator be discharged from imprisonment forthwith.

Upon appeal, the Appellate Division, by order dated July 8,1948, reversed the order of Special Term on the law and facts, dismissed the writ and remanded relator to the custody of the warden. At the time of the issuance of the order of Special Term directing his discharge, relator still had about two years left to serve on his sentence, and, pursuant to the order of the Appellate Division, it appears that he was returned to prison sometime after July 8, 1948, and is now serving the balance of such sentence.

The reversal in the Appellate Division was predicated upon two grounds, first, that the presumption of regularity was not overcome by any evidence presented upon the return of the writ, and, secondly, that the writ of habeas corpus is not the proper remedy.

On the appeal to this court, we need not consider the merits of relator’s claim that he was unconstitutionally deprived of his right to counsel, for we agree with the Appellate Division that habeas corpus is not the proper remedy.

Relator is restrained under a final judgment of conviction rendered by the Kings County Court, which, of course, is a competent tribunal having jurisdiction of the person of the accused and general jurisdiction of criminal offenses. That being so, under our statute (Civ. Prac. Act, § 1231) and cases (People ex rel. Carr v. Martin, 286 N. Y. 27, 36; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 136, 137-138; People ex rel. Wachowicz v. Martin, 293 N. Y. 361, 366; People ex rel. Harrison v. Jackson, 298 N. Y. 219, 224), habeas corpus would not ordinarily be the proper remedy, and there is no exceptional circumstance here present which would justify another and different court, without appellate jurisdiction, in setting aside such a judgment of conviction.

Eelator, of course, under our decisions, has an appropriate corrective process available to him in a proceeding before the sentencing court to vacate and set aside the judgment of conviction, i.e., a motion in the nature of a writ of error coram nobis. We have consistently recognized that coram nobis will lie as a remedy for a prisoner, such as relator, who claims to have been unconstitutionally deprived of his right to counsel. Thus, in Matter of Hogan v. Court of General Sessions (296 N. Y. 1, 9) we said: “As to the second conviction, without considering the merits, we are constrained to conclude that the failure to advise the defendant of his right to counsel, in the light of all the surrounding circumstances as they may be developed in further proceedings, may require the exercise of the court’s extraordinary power to vacate its own judgments as upon a writ of error coram nobis.” And in Matter of Bojinoff v. People (299 N. Y. 145), we expressly sanctioned such practice.

Furthermore, as numerous decisions of this court attest, coram nobis is not only a proper remedy in this situation, but it is the exclusive remedy. (People ex rel. Martine v. Hunt, 266 App. Div. 822, motion for leave to appeal denied 294 N. Y. 651; People ex rel. Varelli v. Brophy, 267 App. Div. 1042, motion for leave to appeal denied 294 N. Y. 644; People ex rel. Scharch v. Martin, 268 App. Div. 886, motion for leave to appeal denied 294 N. Y. 644; People ex rel. Ferraiolo v. Jackson, 269 App. Div. 920, motion for leave to appeal denied 295 N. Y. 991; People ex rel. Madden v. Foster, 271 App. Div. 809, affd. 297 N. Y. 925.)

Eelator, however, -argues that habeas corpus should be permitted here, because his motion in the nature of a writ of error coram nobis was denied in 1945 and, at that time, no appeal could be taken from such determination. (People v. Gersewitz, 294 N. Y. 163.) The contention is clearly untenable. Even before the Legislature (L. 1947, ch. 706) permitted appeals from such orders, we had decided that habeas corpus would not lie in a situation such as that presented in the instant case, and that coram nobis was the exclusive remedy. Despite the inability to appeal therefrom, coram nobis was held to be an adequate and appropriate corrective process. But, beyond that, relator is not now precluded from obtaining leave to move again in ■ the Kings County Court to vacate and set aside the judgment of conviction. If leave be refused or the motion again be denied, the correctness of such determination may now be reviewed on appeal. (Matter of Bojinoff v. People, supra; cf. Salinger v. Loisel, 265 U. S. 224, 230-231.)

The order of the Appellate Division should be affirmed.

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

Order affirmed.


source: Caselaw Access Project

author: Loughran, Ch. J.

license: Public Domain

text:
    Guaranty Trust Company of New York, Respondent, v. State of New York, Appellant.
    (Claim No. 27969.)
    Reargued April 4, 1949;
    decided June 2, 1949.

      Nathaniel L. Goldstein, Attorney-General (Kent H. Brown, Wendell P. Brown, John B. Davison and Donald C. Glenn of counsel), for appellant.
    I. The dismissal of the State’s appeal by the court below was in error. II. The merits should be determined by the Court of Appeals on this appeal. (Matter of City of New York [New Court House], 216 N. Y. 489; Matter of People [Second Russ. Ins. Co.], 241 N. Y. 581; Stevens v. Central Nat. Bank, 168 N. Y. 560.) III. The Unemployment Insurance Fund is undoubtedly a ‘ ‘ statutory trust fund ’ ’, but the State, not Guaranty Trust Company, is the “ settlor ” thereof. (Chamberlin, Inc., v. Andrews, 271 N. Y. 1, 299 U. S. 515; Matter of Cassaretakis, 289 N. Y. 119, 319 U. S. 306; Steward Machine Co. v. Davis, 301 U. S. 548; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495; Matter of Batter, 257 App. Div. 546; Matter of Burke, 267 App. Div. 127.) IV. The Court' of Claims was without jurisdiction to hear and determine this claim — it was untimely. (Reid v. Board of Supervisors, 128 N. Y. 364; Aetna Ins. Co. v. Mayor of City of N. Y., 153 N. Y. 331; Second Nat. Bank v. City of New York, 213 N. Y. 457; Traktman v. City of New York, 241 N. Y. 221; People ex rel. Emigrant Ind. Sav. Bank v. Sexton, 284 N. Y. 57; People ex rel. First Nat. Bank v. Schadt, 237 App. Div. 233.) V. The Court of Claims was without jurisdiction to hear and determine this claim — claims for refund of unemployment insurance contributions are matters solely within the province of the Industrial Commissioner and those authorized to review his determinations. (Matter of Mosher Co. [Miller], 289 N. Y. 417; Matter of Siegel [Miller], 262 App. Div. 789; Dun & Bradstreet v. City of New York, 276 N. Y. 198; New York R. T. Corp. v. City of New York, 275 N. Y. 258; Lewis v. City of Lockport, 276 N. Y. 336; Richfield Oil Corp. v. City of Syracuse, 287 N. Y. 234; Matter of Nash v. Lynch, 226 App. Div. 421, 253 N. Y. 564; Burrill v. Locomobile Co., 258 U. S. 34; People ex rel. International Salt Co. v. Graves, 267 N. Y. 149; People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48.)

      Ralph M. Carson, William R. Meagher and Frank H. Medinger for respondent.
    I. All the issues of law and fact were conclusively determined by the Appellate Division. (Dun & Bradstreet v. City of New York, 276 N. Y. 198.) II. Under subdivision (1) of section 590 of the Civil Practice Act the State had no right of appeal to the Appellate Division from the judgment of award, which was appealable only to the Court of Appeals. (Sachs v. Commercial Travelers Mut. Accident Assn., 276 N. Y. 681; Naccash v. Hildansid Realty Corp., 262 N. Y. 588; Marshall v. United States Review Corp., 282 N. Y. 594; Pink v. American Surety Co., 283 N. Y. 290; McCoy v. Gas Engine & Power Co., 152 App. Div. 642, 208 N. Y. 631; Brush v. Rothschild, 186 App. Div. 857; Creem v. Fidelity & Cas. Co., 141 App. Div. 493.) III. The Unemployment Insurance Law creates an express statutory trust of which the State is trustee, the employers settlors, and the unemployed beneficiaries. (Steward Machine Co. v. Davis, 301 U. S. 548; Chamberlin, Inc., v. Andrews, 271 N. Y. 1; Wood v. Supervisors of Monroe Co., 50 Hun 1; Bridges v. Board of Supervisors of Sullivan Co., 92 N. Y. 570; Crowninshield v. Supervisors of Cayuga Co., 124 N. Y. 583; New Orleans v. Warner, 175 U. S. 120; New Orleans v. Fisher, 180 U. S. 185; Village of Brookfield v. Pentis, 101 F. 2d 516.) IV. Upon the failure of an express trust for illegality, a resulting trust arises in favor o'f the settlor as against the trustee. (O’Conner v. Gifford, 117 N. Y. 275; Ross v. Ross, 137 Misc. 795, 233 App. Div. 516; Bailey v. Buffalo Loan, Trust & Safe Deposit Co., 213 N. Y. 525; Edlux Constr. Corp. v. State of New York, 252 App. Div. 373.) V. The claim did not accrue until the State repudiated its obligation of restitution under the resulting trust. (Cary v. Koerner, 200 N. Y. 253; Edlux Constr. Corp. v. State of New York, 252 App. Div. 373; Allen v. Payson, 170 Misc. 759; Spallholz v. Sheldon, 216 N. Y. 205; Lammer v. Stoddard, 103 N. Y. 672; Bailey v. Buffalo Loan, Trust & Safe Deposit Co., 213 N. Y. 525; Ross v. Ross, 137 Misc. 795, 233 App. Div. 516; Amory v. Trustees of Amherst College, 229 Mass. 374; Matter of Bank of Manhattan Co. [Murphy], 293 N. Y. 515; Brent v. Maryland, 18 Wall. [U. S.] 430; Reid v. Board of Supervisors, 128 N. Y. 364.) VI. There was no repudiation of the resulting trust by the State until the Appeal Board sustained rejection of the claim for refund. (First Nat. Bank v. Weld County, 264 U. S. 450;
      Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41; People ex rel. Broadway & 96th St. Realty Co. v. Walsh, 203 App. Div. 468; M’Crea v. Purmort, 16 Wend. 460; McLaughlin v. Swann, 18 How. [U. S.] 217; Van Camp v. Searle, 147 N. Y. 150; Rusted v. Thomson, 158 N. Y. 328; Dickerson v. Central Union Trust Co., 110 Misc. 640.) VII. The administrative remedy was not exclusive. (Richfield Oil Corp. v. City of Syracuse, 287 N. Y. 234; New York R. T. Corp. v. City of New York, 275 N. Y. 258; Sloane Estates v. City of New York, 175 Misc. 674, 262 App. Div. 722, 287 N. Y. 818; People ex rel. Soeurbee, Inc., v. Purdy, 179 App. Div. 748; Matter of Syracuse Trust Co. v. Board of Supervisors, 258 App. Div. 17.)
   Loughran, Ch. J.

