author: Van Voorhis, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Woodrow Hendricks, Appellant.
    Argued March 4, 1955;
    decided May 26, 1955.

      Jay Cox O’Brien and Thomas F. Burke, Jr., for appellant.
    I. There was no hearing on appellant’s application for a writ of error coram nobis. The purported “ hearing ” held by the Albany County Court did not satisfy the traditional concept of what constitutes a “hearing” or “trial” and, therefore, appellant was denied his constitutional right to a hearing on the questions of fact raised by his sworn allegations. (Matter of Lyons v. Goldstein, 290 N. Y. 19; Rice v. Olson, 324 U. S. 786; Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101; People v. Richetti, 302 N. Y. 290; People v. Langan, 303 N. Y. 474; Matter of Morhous v. Supreme Court of State of N. Y., 293 N. Y. 131; Palko v. Connecticut, 302 U. S. 319.) II. The presumption of regularity attaching to the judgment of conviction was rebutted by appellant’s evidence and the People failed as a matter of law to meet the burden of proof cast upon them when the presumption was met by appellant’s evidence. (People v. Richetti, 302 N. Y. 290; People v. Langan, 303 N. Y. 474.)

      Russell G. Hunt, District Attorney (James W. Dolan of counsel), for respondent.
    I. The proceedings below were regular, defendant failed to show by clear and convincing proof that he was denied or deprived of his constitutional or statutory rights, and his motion was properly denied. (People v. Richetti, 302 N. Y. 290; People v. Varelli, 277 App. Div. 887; People v. Barber, 276 App. Div. 1040; Matter of Bojinoff v. People, 299 N. Y. 145; People v. Corso, 277 App. Div. 990.) II. No formal hearing was necessary.
   Van Voorhis, J.

This is an appeal from the order of the Appellate Division, Third Department, which unanimously affirmed the order of the Albany County Court denying defendant’s motion in the nature of a writ of error coram nobis.

The basis for defendant’s contention is that he was not represented by counsel when he pleaded guilty, as a second offender, to the crime of robbery in the first degree, and that he was not represented by counsel when he was sentenced by the County Court.

Defendant was indicted on January 18, 1939. On the same day he pleaded not guilty. The official stenographer’s minutes of the various proceedings show that on the day of defendant’s arraignment, the County Judge asked defendant whether he desired counsel, that defendant answered in the affirmative and that the proceedings were adjourned until January 24, 1939. More adjournments followed. ■ The minutes of the subsequent proceedings reveal the following: On February 23, 1939, the case was continued. One Pierce J. Ryan, Esq., appeared for the defendant and the District Attorney informed the court that defendant had been convicted in 1931 of attempted grand larceny and sentenced to Elmira. Defendant "withdrew his plea of not guilty to the indictment of robbery in the first degree and pleaded guilty to that crime. Defendant’s pedigree was recorded. Sentence was deferred to February 27,1939.

On February 27,1939, the case was resumed. Pierce J. Ryan, Esq., appeared for the defendant. Defendant admitted that he had been convicted in 1931 in the Court of General Sessions of the County of New York of attempted grand larceny in the second degree and sentenced to the Elmira Reformatory. Thereupon, the County Judge sentenced the defendant as a second offender for a term of thirty to sixty years.

By a Notice of Assignment ” dated February 21, 1939, addressed by the District Attorney to Pierce J. Ryan, the latter was notified that he was assigned to protect defendant’s interests. This was acknowledged as received, as follows:

“ Rec’d Feb. 21, 1939.
(Sgd) Pierce J. Ryan,
Atty. for def.”

A notice of trial for February 23, 1939, was addressed to Pierce J. Ryan. At the bottom of this notice, the following appears:

“ Personal service of the above Notice of Trial is admitted this 21 day of February 1939
(Sgd) Pierce J. Ryan
Attorney for Defendant. ”

The court clerk’s minute book entries (designated by defendant as the clerk’s minutes) show that “ John J. Ryan Attorney ” appeared for defendant on January 18, 1939, at the time of arraignment and the defendant pleaded not guilty; that on February 8, 1939, “ John J. Ryan Attorney ” appeared for the defendant and the defendant pleaded guilty and that on the day of sentence, February 27,1939, ‘' John J. Ryan Attorney ’ ’ again appeared for the defendant (italics supplied).

John J. Ryan, in an affidavit, denied that he had ever represented the defendant.

Pierce J. Ryan, in an affidavit, states that ‘ ‘ he has no present recollection that he at any time represented * * * [the

defendant] in the year 1939, or at any other time ” and that he has no records which would indicate that he had ever represented the defendant.

In denying the defendant’s petition, the County Judge said: “ Although the aforesaid John J. By an affirmatively states that he did not represent this Defendant in 1939, Pierce J. Ryan merely states that he does not have any present recollection ’ of representing said Defendant. The records are sufficiently clear to lead to the inescapable conclusion that the Defendant was represented by Pierce J. Ryan and that the minutes referring to John J. Ryan were merely a clerical error. There is, therefore, no basis for Defendant’s contention that he was not represented at the time of his conviction.” (Italics supplied.)

The defendant contends that he had overcome the presumption of regularity attaching to the judgment and that to deny him a trial or a hearing deprived him of his constitutional rights, citing People v. Richetti (302 N. Y. 290). In the Richetti case (supra), the defendant pleaded that he did not know and was not told that he was entitled to counsel. The opposing papers consisted of the affidavits of the court stenographer and a probation officer, neither of whom remembered the proceedings in 1922 when the defendant was convicted, but each swore that it was the unvarying custom of the County Judge, who had since died, to inform every defendant of his right to counsel. The minutes of the stenographer had been destroyed. No records were available other than the probation officer’s report, which indicated that the defendant had not been represented by counsel.

In the present proceedings, the official stenographic minutes indicate that the defendant was represented by Pierce J. Ryan, an attorney, from the day the defendant changed his not guilty plea to a guilty plea and including the day sentence was imposed.

In People v. Langan (303 N. Y. 474), the defendant in 1950 applied for a writ of error coram nobis demanding that the court vacate his conviction in 1930 on the ground that he had not been then advised of his right to counsel and that he was not represented by counsel. The District Attorney filed an unverified memorandum in opposition to the motion, wherein he declared that the petitioner had not been deprived of his constitutional rights, that the notations on the indictment indicated that he had been represented by counsel, and that the mere statement of the defendant, made almost twenty years after the event, could not overcome the inference raised by the presumption of regularity attaching to every final judgment. In the Langan case (supra) there was no formal notice of appearance by an attorney, who represented the defendant in 1930. There was no evidence supporting the unverified statement by the District Attorney that the defendant had been represented by counsel. There was no support, for the statement that the minutes of the sentence showed that an attorney appeared for the defendant. The attorney who represented the codefendant made some inconclusive statement to the court to the effect that his representation of the codefendant indicated that he also appeared for the petitioner-defendant. Judge Lewis, writing for the court, said at page 480: “ In view of the failure by the District Attorney in the present proceeding either to come forward with a verified statement of facts, or to furnish unquestionable documentary proof which served conclusively to refute the factual statements contained in papers submitted by petitioner, we think the presumption of regularity, invoked by the District Attorney, was overcome by the factual statements in petitioner’s motion papers.” A hearing was ordered. • ,

The case of People v. Corso (277 App. Div. 990, motion for leave to appeal dismissed 301 N. Y. 816) is an. almost identical case on the facts. The Appellate Division, Second Department, held that the County Court was not required to grant a hearing to the defendant. The defendant and two codefendants were indicted for robbery in 1930. Defendant first pleaded not guilty and then changed his plea to guilty. The codefendants were represented by their own attorneys. The notations on the indictment, as well as the trial sheet of the District Attorney, showed that the defendant had been represented by counsel. The name of the defendant’s attorney had been misspelled in the records. This attorney stated in his affidavit that he had no recollection or records of the case or of the defendant, and that it was his custom to destroy his records every eight or ten years. The Appellate Division said, citing the Richetti case (supra), that nothing in the affidavits nor in any of the papers submitted by the defendant overcame the presumption of regularity attending the judgment of conviction or the records of the court and of the District Attorney’s office.

In the present proceedings, the stenographic records have been certified by the court stenographer as a true and accurate record of the proceedings. In view of the stenographer’s certificate, and under the circumstances of this case, it would seem that greater weight should be given to his record than to the clerk’s minutes. The stenographic minutes indicate that Pierce J. Byan represented the defendant at the time he changed his plea of not guilty to guilty, that at the defendant’s request counsel was assigned to him and that Pierce J. Byan appeared on the day the defendant was sentenced. Pierce J. Byan does not deny, in his affidavit, that he represented the defendant. He states that he has no recollection ” that he had ever represented the defendant. The affidavit of Pierce J. Byan does not, in view of the absence of categorical denial by him that he represented the defendant, minimize the presumption of regularity which attaches to the judgment of conviction. The certified stenographic minutes of the proceedings in the County Court are unquestionable documentary proof which conclusively refutes the assertion made by the defendant that he was neither asked if he desired counsel nor had counsel been assigned to him. In Matter of Bojinoff v. People (299 N. Y. 145, 150, 151), this court held that under the presumption of regularity attending convictions, in the absence of credible evidence to the contrary, it may not be gainsaid that the appellant was properly advised at the time of the acceptance of his plea of guilty and his conviction.

The District Attorney offered affirmative evidence in the form of the stenographic minutes to show that the defendant was advised as to his right to counsel and was represented by counsel.

The order of the Appellate Division should be affirmed.

Desmond, J.

(dissenting). It is settled law that when a petition sets forth grounds for coram nobis relief, due process requires a trial of such allegations unless they are ‘ conclusively refuted by unquestionable documentary proof ” (People v. Richetti, 302 N. Y. 290, 296; People v. Langan, 303 N. Y. 474, 477).

It is impossible, as it seems to me, to hold that anything is conclusively demonstrated ” by records which exhibit nothing but total confusion, and when there is serious and material inconsistency between two sets of official ” documents. For instance, the clerk’s minutes as printed in the record, note on January 18, February 8 and February 27,1939, the same entry: Woodrow Hendricks John J. Eyan, Attorney ” (with nothing to indicate what, if anything, John J. Eyan did or said on any of those occasions). The stenographer’s minutes, on the contrary, show that on January 18th, defendant Woodrow Hendricks appeared in Person ”. The stenographer’s minutes show Pierce J. Eyan as having appeared for the defendant on February 23d and February 27th, whereas the clerk’s minutes seem to have no entry at all for February 23d, and say that on February 27th, the date of sentence, John J. Eyan appeared for the defendant. Even in the stenographer’s minutes of February 23d and February 27th, those being, respectively, the occasion on which defendant pleaded guilty and answered various questions, and the occasion on which he was sentenced and had a colloquy with the court, there is no mention of attorney Pierce J. Eyan having said a word (something quite remarkable, it would seem). To add to the confusion, while the clerk’s minutes show defendant’s original appearance and plea of. not guilty as having been made on January 18, 1939, the certified photostat copy of minutes furnished us seems to say that this took place on January 17, 1939, and in those latter minutes, instead of a notice of an appearance by John J. Eyan, attorney, the photostat says Atty to be assigned ”. It would surely be a strong presumption of regularity that would stand up in the face of all that.

