text:
    The People of the State of New York, Respondent, v. Charles E. Cox, Appellant.

      Argued June 12, 1941;
    decided July 29, 1941.

      John C. McDermott for appellant.
    Two or more petit larcenies cannot be added together so as to sustain the charge of grand larceny. (Carl v. State, 125 Ala. 89; People v. Dillon, 1 Cal. App. [2d] 224; Trask v. People, 35 Col. 83; Monoughan v. People, 24 Ill. 340; Joslyn v. State, 128 Ind. 160; State v. Hall, 111 Kan. 458; Nichols v. Commonwealth, 78 Ky. 180; People v. Johnson, 81 Mich. 573; Patterson v. State, 171 Miss. 1; State v. Maggard, 160 Mo. 469; Matter of Jones, 46 Mont. 122; State v. Mandich, 24 Nev. 336; State v. Martin, 82 N. C. 672; Camp v. State,
      7 Okla. Cr. 531; State v. Ayoub, 111 S. C. 331; Wilson v. State, 70 Tex. Cr. 631; West v. Commonwealth, 125 Va. 774 King v. Petrie, 1 Leach C. C. 294.)

      Thomas E. Dewey, District Attorney (Stanley H. Fuld of counsel), for respondent.
    The defendant’s guilt of crimes of grand larceny was established beyond a reasonable doubt. (Willis v. State, 134 Ala. 429; People v. Fleming, 220 Cal. 601; Craig v. State, 95 Fla. 374; Norman v. State, 44 Ga. App. 92; State v. Peters, 43 Ida. 564; People v. Heilemann, 262 Ill. 322; Peters v. State, 191 Ind. 130; State v. Hall, 111 Kan. 458; Weaver v. Comm., 27 Ky. L. 743; Dodson v. State, 130 Miss. 137; State v. Shour, 196 Mo. 202; Regina v. Bleasdale, 2 Carr. & K. 765; Regina v. Firth, 11 Cox Cr. Cas. 234; Regina v. Henwood, 22 Law Times Rep. 486.)
   Finch, J.

Defendant was convicted in the Court of General Sessions of the county of New York of the crimes of grand larceny in the first degree and of grand larceny in the second degree, after a trial before the court and jury. The Appellate Division unanimously affirmed the judgment.

The case is one of a series brought against a number of employees of the Independent Subway System who have been engaged for years in stealing nickel fares deposited by subway passengers in the station turnstiles. The taking generally was of 500 or 600 fares, amounting to $25 or $30. To accomplish the theft joint action was required of the station agent and the maintainer. Both would decide first upon the number of fares to be taken on the respective occasion. The maintainer would then turn back the turnstile register which automatically recorded the nickels deposited, so as to have it appear that fewer passengers had gone through the turnstile. The station agent would then make his report agree with the amount that the register had been set back by the maintainer, and the difference would be divided between them.

Defendant Cox, a turnstile maintainer, was convicted of two crimes of grand larceny, each involving action in concert with a particular station agent. The first larceny involved approximately $1,500 over a period of eleven months committed in concert with station agent Harry Grower, and the second larceny, the theft of more than $370 in ten months in co-operation with station agent Isidore Kodisow. Defendant cannot dispute with any hope of success the fact that the record establishes his guilt of theft.

By way of defense defendant urges that, since the takings occurred over a period of time and at no one time exceeded the sum of $100, he was guilty only of a number of petty larcenies rather than of grand larceny. Petty larceny is defined in brief as the theft of less than $100, while grand larceny consists of the theft of more than $100.

Upon this record there is more than ample proof to show that defendant, over a period of years, stole thousands of dollars in nickels from the Independent Subway System of the City of New York. Direct and unequivocal evidence of the misappropriations was furnished by those who acted in concert with defendant in stealing the nickels. Thus six witnesses testified to the belting ” of the turnstile registers and the forging of the daily official reports, together with the execution in detail of the scheme, the frequency of the thefts and the amount of the various takings. Ample corroborative evidence was furnished by the police officers of the Subway System. Officer Callahan testified that he had observed defendant on May 1, 1937, at the Fourteenth Street subway station, while Kodisow was on duty, tampering with the turnstile register, removing the register’s cover and placing his hands in the register. In addition, defendant not only specifically admitted that he had been working wdth Kodisow at the Fourteenth Street station, but also made numerous admissions to both Officers Callahan and Cody concerning his complicity generally in the stealing scheme. Also the police officers testified that the defendant had paid gratuities to them and had attempted to bribe them. There was evidence too that defendant maintained a safe deposit box under a fictitious name; that he had several bank accounts under other names than his own; that in one of them he had deposited $7,000 over the course of two years; that he made large bets frequently at horse races, and that generally he had been living far beyond his salary of $31 a week. Although the second count charged a theft occurring over a two and one-half year period, the judge limited the issues by instructing the jury to consider only the money stolen between July, 1936, and June, 1937, amounting to approximately $1,300 in concert with Grower at the Chambers Street station in Manhattan. Also, under the fourth count, charging a larceny over a three-year period, the judge confined the jury to consideration of the money stolen, amounting to approximately $370,' from November, 1936, to September, 1937, in concert with Kodisow at the Fourteenth Street station in Manhattan. The total in each instance was made up by aggregating the takings at different times, each taking consisting of approximately 500 to 600 nickels.