This claim against the State of New York was filed in the Court of Claims for recovery of the amount of unemployment insurance contributions which the claimant Trust Company had paid for the period August 10 to December 31, 1939. Upon motion made by the State before trial, the claim was dismissed on the ground that it had not been filed within the time limited by the Court of Claims Act (186 Misc. 676); then, upon an appeal by the claimant to the Appellate Division, the judgment of dismissal by the Court of Claims was reversed and the case remitted to that court “ for a hearing on the merits.” (271 App. Div. 711, 714.)

When the parties met again in the Court of Claims, they entered into a 11 stipulation of agreed facts ” which embodied substantially all the matters alleged in the claim and thereupon the Court of Claims awarded to the claimant a judgment for the sum demanded. An appeal by the State to the Appellate Division followed but upon the claimant’s motion was dismissed by an order upon which judgment was thereafter entered in the office of the clerk of the Court of Claims. At that stage, it will be observed, the claimant had acquired the equivalent of a final judgment of affirmance in its favor by the Appellate Division. Hence the State was quite in order when it appealed from that judgment to this court as of right, two Justices of the Appellate Division having dissented (see Stevens v. Central Nat. Bank, 162 N. Y. 253, 168 N. Y. 560; Matter of City of New York [New Court House], 216 N. Y. 489; Silverstein v. Standard Accident Ins. Co., 221 N. Y. 332; Borenstein v. Borenstein, 272 N. Y. 407; Civ. Prac. Act, § 588, subd. 1, cl. [b]). Accordingly, we heretofore denied a motion by the claimant for dismissal of the appeal so taken by the State (298 N. Y. 860) and the appeal having since been argued before us, we now pass to a determination of the merits.

The material facts admit of a short statement. The claimant, a State banking institution subject to the New York Unemployment Insurance Law (Labor Law, art. 18), on October 11, 1939, and January 13, 1940, reported and paid unemployment insurance contributions for the period August 10 to December 31,1939. In March, 1944, collection of unemployment insurance contributions from State banks for that period was declared unconstitutional and void because during that time national banks had not been subjected to the same exaction (Matter of Bank of Manhattan [Murphy], 267 App. Div. 456, affd. 293 N. Y. 515). After the last-cited decision of the Appellate Division, the claimant, on June 21,1944, filed a claim for refund with the State Department of Labor, but that claim was ultimately rejected because it was not filed within the time limited by subdivision 6 of section 570 of the Labor Law.

It was while that proceeding was pending before the Labor Department that the claimant commenced its suit in the Court of Claims, filing on February 7, 1945, its notice of intention to file a claim and on October 9, 1945, the claim itself. The Court of Claims, as we have said, dismissed that claim because it had not been filed in time. The limitation applied by the court is to be found in subdivision 4 of section 10 of the Court of Claims Act. It is thereby provided: “ A claim for breach of contract, express or implied, * * * shall be filed within six months after the accrual of such claim, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after such accrual. ’ ’

Taking the payments of ,the unemployment insurance contributions in question to have been illegally compelled, the Court of Claims said that claimant’s cause of action arose immediately that it paid the tax.” (186 Mise. 676, 683.) Such contributions had been paid on October 11, 1939, and January 13, 1940, as we have noticed. It followed, therefore, that the claim had long been barred as the Court of Claims held.

The Appellate Division was of a different opinion. In its view, the illegally enforced payments of the contributions in question gave rise to a resultant trust of which the State was statutory trustee for the benefit of the claimant as the settlor. Upon that premise the court concluded that the Statute of Limitations did not commence to run against the claimant as such settlor until after demand for a refund had been made upon the State as such trustee. We find ourselves unable to follow this reasoning of the Appellate Division.

Unemployment insurance contributions, to be sure,' are trust funds under the jurisdiction of statutory trustees. Statutory trusts of that kind, however, are nothing new (cf. Decedent Estate Law, § 130; General Business Law, § 382-a; General Corporation Law, § 168; Lien Law, §§ 4-a, 13, 25, 25-a, 25-b, 36, 36-a, 36-b, 70-76; Insurance Law, §§ 125, 514; Beal Property Law, § 233). Unlike trusts set up by wills or deeds of individuals, statutory trusts are enactments of the Legislature in which no “ settlor ” plays a part (see Bestatement, Trusts, § 23, comment c). For example, the personal representative of a decedent who recovers damages in an action for wrongfully causing the decedent’s death must hold that recovery to the use of statutory distributees (Central New York Coach Lines v. Syracuse Herald Co., 277 N. Y. 110; see Weiner v. Specific Pharmaceuticals, 298 N. Y. 346). But the defendant who pays the damages does not thereby constitute himself the settlor of a trust.

The fact is that in making the unemployment insurance contributions in question this claimant was simply paying an excise tax (Chamberlin, Inc., v. Andrews, 271 N. Y. 1, 10, affd. 299 U. S. 515; Matter of Cassaretakis [Miller], 289 N. Y. 119, 126, 127, affd. sub nom. Standard Dredging Corp. v. Murphy, 319 U. S. 306) and, that being so, the Court of Claims was correct in holding the claim herein to have been barred by the time limitations prescribed by the Legislature in subdivision 4 of section 10 of the Court of Claims Act (Reid v. Board of Supervisors, 128 N. Y. 364; Aetna Ins. Co. v. Mayor of City of New York, 153 N. Y. 331; Liberty Bank of Buffalo v. City of Buffalo, 241 App. Div. 323, affd. 265 N. Y. 543.)

Agreeing again with the Court of Claims, we hold that subdivision 6 of section 570 of the Labor Law does not establish an exclusive remedy for obtaining a refund of taxes paid under compulsion of a void statute. The claimant, therefore, had the right to seek restitution in this proceeding. (New York R. T. Corp. v. City of New York, 275 N. Y. 258, 264.)

A practice question remains. Apparently the State’s appeal to the Appellate Division had there been dismissed because the court looked upon its earlier order for a hearing on the merits by the Court of Claims as a mandate for recovery by the claimant against the State (275 App. Div. 725). If that viewpoint were sound, the final judgment of the Court of Claims could have been, reviewed only on a direct appeal by the State to this court and the Appellate Division so held (Civ. Prac. Act § 590, subd. [1]). That ruling, we believe, was error.

All that was decided by the earlier order of the Appellate Division was that the claim on its face was sufficient and was not barred by the applicable Statute of Limitations. Of course, the Court of Claims was bound to accept the opinion of the Appellate Division as the law of the case. Nonetheless for that, however, the final judgment for the claimant was occasioned by the parties themselves through their “ stipulation of agreed facts ”. Consequently subdivision (1) of section 590 of the Civil Practice Act had no application to this case and the dismissal by the Appellate Division of the State’s' appeal to that court was unjustified (see Leonhardt v. State of New York, 291 N. Y. 676; Matter of Central Hanover Bank & Trust Co. [Mullane-Vaughan], 298 N. Y. 902; Seventh Annual Deport of N. Y. Judicial Council, 1941, pp. 523, 527).

The judgment appealed from should be reversed, with costs in all courts and the claim dismissed.

Lewis, Conway, Desmond, Dye, Fudd and Bromley, JJ., concur.

Judgment reversed, etc.


author: Desmond, J. Lewis, J.

text:
    New Era Homes Corporation, Inc., Respondent, v. Engelbert Forster et al., Appellants.
    Argued May 16, 1949;
    decided June 3, 1949.

      Clinton M. Flint for appellants.
    I. The contract is entire and the installments are not either by agreement, implication or suggestion or otherwise, payments for work already done and materials furnished, but are merely agreements to assist the contractor financially by making advancements from time to time on the contract price. II. Plaintiff’s evidence that the third installment was due and unpaid merely proved that defendants had breached the contract. It furnished no evidence of the amount of plaintiff’s damages. (Wharton & Co. v. Winch, 140 N. Y. 287; Moore v. Taylor, 42 Hun 45; Jones v. City of New York, 57 App. Div. 403; Byan v. Rodgers & Hagerty, 197 App. Div. 662; Lawrence Bros. v. Heylman, 89 App. Div. 620.) III. Plaintiff’s action being for a breach of an executory contract for work, the rule and measure of its damages is well established by authority. (Baker Transfer Co. v. Merchant’s Refrigerating & Ice Mfg. Co., 12 App. Div. 260; Borup v. Von Kokerits, 162 App. Div. 394; Jones v. Judd, 4 N. Y. 411; Wright v. Reusens, 133 N. Y. 298; Heine v. Meyer, 61 N. Y. 171; Devlin v. Mayor, Aldermen & Commonalty of City of N. Y., 63 N. Y. 8; Rosen v. Equitable Paper Bag Co., 286 N. Y. 410; Farm Supplies Corp. v. Goldstein, 240 App. Div. 330; Industrial Engineering Co. v. Republic Storage Co., 220 App. Div. 178; Carlin v. City of New York, 132 App. Div. 90.) IV. There was no evidence that plaintiff had suffered any damage.

      Charles G. Ritter and Howard T. Finch for respondent.
    I. The contract was divisible and the measure of plaintiff’s damages was the provision in the contract for the payment of an installment of $1,500. (Ming v. Corbin, 142 N. Y. 334; Foshay v. Robinson, 137 N. Y. 134; White v. Livingston, 69 App. Div. 361, 174 N. Y. 538; Magliaro v. Modern Homes, 116 N. J. L. 151.) II. Where the builder waives his right to recover for loss of profits, he is not required to prove the cost of completing the work. (Borup v. Von Kokerits, 162 App. Div. 394; Hawkins v. Burrell, 69 App. Div. 462; Jones v. Judd, 4 N. Y. 411; Rubin v. Cohen, 129 App. Div. 395; Ludlow v. Dole, 62 N. Y. 617; Higgins
      v. Newtown & Flushing R. R. Co., 66 N. Y. 604; Boyd v. Vale, 84 App. Div. 414.) III. There was sufficient evidence that plaintiff had been damaged in the sum of $1,500. IV". Plaintiff was required to prove only substantial performance. (Woodward v. Fuller, 80 N. Y. 312.)
   Desmond, J.

Plaintiff entered into a written agreement with defendants, to make extensive alterations to defendants’ home, the reference therein to price and payment being as follows:

‘ ‘ All above material, and labor to erect and install same to be supplied for $3,075.00 to be paid as follows:
$ 150.00 on signing of contract,
$1,000.00 upon delivery of materials and starting of work,
$1,500.00 on completion of rough carpentry and rough plumbing,
$ 425.00 upon job being completed.”