There should be a reversal and a remission for a trial of the allegations of the petition.

Conway, Ch. J., Dye, Fuld and Burke, JJ., concur with Van Voorhis, J.; Desmond, J., dissents in an opinion in which Froessel, J., concurs.

Order affirmed.


source: Caselaw Access Project

author: Van Voorhis, J.

license: Public Domain

text:
    RKO-Keith-Orpheum Theatres, Inc., et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, and Paramount Pictures Theatres Corp. et al., Intervenors-Respondents, v. City of New York et al., Appellants.
    Argued March 3, 1955;
    decided May 26, 1955.

      Peter Campbell Brown, Corporation Counsel (Stanley Buchsbaum, Morris L. Heath and Solomon Portnow of counsel), for appellants.
    I. The provision of the amusement tax law for applying the customary and common-sense method of dealing with fractions of a cent does not render it invalid as exceeding the 5% limitation of the State enabling act. (Jensen Candy Co. v. State Tax Comm., 90 Utah 359; Wilson v. Philadelphia, 330 Pa. 350; Smoky Mountain Canteen Co. v. Kizer, 193 Tenn. 598; F. W. Woolworth Co. v. Gray, 77 N. D. 757; Morrow v. Henneford, 182 Wash. 625; Mouledoux v. Maestri, 197 La. 525; People ex rel. Onondaga Co. Sav. Bank v. Butler, 147 N. Y. 164; Holmes v. Carley, 31 N. Y. 289; Matter of Chatlos v. McGoldrick, 302 N. Y. 380; Fischer’s Pool Swimming Club v. Towamencin Twp., 69 Montgomery Co. Law Rep. 389, 87 Pa. D. & C. 157.) II. There is no conflict between section B32-5.0 of the Administrative Code, which is designed to prevent ticket gouging, and the city amusement tax law. Even if there were a conflict, the later tax law would govern and any inconsistent provisions of the earlier enacted local law would fall. (People v. Knopfer, 192 Misc. 521; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201, 295 N. Y. 748; Matter of Chatlos v. McGoldrick, 302 N. Y. 380; Riggs v. Palmer, 115 N. Y. 506; Matter of Tiffany, 179 N. Y. 455; Contractors’ Supply Co. v. City of New York, 153 App. Div. 60; Grill v. City of New York, 282 N. Y. 471; People ex rel. Bronx Parkway Comm. v. Common Council, 229 N. Y. 1; Matter of Washington St. Asylum & Park R. R. Co., 115 N. Y. 442; Pratt v. Munson, 84 N. Y. 582.) III. The court disposes of cases in accordance with the law at the time the matter is decided on appeal. (Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271; People ex rel. Clark v. Gilchrist, 243 N. Y. 173; Matter of Kahn [Nat. City Bank], 284 N. Y. 515; Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Quaker Oats Co. v. City of New York, 295 N. Y. 527.) IV. Retrospective curative legislation is valid so long as it does not violate constitutional rights. (Lane v. Johnson, 283 N. Y. 244; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Bradford v. County of Suffolk, 257 App. Div. 777, 283 N. Y. 503; Matter of Pardee v. Rayfield, 192 App. Div. 5, 230 N. Y. 543; People ex rel. American Exch. Nat. Bank v. Purdy, 196 N. Y. 270; Charlotte Harbor Ry. v. Welles, 260 U. S. 8; Wagner v. Baltimore, 239 U. S. 207; Mattingly v. District of Columbia, 97 U. S. 687.) V. Retroactive tax legislation is valid unless it reaches so far into the past as to constitute a deprivation of property without due process of law. (Welch v. Henry, 305 U. S. 134; Milliken v. United States, 283 U. S. 15; Brushaber v. Union Pacific R. R., 240 U. S. 1; People ex rel. Best & Co. v. Graves, 265 N. Y. 431; Matter of Lacidem Realty Corp. v. Graves, 288 N. Y. 354.)

      Edward C. Baftery, Thomas Bress, Leopold Friedman, Milton C. Weisman, Cecelia H. Goetz, Mitchell Klupt, Edward S. Masket, Herbert B. Lazarus, Louis Weber and William Gold for respondents.
    I. The court "below correctly held that the New York City amusement tax “ insofar as it provides for the collection of a full cent in cases in which the tax as computed includes a fraction of a cent, imposes a tax in excess of that permitted by the enabling act. ’ ’ II. The city is entirely without authority to impose a tax in excess of 5%. The legislative intent must be sought primarily in the language of the enabling act. That language unequivocally limits the city to a tax of 5%. (Gillespie v. Zittlosen, 60 N. Y. 449; People ex rel. New York Central & H. R. R. R. Co. v. Woodbury, 208 N. Y. 421.) III. The enabling act must be strictly construed against the city. (Matter of Good Humor Corp. v. McGoldrick, 289 N. Y. 452; Matter of Second Ave. M. E. Church, 66 N. Y. 395; City of Johnstown v. Wells, 242 App. Div. 103, 275 N. Y. 623; Socony-Vacuum Oil Co. v. City of New York, 247 App. Div. 163, 272 N. Y. 668; Matter of Swift, 137 N. Y. 77.) IV. "Whether fractions may be rounded does not depend upon custom and usage but upon the language of the enabling act. There has been no practical and administrative construction of the enabling act. (Kocak v. Metropolitan Life Ins. Co., 144 Misc. 422, 237 App. Div. 780; Matter of Manhattan Sav. Inst., 82 N. Y. 142; People ex rel. West Side Elec. Co. v. Consolidated Tel. & Elec. Subway Co., 187 N. Y. 58; Browne v. City of New York, 213 App. Div. 206; Cummings v. Board of Educ. of City of N. Y., 275 App. Div. 577, 300 N. Y. 611.) V. The fact that the city will be unable to collect as much in taxes if it respects the 5% ceiling as it would collect if it were permitted to pierce it, does not make the literal language of the statute absurd, unreasonable or illogical. (Fischer’s Pool Swimming Club v. Towamencin Twp., 69 Montgomery Co. Law Rep. 389, 87 Pa. D. & C. 157.) VI. The amount by which the city has exceeded its authority is very substantial. (Matter of Atlas Television Co., 273 N. Y. 51.) VII. The court below should have held the amusement tax invalid, in toto. (Hill v. Wallace, 259 U. S. 44; United States v. Reese, 92 U. S. 214; Carter v. Carter Coal Co., 298 U. S. 238; Stewart Dry Goods Co. v. Lewis, 294 U. S. 550.) VIII. The amusement tax law is illegal, void and unenforcible against" licensed places of amusement such as plaintiffs’ because compliance with the law will expose plaintiffs to criminal prosecution, fine and/or imprisonment and revocation of license. IX. Repeal by implication is not regarded favorably. (Peterson v. Martino, 210 N. Y. 412; People v. Dwyer, 215 N. Y. 46; Matter of Brooklyn, Queens Co. & Suburban R. R. Co., 185 N. Y. 171; People ex rel. Folk v. McNulty, 256 App. Div. 82; United States v. Cardiff, 344 U. S. 174.) X. The Legislature usurped a judicial function when it undertook to declare the intent of a previous Legislature. (Koshkonong v. Burton, 104 U. S. 668; People ex rel. Mutual Life Ins. Co. of N. Y. v. Board of Supervisors of City & Co. of N. Y., 16 N. Y. 424; Salters v. Tobias, 3 Paige Ch. 338; Personal Finance Co. of Braddock v. United States, 86 F. Supp. 779; People ex rel. Beck v. Graves, 280 N. Y. 405.) XI. The retroactive validation of a statute which imposes criminal penalties and other sanctions is unconstitutional under the New York Constitution (art. I, § 6) and under the Fourteenth Amendment of the United States Constitution. (Matter of Lacidem Realty Corp. v. Graves, 288 N. Y. 354; Goddard v. Frazier, 156 F. 2d 938, 329 U. S. 765; First Nat. Bank v. City of Covington, 103 F. 523; Personal Finance Co. of Braddock v. United States, 86 F. Supp. 779.)
   Van Voorhis, J.

In 1954 the New York City Council adopted Local Law No. 37 imposing a tax of 5% upon admission charges to certain places of amusement. This meant that patrons of moving picture theatres are required to pay this tax when purchasing their tickets. The theatre is responsible for transmitting the tax money thus collected from the patron to the city. Five per cent computed upon admission prices of theatre tickets would often result in requiring theatregoers to pay fractions of a penny. The local law imposing this tax states that Where the tax to be paid by a patron includes a fraction of one cent, the fraction shall not be paid when it is less than one-half cent and a full cent shall he paid when the fraction is one-half cent or more ”. (Administrative Code of City of New York, § G46-2.0, subd. d.) Fractional parts of a cent thus disposable are colloquially known as ‘‘ breakage ’ ’.

The plaintiff theatres have brought this action for a declaratory judgment seeking, a determination that the local law imposing this tax is void, and, more especially, for an adjudication that the portion of this local law is void which directs the collection of an entire additional cent tax in instances where only half or a major fraction of a cent is due. Mathematically considered, the result in . certain instances is to require payment of more than a 5% admissions tax.

The enabling act does limit the amount of the tax which may be charged by the municipality to 5%. It does state that taxes “ not in excess of five per cent on admissions ” may be charged by the city “to be collected and administered in such manner as may be provided by any such local law ” (L. 1947, ch. 278, amd. by L. 1948, ch. 651; L. 1949, ch. 806; L. 1950, ohs. 589, 590; L. 1951, ch. 602; L. 1952, ohs. 742, 789; L. 1953, ch. 547, and L. 1955, ch. 93). This is the same enabling act which authorizes counties or cities to charge retail sales taxes, business use taxes, vending machine taxes, consumers ’ public utility taxes and other forms of local taxation. Section 7 (now § 10 thereof) provides that * ‘ The state tax commission shall prepare model local laws, ordinances, resolutions and regulations for the assistance of local officials and shall otherwise advise and cooperate with them for the purpose of effectuating uniform administration and distribution of such taxes.” Pursuant to this authority, the State Tax Commission has prepared model forms which dispose of breakage in similar manner to the present in case of the retail sales tax (2 Commerce Clearing House State Tax Reporter [N. Y.], § 73-175, alternate reg. 14) and the consumers’ utility tax (2 Commerce Clearing House Tax Reporter [N. Y.], § 73-450, sec. 3, § 73-460). These procedures, essentially the same as in the case of the New York City admissions tax, have been followed by municipalities throughout the State, which are hereafter enumerated.