The question raised has apparently never been squarely presented in this State, although it has been passed upon in at Jeast twenty-five of the other States and in England. In the great majority of those jurisdictions the law is settled that where property is stolen from the same owner and from the same place in a series of acts, those acts constitute a single larceny regardless of the time elapsing between them, if the successive takings be pursuant to a single intent and design and in execution of a common fraudulent scheme. In accordance with the law as so far settled, the trial court instructed the jury that defendant could be convicted of grand larceny only if his takings were motivated bya single and sustained criminal impulse and in execution of a general fraudulent scheme.” Accordingly this finding of fact by the jury is conclusive in this court.

The case at bar would not seem to differ from that where a plan was laid to steafall the furnishings of an unoccupied house. The thief arranged with a truckman that whenever he called him they would go together to the unoccupied house and remove a truckload of furnishings. In the meantime the house is kept locked so as to protect it from other marauders. Even if it took a long period of time and many truckloads of furnishings to empty the house, surely no one would contend seriously that defendant could not be convicted of the single crime of stealing articles of the total value of the furnishings of the house. To that end defendant arranged with the truckman for the crime, and the different trips were but incidents under the general intent and the one illegal plan. Likewise in the case at bar defendant arranged with the station agent so that all the takings were pursuant to one single intent, and the stealings on the separate days, like the takings by means of the various truckloads, were but incidents in carrying out the general plan. There is sufficient evidence in the record to justify the finding of the jury that, after the scheme had been formulated by defendant and the particular station agent, only the number of fares taken on one particular visit was left undetermined as an incident of the general plan. As long as the larceny is held to be pursuant to a single intent, and one complete, illegal scheme, it matters not the length of the period over which the takings continued. Thus successive takings lasting for about a period of three years (see State v. Peters, 43 Idaho, 564; State v. Wetzel, 75 W. Va. 7); or for a period of about two years (Willis v. State, 134 Ala. 429; State v. Kurth, 105 Mont. 260) have been held to constitute a single larceny. If several takings are pursuant to several different intents and each illegal plan is a new and separate enterprise, each taking may only be prosecuted as a single larceny, for it is only those stealings which are prompted by a single intent and pursuant to a single plan which may be accumulated and prosecuted as one larceny. The principle of law involved has been stated as follows: Where the property is stolen from the same owner and from the same place by a series of acts, if each taking is the result of a separate, independent impulse, each is a separate crime; but if the successive takings are all pursuant to a single, sustained, criminal impulse and in execution of a general, fraudulent scheme, they together constitute a single larceny, regardless of the time which may elapse between each act.” (36 Corpus Juris, p. 798.)

The courts which have dealt with this subject have applied the above principle indiscriminately to both common law and statutory larceny. The same rule applies in England, where in a prosecution for common law theft the court said: “ Had there been evidence of distinct takings it would have made no difference, for the case would then have been similar to the taking of coal at different times in a mine (Rex v. Bleasdale, 2 Carr. & K. 765), and the case of cutting trees at such times as to form one continuous taking (Reg. v. Shepherd, 37 L. J. 45, M. C.; 11 Cox Crim. Cas. 110), and to the case of taking gas for a long time in succession (Reg. v. Firth, 11 Cox Crim. Cas. 234). The conviction, therefore, must be affirmed.” (Regina v. Henwood, 22 Law Times Rep. 486.)