The work was commenced and partly finished, and the first two stipulated payments were made. Then, when the ‘1 rough work ’ ’ was done, plaintiff asked for the third installment of $1,500 but defendants would not pay it, so plaintiff stopped work and brought suit for the whole of the balance, that is, for the two last payments of $1,500 and $425. On the trial plaintiff stipulated to reduce its demand to $1,500, its theory being that, since all the necessary “ rough carpentry and rough plumbing ” had been done, the time had arrived for it to collect $1,500. ' It offered no other proof as to its damages. Defendants conceded their default but argued at the trial, and argue here, that plaintiff was entitled not to the $1,500 third payment, but to such amount as it could establish by way of actual loss sustained from defendants’ breach. In other words, defendants say the correct measure of damage was the value of the work actually done, less payments made, plus lost profits. The jury, however, by its verdict gave plaintiff its $1,500. The Appellate Division, Second Department, affirmed the judgment, and we granted defendants leave to appeal to this court.

The whole question is as to the meaning of so much of the agreement as we have quoted above. Did that language make it an entire contract, with one consideration for the doing of the whole work, and payments on account at fixed points in the progress of the job, or was the bargain a severable or divisible one in the sense that, of the total consideration, $1,150 was to be the full and fixed payment for “ delivery of materials and starting of work ”, $1,500 the full and fixed payment for work done up to and including “ completion of rough carpentry and rough plumbing ”, and $425 for the rest. We hold that the total price of $3,075 was the single consideration for the whole of the work, and that the separately listed payments were not allocated absolutely to certain parts of the undertaking, but were scheduled part payments, mutually convenient to the builder and the owner. That conclusion, we think, is a necessary one from the very words of the writing, since the arrangement there stated was not that separate items of work be done for separate amounts of money, but that the whole alteration project, including material and labor, was “to be" supplied for $3,075.00 ”. There is nothing in the record to suggest that the parties had intended to group, in this contract, several separate engagements, each with its own separate consideration. They did not say, for instance, that the price for all the work up to the completion of rough carpentry and plumbing was to be $1,500. They did agree that at that point $1,500 would be due, but as a part payment on the whole price. To illustrate: it is hardly conceivable that the amount of $150, payable “ on signing of contract ” was a reward to plaintiff for the act of affixing its corporate name .and seal.

We "would, in short, be writing a new contract for these people if we broke this single promise up into separate deals; and the new contract so written by us might be, for all we know, most unjust to one or the other party.

We find no controlling New York case, but the trend of authority in this State, and elsewhere, is that such agreements express an intent that payment be conditioned and dependent upon completion of all the agreed work (Tompkins v. Dudley, 25 N. Y. 272; Ming v. Corbin, 142 N. Y. 334; United States v. United States Fidelity & Guar. Co., 236 U. S. 512; Integrity Flooring v. Zandon Corp., 130 N. J. L. 244; Peist v. Richmond, 97 Vt. 97; 17 C. J. S., Contracts, §§ 331-334; 1 Restatement, Contracts, § 266, illustration 4 on p. 386). We think that is the reasonable rule — after all, a householder who remodels his home is, usually, committing himself to one plan and one result, not a series of unrelated projects. The parties to a construction or alteration contract may, of course, make it divisible and stipulate the value of each divisible part. But there is no sign that these people so intended (see Integrity Flooring v. Zandon Corp., supra). It follows that plaintiff, on defendants’ default, could collect either in quantum meruit for what had been finished (Heine v. Meyer, 61 N. Y. 171),-or in contract for the value of what plaintiff had lost — that is, the contract price, less payments made and less the cost of completion (Witherbee v. Meyer, 155 N. Y. 446; Washburne v. Property Owners Co-op. Assn., 209 App. Div. 365, affd. 240 N. Y. 663).

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

Lewis, J.

(dissenting). A contract is entire or divisible depending upon the intention of the parties to be gathered from the agreement itself and the circumstances surrounding its execution (Portfolio v. Rubin, 233 N. Y. 439, 444-445; Ming v. Corbin, 142 N. Y. 334, 341; Pierson v. Crooks, 115 N. Y. 539, 555). (See, also, 3 Williston on Contracts [Rev. ed.], §§ 860A, 862.)

The parties to the written agreement here in suit were careful to provide that the contract price was to be paid in specified installments which, after the initial payment, were in varying amounts payable upon completion of designated stages of the work. The contracting parties thus indicated their intent to be that the part to be performed by the plaintiff was to consist of several distinct and separate items and that the price to be paid by the defendants was to be apportioned accordingly to fall due when each specified stage of the work should be completed. (Ming v. Corbin, supra, p. 340.)

Concluding, as I do, that such a contract is divisible in character (see Foshay v. Robinson, 137 N. Y. 134, 137; Tipton v. Feitner, 20 N. Y. 423, 430), I would affirm the judgment.

Loughrax, Ch. J., Dye, Fuld and Bromley, JJ., concur with Desmoxd, J.; Lewis, J., dissents in opinion in which Coxway, J., concurs.

Judgments reversed, etc.


author: Per Curiam.

text:
    In the Matter of the Accounting of Anna M. Barry, as Substituted Trustee under the Will of Albert Burk, Deceased. Anna M. Barry, Individually, et al., Appellants. Anna M. Barry, as Substituted Trustee under the Will of Albert Burk, Deceased, et al., Respondents.
    Submitted April 11, 1949;
    decided June 3, 1949.

      Jack Korshin and F. Lloyd Barry for appellants.

      Frank B. Abbott for Mary E. Wright, respondent.
   Per Curiam.

As defined by the Statute of Descent and Distribution, next of Mn ” and “ distributee ” mean the distributees including a surviving spouse, who are defined in section 83 of the Decedent Estate Law (Decedent Estate Law, § 47-c; L. 1938, ch. 181). Having affirmed the Surrogate’s ruling that the remainder herein vested on death of the life tenant Annie Burk, we ruled in effect [see 298 ÜST. T. 450] that such remainder was distributable per stirpes to the “ brothers and sisters living, and the descendants in whatever degree of those dead ” (Decedent Estate Law, § 83, subd. 6; L. 1929, ch. 229). The per stirpes share to which Michael Brady, predeceased brother of life tenant, would have been entitled had he survived, or, having died, to which his son Albert would have been entitled as a descendant had he lived, may not be paid to Ella, Michael’s surviving spouse, as next of kin ” and “ distributee ” as defined in section 47-c, because she is not a descendant of Michael within the meaning of subdivision 6 of section 83 of the Decedent Estate Law.

The relationship and dates of the deaths of the various individuals not being in dispute, there is no need for reargument of the appeal herein. The remittitur however, should be amended so as to eliminate Ella Brady as a distributee.

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

Motion for reargument denied. Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows:

“ Order of Appellate Division reversed and decree of Surrogate’s Court modified so as to provide that Ella M. Brady is not entitled to a distributive share as a next of kin of Michael Brady, deceased, and the decree otherwise affirmed, with costs in this court and in the Appellate Division to the appellants payable out of the estate.” [See 298 N". Y. 450.]


author: Fuld, J.

text:
    Hilde Feyler, Appellant, v. Henry T. Mortimer, Respondent.
    Argued May 27, 1949;
    decided July 19, 1949.

      Leone Pecoraro for appellant.
    I. The real party in interest is the infant, her mother, the appellant, being only the nominal party and accordingly, the nationality or alien status of the mother is neither material nor conclusive on the right of the infant to maintain the suit. (Manila Motors Co. v. The Ivaran, 46 F. Supp. 394; Compagnie Francaise De L’Afrique Occidentale v. The Otho, 57 F. Supp. 829.) II. The infant, the real party in interest, is not an alien. III. The orders appealed from are appealable. (N. Y. City Crim. Cts. Act, § 61, subd. 5.) IV. This paternity proceeding may be maintained in our courts even though complainant and her child reside outside of the country, since defendant resides in this State. (Moore v. State ex rel. Vernon, 28 P. 1072; Matter of Zimmer, 253 N. W. 749; Matter of Roy v. Poulin, 105 Me. 411; Commonwealth v. Domes, 132 N. E. 363.)

      Sol A. Rosenblatt, Francis X. Mancuso, Charles Roden and Herman S. Rosenblatt for respondent.
    I. The legitimacy statutes do not permit the maintenance of a proceeding on behalf of an alien mother and child residing in Germany against a resident putative father. The Criminal Courts Act, to the extent that it may purport to confer jurisdiction upon the court below in favor of children wherever residing in the world, is discriminatory and unconstitutional, since it conflicts with the limited jurisdiction given by the Domestic Relations Law to courts of this State outside of the city of New York, in favor of children within the United States and its territories. (N. Y. City Crim. Cts. Act, § 64, subd. 1; Domestic Relations Law, § 135; Canajoharie v. Johnstown, 17 Johns. 41; Wynkoop v. Overseers of the Poor, 3 Johns. 15; Matter of Vincent, 189 Misc. 489; Matter of Doyle, 1 Clarke Ch. 154; Schneider v. Kennat, 267 App. Div. 589; Regina v. Blane [1849], 13 Q. B. 769; Commissioner of Public Welfare v. Simon, 270 N. Y. 188; Boissevain v. Boissevain, 224 App. Div. 576, 252 N. Y. 178; Fair v. Kenny, 103 Misc. 412; Scott v. Dickerson, 169 Misc. 1047; Aultman & Taylor Co. v. Syme, 163 N. Y. 54; Anonymous v. Anonymous, 174 Misc. 906.) II. Since both the mother and child are nonresident enemy aliens and a state of war still exists between the United States and Germany, the proceeding was properly dismissed. (Blackstone. Commentaries on the Laws of England [Sharswood’s ed.], § 373, book I, eh. 10; 30 Amer. & Eng. Encyclopedia of Law [2d ed.], p. 9; Jackson v. Decker, 11 Johns. 418; Bell v. Chapman, 10 Johns. 183; Groupment Financier Liegois v. Cutten, 178 Misc. 275; The Julia, 8 Cranch [U. S.] 178; Drewry, S. A. R. L. v. Onassis, 266 App. Div. 292, 291 N. Y. 779; Bothbarth v. Herzfeld, 179 App. Div. 865, 223 N. Y. 578; Arndt-Ober v. Metropolitan Opera Co., 182 App. Div. 513; Hungarian General Creditbank v. Titus, 182 App. Div. 826; Ludecke v. Watkins, 335 U. S. 160; United States ex rel. Schlueter v. Watkin, 67 F. Supp. 556, 158 F. 2d 853; Montgomery v. United States, 15 Wall. [U. S.] 395.) III. The order is not appealable and, therefore, this appeal should be dismissed. (Matter of Restivo v. Degnan, 191 Misc. 642; Commissioner of Public Welfare v. Simon, 270 N. Y. 188; People v. Gersewitz, 294 N. Y. 163, 326 U. S. 687; Matter of Clausi, 296 N. Y. 354, People ex rel. Bd. of Police v. Shulman, 8 App. Div. 514; People v. Reed, 276 N. Y. 5.)
   Fuld, J.