The dissenting Justices at the Appellate Division considered that the manner of handling breakage prescribed by this local law of New York City should be sustained under the doctrine of de minimis non curat lex. The splitting of a penny was regarded as too inconsequential to put the court in motion. Special Term concluded that the enabling act authorizing a tax of 5% should be read in the light of the custom of the business community to add one whole cent wherever the correct amount calls for a half or major fraction of a cent. The majority at the Appellate Division were impressed by the fact that the amount of municipal revenue at stake in this method of handling breakage is substantial, and that the breakage constitutes more than a minimal proportion of the total admissions tax. For these reasons, the Appellate Division held that the doctrine of de minimis does not apply.

The burden of paying the admissions tax, as has been stated, falls upon the patron of the theatre. We think that in deciding whether to apply the doctrine of de minimis non curat lex, the problem should be studied from the viewpoint of the purchaser of a theatre ticket. When he buys his ticket, he is not likely to consider whether the extra payment will range from 5% to 9% of the admission tax imposed upon his ticket, but in his eyes it is simply the payment of one additional penny due to the circumstance that the currency of the country does not admit of paying less than that amount. Coins representing mills are no longer produced by the United States mint. The abstract justice of paying the exact amount due in monetary transactions has been thought by the Congress to be outweighed in importance by the inconvenience of coins of such infinitesimal value. Consequently the custom has arisen of paying an extra cent if the amount mathematically payable would be one half of one cent or more, and of disregarding the extra cent where the computation comes to less than half a cent.

If plaintiffs be correct in their computation that the city has at stake about $1,600,000 (although this figure allows for no offset by reason of instances where the fraction of the extra cent is less than half a cent and consequently is disregarded), this amount would be substantial to the city, nor is the fraction of the admissions tax negligible that is represented by breakage, yet practically speaking the breakage is inconsequential in amount to the patron when he buys his ticket. From the viewpoint of the person who pays this tax, the breakage is de minimis. The reason for charging the extra cent would be manifest to any theatregoer if brought to his attention, for it fits into his habit in other departments of life.

Nor is the established administrative procedure in levying and collecting taxes of all of the varieties mentioned to be disregarded as a practical construction of this statute. We are authoritatively informed that a practice respecting breakage similar to that in use in collecting the admissions tax in New York City has been followed in Binghamton and Elmira, and that five cities in the State have enacted sales taxes pursuant to the same enabling act which dispose of breakage in the same manner (Local Laws, 1954, No. 2 of City of Auburn, § 3; Local Laws, 1950, No. 1 of City of Newburgh, § 3, p. 219 [now expired]; Local Laws, 1951, No. 1 of City of Niagara Falls, § 3, p. 318; Local Laws, 1949, No. 2 of City of Poughkeepsie, § 3 [published in Local Laws, 1950, p. 432]; Local Laws, 1947, No. 17 of City of Syracuse, § 3, p. 423). Brie and Monroe Counties have followed the same procedure in their sales taxes adopted in 1947 and in 1952 (2 Prentice Hall New York Tax Service, §§ 68,308, 68,956), which is likewise true where a consumers’ utility tax has been adopted. This method of dealing with breakage, it has been previously stated, has been prescribed by the State Tax Commission.

If plaintiffs be correct in their contention, no municipality could establish a theatre admissions tax at more than approximately 4%%, instead of the 5% maximum specified by the enabling act, inasmuch as otherwise situations would occur where the breakage would cause the tax upon the price of a ticket to run over 5%. When the Legislature authorized municipalities to levy these taxes at 5%, we think that it meant 5% subject to the manner of handling breakage which is usual in commercial transactions. We think that to be the way in which the enabling act would be interpreted in the ordinary thought of men. That the Legislature so intended is indicated by the circumstance that the enabling act was amended in other respects after the practice had become general of handling breakage in this manner. If that practice had been considered to have been contrary to the original legislative mandate, the Legislature might well have said so while making amendments such as by L. 1950, ch. 590; L. 1951, chs. 602, 811; L. 1952, ohs. 742, 789; L. 1953, ch. 547. If the practical construction of a statute is well known, the Legislature is charged with knowledge and its failure to interfere indicates acquiescence therein (People v. Charbineau, 115 N. Y. 433). It was not until chapter 93 of the Laws of 1955 that anything was enacted upon this point, and then the Legislature did not disavow but confirmed this interpretation. It is so natural an interpretation that it should not be held to weaken or to violate the rule of strict construction in favor of the taxpayer.

Although there appear to be no New York decisions, courts of other States have almost uniformly reached the' same result where they have had occasion to decide this question (Wilson v. Philadelphia, 330 Pa. 350; F. W. Woolworth Co. v. Gray, 77 N. D. 757; Mouledoux v. Maestri, 197 La. 525; Smoky Mountain Canteen Co. v. Kizer, 193 Tenn. 598; Jensen Candy Co. v. State Tax Comm., 90 Utah 359). A possibly contrary decision is Fischer’s Pool Swimming Club v. Towamencin Twp. (69 Montgomery Co. Law Rep. 389, 87 Penn. D. & C. 157) but the judgment in that case was not reviewed upon appeal, and the decision appears not to be entirely consistent with Wilson v. Philadelphia (supra), where the situation was treated as de minimis.

Plaintiffs’ argument is without substance that section B32-5.0 of the Administrative Code precludes any municipal admissions tax. This section makes it a misdemeanor for a theatre to exact from a patron ‘‘ any greater amount than such regular or established price or charge [the amount printed on the ticket for the cost of admission] plus the amount of any tax imposed by the Government of the United States ”. This section could not have been designed to prevent the imposition of an otherwise proper tax. It simply meant that the theatre could charge no more than the price of the ticket plus admissions taxes, and the reason on account of which the Federal tax is mentioned appears to have been that it was the only tax then imposed upon the purchase of admission tickets. The enactment of this section of the Administrative Code could not and did not prevent the future imposition of taxes by either the State or the city pursuant to an enabling act. The reasonable interpretation of section B32-5.0 is that it prevents charging more for a ticket than the regular or established price, but that it does not prohibit the levying or collection of taxes which may validly be levied upon admissions pursuant to law.

Having arrived at this conclusion, it is not necessary to depend upon the effect of chapter 93 of the Laws of 1955. That act purports to construe the 1947 enabling act and its amendments in the same manner in which it has been construed in this opinion, and to impose retroactively over a period of nine months the same admissions taxes which it is now being held were legally imposed in the beginning. Without disturbing the rule that one session of the Legislature cannot bind later sessions, or the principle that retroactive taxation is generally unconstitutional, we have held that a statute adopted by a subsequent Legislature may be regarded to some extent in resolving ambiguity in a prior enactment (Matter of Chatlos v. McGoldrick, 302 N. Y. 380, 388), and limited retroactivity has been upheld in the case of certain taxes (Matter of Lacidem Realty Corp. v. Graves, 288 N. Y. 354). In any event, the act of 1955 bearing upon the subject of this litigation confirms the views expressed herein. An analysis of its constitutionality in this context would therefore be superfluous.

The order of the Appellate Division should be reversed, and the order and judgment of Special Term, Queens County, reinstated, with costs to appellants in this court and in the Appellate Division. The question certified “ Was the order of the Appellate Division properly made? ” is answered in the negative.

Conway, Ch. J., Desmond, Dye, Fuld and Froessel, JJ., concur ; Burke, J., taking no part.

Ordered accordingly.


author: Fuld, J. Feoessel, J.

text:
    Olive Applebee, as Administratrix of the Estate of Charles W. Applebee, Deceased, Respondent, v. State of New York, Appellant. Ruth I. McGuire, Individually and as Administratrix of the Estate of Charles J. McGuire, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 31652.)
    (Claim No. 31183.)
    Argued March 8, 1955;
    decided May 26, 1955.

      Jacob K. Javits, Attorney-General (John B. Davison and Henry S. Manley of counsel), for appellant.
    The weight of the evidence supports the findings of the Court of Claims. (Eason v. State of New York, 280 App. Div. 358; Amend v. Hurley, 293 N. Y. 587; People ex rel. MacCracken v. Miller, 291 N. Y. 55; Miller v. Hine, 281 App. Div. 387; Rugg v. State of New York, 284 App. Div. 179; Nuss v. State of New York, 301 N. Y. 768; Foley v. State of New York, 265 App. Div. 682, 294 N. Y. 275;
      Eastman v. State of New York, 303 N. Y. 691; Van de Walker v. State of New York, 278 N. Y. 454; Croniser v. State of New York, 195 Misc. 576; Boyce Motor Lines v. State of New York, 280 App. Div. 693, 306 N. Y. 801.)

      William L. Shumate, Carl Dengel and Thomas C. Cusack for Olive Applebee, respondent.
    I. The function of a stop sign is not only to give motorists timely warning that they are approaching an intersection. It is a command to them to come to a full stop before entering the intersection. The State’s failure to replace the stop sign was a proximate cause of the accident. (Nuss v. State of New York, 195 Misc. 38, 276 App. Div. 300.) II. The Appellate Division’s order with respect to modification and reversal of findings of fact was correct.

      Bradford F. Miller for Ruth I. McGuire, respondent.
    I. The negligence, if any, of Miss Steinmiller was at most a cause concurring with the negligence of the State of New York to bring about the accident. II. The failure of the State of New York to repair or replace the destroyed sign was a proximate cause of the fatal accident and the State of New York is liable therefor. (Nuss v. State of New York, 195 Misc. 38, 276 App. Div. 300, 301 N. Y. 768; Eastman v. State of New York, 303 N. Y. 691; Croniser v. State of New York, 195 Misc. 576; Walter v. State of New York, 187 Misc. 1034.)
   Fuld, J.

At about 2 o’clock of a Sunday afternoon in November of 1951, there was a 3-car collision at the intersection of a county highway, known as Fisk Road, with Route 96A, a concrete state road, near the Sampson Air Force Base, not far from the City of Geneva, in Seneca County. The weather was clear, the roads dry. Marilyn Steinmiller, 18 years of age, had come from Rochester that same day to visit a friend at the Air Base and was returning home with two companions by way of 96A. Leaving the Base, she proceeded easterly along Fisk Road at about 15 miles an hour and, when she came to within 20 feet of the state highway, she started to slow-down. She had been driving so slowly that it was only necessary for her to take her foot off the gas pedal to slacken her speed, though she “ thought ” she used the brake and, “ as far as ” she could “remember,” she was at a “ standstill ” when she was hit. At any rate, after she had slowed down, she “ glanced ” to her left and saw two cars parked in front of a restaurant on the northwest corner; able to see ‘ ‘ about 200 feet ’ ’ in that direction, she observed no traffic approaching. Then, glancing to the right, she saw a Greyhound bus, about 100 feet away, coming north on 96A. She thereupon stopped at the intersection, her automobile about a foot or a foot and a half out into 96A ”. At that moment, a car traveling south on that road, driven by Charles McGuire, hit the left front fender of her car; she had not observed it before the impact. And then things happened fast. Her car was swung half way around so that its rear end was in the northbound lane of 96A; McGuire’s auto swerved into the oncoming Greyhound bus, turned over and was pushed by the bus back against the Steinmiller car, which then hit a car parked at the gas station on the northeast corner of the intersection.