There is evidence sufficient in the case at bar to sustain the verdict of the jury that the entire taking was governed by a single intent and a general illegal design. This total sum stolen by defendant and his co-conspirators under the two counts of the indictment was stolen pursuant to this general fraudulent design which was created before the misappropriations began and continued throughout the entire period. If the jury did not find such to be the fact, they were instructed to acquit the defendant. It is submitted that the record supports the above finding of the jury rather than that here were a number of isolated transactions or distinct larcenies coincident solely in method, place or time. That here was a common plan and scheme is shown by the invitation of defendant to the station agent to work in co-operation with him and to split the proceeds whenever and at whatever station the two worked together. Other acts and utterances of defendant indicate the singleness of the intent and the oneness of the fraudulent scheme. The reference by defendant to his takings as this racket,” his request to one of the station agents that he play ball,” the advice of defendant to an accomplice that a safe deposit box should be obtained in which to keep the stolen nickels, bis statement to a confederate expressing a belief in a safe and profitable career for himself “ at the time when he would leave the service they would call him ‘ Mr. Cox,’ ” the repeated admonitions to various confederates cautioning them against carelessness, together with the increased scale of living by defendant after the thefts began, all point to the conclusion that defendant himself regarded the taking as a continuing transaction and not as single or isolated. Here there was a continuing larceny by a thief operating under a single purpose to carry out a general fraudulent plan. We have first the formulation of a plan for systemized thievery, then the adoption of the plan by persons able to make it effective, and lastly its subsequent realization, together with the taking of the necessary steps to preserve a continuing operation unmolested. When defendant, along with the various station agents, once agreed together to “ belt ” the turnstiles, and thereafter carried out that purpose by stealing the nickels, the acts necessary to constitute the offense of larceny were united and the resulting crime was single although there may have been a number of takings. Indeed, the various takings represent the act constituting the crime.” (Code Crim. Proc. § 275.) While the court under each of the counts limited the taking to a single subway station, with a single confederate, evidence of other takings by defendant, acting in concert with other agents, was proper. The seventh count of the indictment charged that defendant and nineteen named station agents, with others unknown, conspired together to commit thefts from the Subway System To establish the conspiracy it was proper and necessary for the People to show that defendant had acted in concert with his co-conspirators and that each of them, acting together, had been guilty of stealing fares in addition to those referred to in the second and fourth counts in the indictment. In the second place, such evidence was properly received to show the existence of a common plan and scheme.

The evidence relied upon by the defendant as proof that no common scheme or plan existed was the testimony of the witness Kirshen that the maintainers never knew in advance at which station they were going to work. Such testimony did not destroy the plan but merely limited its operation to whenever and wherever the opportunity to further the plan presented itself.

Logic and reason join with all the authorities that have considered the question, in holding that the People may prosecute for a single crime a defendant who, pursuant to a single intent and one general fraudulent plan, steals in the aggregate as a felon and not as a petty thief. If this were not so, a crime of grand larceny would go unpunished and a felon escape because the law classified him only as a petty thief.

It follows that the judgment should be affirmed. (See 286 N. Y. 706.)

Lehman, Ch. J., Lotjghran, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Joseph Buckin, Sr., Respondent, v. Long Island Rail Road Company, Appellant. Joseph Brandi, an Infant, by Filomona Brandi, His Guardian ad Litem, Appellant, v. Long Island Rail Road Company, Respondent. Joseph Buckin, Jr., an Infant, by Joseph Buckin, Sr., His Guardian ad Litem, Appellant, v. Long Island Rail Road Company, Respondent.
    Argued June 4, 1941;
    decided July 29, 1941.

      Le Roy E. Raynor for plaintiffs-appellants and plaintiff-respondent.
    The Appellate Division committed error in holding that the plaintiffs were guilty of contributory negligence. (Jorgensen v. Jaeger, 257 N. Y. 171; McKittrich v. N. Y. Edison Co., 259 App. Div. 377; McDonald v. Met. St. Ry. Co., 167 N. Y. 68; Lee v. City Brewing Corp., 279 N. Y. 380; Trudell v. N. Y. Rapid Transit Corp., 281 N. Y. 82; Royal Indemnity Co. v. L. I. R. R. Co., 283 N. Y. 714; Beisiegel v. N. Y. C. R. R. Co., 34 N. Y. 622.)