In May of 1946, Miss Hilde Feyler, a national and resident of Germany, gave birth to a child. Nearly two years later, while still in Germany, she filed a paternity proceeding complaint in the Court of Special Sessions of New York City, charging the defendant, a resident of New York County, with having fathered her child while he served in Germany as an officer in the United States occupation forces. Upon defendant’s challenge to the court’s jurisdiction, the trial justice quashed the summons, which he had previously issued, and dismissed the proceeding. The Appellate Division unanimously affirmed and the matter is now properly before us, by permission of the Presiding Justice of that court, as an appeal from a final order in a criminal proceeding. (See Matter of Clausi, 296 N. Y. 354; Matter of Buckman, 296 N. Y. 915; Commissioner of Public Welfare v. Simon, 270 N. Y. 188; see, also, People v. Hatzis, 297 N. Y. 163.)

We agree with the determination that has been made. The courts of this State lack jurisdiction to entertain a filiation proceeding if the mother and child reside in a foreign country.

At the common law, the father of an illegitimate child was not liable for the support of either the child or the mother. (See, e.g., People ex rel. Lawton v. Snell, 216 N. Y. 527, 532; Schneider v. Kennat, 267 App. Div. 589.) Not until the last century did legislation begin to reflect the passing of the ancient hostility toward the illegitimate child and it was not until then that the Legislature began to moderate the common-law strictures against filiation proceedings. Decision herein depends upon how far the statutory reforms have gone. There is no doubt that, at the start, the legislative changes were inspired by a purpose to lift the burden of supporting fatherless children from the communities in which they lived. Consonant with that design, a, filiation action was maintainable only in the county, city, or town where the child was born, and it was immaterial, for jurisdictional purposes, where the putative father lived. (See Keller v. Cleary, 62 App. Div. 609, adopting opinion of Ingraham, J., dissenting in 56 App. Div. 466, 468.)

By 1925, the attitude toward illegitimacy had altered considerably, and the Legislature in that year recognized, by enacting section 135 of the Domestic Relations Law (L. 1925, ch. 255), that there was a moral responsibility as well as an economic obligation to be enforced against the father. As its title, its location and its content make manifest, that section is controlling in all suits involving paternity proceedings and defines the jurisdiction of every court hearing such matters. Thus, section 135 is entitled “ Jurisdiction ”, is found in the article relating to “ Proceedings to Establish Paternity ” (Art. VIII), and reads in this way : “ Jurisdiction over proceedings to compel support is vested in the courts enumerated in section one hundred and twenty-two, paragraph three. It is not a bar to the jurisdiction of the court that the complaining mother or child resides in another county or state, if the defendant be a resident of this state. ’ ’ (Emphasis supplied.)

As is readily perceivable, the Legislature did not render the residence of the mother and child entirely immaterial and inconsequential. On the contrary, by providing that the residence of the mother and child “ in another * * * state ” is no bar if the father lives in “ this state ”, the Legislature made it plain that no paternity suit could be brought if the former, that is, the mother and child, resided elsewhere than in this State or in “ another * * * state

Our problem then becomes an exceedingly narrow one: is a foreign country — Germany, in this case — ‘ ‘ another * * * state ” within the sense and context of section 1351 If the question were one of bare dictionary meaning, the answer might well be in the affirmative. But it is not, for the statute has, as often occurs, here supplied its own lexicon. By coupling the phrase “ another * * * state ” with the words “ this state ”, the. Legislature has demonstrated that the word “ state ” refers only to other States of the United States, which may perhaps include its territories and possessions. If a broader meaning had been contemplated, “ the statute * * # would have included language such as 1 a foreign country ’ or ‘ any other jurisdiction ’ or words of similar import.” (Boissevain v. Boissevain, 252 N. Y. 178, 181-182.)

The legislative derivation of section 135 points the same conclusion. Taken almost verbatim from the Uniform Illegitimacy Act, a statute concerned exclusively with the problem of filiation and support in the various States of the Union, it carries with it the connotations of its origin, and refers only to subdivisions of this country. In short, section 135 of the Domestic Belations Law requires that the complaining mother be a resident of the United States, and, in our opinion, that requirement is a jurisdictional limitation upon any court petitioned to hear the paternity proceeding.

To support her contention that courts of special sessions may try a filiation suit if the putative father is a resident of New York City regardless of the residence of the mother and child, complainant points to section 64 of the New York City Criminal Courts Act (L. 1910, ch. 659, as amd. by L. 1930, ch. 434, and as renumd. by L. 1933, ch. 746), the statute which sets up the inferior criminal courts in the city. Section 64 — and it has its counterpart in the Domestic Belations Law (§ 122) — seems at first blush to sustain that argument, for it reads: ‘ ‘ Proceedings may be instituted if the mother or child resides or is found in the city of New York, or if the putative father resides or is found in the city of New York. The fact that the child was born outside of the state of New York shall not be a bar to instituting proceedings against the putative father in the city of New York if he resides or is found therein, or if the mother resides or the child is found therein.”

If the Legislature had said nothing more on the subject, if there were no section 135 of the Domestic Relations Law, we would have no hesitancy in permitting action by a mother living in Germany where, as here, the putative father resides in New York City. We may not, however, close our eyes to the provisions of the latter' statute. Even if we found in section 64 evidence of a legislative design to create, insofar as the courts in New York City are concerned, an exception to the jurisdictional prerequisites demanded by section 135 of the Domestic Relations Law, the Constitution of this State would probably intervene to stamp such a construction as invalid. The courts which hear paternity proceedings outside of New York City are, as we interpret section 135, restricted to suits brought by a mother who resides in this country. To confer upon the Court of Special Sessions which operates only in New York City the more extensive power of hearing complaints by mothers resident in foreign countries would erect an anomalous, an illogical and, perhaps, an unconstitutional distinction in their favor. (See, e.g., Commissioner of Public Welfare v. Ladutko, 256 App. Div. 775, affd. on other grounds 281 N. Y. 655; Commissioner of Public Welfare v. Torres, 263 App. Div. 19.) We avoid such a course when we may.

The order of the Appellate Division should be affirmed, without costs.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Bromley, JJ., concur.

Order affirmed.


text:
    Leo Tutunjian et al., Respondents, v. George E. Vetzigian, as Executor of Helen Tutunjian, Deceased, et al., Appellants, et al., Defendants.
    Argued June 1, 1949;
    decided July 19, 1949.

      Leo L. Walton for George E. Vetzigian, as executor of Helen Tutunjian, deceased, appellant.
    I. The 1942 will by itself is insufficient to constitute a contract not to revoke. (Rastetter v. Hoenninger, 214 N. Y. 66.) II. The 1929 agreement did not bar the testators from changing their wills so far as their respective distributees and next of kin were concerned. (Tillman v. Ogren, 227 N. Y. 495.) III. The 1942 will supplemented by the 1929 will and agreement do not constitute an agreement not to revoke so far as respondents are concerned. (Wallace v. Wallace, 216 N. Y. 28; Matter of Ditson, 177 Misc. 648.)

      Charles G. Coster and John J. Perna, Jr., for Mantouhi S. Heditsian and others, appellants.
    I. Respondents’ proof failed to establish that the will dated April 25, 1942, executed by Mihran. Tutunjian and Helen Tutunjian, his wife, was an irrevocable contract. (Rastetter v. Hoenninger, 214 N. Y. 66; Edson v. Parsons, 155 N. Y. 555; Wallace v. Wallace, 216 N. Y. 28.) II. Recovery by respondents is precluded by reason of the provisions of subdivision 7 of section 31 of the Personal Property Law.

      Henry W. Schober for respondents.
    I. The judgment is amply supported by the evidence and is in accordance with well-established doctrine. (Starling Realty Corp. v. State of New

      York, 286 N. Y. 272; Edson v. Parsons, 155 N. Y. 555; First Nat. Bank of Springfield v. Dana, 79 N. Y. 108; St. Regis Paper Co. v. Hubbs & Hastings P. Co., 235 N. Y. 30; Utica City Nat. Bank v. Gunn, 222 N. Y. 204; Hermann v. Ludwig, 186 App. Div. 287, 229 N. Y. 544.) II. Sufficient writing exists to comply with section 31 of the Personal Property Law. (Hermann v. Ludwig, 186 App. Div. 287, 229 N. Y. 544.)
   Fuld, J.

The appeal, here by our permission, concerns the efficacy of a single joint will as a contract by each of the two testators not to revoke the will and to dispose of his respective estate in the manner specified.

In 1929, Mihran and Helen Tutunjian, husband and wife, entered into a written agreement whereby each agreed to leave his property to the other, and, on the same day, executed a joint will providing for such a disposition. In addition, the will also recited that, upon the death of one of them, “ then we or the survivor of us do bequeath and devise all our property ’ ’ equally among Mihran’s brothers and Helen’s brother and sisters.

In 1942, thirteen years later, Mr. and Mrs. Tutunjian executed another joint will, identical in plan and substance with the 1929 instrument, except that it was brought up to date by substituting a different executor and omitting the names of the legatees who had died in the interim. The new will, opening with this declaration, •

“ We, Mihran Tutunjian and Helen Tutunjian * * * do hereby make, publish and declare this to be our Last Will and Testament ”, read, in part, in this way:

‘ ‘ First : We direct that all our just debts and funeral expenses be paid as soon after our death as is practicable.
“ Second: We hereby bequeath and devise all our property, wheresoever the same may be situate, to the survivor of us, to his or her heirs or administrators, to have and to hold forever.
“ Third: “ In the event that Helen Tutunjian predecease Mihran Tutunjian, or Mihran Tutunjian predecease Helen Tutunjian, or if we should die under such circumstances as to make it uncertain which of us died first, then we, or the survivor of us do bequeath and devise all our property both real and personal, which we may hereafter acquire, in common or individually, or that we are entitled to, to the following in the following manner ”.

As indicated above, the beneficiaries named were the husband’s two brothers and the wife’s four sisters — each group, it being specified, to receive jointly one half “ of our property

The Tutunjians lived happily together until the husband’s death in 1944. The 1942 will had not been changed, and Helen offered it for probate. Mihran had accumulated an estate of about $45,000, and all of it went to the surviving wife in accordance with the provisions of the will; apart from that, Helen possessed no property except a bungalow worth about $600. She died seven weeks after her husband, but, between his death and her own, she executed a new will, wherein she gave her entire estate — with one small exception — to her own kin. That will was offered and admitted to probate.