McGuire and the bus driver Applebee died of the injuries that they sustained in the crash; their wives are the claimants in these two suits, brought against the state on the theory that the latter was negligent in failing to have a stop sign on Fisk Road just before its intersection with 96A. Such a sign had been there — at a point some 36 feet west of the state highway, by order of the New York State Traffic Commission, pursuant to article 7 of the Vehicle and Traffic Law — but it had been struck by an automobile and bent over almost to the ground about seven weeks before the present accident, and had not been repaired or replaced.

Although the evidence is not explicit that Miss Steinmiller had traveled from Rochester to Sampson via Route 96A and Fisk Road, she was aware, as both the trial court and the Appellate Division found, that, to return to Rochester, she had to go by way of 96A and intended to turn at the intersection, thus indicating a familiarity with the road and the route. Moreover, when asked why she started to slow down on Fisk Road, she answered that she ‘‘ saw ” that she was “ entering another highway.” And, although she asserted that, because of the parked cars, she could see only 200 feet to the left on 96A, there was testimony that one on Fisk Road, 10 feet from the intersection, could see to the north for a distance of about 600 feet.

The Court of Claims, in dismissing both claims, made findings substantially in accord with the facts outlined above. In additian, it expressly found that Miss Steinmiller was returning to Rochester from Sampson by the same route by which she had come and “ knew that it was heavily traveled by automobiles at high speeds ’ ’. The court’s conclusion was that the two drivers — who had died — had been free from contributory negligence, that Miss Steinmiller was guilty of gross negligence which constituted the sole proximate cause ” of the accident and that the collision was not due to any negligence of the state. A non-unanimous Appellate Division reversed; in essence, it found that the state’s failure to restore the stop sign was a proximate cause of the accident and that the young lady’s negligence, “ if any,” was at most a contributing factor. Accordingly, awards were rendered in favor of each claimant.

Since the reversal was on the law and the facts and since new findings, at variance with those of the trial court, were made with regard to the state’s negligence, we must determine where the weight of evidence lies. (See, e.g., Canepa v. State of New York, 306 N. Y. 272, 276; Eastman v. State of New York, 303 N. Y. 691, 693.) In our view, it supports the findings and decision of the Court of Claims.

We are not unmindful that in a number of cases involving automobile accidents we have upheld judgments against the state or a municipality for failing to maintain a stop sign as required by statute. (See, e.g., Murphy v. De Revere, 304 N. Y. 922; Eastman v. State of New York, supra, 303 N. Y. 691; Nuss v. State of New York, 301 N. Y. 768. See Vehicle and Traffic Law, § 95-d.) In all of them, however, not only could the state or the municipality properly be deemed negligent in failing to maintain a sign, but the proof established that the drivers had proceeded into the intersection without stopping, in such a manner that it was reasonable to infer that such negligence was the proximate cause of the accident.

In the Eastman case (supra, 303 N. Y. 691), a truck, approaching a T intersection from the west and attempting to make a left-hand turn into the highway running approximately north and south, collided with a car driving south on that road. The east-west highway made a long curve into the north-south one in such a way that, without a stop sign, it was difficult to tell which driver should, or would, stop. The state traffic commission, however, had previously ordered a stop sign, on the southwest corner of the intersection, removed as unnecessary. The Court of Claims decided in favor of the claimants and against the state, the Appellate Division reversed and dismissed the claims, and this court, in turn, reversed the Appellate Division’s determination. Underlying that decision is the thesis that, while the acts of the drivers might have been concurring causes of the accident, the negligence of the state in removing the sign was the proximate cause and that, had the sign been there, the driver would have obeyed it and avoided the accident. In Eastman, and in Murphy and Nuss as well — the latter two cases involving night collisions at unfamiliar crossings — it was the very absence of the stop sign which rendered the drivers unaware of the need to stop before proceeding across the intersection. The failure to maintain a stop sign, therefore, was found in each instance to be the very direct and proximate cause of the accident.

In the present case, on the other hand, the circumstances were such that the absence of a stop sign had no bearing on the happening of the accident. Unlike the drivers in the other cases, Miss Steinmiller was fully aware of the dangerous intersection and of the need to stop.

It was a clear day, with good visibility, and she knew about the intersection. Aware that she was approaching 96A, she began to slow up some 20 feet from the corner; she glanced to her left and, her view partially obstructed, saw no car coming from that direction. She then looked to her right; she saw the Greyhound bus coming from the south and braked her car to a stop about a foot and a half on the pavement of 96A. She was undoubtedly waiting for the bus to go by in the furthermost lane, under the impression that there was no traffic in the lane where she had brought her car to a halt. She was, of course, in error, and, since — when she was on Fisk Road about 10 feet west of 96A — she had a sight distance of nearly 600 feet to the north, she would have seen the McGuire car had she looked again in that direction. Consequently, it becomes obvious, the accident occurred only because she neglected to look to the north at a point where the parked cars did not interfere with her view.

A moment’s analysis serves to confirm this. Had the stop sign been in place, we presume that Miss Steinmiller would have observed its injunction. But that is precisely what she did do. She knew that the intersection with the state road was just ahead; she knew that she was going to turn left on it; and she knew that she would have to stop before making the turn. She, therefore, had all the warning, all the notice of danger, that a stop sign Avould have afforded. Its absence did not cause her to do anything other than she Avould have done had it been present. She had been driving very slowly on Fisk Boad and she started to bring her car to a stop some 20 feet before the intersection. The sign would have called for no different action. Certainly, it is not necessary to come to rest abreast of it; its purpose is simply to require a vehicle approaching an intersection “ to stop at the corner or * * * pause at a point where Adsibility is adequate to assure safety in undertaking the crossing.” (McLean v. McKinley, 282 App. Div. 138, 140; 307 N. Y. 661, 920.) The mistake made by Miss Steinmiller, and no omission on the part of the state induced or contributed to it, was that she drove a foot and a half into 96A to observe the traffic, instead of stopping on Fisk Boad and looking to her left at a point where she would have had an unobstructed view to the north. Although, since this is a weight of evidence case, we need not go so far, we believe it may fairly be said that there is not the slightest basis in this record for inferring that she would have stopped a single foot before she did had the sign been posted.

In short, the physical conditions and the operator’s own awareness of them, and of what Avas required of her in making a left-hand turn, prescribed the same course of action as a stop sign would have. She went into the lip of 96A before bringing the car to rest, not because the sign was missing, but because she had failed to look north at a point where visibility was adequate. The absence of a stop sign contributed not one whit to the collision. The weight of evidence plainly supports the finding of the trial court that it was Miss Steinmiller’s negligence which was the sole and proximate cause of the accident.

The judgments of the Appellate DiAdsion should be reversed and those of the Court of Claims reinstated, without costs.

Feoessel, J.

(dissenting). We dissent and vote to affirm the judgments of the Appellate Division, upon the ground that the State Avas concurrently negligent Avitk Miss Steinmiller, and that the absence of the “ stop ” sign, referred to in the prevailing opinion, was a proximate cause of these unfortunate accidents. Said sign was erected pursuant to the January, 1949, orders of the New York State Traffic Commission. It was maintained until September, 1951, when struck down by an automobile. Although the State Highway Department was notified the same day, it failed to re-erect or repair said sign. Such failure clearly amounted to negligence on the part of the State.

The Court of Claims found that Miss Steinmiller “ had never driven along Fisk Road toward Route 96-A in that direction prior to this occasion ”. She stated three times that she did not slow down until she saw she was entering Route 96A. She was then but 20 feet westerly therefrom. She did not come to a stop prior to reaching into Route 96A, when she saw the Greyhound bus approaching from her right. She was not sure whether she applied her brakes, nor whether she was at a standstill at the time when her car was 1% feet out into Route 96A and when she was hit by the McGuire car approaching from her left. Under these circumstances, it is crystal clear that Miss Steinmiller did not have, in the language of the majority, “ all the warning, all the notice of danger, that a stop sign would have afforded ”.

In the prevailing opinion it is said ‘ ‘ there is not the slightest basis ” for inferring that, had the sign been in place, Miss Steinmiller would have stopped before proceeding a foot and a half into the intersection, and that the purpose of a stop sign is simply to require a vehicle to “ ‘ pause at a point where visibility is adequate to assure safety in undertaking the crossing.’ ” The law is clearly otherwise. Section 95-d of the Vehicle and Traffic Law provides, so far as pertinent:

It shall be unlawful for the driver of any vehicle to enter upon or cross a state highway from an intersecting road or highway upon which such a stop sign is erected without first having brought the vehicle to a full stop at or close to the intersection of such state highway. A person having stopped as directed by such a stop sign shall proceed with caution so as not to interfere with or endanger traffic. A sign bearing the word ‘ stop ’, with or without explanatory words, shall be sufficient under this section to require a full stop.

“ Any person failing to obey any provision of this section or any sign, signal or marking established pursuant to this section shall be deemed guilty of violating this section and upon conviction shall be subject to the penalties [elsewhere provided].” (Emphasis supplied.)

Section 95-d also provides that such sign “ shall be plainly visible at all times for a distance of at least fifty feet ”. Since the location of the old sign was 36 feet from the intersection, Miss Steinmiller would have had adequate warning of this dangerous intersection, had the sign been in place, when she was at least 86 feet from Eoute 96A. She would then hayq,known it was necessary for her to come “ to a full stop at or close to the intersection ”, and that to have entered upon Eoute 96A without stopping would have been a violation of law.

The majority agree that had the stop sign been in place, we presume that Miss Steinmiller would have observed its injunction. But that is precisely what she did do ”. The facts are indisputably otherwise. She simply did not obey the mandate of the law, to wit, to bring her vehicle to a full stop at or close to the intersection ”. She went beyond it, and, because of this violation, the accident happened, and two lives were snuffed out. Thus the absence of the sign was the most proximate cause of this accident.

In the light of her testimony, the Court of Claims had no right to assume that she would not have obeyed the law, but it was undoubtedly influenced by the thought it expressed that “ the courts have gone a long way on inferring ”. Courts do not presume, either in civil or criminal cases, that people deliberately disobey the law when they are adequately cautioned. Such was the rationale behind our decisions in Murphy v. De Revere (304 N. Y. 922 [stop sign]); Eastman v. State of New York (303 N. Y. 691 [stop sign]); Nuss v. State of New York (301 N. Y. 768 [stop sign]); Foley v. State of New York (294 N. Y. 275 [traffic signal]); Barna v. State of New York (293 N. Y. 877 [warning sign]); Van de Walker v. State of New York (278 N. Y. 454 [warning sign]).