This present action was then brought by the deceased husband’s relatives against the executor and beneficiaries named in Helen’s will for specific performance, on the theory that the latter had agreed to devise and bequeath her estate as provided for in the joint will, that is, equally between her own relatives and those of Mihran.

A will is, of course, always ambulatory and revocable until death, the last one executed being deemed the testator’s will. As long ago as 1769, however, it was held that one so inclined may bind himself by a mutual or joint will to dispose of his estate in a specified and agreed manner. (Dufour v. Pereira, 1 Dick. 419, 2 Hargrave’s Juridical Arguments, p. 304.) If, in violation of the agreement so made, one of the parties to the joint will executes a new one, the latter is recognized as his last testament, but the courts will require its executor and beneficiaries 1 ‘ to perform the contract ” of their decedent. (See Dufour v. Pereira, supra, 2 Hargrave, p. 309.) Indeed, to permit the one who survives to gain the benefits of the joint will and then to flout its provisions in violation of the promise made to the other “ would be a mockery of justice ”. (Mutual Life Ins. Co. v. Holloday, 13 Abb. N. C. 16, 24.) The principle, supported by reason and equity, has been followed in this State (see Edson v. Parsons, 155 N. Y. 555; Rastetter v. Hoenninger, 214 N. Y. 66; Hermann v. Ludwig, 186 App. Div. 287, affd. 229 N. Y. 544) as well as in other jurisdictions. (See Frasier v. Patterson, 243 Ill. 80; Curry v. Cotton, 356 Ill. 538; Bower v. Daniel, 198 Mo. 289; Baker v. Syfritt, 147 Iowa 49.)

In our view, the courts below were justified in finding that the parties had agreed not to revoke the 1942 will and to make the bequests therein provided. While the mere execution of a joint reciprocal will may not suffice to establish such a contract (see Bastetter v. Hoenninger, 214 N. Y. 66, 72, supra; Hermann v. Ludwig, 186 App. Div. 287, 300-301, affd. 229 N. Y. 544, supra), the language used by the testators in this case supplies evidence of such an underlying obligation. Thus, it is We ”, not I, Mihran, and I, Helen ”, who make and publish this ” to be “ our ”, not “ my ”, last will and testament; it is “ We ”, not I ”, who direct that all “ our ” debts and funeral expenses be paid, and as soon after our ” death as practicable; it is We ”, not “ I ”, who bequeath and devise all our property ” to the “ survivor of us ”; and, finally, it is we, or the survivor of us ”, who bequeath and devise all our property ” in the manner specified upon the earlier death of the other. In short, just as in the Bastetter case, so here, the language of the disposing clause “ imports the joint disposition of the collective property of both, not the independent disposition by each of his own ” (214 N. Y., at p. 72).

If there could be any doubt, it is removed by the 1929 contract and will. The 1929 contract expressly provided not only that Mihran and Helen agreed ” to leave their property to each other but went on to recite that they had this day simultaneously with the execution of this contract ” executed1 ‘ mutual wills ”. The joint will thereupon executed contained the additional provision for their respective relatives. Since that instrument must be read in the light of the contract pursuant to which it was drawn, the inference is strong that the testators at the time intended and agreed tcf provide not only for themselves but for their collateral heirs. The fact that the 1942 will, made thirteen years later, preserved and repeated the same dispositions without substantial change indicates, plainly we believe, that the parties had not abandoned their earlier design and that the 1942 will related back to their agreement and testamentary disposition of 1929.

The contract of the parties being established, it is enforcible in equity. As noted above, the court may not set up the joint instrument of 1942 as Helen’s last will and testament but it may compel performance by her later-named beneficiaries of the obligations which she had assumed. Those beneficiaries are to be deemed to hold half of her estate as a resulting trust in favor of the husband’s relatives — those who, though the beneficiaries of the joint will, were cut off by the wife’s later will.

The judgment should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Bromley, JJ., concur.

Judgment affirmed, etc.


author: Bromley, J.

text:
    The People of the State of New York, Respondent, v. Kenneth Belcher, Appellant.
    Argued May 19, 1949;
    decided July 19, 1949.

      John P. Judge for appellant.
    I. The prosecution did not show beyond a reasonable doubt, the guilt of appellant, and the judgment of conviction was erroneous and contrary to law and the evidence. (People v. Churgin, 261 N. Y. 661; People v. Wackstein, 269 App. Div. 950; People v. Amerise, 274 App. Div. 897.) II. The good character of a defendant is of itself a sufficient fact from which a reasonable doubt may arise, which will entitle him to an acquittal. (People v. Colantone, 243 N. Y. 134; People v. Roach, 215 N. Y. 592; People v. Conrow, 200 N. Y. 356; People v. Smith, 162 N. Y. 520; People v. Fitzgerald, 156 N. Y. 253.)

      Earle J. Wiley, District Attorney, for respondent
    I. The guilt of defendant was established beyond a reasonable doubt. (People v. Klein, 266 N. Y. 188; People v. Tanaglea, 241 App. Div. 823; People v. McKenzie, 29 N. Y. S. 2d 116; People v. Peary, 249 App. Div. 851.) II. Evidence of good character may of itself raise a reasonable doubt as to the guilt of defendant but is not conclusive as to his innocence.
   Bromley, J.

Kenneth Belcher has been convicted of violating section 483-b of the Penal Law, which provides that “ Any person who carnally abuses the body of a child of the age of ten years and over and less than sixteen years of age, or who indulges in any indecent or immoral practice with the sexual parts or organs of any such child, in a manner other than by an act of sexual intercourse, shall be guilty of a misdemeanor ”.

On his appeal we must determine whether the acts charged, and proved upon the trial, constitute an offense under the statute.

The complainant, eleven years of age and a classmate of defendant’s daughter, attended a birthday party for the latter at defendant’s home on an afternoon in June, 1947. When the time arrived for her departure it was raining heavily and defendant’s wife asked him to take the girl home. At this point the several accounts of the afternoon diverge sharply.

Sworn as a witness, complainant testified that the defendant had proposed that they drive “ 1 on to Pleasantdale ’ ”, had kissed her and placed his hand “ on my chest and on my knee ”, and that she had left the car within a block of her home. Her mother testified that the girl arrived home from the party emotionally upset, and complained that, defendant had “ ‘ kissed me and put his hands on my breasts and put his hand under my dress.’ ” Defendant squarely denied the accusation, and introduced evidence to show that he had been absent from his home no more than five minutes, and that his reputation was good.

Assuming that the People’s case has been established beyond a reasonable doubt, the conviction nevertheless cannot stand unless defendant can be said to have carnally abused the body of the girl. The precise scope of the clause has never been determined in a reported decision in this State. In other jurisdictions the term “ carnal abuse ” has been considered to signify physical violation of the sexual organs short of intercourse (State v. Mac Lean, 135 N. J. L. 491; State v. Hummer, 73 N. J. L. 714; and see State v. Sebastian, 81 Conn. 1, 8). Such a connotation would accord with the following most pertinent definitions of the words: carnal, ‘1 of or pertaining to the body as the seat of appetites * * * sexual ”; abuse,1 ‘ violation; rape; ravishment” (Webster’s New International Dictionary).

The import of the statute must be considered also in light of its context — those provisions of the Penal Law relating to similar sexual offenses. Prior to 1927, the statutory law concerning acts such as those of which defendant is accused was found in two provisions: section 244 of the Penal Law, under which any indecent familiarities would constitute assault in the third degree (see People v. Gibson, 232 N. Y. 458); and section 483, whereby one who willfully causes the morals of a child under sixteen to become depraved, or willfully places a child in such a situation that its morals are likely to be impaired, is guilty of a misdemeanor (People v. Gibson, supra, at p. 462). Practical difficulties in establishing the material elements of the latter offense (see People v. Hopkins, 208 App. Div. 438, and 1937 Report of N. Y. Law Revision Commission, p. 486) led to the enactment of section 483-b (L. 1929, ch. 684) and its companion provision that the crime shall be a felony if the child is under ten years of age (L. 1927, ch. 383). The customary significance of the terms “ carnal abuse ”, and the second clause of sections 483-a and 483-b, indicate clearly that the new provisions were to have a far narrower scope than the earlier statutes. It is unnecessary here to determine their precise range, for we agree that defendant’s acts, if proved, would not amount to an offense under section 483-b.

The People urge that this appeal must be dismissed because on the appeal to the County Court defendant employed the notice provided for appeals from courts of general criminal jurisdiction (Code Crim. Pro., §§ 522, 523) rather than the affidavit required in this case by section 751 of the Code. The contention was not made below, and the appeal therefore was considered on the merits (191 Misc. 519, 522). Section 751 does not relate to defendant’s right to appeal (see Code Crim. Pro., § 520), and manifestly is intended only to provide a method of appeal which will insure adequate notice to a district attorney who may not have participated in the trial (see Seventh Annual Report of N. Y. Judicial Council, 1941, p. 254). By failing to raise the point below, the District Attorney has waived his right to an affidavit of error.

The judgments should be reversed and the information dismissed.

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

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Dave Strassner, Appellant.
    Argued May 17, 1949;
    decided July 19, 1949.

      Henry A. Drescher for appellant.
    I. Section 1141 of the Penal Law is inapplicable to a phonograph record, in that it is not a “ writing ”, nor an “ article or instrument of indecent or immoral use ” within the wording thereof. (People v. Goldstein, 266 App. Div. 950; Ostrowe v. Lee, 256 N. Y. 36; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53; Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411; People v. Abeel, 182 N. Y. 415; People v. Phyfe, 136 N. Y. 554; People v. Rosenberg, 138 N. Y. 410; People v. Nelson, 153 N. Y. 90; People v. Teal, 196 N. Y. 372; People ex rel. Kahan v. Jaffe, 178 Misc. 523.) II. The information is insufficient and defective and should be dismissed. (People v. Weldon, 111 N. Y. 569; People v. Farson, 244 N. Y. 413; People v. Dumar, 106 N. Y. 502; People v. Corbalis, 178 N. Y. 516; People v. Zambounis, 251 N. Y. 94; People v. Willett; 213 N. Y. 368; People v. Wiechers, 179 N. Y. 459; Muench v. United States, 96 F. 2d 332; People v. Bennett, 49 N. Y. 137; People v. Ledwon, 153 N. Y. 10.)

      Frank S. Hogan, District Attorney (Edwin G. Hoyt, Jr., and Whitman Knapp of counsel), for respondent.
    I. Section 1141 of the Penal Law was properly applied. (Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411.) II. The information may not now be attacked for indefiniteness. (Code Crim. Pro., § 331; People v. Willett, 213 N. Y. 368; People v. Wiechers, 179 N. Y. 459; People v. Goslin, 67 App. Div. 16, 171 N. Y. 627.)
   Bromley, J.

Defendant was convicted on an information under section 1141 of the Penal Law charging him with unlawfully possessing and selling an obscene phonograph record. He concedes its sale and its obscenity but appeals on the ground that the statute does not cover a phonograph record.

The pertinent portion of section 1141 reads as follows: 1. A person who sells, lends, gives away, distributes or shows, or offers to sell, lend, give away, distribute, or show, or has in his possession with intent to sell, lend, distribute or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character; or any article or instrument of indecent or immoral use, or purporting to be for indecent or immoral use or purpose * * *. Is guilty of a misdemeanor ”.

The information charged defendant with the crime of unlawfully possessing ‘ ‘ with intent to sell, lend, give away, and show, a certain obscene, lewd, lascivious, filthy, indecent and disgusting phonograph record, having thereon matter of an indecent character ”. The descriptive adjectives clearly indicate that the information was framed in the language of the first clause of the statute. That clause does not specify a phonograph record and the items which are enumerated therein all are characterized by visual representation of ideas. Transmission of ideas through the medium of a phonograph record is an auditory representation accomplished by mechanical means. The words of general classification concluding the clause — “written or printed matter of an indecent character ’ ’ — likewise refer to a visual representation. A phonograph record is not a writing. The grooves of the record, by which sound is reduced to permanency, cannot constitute a writing or printing. The permanence of form is of no consequense unless the mechanical means are available to transmute the grooves into sound. There is permanence of form but nothing intelligible which can be observed. We cannot say, therefore, that the first clause of the statute includes an obscene phonograph record (cf. Alpers v. United States, 175 F. 2d 137 [C. A. 9th]). In that case the Federal statute prohibiting the interstate carriage of obscene matter was held not to cover phonograph records.

The District Attorney on appeal contended that the language of the second clause — “ article * * * of indecent or immoral use ” — covered the record. A phonograph record is an article and it may be argued that it becomes an article of indecent use when there is reproduced thereby an indecent song or conversation. We do not pass upon that contention. The statute establishes distinct offenses. Were we to hold that the second clause encompassed within its scope a phonograph record as an article of indecent use, we would nevertheless reverse the conviction since the information charged a violation of the first clause. Where a statute includes several offenses, an information is defective if it charges the commission of one offense under the statute and the proof shows commission of another offense thereunder (People v. Grogan, 260 N. Y. 138, 141). The information charged an offense under the first clause. Since this clause does not make the sale or other disposition of a phonograph record an offense, proof of the commission of an offense under a separate and distinct portion of the statute will not render the information sufficient. Having made timely objection to the sufficiency of the information, defendant did not waive the defect therein.

The obscenity which the statute aims to prohibit is no less harmful when it appears in a phonograph record than when manifested in a book or picture. However, that is a matter for legislative decision. Since the first clause of the statute did not cover the offiensive item when defendant made the sale thereof, he cannot be charged with its violation. The information as drawn must be dismissed.

The judgments should be reversed and the information dismissed.

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

Judgments reversed, etc.


text:
    The People of the State of New York ex rel. Peter J. Kondrk, Appellant, against John F. Foster, as Warden of Auburn State Prison, Respondent.
    Argued May 27, 1949;
    decided July 19, 1949.

      John M. Cashin for appellant.
    I. Eelator is restrained of his liberty without lawful authority. (People v. Brien, 53 Hun 496; People v. Bigley, 178 Misc. 552; People v. Pollack, 154 App. Div. 716; People v. Romanelli, 197 App. Div. 876; People v. Spivak, 237 N. Y. 460; Matter of Cuddy, 131 U. S. 280; Canizio v. New York, 327 U. S. 82; Foster v. Illinois, 332 U. S. 134.) II. Habeas corpus is the proper remedy. (People ex rel, Thornwell v. Heacox, 231 App. Div. 617; People ex rel. Sampson v. New York Catholic Protectory, 93 App. Div. 196; People ex rel. Strohsahl v. Strohsahl, 221 App. Div. 86; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; Hoff v. State of New York, 279 N. Y. 490.) III. Eelator has no other remedy. (People v. Gersewitz, 294 N. Y. 163; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131.)

      Nathaniel L. Goldstein, Attorney-General (William S. Elder, Jr., Wendell P. Brown and Herman N. Harcourt of counsel), for respondent.
    I. Habeas corpus is not available. (People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Miles, 289 N. Y. 360; People v. Wilson, 151 N. Y. 403; People v. Spivak, 237 N. Y. 460; People ex rel. Thornwell v. Heacox, 231 App. Div. 617; Matter of Zovick v. Eaton, 259 App. Div. 585, 286 N. Y. 674; People v. Edwards, 173 App. Div. 375; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131.) II. The sentence was properly computed as one of a twenty-year maximum. (People ex rel. Thornwell v. Heacox, 231 App. Div. 617; People v. Edwards, 173 App. Div. 375; Matter of Zovick, v. Eaton, 259 App. Div. 585.) III. The judgment of conviction upon all four counts was legal and proper. (People v. Wilson, 151 N. Y. 403; People v. Kupperschmidt, 237 N. Y. 463; People v. Vitolo, 271 App. Div. 959, 297 N. Y. 575; Carpenter v. Hudspeth, 112 F. 2d 126; Bloch v. United States, 261 F. 321; United States v. Carpenter, 143 F. 2d 47.)
   Loughran, Ch. J.

This is a habeas corpus proceeding. For the sake of clarity, the relator will be called the defendant.

In September, 1932, he was indicted by the Chemung County Grand Jury on four counts. The first count charged burglary in the third degree, alleging that the defendant, on or about August 25,1932, broke and entered a garage of the Clute Motor Company at Elmira, New York, with intent to steal therefrom personal property of that company and its patrons. The second count charged grand larceny in the second degree, alleging that “ asa part of the same transaction, at the same time and place mentioned in the first count of this indictment ” the defendant stole a motor vehicle and $35 in currency which together were of a total value of $300. The third count charged the defendant with criminally receiving from thieves who were to the Grand Jury unknown the property described in the second count at the same time and place mentioned in the first count of this indictment," as a part of the same transaction The fourth count charged a criminal concealment by the defendant of the property described in the second count at the same time and place mentioned in the first count.

When he was first arraigned in the County Court on September 16, 1932, the defendant through his then counsel entered a plea of not guilty. On October 11, 1932, he appeared again in that court and then, according to the clerk’s minutes, “ through his Counsel changed his plea from Not Guilty to Guilty as charged in the indictment.” (Cf. Code Grim. Pro., § 335.) Thereafter and on October 18,1932, as the minutes show, “ the Court sentenced Defendant, Pete Kondrk, to be confined in New York State Reformatory, subject to the rules and regulations of that institution.” At the times aforesaid section 288 of the Correction Law made this provision: “ Any person who shall be convicted of an offense punishable by imprisonment in Elmira reformatory, and who, upon such conviction, shall be sentenced to imprisonment therein, shall be imprisoned according to this article, and not otherwise. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the board of parole in the executive department, as authorized by this article; but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced ”. (L. 1931, ch. 455.)

Pursuant to that statutory command, the Board of Parole made the defendant’s sentence one for an indeterminate term with a twenty-year maximum. Twice thereafter the defendant was paroled and each time was returned to prison upon being declared delinquent. As now computed by the Department of Correction, his sentence will not expire until May 19, 1955.

The present habeas corpus proceeding was brought by the defendant in July, 1947. At Special Term, the sentence imposed upon him in October, 1932, was held to be void and the writ was sustained. The Appellate Division, however, reversed on the law, dismissed the writ and remanded the defendant to the custody of the warden of the prison to which he had been confined. The defendant then brought the case here with the aid of counsel assigned to him by this court.

His counsel attacks counts three and four of the indictment (the charges of criminal receipt and concealment) as being inconsistent with count two (the charge of larceny). The argument is that the defendant could scarcely have appropriated property owned by the Clute Motor Company or its patrons and at the same time and place as part of the same transaction have also criminally received or concealed that identical property. Hence, as counsel insists, his client’s plea of guilt must be taken to have been addressed only to counts one and two and to have been so accepted by the County Court when it pronounced sentence upon him.

At that time, the defendant could not have been validly imprisoned on counts one and two of the indictment for longer than ten years. He had already served more than ten years when this proceeding was commenced. Consequently, his counsel concludes, the defendant is now restrained of his liberty without lawful authority and so this writ of habeas corpus should be sustained. This argument must be rejected, although in our judgment habeas corpus was for this defendant the appropriate remedy (see People ex rel. Carollo v. Brophy, 294 N. Y. 540, 542).

When the defendant was before the County Court neither he nor the counsel who there appeared for him said a word in respect of any contradiction of count two of the indictment by counts three and four thereof. Instead the defendant through his then counsel pleaded ‘ ‘ Guilty as charged in the indictment ’ ’ and when the court accepted that plea the result was a judgment convicting the defendant oh all four counts of the indictment (cf. People v. Daiboch, 265 N. Y. 125).

The form of the sentence imposed on the defendant was dictated by the words we have quoted from former section 288 of the Correction Law. The maximum terms of imprisonment for the crimes of which the defendant stood convicted were five, ten and twenty years. The Board of Parole, therefore, did no more than follow the Correction Law when it made the sentence one for an indeterminate term with a twenty-year maximum.

The order should be affirmed, without costs.

Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Order affirmed.


author: Loughran, Ch. J..

text:
    Clarence Jackson, Respondent, v. National Grange Mutual Liability Company, Appellant.
    Argued April 12, 1949;
    decided July 19, 1949.

      John H. Dewell for appellant.
    I. The amount of the demand of the complaint for judgment exceeds the jurisdiction of the Justice’s Court. (Yager v. Hannah, 6 Hill 631; Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315; Matter of Walker, 136 N. Y. 20; Matter of Logan, 116 App. Div. 146; Halpern v. Langrock Bros. Co., 169 App. Div. 464.) II. Justice’s Court could not acquire jurisdiction under method employed in serving summons andcomplaint. (Justice Ct. Act, § 51, subd. 3; General Corporation Law, § 217; Pohlers v. Exeter Mfg. Co., 293 N. Y. 274.)