In those cases we held that the absence of an appropriate stop ” or warning sign constituted negligence on the part of the State or other governmental agency, and was a proximate cause of the accident that happened in each case. Such is the situation here, where the evidence was clear that the State negligently failed to maintain the sign in question, and that Miss Steinmiller, in the absence of such warning sign on this first occasion that she traveled this way, had approached the intersection, without coming “ to a full stop at or close to the intersection ’ ’; the only reasonable inference which could be drawn was that the State’s negligence was a proximate cause of the accident.

The Appellate Division properly applied the law, and its determination of the facts was supported by the overwhelming-weight of the evidence. The judgments appealed from should be affirmed, with costs.

Desmond, Dye, Van Voorhis and Burke, JJ., concur with Fuld, J.; Frobssel, J., dissents in an opinion in which Conway, Oh. J., concurs.

Judgments reversed, etc.


author: Conway, Ch. J.

text:
    Reuben T. Israelson, Respondent, v. Charles L. Bradley, Individually and as Administrator of the Estate of Mary E. Bradley, Deceased, Appellant, et al., Defendants.
    Argued February 28, 1955;
    decided May 26, 1955.

      Sol Bloom for appellant.
    I. Plaintiff is authorized to file only one notice of pendency of action and cannot file successive notices and thus extend his time to make service of the summons beyond the sixty days prescribed by section 120 of the Civil Practice Act. (Brown v. Mando, 125 App. Div. 380; Cohen v. Biber, 123 App. Div. 528; Napoli v. Frank, 202 App. Div. 482; Lipschitz v. Watson, 113 App. Div. 408; Steinmetz v. Kindred, 121 App. Div. 260; Bancroft v. Interborough Estates, 136 App. Div. 890.) II. Plaintiff, whose notice of pendency of action was cancelled for failure to serve the summons within sixty days, may not file another lis pend'ens in another court in an action between the same parties for the same relief based on the same contract. (Shostack v. Haskell, 116 Misc. 475; Lipschutz v. Horton, 55 Misc. 44; Cohen v. Ratkowsky, 43 App. Div. 196; Lorillard v. Clyde, 122 N. Y. 41; Southern Pacific R. R. v. United

      States, 168 U. S. 1.) III. The fact that the action, with respect to which the second notice of pendency was filed, is instituted in a different court does not make any difference.

      John I. Kennedy for respondent.
    I. Plaintiff had an absolute right to file a notice of pendency of the Supreme Court action, although there had previously been filed a notice of pendency of a different action seeking similar relief in the County Court and the summons and complaint therein had not been served within sixty days. (Cohen v. Biber, 123 App. Div. 528; Mentz v. Efficient Bldg. Corp., 145 Misc. 505; Sheridan v. Andrews, 49 N. Y. 478; Leitch v. Wells, 48 N. Y. 585; Hailey v. Ano, 136 N. Y. 569.) II. Since Charles L. Bradley, as administrator, is a defendant in the present action and was not named as a defendant in the uncommenced County Court action, the lis pendens may not be cancelled as to him. (Steinmetz v. Kindred, 121 App. Div. 260.)
   Conway, Ch. J.

One Mary E. Bradley allegedly contracted to sell real property to the plaintiff. Two months later she died intestate and on May 21, 1953, letters of administration were issued to Charles L. Bradley, a son. Seven days thereafter the plaintiff entitled an action in the County Court of Rockland County and filed in the County Clerk’s office of that county a summons, complaint and notice of pendency of action. The plaintiff named as defendants the distributees of the estate of the decedent, including Charles L. Bradley, in their individual capacities, and requested specific performance of the contract to sell. Concededly, none of the defendants was served with the summons and complaint at any time since the filing of the notice.

Upon discovery of the filing some eight months later, Charles L. Bradley obtained an order to show cause why the lis pendens should not be cancelled. The plaintiff then joined in that request and consented to the entry of an order to that effect. Three days before the return date of the order to show cause, however, the plaintiff filed a new notice of the pendency of the present action in the Supreme Court of Rockland County, and caused the summons and verified complaint to be served on the same day upon the defendant Bradley. The complaint in the second action sought the same relief on the same contract of sale as did the first. Thus there were then two notices of pendency of action in two actions in two courts. In the second action Bradley had been named both individually and as administrator of the goods, chattels and credits of Mary E. Bradley, deceased, and in those capacities he moved in the Supreme Court for the cancellation of the second notice of pendency of action. Thereafter the first notice was cancelled by a County Court order and the motion for cancellation of the second notice came on in the Supreme Court. There the motion was denied in view of the fact that an action had been commenced in the Supreme Court. The Appellate Division affirmed that denial by a closely divided court and certified the following question: “ Was the order of the Special Term, entered March 24, 1954, properly made? ”

Section 120 of the Civil Practice Act provides that in an action “ to recover a judgment affecting the title to, or the possession, use, or enjoyment of real property, if the complaint is Verified, the plaintiff, when he files Ms complaint * * * may file in the clerk’s office of each county where the property is situated a notice of the pendency of the action * * *. Such a notice .may be filed with the complaint before the service of the summons; but, in that case, personal or substituted service of the summons must be made upon a defendant, within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced, or service thereof must be made without the state, as prescribed by law.” (Emphasis supplied.) That section is to be read in connection with section 218 of the Civil Practice Act, which provides that a civil action “ is commenced by the service of a summons, which is a mandate of the court.” Thus, one may file a lis pendens before the service of the summons, but one must commence the action by the service of the summons upon one of the defendants within sixty days in the manner prescribed in section 120 of the Civil Practice Act. This, of course, has nothing to do with the cause of action set out in the complaint. (Cohen v. Biber, 123 App. Div. 528.)

Section 123 of the Civil Practice Act has to do with the cancellation of the notice after the action has been commenced. It provides that if the action be “ settled, discontinued or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired ” the lis pendens may be cancelled upon notice. The same section further provides that “ if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court, in its discretion, upon the application, of any person aggrieved ’ ’ and upon notice may cancel the lis pendens. Those are provisions applicable after the commencement of an action by the service of the summons “ upon a defendant ” since before such service there is no “ action ”. They do not refer to a notice filed with the summons and complaint where the action is not commenced within sixty days. That situation is not covered in either sections 120 or 123 of the Civil Practice Act.

The necessary construction of section 123 is clear. If the action has been settled, discontinued, abated or if final judgment has been rendered against the one who filed the notice, there is no need for the exercise of discretion by the court. The action has been commenced and disposition of it made.

If the plaintiff has unreasonably neglected to proceed in the action, whether or not the notice should be cancelled rests in the sound discretion of the court, as it does in the case of any motion made for relief due to lack of diligence by any party to an action. Again, the provision in the statute has reference to an action which has been commenced by the one who filed a notice of pendency of action. Having provided for the cases in which an action has either been disposed of or which has not been diligently prosecuted, the Legislature left it to the courts to act with reference to situations where an action has not been commenced within the sixty-day limit prescribed by section 120. That should be by the cancellation of the notice and that was consented to here.

The question presented, then, is whether having once accepted the statutory permission to file a notice of pendency of action ‘‘ with the complaint before the service of the summons ”, a plaintiff who has failed to comply with the terms attached to such permission by the Legislature may then move to another court and assume, without legislative authority, a further grant of power to file a new summons and complaint and a new notice of pendency of action for the same cause and thus affect the alienability of the same real property for an additional period of sixty days or more. We find no such grant of power to a litigant and think that it was properly withheld. Permission to file a notice of pendency of action in specified cases is an added privilege granted to a litigant by statute which does not affect Ms cause of action. The purpose of the grant of the privilege was to prevent “ the acquisition pendente lite of an interest in the ‘ subject-matter ’ of the suit, to the prejudice of the plaintiff because otherwise * * * ‘ there would be no end of any suit; the justice of the court would be evaded and great hardship and inconvenience to the suitor would be necessarily introduced. ’ ” (Hailey v. Ano, 136 N. Y. 569, 576.) This interest acquired by the one filing the lis pendens has been defined as “ certain rights entitling him to be considered an equitable incumbrancer ”. (Weeks v. Tomes, 16 Hun 349, 351, affd. 76 N. Y. 601.) This is an extraordinary privilege which has been granted to a litigant upon the mere filing of the notice of a pendency of action, a summons and a complaint, and strict compliance with the requirements of section 120 is required. Proper admimstration of the law by the courts requires promptness on the part of a litigant so favored and that he accept the shield which has been given him upon the terms imposed, and that he not be permitted to so use the privilege granted that it becomes a sword usable against the owner or possessor of realty. If the terms imposed are not met, the privilege is at an end. Such has been the law of our State, as declared in cases over the years, wMch did not, however, reach this court. (See Cohen v. Biber, 123 App. Div. 528, 529, supra; Lipschitz v. Watson, 113 App. Div. 408; Cohen v. Ratkowsky, 43 App. Div. 196; Lipschutz v. Horton, 55 Misc. 44; Klunder v. Hansen, 190 Misc. 294.) A different rule has been held to be applicable when the moving defendant remains in hiding or in some other manner avoids service until the sixty-day period has expired. (Levy v. Kon, 114 App. Div. 795; Shostack v. Haskell, 116 Misc. 475, affd. 201 App. Div. 858; see, also, 3 Warren’s Weed on New York Real Property [4th ed.], §§ 1.06, 1.07, pp. 307, 308, 309; 8 Carmody on New York Practice [2d ed.], Part 1, § 71, pp. 55, 56.)

The order of the Appellate Division and that of Special Term should be reversed and the motion to cancel the notice of pendency granted, with costs in all courts; the question certified is answered in the negative.

The order of the Appellate Division and that of Special Term should be reversed and the matter remitted to Special Term for further proceedings in accordance with the opinion herein, with costs in all courts; the question certified is answered in the negative.

Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ., concur.

Orders reversed, etc.


author: Desmond, J. Burke, J.

text:
    In the Matter of the Accounting of Joseph Polizzo, as Committee of the Estate of Minnie Polizzo, an Incompetent. Harrison B. Wright, Individually and as Executor of Joseph Polizzo, Deceased, et al., Respondents; Agnes W. Tymann, as Administratrix of the Estate of Minnie Polizzo, Deceased, Appellant.
    Argued March 3, 1955;
    decided May 26, 1955.