      Frank C. Briggs for respondent.
    I. The question as to the jurisdiction of the Justice’s Court by reason of the amount of the demand is not before the Court of Appeals because it has not been certified to this court. (Grannan v. Westchester Racing Assn., 153 N. Y. 449; Bowlby v. McQuail, 240 N. Y. 684.) II. .Respondent should be permitted to waive any sum in excess of $200 and to amend his complaint accordingly. (Gigliotti v. Jacksina, 206 App. Div. 368; People v. Wait, 114 App. Div. 334.) III. The Justice’s Court had jurisdiction of the person of defendant because defendant, when it complied with section 59 of the Insurance Law, had consented to such jurisdiction. (Pohlers v. Exeter Mfg. Co., 293 N. Y. 274; Gruber v. Wilson, 276 N. Y. 135; Praete v. Adams, 169 Misc. 776.)
   Loughran, Ch. J..

In this action, which was brought in a Justice’s Court of the Town of Salem, Washington County, upon a policy of insurance, judgment was demanded for $200 with interest from a date prior to issuance of the summons. Service upon the defendant company, a foreign corporation licensed to do business in this State, was made by delivery of the process to the Superintendent of Insurance at his office in the city of Albany, pursuant to section 59 of the Insurance Law. In response thereto, the company interposed a special appearance for the sole purpose of disputing the jurisdiction of the Justice’s Court over its person. A judgment dismissing the summons and complaint followed and ivas affirmed by the County Court of Washington County.

On appeal by the plaintiff to the Appellate Division, both judgments were reversed on the law and the case was remitted to the Justice’s Court for trial on the merits. The Appellate Division, however, then gave leave to the defendant company to bring the case here upon the following question certified: “ Did the Justice’s Court of the Town of Salem, Washington County, acquire jurisdiction of defendant by service of its process in this action upon the Superintendent of Insurance of the State of New York in the City of Albany, N. Y.? ”

But the question so certified is not the question which the defendant company would now submit to us. The present complaint claims a sum of $200 with interest, contrary to the statute which limits a recovery in a Justice’s Court to $200 when, as here, the action is one for breach of contract (Justice Ct. Act, § 3, subd. 1; L. 1920, ch. 937). So the defendant company now asks us to take up a new question, that is to say: Does the Justice’s Court of the Town of Salem, Washington County, have jurisdiction of the subject of this action?

Whether there is jurisdiction of the subject of an action is a question which ordinarily can be raised at any stage of a controversy. In the present action, however, an absence of such jurisdiction can immediately be remedied by an amendment of the complaint. (Justice Ct. Act, §§ 132, 135, 157; cf. Halpern v. Langrock Bros. Co., 169 App. Div. 464; 228 N. Y. 543.) This plaintiff has repeatedly expressed a readiness to give up his demand for interest and to amend his complaint to that end. Wherefore, he says, the issue in respect of jurisdiction of the subject of the action is. for all practical purposes now out of the case. But with that last idea we have no concern since an appeal to us upon a question certified brings up for review that question and no others (N. Y. Const., art. VI, § 7). Moreover, we will not entertain such an appeal unless the question is decisive of some part of the determination of the Appellate Division (Civ. Prac. Act, § 589, subd. 3, par. [b]; Langan v. First Trust & Deposit Co., 296 N. Y. 60).

Under its special appearance, the defendant company could do nothing but challenge the jurisdiction of the Justice’s Court over its person (Muslusky v. Lehigh Valley Coal Co., 225 N. Y. 584, 588). Hence by its attempt to deny jurisdiction of the subject of the action, the company waived that special appearance and submitted its person to the jurisdiction of the court (see Fitzgerald & Mallory Constr. Co. v. Fitzgerald, 137 U. S. 98, 106). The question certified has thus become academic and, nothing else being before us, we are constrained to dismiss this appeal.

The appeal should be dismissed, with costs. Question certified not answered.

Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Appeal dismissed, etc.


author: Lewis, J.

text:
    Henry Elfeld, as Administrator of the Estate of Matthew Elfeld, Deceased, Appellant, v. Burkham Auto Renting Co., Inc., Respondent, et al., Defendants.
    Argued April 13, 1949;
    decided July 19, 1949.

      Martin M. Kolbrener, Morton Feeler and Joseph W. Winston for appellant.
    I. The jury’s findings that the truck was dangerously defective, that its hazardous condition caused the accident, ' and that deceased was free from contributory negligence, were amply supported by the evidence. (Lee v. City Brewing Corp., 279 N. Y. 380.) II. Defendant auto renting company is liable at common law. (Ferris v. Sterling, 214 N. Y. 249; Crawford v. Nilan, 264 App. Div. 46; Norris v. Kohler, 41 N. Y. 42; Elliott v. Hall, 15 Q. B. D. 315; MacPherson v. Buick Motor Co., 217 N. Y. 382; Sobel v. O’Connor, 293 N. Y. 924; Lee v. City Brewing Corp., 279 N. Y. 380; Christie v. Vineburg, Inc., 259 App. Div. 342.) III. Defendant auto renting company is liable under section 59 of the Vehicle and Traffic Law. (Arcara v. Moresse, 258 N. Y. 211; Dittman v. Davis, 274 App. Div. 836; Eckert v. Farrington Co., 262 App. Div. 9, 287 N. Y. 714.) IV. The fact that deceased drove the car does not exclude him from the benefits of the statute if the legal user he found negligent. (Cohen v. Neustadter, 247 N. Y. 207; Jackson v. Brown & Kleinhenz, 273 N. Y. 365; Reese v. Reamore, 292 N. Y. 292.)

      Joseph F. Hanley and John W. Trapp for respondent.
    I. No liability can be cast upon the auto renting company under the common law or under the provisions of section 59 of the Vehicle and Traffic Law and the complaint was properly dismissed. (Arcara v. Moresse, 258 N. Y. 211; Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14; Blake v. Salmonson, 188 Misc. 97; Woollcott v. Shubert, 217 N. Y. 212; Dean v. Metropolitan Elevated Ry. Co., 119 N. Y. 540; Gochee v. Wagner, 257 N. Y. 344; Gherwien v. Getter, 272 N. Y. 165; Mills v. Gabriel, 259 App. Div. 60, 284 N. Y. 755.) II. Section 59 of the Vehicle and Traffic Law imposes liability upon the owner of a motor vehicle for negligence in the “ operation ” of the vehicle upon the highway, not for negligence in the “ maintenance ” of the vehicle. (Psota v. Long Island R. R. Co., 246 N. Y. 388; Elenkrieg v. Siebrecht, 238 N. Y. 254; Berkey v. Third Ave. Ry. Co., 244 N. Y. 84.) III. The complaint was properly dismissed for the skidding was the proximate cause created by the 11 .negligent operation ” of the - driver on a wet road. (Anderson v. Schorn, 189 App. Div. 495, 231 N. Y. 590; Digelormo v. Weil, 260 N. Y. 192; Lopez v. Campbell, 163 N. Y. 340; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.)
   Lewis, J.

This is a negligence action in which a judgment entered at Trial Term upon a jury’s verdict in plaintiff’s favor has been reversed at the Appellate Division on the law and the facts and the complaint dismissed on the law. The case reaches us upon an appeal by the plaintiff taken as of right from a judgment entered upon the order of the Appellate Division.

The plaintiff, as administrator of the estate of his son Matthew Elf eld, deceased, sues to recover damages for the death of the decedent who was killed by the overturning of a baker’s delivery truck he was driving. Plaintiff claims the accident was due to the fact that the truck had a defect in its steering equipment and that its tires were worn so smooth as to constitute foreseeable danger from its operation.

Our inquiry goes — by a way made devious by subsidiary problems — to the ultimate question whether in the record at hand there is evidence which presents a question of fact from which a jury might find the defendant Burkham Auto Renting Co., Inc. — hereinafter referred to as Burkham — legally liable for damages resulting from the death of plaintiff’s intestate.

For ten days prior to his death, the decedent had been employed as a driver-salesman for Pechter Baking Company — to which reference will be made as Pechter — and was assigned by his employer to truck No. 23 which was garaged in the ■ Pechter plant on Cherry Street, New York City. During the early days of his employment with the Pechter company another salesman drove the decedent around a delivery route and explained his duties as a new salesman. For two or three days before the accident the decedent drove the truck himself but was accompanied by one of -the Pechter supervisors who observed his qualifications as a salesman and driver. On the day of the accident the truck for the first time was driven by the decedent-alone.

The accident occurred at about 11 o’clock in the morning of June 26, 1945, while thé décedent was driving westerly along Metropolitan Avenue in New York City. As the truck passed the florist shop of the witness Drews, he observed its progress and testified at the trial that it appeared to be traveling about twenty miles an hour and seemed to be 66 out of control.” He saw the truck start to skid, hit the right curb, and then skid to the left until he lost sight of it. During the time the truck was within Drews’ vision he observed that the driver 66 was trying to control the steering wheel”, 6‘ trying to get control of his wheel, going right and left, like that ” (demonstrating). After the truck had passed from Drews’ sight, he heard a crash and, upon investigation, found that the truck had overturned pinning the decedent beneath it. At the time of the accident the road was still wet from a rainfall earlier that morning.

Police officers soon reached the scene of the accident where the truck was examined by Detective Maurer and Lieutenant Andrews — members of the Queens County Motor Vehicle Homicide Squad. After stating that he [Detective Maurer] found the rear tires6 6 bald ” — meaning 66 no tread ” — his further testimony was in part as follows:

66 Q. State what examination you made with respect to the steering mechanism. A. When I first turned the wheel, I found excessive play.
66 Q. Did you measure the play? A. Yes, with Lieutenant Andrews at that time, and then while he turned the wheel, I knelt and looked the chassis over and the parts involved in the steering. * * *
6 6 Q. What did you find upon examination of those parts underneath the chassis? A. I found play, excessive play in all the joints.
66 Q. How much play was there? A. Well, it would be in the fraction of an inch, but relayed to the steering wheel it will be a matter of inches. . -
66 Q. How many inches-off center was it when you examined it, from examining, the wheel? A. I found the play to be six inches on either side of center. * * *
66 Q. When you told us before that the truck that you examined showed a play of six inches off center, I ask you whether that means that where that steering wheel was making a right turn, for instance, that it would have to traverse twelve inches in order to make a left turn? * * * A. That’s correct, sir.
“ Q. * * * Can you give me an opinion — you told us that there was a play there of six inches off center, or a total of twelve inches, as you explained it to the jury. Can you give me an opinion with reasonable certainty, from your examination of the parts of the steering mechanism that was under the chassis, what caused the play? * * * A. Yes, I can.
Q. What was it? * * * A. I say it was excessive wear of the parts involved. * *
“ Q. What was the competent producing cause of that skid and turning over? Will you tell us? A. Yes. I’d say the condition of the tires, the rear tires, the condition of the steering, the fact that the steering wheel had to traverse twelve inches before it could be — before the wheels would steer from one side to the other — I would say that was a competent producing cause.”