      William B. Hoffman for appellant.
    I. Property of an incompetent in the name of the incompetent and another cannot be disposed of except in accordance with the Civil Practice Act. (Matter of Haher v. Hamilton, 267 N. Y. 474; Sanford v. Sanford, 45 N. Y. 723; Boehmer v. Boehmer, 264 Wis. 15; Boyd v. De La Montagnie, 73 N. Y. 498; Loker v. Edmans, 204 App. Div. 223; Matter of McGuinness, 290 N. Y. 117; Matter of Wainman, 121 Misc. 318; Matter of Rasmussen, 147 Misc. 564; Matter of Maguire, 161 Misc. 219; Goldsmith v. Goldsmith, 277 App. Div. 3.) II. Minnie Polizzo, who was the source of the funds used to purchase the mortgage, presumptively only gave to her husband Joseph a right of survivorship. No true joint tenancy was created. (Matter of Albrecht, 136 N. Y. 91; Belfanc v. Belfanc, 252 App. Div. 453, 278 N. Y. 563; Wegmann v. Kress, 152 App. Div. 937, 208 N. Y. 622; Matter of Kane, 246 N. Y. 498; Matter of Kaupper, 141 App. Div. 54, 201 N. Y. 534; Sanford v. Sanford, 45 N. Y. 723; Wilcox v. Murtha, 41 App. Div. 408; Merritt v. Merritt, 27 App. Div. 208; Moskowitz v. Marrow, 251 N. Y. 380.) III. The evidence offered at the trial by respondent did not rebut the presumption arising from the origin of the mortgage and the relationship of husband and wife. IV. Harrison B. Wright had notice of the infirmities in the title of his assignor Joseph Polizzo.

      Harrison B. Wright, in person, and Robert F. Tomlin for Harrison B. Wright, respondent.
    I. Joseph Polizzo and Minnie Polizzo, his wife, held the bond and mortgage in question as joint tenants. (Matter of Blumenthal, 236 N. Y. 448; Matter of Albrecht, 136 N. Y. 91; Matter of McKelway, 221 N. Y. 15; Overheiser v. Lackey, 207 N. Y. 229; Mustain v. Gardner, 203 Ill. 284; Matter of Suter, 258 N. Y. 104; Belfanc v. Belfanc, 252 App. Div. 453; Matter of Suter, 138 Misc. 85; Matter of Brogan, 165 Misc. 111.) II. There is in the law no presumption that if a wife transfers her solely owned personal property to her husband and herself, the fact of her sole ownership of itself indicates her intention to keep ownership, control and the right of disposition during her lifetime. (Belfanc v. Belfanc, 252 App. Div. 453; Matter of Blumenthal, 236 N. Y. 448; Brosnan v. Gaffney, 209 App. Div. 430.) III. If there was or is a presumption of intention as to either a husband or a wife, it will be overcome by evidence indicating a contrary intention. (Belfanc v. Belfanc, 252 App. Div. 453; Matter of Kaupper, 141 App. Div. 54, 201 N. Y. 534; Matter of Blumenthal, 236 N. Y. 448.)
   Desmond, J.

When Minnie (sometimes called Amelia or Amelia Anna) Wigger married Joseph Polizzo in 1917, she owned in her own right and her own name a $20,000 bond and mortgage. Shortly after her marriage she assigned the bond and mortgage to one Bautz, an attorney, the stated consideration being $100, and at the same time Bautz, for an expressed consideration of $100 “ paid by Joseph Polizzo and Amelia Anna Polizzo, his wife * * * parties of the second part ” assigned the bond and mortgage to the parties of the second part. The habendum clause in the latter assignment was, in full, as follows: “ To.have and to hold the same to the party of the second part, and to the successors, legal representatives the survivor, such survivor’s heirs, assigns of the party of the second part, forever, subject only to the proviso in said indenture of mortgage mentioned.” Attorney Bautz, as is obvious, acted as a conduit only. There is no evidence that the husband paid his wife anything for the transfer. The question of law on this appeal is: did the husband acquire a present joint ownership in the bond and mortgage, or a right of survivorship only, as to it?

Minnie Polizzo became incompetent in 1928, remained incompetent, and was a patient in a mental hospital till her death in 1953. Her husband, although not appointed as committee of her property till 1945, managed her affairs, including this bond and mortgage. The husband died in 1948. In the present proceeding, which is an accounting by Joseph’s executor as to Joseph’s committeeship, a dispute arose as to the ownership of the bond and mortgage above described. In 1947, Joseph Polizzo had executed and delivered to Harrison B. Wright (who was his attorney and is now his executor accounting here as to Joseph’s proceedings as committee of the latter’s wife) an assignment or purported assignment of a one-half interest in the bond and mortgage. The assignment recites a consideration of $8,500, one half the amount of the bond and mortgage as somehow reduced by $3,000 during Minnie’s life. Special Term held that Joseph Polizzo, the husband, never had more than a survivorship interest in the bond and mortgage, and that, accordingly, and since he predeceased his wife, he had no assignable interest therein, and that nothing passed by his assignment to respondent Wright. The Appellate Division, however, held unanimously that the assignment from attorney Bautz to Polizzo and his wife created a joint tenancy in the bond and mortgage, each thereafter owning an undivided half interest therein, and that the husband’s assignment to Wright was effective to terminate the joint tenancy, and that, thereafter, Wright and Mrs. Polizzo were owners in common. We agree with the Appellate Division.

If Minnie and Joseph had not been wife and husband at the time of the assignment of the mortgage to them, they would have become joint tenants with right of survivorship, and with the further right in each of them to terminate the joint ownership and create a tenancy in common, by conveying his or her interest to a third party (Matter of Suter, 258 N. Y. 104, 106). If the bond and mortgage had been owned originally by the husband and he had assigned it to himself and wife during marriage, or if he furnished the consideration and arranged to have it made to himself and his wife (with no inconsistent habendum clause, see second last paragraph of this opinion), then there would apply a presumption, in the absence of proof to the contrary, that the husband intended that his wife have a survivorship right only, and not present ownership of one half, or of any other part (Matter of Albrecht, 136 N. Y. 91; West v. McCullough, 123 App. Div. 846, affd. 194 N. Y. 518; Matter of McKelway, 221 N. Y. 15; Matter of Kane, 246 N. Y. 498; Belfanc v. Belfanc, 252 App. Div. 453, affd. 278 N. Y. 563). But none of those cited cases, and no others we find, deal with a transfer from a wife to her husband, without proof of consideration or specific intent. In the West case (123 App. Div. 846, 847, 848, 849, supra), it is explained that the rule creating the presumption above described (and operative as to a husband-to-wife transfer) is an aspect or result or vestige of the common-law rule that a husband owned all his wife’s personalty, and that thus, when he purported to pass to her an interest in his own personalty, he could not have intended to give her anything greater than a right of survivorship. And consideration or lack thereof, in those common-law situations, had nothing to do with the matter, since the wife’s personalty was the husband’s, and so he would always be furnishing the consideration. But none of that historical theory has any impact on a modern-day transfer by a wife of her own personal property to herself and her husband, jointly. The question seems to be of first impression in this court. We might, therefore, choose to use the old (husband-to-wife transfer) presumption, in the absence of proof as to actual intent, that survivorship only was intended. But, since that presumption is a remnant only of a body of law that never did apply to transfers from wife to husband, we see no reason for giving it a new application to a new situation. In other words, we decline to enlarge the coverage of the old presumption. Therefore, and since the assignment to Joseph Polizzo and Minnie Polizzo would have "created a present joint tenancy had they been unmarried, we hold that the same kind of tenancy was created, notwithstanding their marital relationship.

There is nothing in the above-quoted language of the habendum clause in the assignment from Bautz to the Polizzos to require a different result. That inartistically drawn clause reads: “ to the party of the second part, and to the successors, legal representatives the survivor, such survivor’s heirs, assigns of the party of the second part ”. Presumably the words “ the survivor, such survivor’s heirs ” were dropped into the middle of the customary verbiage to show an intent that, on the death of either husband or wife, the whole bond and mortgage should become the property of the survivor. But the very same clause makes the assignment run to “ assigns of the party of the second part ”, and that language expresses the transfer of a present interest to the ‘ ‘ party ’ ’ of the second part.

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

Burke, J.

(dissenting). The question presented by this appeal is whether it is presumed that there is an intention to create a right of survivorship only and not a joint tenancy in a mortgage, when the mortgage is in the names of both the husband and the wife and the entire consideration therefor was paid by the wife from her separate funds.

In 1912, John E. Wigger and Amelia Anna Wigger, brother and sister, owned a mortgage in the amount of $20,000, Thereafter, John Wigger died and his executor in 1916 transferred an undivided one half of such bond and mortgage to Amelia Anna Wigger, the expressed consideration being $10,000.

Amelia Anna Wigger married Joseph Polizzo one year later and in August of 1917, as Amelia Anna Polizzo (also referred to in this proceeding as Minnie) transferred to Louis M. Bautz, an attorney, the bond and mortgage for the consideration of $100 and at the same time said Louis M. Bautz, in consideration of $100 and without recourse, assigned the mortgage to “Joseph Polizzo and Amelia Ahha Polizzo, his wife ’ ’. The habendum clause read as follows: “To have and to hold the same to the party of the second part, and to the successors, legal representatives the survivor, such survivor’s heirs, assigns of the party of the second part, forever, subject only to the proviso in said indenture of mortgage mentioned.” (The italicized words were typed in on the printed form.) These assignments were recorded simultaneously on August 16, 1917. ,

Jn 1927 the land was sold to the Salus Realty Corporation. Salvatore Massucci, the president of this corporation, testified that he made all the interest checks payable to “ Joseph Polizzo and Amelia Polizzo ” until Joseph Polizzo instructed him to make half the payments to Harrison B. Wright, the respondent accountant in this proceeding.

On July 1, 1928, Amelia Polizzo was committed to a mental institution, where she remained until her death in 1953. In 1945, Joseph Polizzo was appointed the committee of his wife.

In 1942, Joseph Polizzo agreed with Massucci to reduce the principal of the mortgage by $3,000, reduce the interest from 5% to 4%% and extend the time of payment to July 1, 1947.

By an assignment dated September 10, 1947, Joseph Polizzo “in consideration of * * * ($8500) * * * paid by Harrison B. Wright ” assigned to Wright “ all of my right, title and interest, being a one-half share or interest therein, of, in and to ’ ’ the mortgage in question.

Joseph Polizzo died on November 2,1948, leaving a will which was admitted to probate in the Nassau County Surrogate’s Court and letters testamentary were issued to Harrison B. Wright on July 20,1949.

The surety on the Polizzo committee bond moved to punish Wright for contempt for failure to file, an account of the proceedings of Joseph Polizzo as committee from the date of his appointment to the date of his death, as directed by an order of the Supreme Court entered in November, 1949. In January, 1951, the account was filed in the office of the Clerk of the County of Nassau. Thereafter, in June, 1951, the special guardian for the incompetent filed objections to the account on the ground that it only included one half of the mortgage in question instead of the whole thereof.

Two hearings were held on the question of ownership of the mortgage; the first in June, 1951, after which Special Term held that the entire mortgage was the property of the estate of the incompetent and that her husband had only a right of survivorship.

Thereafter, Harrison B. Wright, the assignee of one half of the mortgage, not being a party to the proceeding, was permitted to intervene individually and a further hearing was thereupon held and the court adhered to its original decision.

The Appellate Division modified the order of the Supreme Court insofar as it held that the mortgage was the property solely of the estate of Amelia Polizzo, finding that the assignment to the husband and wife, by its terms, created a joint tenancy in the mortgage whereunder each owned an undivided one-half interest therein and that said tenancy was terminated by the husband’s assignment of his interest to Wright, whereby Wright and the wife became tenants in common.

The rule in this State has always been that an assignment of a chose in action, whether a bank account, a bond and mortgage, a note or other investment in personalty, taken in the joint names of husband and wife, conferred on the wife only the right to succeed by survivorship, when the entire consideration was paid by the husband or there was a gift by a husband to his wife of an interest in property belonging solely to himself. (Matter of Albrecht, 136 N. Y. 91; West v. McCullough, 123 App. Div. 846, affd. 194 N. Y. 518; Matter of Kane, 246 N. Y. 498; Belfanc v. Belfanc, 252 App. Div. 453, affd. 278 N. Y. 563.) In such cases husband and wife never became joint tenants in the strict sense. From such a transaction without proof of a different intent declared at the time of the transaction, it is presumed that the husband intended to benefit his wife with the ownership of the property at his death, but retaining the complete ownership, control and right of disposition. The presumption would not exist in the absence of the relation of husband and wife. Indeed, it would not exist in the absence of evidence that the consideration was paid by the husband or that there was a gift of an interest in property belonging solely to the husband. Thus, there are two conditions required; the marital relationship and the creation of the security from the sole money or property of the husband. All the cases cited were decided a half a century or more subsequent to the enactment of the various acts for the benefit of married women, under which married women were to be regarded as if they were sole with respect to their property rights. Nevertheless, this court called on the presumption to defeat the claims of' married women, disregarding the change in status of married women since the abolition of the common-law restrictions. Fairness dictates that married women should be accorded equal treatment. Although there is a lack of authority relating to a transfer from a wife to a husband, there are no sound reasons to apply a double standard in order to justify a refusal to extend the presumption to transfers or transactions wherein the property of the wifé was the subject of the transaction. The contention that the presumption is anachronistic in that it flows from the common-law restriction on a married woman’s ownership of property is without substance, because the presumption cannot be invoked, unless, in addition to the marital relationship, the donor spouse is shown to have paid the consideration or made a gift of solely owned property. (Matter of Blumenthal, 236 N. Y. 448.) Moreover, the presumption can be rebutted not only by a showing of a contrary intent at the time the transfer took place but also by proof that the consideration was not solely supplied by the husband. (Matter of Kane, 246 N. Y. 498, 504, supra.) Surely, an inquiry into who paid the consideration has not the slightest relation to married women’s property rights under the common law. Rather it seeks a clue as to the donor’s intent. Without proof of different intent, it can not be assumed that such donors intended to give their spouses such control over the donated asset that he or she may alienate one half of it without the permission of the spouse who supplied the sole consideration for the asset. Such an assumption ignores the unity of the marital relationship.

The evidence offered at the trial by the respondent did not rebut the presumption arising from the origin of the mortgage and the relationship of husband and wife. Since the mortgage was originally the family property of the Wiggers, brother and sister, and since the habendum clause of the assignment to the husband and wife contained the typewritten words added to the usual printed form " the survivor, such survivor’s heirs ”, the burden of proof was on the respondent to establish an intention to create a joint tenancy. The public records showed the mortgage to be the sole property of the wife prior to the assignment to the husband. The proof of the gift by the wife of property, solely belonging to her, makes out a prima facie case of a joint tenancy with a right of exclusive present enjoyment in the wife and a right of survivorship in the husband. The added words “ the survivor, such survivor’s heirs ” without further explanation express an intention to limit the ownership of the mortgage. The evidence, adduced by the respondent as to the payment of interest checks to Joseph and Amelia Polizzo and as to the supervision by the husband of the mortgage extensions, is insufficient to overcome the inference that the wife retained the right of exclusive present en-joyment. The pr-oaf of interest payments and the servicing of the mortgage by the husband were not inconsistent with the wife’s ownership of .the mortgage, particularly since the wife was, with the exception of -a few months, an inmate of a mental institution. There are no special equities to be weighed; the respondent was aware of the mental illness of the wife, and the fiduciary relationship of the husband as committee of the estate of the wife. The words in the habendum clause of the .assignment to the husband and wife ‘ ‘ the survivor, such .survivor ’,s heirs ’ ’ effectively gave notice to a prospective purchaser of a possible limitation on the right of the husband to transfer anything other .than rights to be acquired by survivorship, In the case before us we find that there was an intention to create a right of survivorship and not a true joint tenancy. Section 66 of the Beal Property Law comes into operation only in the absence of other evidence. Consequently Matter of Kimberly (150 N. Y. 90) and Matter of McKelway (221 N. Y. 15) are not applicable. Matter of Kimberly (supra) holds that a bequest to three people, silent as to whether it is a joint tenancy or a tenancy in common, must he deemed to be a tenancy in common. In Matter of McKelway (supra) there was no proof as to the source of the consideration.

These views lead to a reversal of the order of the Appellate Division.

Ftjld, Fboessel and Van Voobhis, JJ., concur with Desmond, J.; Burke, J., dissents in an opinion in which Conway, Ch. J., and Dye, J., concur.

Order affirmed.


author: Per Curiam.

text:
    Alicia De Casiano et al., Appellants, v. Sarah E. Morgan and Anna Rosenblum, as Administratrix of the Estate of Herman Rosenblum, Deceased, Respondents.
    Argued April 19, 1955;
    decided June 2, 1955.

      Milton N. Redman and Harold Graske for appellants.
    I. Plaintiffs made out a prima facie case against the owner Morgan, and their complaint should not have been dismissed as against that defendant. (Howe v. Rockwell Co., 293 N. Y. 812; Galligan v. Druidan Real Estate Co., 266 N. Y. 445; Socony Burner Corp. v. Gold, 227 App. Div. 369; Wax v. Langdon Co., 88 Misc. 5; Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1; Hente v. Shercoop Corp., 289 N. Y. 140; Weiner v. Leroco Realty Corp., 279 N. Y. 127; Amberg v. Kinley, 214 N. Y. 531; Hyland v. Cobb, 252 N. Y. 325.) II. The conduct of the court was prejudicial to plaintiff. III. The court’s charge on the medical testimony was erroneous and prejudicial. (Trump v. Associated

      Transport, 275 App. Div. 982; Dutton v. Marcone, 269 App. Div. 947; Forward Publication v. International Pictures, 277 App. Div. 846.) IV. The court’s refusal to charge defendant Rosenblum’s duty under the statutes was error. (Amberg v. Kinley, 214 N. Y. 531.) V. The court committed error in not- allowing questioning concerning the activities of a deceased defendant. VI. The court committed error in striking out the testimony of the architect Orlando. (Jenks v. Thompson, 83 App. Div. 343; Glynne v. National Exhibition Co., 204 App. Div. 757.) VII. The verdict of the jury was a compromise caused by confusion induced by the serious errors of the court. (Bushey v. State of New York, 281 App. Div. 728, 305 N. Y. 744.) .

      Patrick E. Gibbons for Sarah E. Morgan, respondent.-'
    The complaint as against defendant Sarah E. Morgan was properly dismissed. (Homin v. Cleveland & Whitehill Co., 281 N. Y. 484; Cullings v. Goetz, 256 N. Y. 287; Campbell v. Holding Co., 251 N. Y. 446; Liebowitz v. Denison Realty Corp., 250 App. Div. 204; Kosior v. Pomrinse, 249 App. Div. 196; McCabe v. Mackay, 253 N. Y. 440; Gerber v. Seaich Realty Co., 259 App. Div. 667; De Salvo v. Stanley-Mark-Strand Corp., 281 N. Y. 333; Lafflin v. Buffalo & Southwestern R. R. Co., 106 N. Y. 136.)

      Samuel E. Swiggett for Anna Rosenblum, respondent.
    I. The contention of plaintiffs that the conduct of the trial court was prejudicial to plaintiffs is unfounded. II. The contention of plaintiffs that the court’s charge as to the medical testimony was erroneous and prejudicial is without merit. III. The contention of plaintiffs that the court’s refusal to charge defendants’ duty under the statutes is without merit. (Amberg v. Kinley, 214 N. Y. 531; Teller v. Prospect Heights Hosp., 280 N. Y. 456.) IV. The contention of plaintiffs that the court committed error in not allowing questioning concerning the activities of the deceased is without merit. V. The court committed no error in striking out the testimony of the architect. VI. The contention of plaintiffs that, the verdict was the result of compromise is without merit.
   Per Curiam.

In the accident which occasioned this negligence action, plaintiff Alicia De Casiano tripped over a loose piece of metal “ nosing ” on the edge of one of the hallway steps in the building where she worked, and fell to the bottom of the long stairway. She had reached for the handrail, she testified, to stop her fall, but could not secure a hold since it was flush against the wall. She and her husband, who joined as a plaintiff to recover for loss of services, obtained a judgment for $1,800 against defendant Rosenblum, the lessee of the entire building, but their complaint against defendant Morgan, the owner, was dismissed, on the ground that no actionable negligence on her part had been established. After a unanimous affirmance by the Appellate Division, plaintiffs now appeal, by permission of this court, from the judgment in both of its aspects.

The building in which plaintiff wife was employed was, concededly, a “ tenant factory,” and, by reason thereof, governed by provisions of the Labor Law requiring the owner, whether or not in possession or control, to provide all stairways “ with proper hand rails ” (Labor Law, §§ 272, 316). “ Handrails,” as distinguished from “ banisters ” or “ railings,” are designed “ osa protection against slipping and falling down the stairs ”. (Cahill v. Kleinberg, 233 N. Y. 255, 259.) In this case, there was evidence that the fall might have been averted were it not for the fact that the handrail was flush against the wall and so designed that a person descending the stairway could not grasp it effectively. Accordingly, whether it was a “ proper ” one, within the meaning of the Labor Law, gave rise to a question of fact that should have been submitted to the jury. Plaintiffs are, therefore, entitled to reversal and a new trial as to defendant Morgan.

However, no basis exists for reversing plaintiffs’ judgment against defendant Rosenblum. That the jury may have awarded less damages than the evidence warranted cannot help plaintiffs, since the adequacy of the verdict is beyond the province of this court to review. (See, e.g., Serano v. New York Central & H. R. R. R. Co., 188 N. Y. 156, 166; Kiff v. Youmans, 86 N. Y. 324, 327; see, also, Cohen and Karger, Powers of the New York Court of Appeals, p. 589.) And, as to the only other asserted errors having any semblance of merit, it is enough to remark that they related solely to the question of defendant Rosenblum’s negligence and liability, and not to the amount of damages. They could not have harmed or prejudiced plaintiffs, for, as the verdict renders manifest, the jury necessarily found such liability to exist; had it concluded otherwise, it could not, of course, have returned a verdict for plaintiffs.