There was also testimony by Lieutenant Andrews who measured the play in the steering wheel and found it to be “ Six inches, each side of an imaginary center.” He also described the effect of such play to be as follows: “ * * * if the wheel were turned to the right and then you wanted to make a left turn from the point to the right where you had turned it, the wheel would move about twelve inches before it would affect the front wheels

The plaintiff also called Joseph McArdle, an expert witness, who testified in part as follows:

“ Q. What is your opinion? Were this skid and overturning competently produced by those bald tires and the steering mechanism as I have described it to you? A. Yes.
“ Q. Now, will you explain it? A. Well, I would say the skid is promoted by poor traction due to having bald tires on the rear, plus, I believe, that scene was a wet street * * *.
“ Q. * * * What has the steering mechanism got to do with getting in and out of a skid? A. * * * Well, the lost motion that has taken place in the steering, to my estimation, would be loss of reactionary time in directing the vehicle in its true course to prevent it — or straighten it out.
“ Q. So, in other words, if there weren’t that play, would you have a quicker opportunity to straighten yourself out? A. That is true.”

There was also testimony by McArdle that the defective condition of the truck as described by Lieutenant Andrews and Detective Maurer would not be brought about by the accident.

Despite evidence in the record to the contrary — which presented a question of fact — we think the evidence to which reference has been made was a sufficient basis for a finding by the jury that the truck being driven by the decedent was mechanically defective on the morning of June 26, 1945, when it was assigned to the decedent for use in making deliveries for his employer, Pechter, and — in view of the finding of decedent’s freedom from contributory negligence, which is implicit in the verdict — that those defects were a competent producing cause of the accident which resulted in the decedent’s death.

We are thus brought to the question whether, in the circumstances here presented, the defendant Burkham can be held liable for the damages resulting from the decedent’s death and alleged to have been caused by the defective condition of the truck he was driving.

It is conceded that at the time of the accident the defendant Burkham was the registered owner of the truck. By virtue of such registration, plaintiff seeks to impose liability upon Burk-ham under section 59 of the Vehicle and Traffic Law and upon common-law principles; The position of the defendant is that no liability can be imposed on it — either under the statute or at common law — because at the time of the accident it was not in fact the owner of the truck. In explanation of that circumstance counsel for the defendant Burkham stated for the purposes of the record that in 1941 defendant leased and later sold its trucks to Cherry Bakeries, Inc., and that thereafter in, April, 1944, its trucks, including the truck involved in this accident, were bought by the decedent’s employer, Pechter. The defendant Burkham concedes, however, that — due to the rationing system then in effect — the new owners continued to register the truck here involved in the name of Burkham Auto Renting Co.

The plaintiff, as appellant before us, points to the fact that the above statements in behalf of the defendant Burkham relating to the sale of -the truck are not based upon evidence of record but are declarations made by the attorney for the defendant during the argument on motions ”. Upon that phase of the case a close examination of the record discloses no evidence of a transfer of ownership of the truck. Lacking proof that title to the truck had actually been transferred, we hold that the defendant Burkham must be presumed to be the owner thereof under the rule of Ferris v. Sterling (214 N. Y. 249, 253): “ The license number of the car, coupled with evidence that the defendant held the license, was prima facie proof that the defendant was the owner.”

The record and applicable case law suggest an additional reason for holding Burkham to be the owner of the truck. In the Ferris case (supra) there was evidence that the registration of the car there involved in the name of a father rather than his son was a mistake. Not so, however, in the present case where no claim is made that the registration of the truck in Burkham’s name from 1941 to 1945 was anything but intentional. In fact that inference is reinforced by the statement made in open court by defendant Burkham’s counsel that the truck was deliberately ‘ ‘ kept under the registration of the Burkham Auto Renting Company ” because, due to rationing, the company could operate only a certain number of trucks ”. In such circumstances, the rule of Simba v. Greendonner (271 N. Y. 189) is applicable. There it was stated (per Hubbs, J., at pp. 193, 194): ‘1 We said in Ferris v. Sterling (214 N. Y. 249) that the registration of a vehicle by a person is prima facie evidence of his ownership. Further than that it was not necessary for us to go. In this case it is necessary to consider the question not there presented, whether one who has deliberately caused a car to be registered in his name as owner vdll be permitted, after it has been involved in an accident and caused injury, to deny the truth of that statement. * *

To permit the respondent to relieve himself of liability by proving that he was not in fact the owner of the automobile and thereby establish his illegal and fraudulent act in procuring its registration in his own name would be against public policy and would encourage fraudulent and illegal deceptions on the State in procuring the registration of automobiles in the names of persons who were not the owners thereof, directly in violation of the statute.”

For the purposes of our present decision we conclude that the defendant Burkham must be considered the owner of the truck and that its disclaimer of ownership at the time of the accident does not — on the record before us — constitute a legal defense.

We pass then to the question — assuming ownership of the truck in Burkham: Is there a legal basis, under the facts of this case, for imposing liability upon the defendant Burkham for the death of the plaintiff’s intestate?

As we have seen, the negligence with which defendant is charged is that the truck involved in the accident was assigned to the decedent for use on his sales route with the steering mechanism and the rear tires in such a defective condition as to create a foreseeable risk. The evidence also shows that the defects claimed — ■ “ bald tires ” and “ excessive play in the steering wheel ” — were conditions brought about by long wear. Therefore, argues the defendant — and so the Appellate Division has ruled —' section 59 id. is inapplicable because the purpose of that statute is to impose liability upon an owner for negligence in the operation of a vehicle on the highway but not for negligence in its maintenance.

Section 59 of the Vehicle and Traffic Law provides: “ § 59. Negligence of operator other than owner attributable to owner. Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or impliéd, of such owner.”

As we view the record of facts proven they present the question whether the owner Burkham, under the above-quoted statute, became legally responsible for the acts of Pechter which allegedly caused the accident here involved.

Clearly, on the day of the accident Pechter, with permission of Burkham, had put to its own use the truck it had assigned to the decedent for delivery purposes. Nor is there any claim that the use to which the truck was put in the delivery of Pechter’s baked goods was contrary to directions given by Burkham, the registered owner, relating to its use. From these facts we may conclude that Pechter was “ legally using ” the truck within the meaning of section 59 of the Vehicle and Traffic Law. It is also clear that the registered owner of the truck (Burkham) may be held liable if Pechter — a legal user — is guilty of negligence in the operation ” thereof. In Arcara v. Moresse (258 N. Y. 211, 215) where section .59 was the subject of consideration, this court had occasion to state* # * To bind the owner, there must be negligence in the operation ’ of the motor vehicle; but the negligent act may be performed either ‘ by any person legally using ’ the motor vehicle, or by any person ‘ operating the same.’ ”

Our problem then is to determine whether Pechter as legal user of the truck assigned to the decedent, can be said to have been guilty of any “ negligence in the operation ” of that vehicle. It appears from the record that the truck was garaged in the Pechter plant from which place it was started each morning on its daily delivery route and to which place it was returned when the Pechter driver completed his work. It also appears that the truck was serviced under the supervision of mechanics in the employ of Pechter. One mechanic, the witness Lucarelli, who was in charge of inspecting the trucks, took them out each night to check them. If he found anything wrong with a truck, he did not assign it to a driver the next morning. Indeed, Lucarelli testified that he followed that procedure with truck No. 23 prior to its assignment to the decedent for his use on the day of the accident. Although Lucarelli testified that the truck was in good condition when he turned it over to the decedent, there is evidence by police officers who inspected the truck at the scene of the accident only a few hours later that the steering mechanism of the truck was defective and that there were no treads on the rear tires. The record also discloses evidence that the defective condition found by the police officers was a competent producing cause of the accident. As to the defective steering mechanism the testimony of the officers and of the witness McArdle as an expert was that the defect was not the result of the accident but was due to wear upon the parts involved. It also appears that this condition had not developed suddenly but had “ accumulated over a period of time and mileage.” Upon that subject McArdle testified:

“ Q. * * * Is it possible that that clearance, that six-inch free play, in the driving wheel, could have occurred at the time this truck began to skid? A. I would say no to that.
“ Q. How soon before that, in time, if you know, based upon your experience? A. In the mileage data? Would you accept it in mileage data?
Q. Sure. Any way. A. I’d say to attain six inches, or approximately thereof, * * * 40,000 miles. ’ ’

Concededly, the truck had heen driven more than 54,000 miles. We regard the evidence as sufficient to justify a finding by the jury that when the truck was turned over to the decedent on the morning of the accident, by an authorized agent of Pechter — whose duty it was to assign a truck to decedent for use in making his route deliveries — -it was in such a defective condition as to create a risk reasonably to be foreseen. By causing a defective truck to be assigned to decedent for use in the delivery of its baked goods, Pechter was guilty of an act of negligence in the operation of that truck for which Burkham, the registered owner, can be held liable under section 59 id. As we read that section it does not limit negligence in the operation ” to the manner in which a car is driven but is broad enough to include an act of operation ” such as the one here involved — viz., putting a defective truck into operation on the highway. This court has not limited negligence in the operation ” to negligence in the actual driving of the car. Thus in Dittman v. Davis (274 App. Div. 836, affd. 299 N. Y. 601) the legal user’s “ negligence in the operation ” was the parking of a truck upon a public highway without lights or adequate warning to oncoming traffic. And in Eckert v. Farrington Co. (262 App. Div. 9, affd. 287 N. Y. 714) the owner was held liable because the legal user was found guilty of negligence in the operation of an automobile when, in the process of fixing a tire on the shoulder of the road, he failed adequately to protect the plaintiff who had offered his assistance.

We are thus led to conclude that the act of Pechter’s agent, in placing a defective truck at the disposal of the decedent for use on the highways in covering one of that company’s routes, can be considered negligence in operation, and that such negligent act having been committed by Pechter, a legal user of the truck, its registered owner, Burkham, can be held liable upon this record under section 59 of the Vehicle and Traffic Law.

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

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

Judgments reversed, etc.

       Cherry Bakeries, Inc., was originally a party defendant in this action. As to that defendant the complaint herein was dismissed at the close of all the evidence, upon consent of the plaintiff.