As to defendant Rosenblum, the judgment should he affirmed, without costs. As to defendant Morgan, the judgment should be reversed and a new trial granted, with costs to abide the event.

Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke, JJ., concur.

On appeal from judgment against defendant Rosenblum; Judgment affirmed.

On appeal from judgment in favor of defendant Morgan: Judgment reversed, etc.


author: Fuld, J.

text:
    Margot E. Aghnides, Appellant-Respondent, v. Elie P. Aghnides, Respondent-Appellant.
    Argued April 11, 1955;
    decided June 2, 1955.

      Harold H. Levin and Andrew D. Heineman for appellant-respondent.
    I. Plaintiff’s “ fortnight’s visit ” to her parents did not constitute an abandonment. In any event, defendant’s unjustified rejection of his wife’s early and unequivocal offers to return entitles her to a judgment of separation. Absent an abandonment, defendant had an absolute duty to accept plaintiff’s offers to return. (Silberstein v. Silberstein, 218 N. Y. 525; Mirizio v. Mirizio, 248 N. Y. 175; Bohmert v. Bohmert, 241 N. Y. 446; Williams v. Williams, 130 N. Y. 193.) II. Defendant’s unjustified rejection of plaintiff’s unequivocal offers would entitle her to a separation even if she had abandoned him. (Bohmert v. Bohmert, 241 N. Y. 446; Solomon v. Solomon, 290 N. Y. 337; Mirizio v. Mirizio, 248 N. Y. 175; Campbell v. Campbell, 306 N. Y. 581.) III. Having then found that defendant, without justification, rejected the wife’s offers, the Appellate Division should not only have reversed the judgment in favor of the husband and dismissed his counterclaims, it should also have granted a separation in favor of the wife.

      Harold H. Corbin, Edward J. Bennett and Edward B. Neaher for respondent-appellant.
    I. An annulment should have been granted to defendant. (Coppo v. Coppo, 163 Misc. 249; Doroff v. Doroff, 283 App. Div. 688; Shelby v. Shelby, 278 App. Div. 604; Friedman v. Friedman, 187 Misc. 689; Lapides v. Lapides, 224 App. Div. 257.) II. The dismissal of plaintiff’s complaint and the granting of the separation to defendant were right, even though annulment was denied on technical grounds. (Solomon v. Solomon, 290 N. Y. 337; Bohmert v. Bohmert, 241 N. Y. 446; Roberts v. Fulmer, 301 N. Y. 277.)
   Fuld, J.

In this action brought by plaintiff wife for a separation, defendant husband interposed a counterclaim for separation or, in the alternative, for an annulment on the ground that plaintiff, when she married him, never intended to have any children. The court at Special Term granted the husband’s counterclaim for separation, and dismissed both the wife’s complaint for separation and the husband’s counterclaim for an annulment. The Appellate Division affirmed the dismissal of the latter two claims, but — reversing certain findings of fact and making new ones in their place — modified the judgment by dismissing the husband’s counterclaim for separation as well. The parties were thereby left in the same position as they were before the litigation, and each has appealed from so much of the Appellate Division judgment as denied the relief originally sought.

The weight of the credible evidence supports the findings of the Appellate Division that the act of plaintiff in leaving home for a visit to her mother did not amount to an abandonment of her husband, that soon after her departure she unequivocally offered to return to him and that he rejected those proffers. Accordingly, not only was the Appellate Division justified in reversing the judgment of separation obtained by defendant, but, in our view, it was actually required to go further and grant plaintiff a judgment of separation. ‘‘ If the wife’s absence is a temporary one which has not ripened into an abandonment at the time she offers to return, it is the husband’s duty to take her back ” (Bohmert v. Bohmert, 241 N. Y. 446, 451), and an unjustified rejection by defendant husband of plaintiff wife’s unconditional offer spells out an abandonment on his part entitling her to a judgment of separation. (See, e.g., Campbell v. Campbell, 306 N. Y. 581; Solomon v. Solomon, 290 N. Y. 337, 340-341; Mirizio v. Mirizio, 248 N. Y. 175, 179-180; Silberstein v. Silberstein, 218 N. Y. 525, 529.)

Turning to defendant’s counterclaim for annulment, the Appellate Division was warranted in affirming Special Term’s dismissal upon the ground that the evidence adduced was insufficient to establish that plaintiff possessed a premarital intention not to bear children; and, in any event, even if plaintiff had been guilty of such fraud, it would have been condoned by the subsequent cohabitation of the parties after defendant learned the facts constituting the alleged fraud (Civ. Prac. Act, § 1139).

The judgment of the Appellate Division should be modified and the case remitted to Special Term for further proceedings in accordance with the opinion herein.

Conway, Ch. J., Desmond, Froessel and Burke, JJ., concur with Fuld, J.; Dye and Van Voorhis, JJ., dissent and vote to affirm the judgment of the Appellate Division.

Judgment accordingly.


author: Dye, J.

text:
    Anna M. Elgar, Appellant, v. S. H. Kress & Co., Respondent.
    Argued March 9, 1955;
    decided June 2, 1955.

      Sidney S. Levine for appellant.
    I. Aside from the illegality of the resolution granting defendant immunity from the zoning regulations for a distance of 100 feet on Elm Place, plaintiff has a meritorious cause of action to restrain defendant in equity from continuing a nuisance it has created. (Cogswell v. New York, N. H. & H. R. R. Co., 103 N. Y. 10; Garvey v. Long Is. R. R. Co., 159 N. Y. 323; Peters v. Moses, 259 App. Div. 307; Bohan v. Port Jervis Gas-Light Co., 122 N. Y. 18.) II. The adoption of the resolution of the city planning commission granting to defendant the right to maintain a commercial structure in a residential district is a mere attempt to grant defendant immunity for a distance of 100 feet in a residential block and is in violation of plaintiff’s constitutional rights. (Stuart v. Palmer, 74 N. Y. 188; United States Trust Co. of N. Y. v. United States Fire Ins. Co., 18 N. Y. 199; Matter of Security Trust Co. of Rochester, 189 Misc. 748; Matter of Decker v. Pouvailsmith Corp., 225 App. Div. 489.) HI. It was reversible error for the Appellate Division to deny plaintiff’s motion to correct the record. TV". A substantial part of plaintiff-appellant’s property is protected by the zoning restrictions. V. Under the complaint, a court of equity would have been justified in giving plaintiff partial relief if not granting her judgment for her entire claim.

      Eenry E. Wiggins and Charles F. Eoughton for respondent.
    I. The area within which defendant-respondent’s property is located was validly rezoned and changed from a residence district to a retail-1 district. II. The use of the building in question for the operation of a retail store is permissible under the zoning resolution of the City of New York. (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; Matter of Goelet v. Moss, 248 App. Div. 499, 273 N. Y. 503; Bove v. Donner-Hanna Coke Corp., 236 App. Div. 37.) III. It is abundantly clear from the allegations of the complaint as well as from the facts set forth in plaintiff-appellant’s own affidavit that no finding of a nuisance is sufficiently alleged or could be sustained. (Booth v. Rome, Watertown & Ogdensburg Term. R. R. Co., 140 N. Y. 267; Campbell v. Seaman, 63 N. Y. 568; Peters v. Moses, 259 App. Div. 307; Frank v. Cossitt Cement Products, 197 Misc. 670; Lavery v. Hannigan, 20 Jones & Sp. 463; Levy v. Brothers, 4 Misc. 48.) IV. Since it appears from the allegations of the complaint as well as from the facts set forth in plaintiff-appellant’s own affidavit that no finding of a nuisance is sufficiently alleged or could be sustained, defendant-respondent’s motion for summary judgment was authorized and summary judgment was properly granted. (Sweet v. Campbell, 282 N. Y. 146.) V. Plaintiff-appellant’s motion in the Appellate Division for an order correcting the record on appeal was properly denied.
   Dye, J.

In this action for injunctive relief and money damages, the plaintiff appeals from an order of the Appellate Division, First Department, which reversed on the law an order of the Special Term, Supreme Court, Bronx County, denying defendant’s motion for summary judgment made under the Rules of Civil Practice (rule 113) and granted defendant summary judgment dismissing the plaintiff’s complaint.

According to the complaint, the plaintiff is the owner and occupant of a single-family dwelling situated on the easterly side of Elm Place between the southerly side of East Fordham Road and the northerly side of 188th Street, Borough of The Bronx, which is a district zoned residential; that the defendant has erected a five-story commercial building facing on East Fordham Road, having its freight entrance and loading platform on the west side of Elm Place directly opposite the plaintiff’s house, which is in a district zoned Retail-1; that the defendant’s building as thus erected was in violation of the city’s zoning regulations in that the. consent of the property owners within the designated radius was not first obtained before the adoption of the rezoning resolution increasing the depth of retail, district 1 between Elm Place and Tiebout Avenue by 100 feet, the effect of which is to deteriorate the value of plaintiff’s property for residential purposes. The complaint further alleges that the noise and disturbance caused by the loading and unloading operations at the freight entrance so interferes with the peace and quiet of the use of her premises for residential purposes as to constitute a nuisance. The defendant’s ánswer. and documentary evidence based on official records plainly demonstrate that the city planning commission in amending the zoning resolution followed procedure prescribed by section 200 of the New York City Charter and that defendant’s building was erected in full compliance with applicable city building requirements. The sufficiency, verity and conclusiveness of such documentary evidence and official records are not refuted. It thus follows that the defendant has a good defense to that phase of the complaint based on the invalidity of the zoning resolution. While the additional allegations based on nuisance are not couched in language that characterizes a caréful and precise pleading, nonetheless enough has been shown in this record to raise an issue of fact as to whether the noise and disturbance generated by defendant’s freight-loading operations warranted restraint. This factual issue should not be decided on affidavits but by trial in the usual manner and this is so even though it may be said as a general proposition of law that the normal operation of a loading platform as an incident of permitted use is not subject to restraint as a nuisance (Gravenhorst v. Zimmerman, 236 N. Y. 22; Solof v. Heitner, 280 App. Div. 937; cf. People v. Borden’s Condensed Milk Co., 216 N. Y. 658). Accordingly, the complaint may not be dismissed on motion made under rule 113 of the Rules of Civil Practice (Lederer v. Wise Shoe Co., 276 N. Y. 459, 465; Pross v. Foundation Properties, 158 Misc. 304; cf. McGreevy v. McGreevy, 279 App. Div. 705).

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

.....Conway, Ch. J., Fuld, Froessel and Burke, JJ., concur with Dye, J.; Desmond, J., dissents and votes to affirm upon the ground that the complaint and affidavits show conclusively that plaintiff has no grounds for any relief; Van Voorhis, J., taking no part.

Judgment accordingly.