      William McNamara and Louis J. Carruthers for defendant, respondent and appellant.
    The infant plaintiffs were guilty of negligence as a matter of law. (Zucker v. Whitridge, 205 N. Y. 50; Dolfini v. Erie R. R. Co., 178 N. Y. 1; Weigand v. United Traction Co., 221 N. Y. 39; Fitch v. N. Y. C. R. R. Co., 233 N. Y. 356; Escher v. B. & L. E. Tr. Co., 220 N. Y. 243; Barnasky v. N. Y., O. & W. Ry. Co., 226 N. Y. 435; Schrader v. N. Y., C. & St. L. R. R. Co., 254 N. Y. 148; Crough v. N. Y. C. R. R. Co., 260 N. Y. 227; Miller v. N. Y. C. R. R. Co., 226 App. Div. 205; 252 N. Y. 546; LaGoy v. Director-General of Railroads, 231 N. Y. 191.) The negligence of the operator of the automobile bars a recovery by the plaintiff owner. (Zucker v. Whitridge, 205 N. Y. 50; Dolfini v. Erie R. R. Co., 178 N. Y. 1; Weigand v. United Traction Co., 221 N. Y. 39; Fitch v. N. Y. C. R. R. Co., 233 N. Y. 356; Escher v. B. & L. E. Tr. Co., 220 N. Y. 243; Barnasky v. N. Y., O. & W. Ry. Co., 226 N. Y. 435; Crough v. N. Y. C. R. R. Co., 260 N. Y. 227; Ferris v. Sterling, 214 N. Y. 249; Piwowarski v. Cornwell, 273 N. Y. 226; Bennrona Corp. v. Mulroney, 254 App. Div. 630; Peer v. Babcock, 230 N. Y. 106; Ford v. Bustin, 173 App. Div. 914; Spencer v. Saporito, 246 App. Div. 642; Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Davison v. Klaess, 280 N. Y. 252.)
   Desmond, J.

An automobile, owned by the plaintiff Buckin, Sr., and driven with his consent by the infant plaintiff Brandi, in the company of the infant plaintiff Buckin, Jr., collided with the defendant’s train. The second and third of the above-entitled actions are for damages for personal injuries suffered by the infant plaintiffs. The first action is for the property damage to the owner’s car. The three actions were tried together. Judgments were entered upon the jury’s verdict in favor of the plaintiff in each action. The Appellate Division (260 App. Div. 1049) reversed the judgments in favor of the infant plaintiffs on the ground that they were guilty of contributory negligence as matter of law, but affirmed the judgment in favor of the owner on the ground that “ since the automobile was being operated with the owner’s permission, but in his absence and not upon his business, the negligence of the operator may not be imputed to the owner.” (Citing Mills v. Gabriel, 259 App. Div. 60; affd., 284 N. Y. 755.)

In the two personal injury actions, we agree with the Appellate Division that the infant plaintiffs were guilty of contributory negligence as matter of law. Their testimony as to the precautions taken by them and as to their failure to see the approaching train, although they looked, is incredible.

In the action brought by Joseph Buckin, Sr., however, we reach a different result than did the Appellate Division. This court has recently held that the negligence of the driver of an automobile driven with the owner’s permission but in his absence and not on his business may not be imputed to the owner. (Mills v. Gabriel, supra.) Therefore, if this plaintiff owner had not precluded himself from invoking this rule on appeal the judgment in his favor would be affirmed. He alleged in his complaint that the car was “ being operated by said Joseph Brandi, his agent or representative.” The proof shows that the infant plaintiffs were using the car for their own pleasure. No objection was made by defendant to the admission of this testimony and, since it failed to avail itself of its right in this respect, it cannot urge on its appeal the variance between the pleading and the proof. (Civ. Prac. Act, § 109.)

However, the trial judge charged the jury in respect to the action by the plaintiff Buckin, Sr., as follows:Of course, if the driver of the car was negligent, he [the owner] can’t recover at all, because he gave him permission to drive the car, but if the boy driving the car is entitled to recover, then Mr. Buckin is entitled to recover.” No objection was made by the plaintiff owner to this charge, nor did he make any requests to charge. Thus, although erroneous, this charge became the law of this case and requires a reversal of the judgment in favor of plaintiff Joseph Buckin, Sr., owner of the automobile.

In each of the actions brought by the infant plaintiffs the judgment should be affirmed, with costs. In the action brought by Joseph Buckin, Sr., the judgment should be reversed and the complaint dismissed, with costs in all courts.

Loughran, Finch and Lewis, JJ., concur; Lehman, Ch. J., and Conwat, J., vote to affirm the judgment in favor of Joseph Buckin, Sr., and vote to reverse the judgment of the Appellate Division in the action brought by Joseph Buckin, Jr., and to affirm the judgment in favor of Joseph Buckin, Jr., in the trial court; and Rippey, J., who votes to affirm the judgment in favor of Joseph Buckin, Sr., and to reverse the judgments of the Appellate Division in the actions of the two infants and to affirm the judgments of the Trial Term in favor of such infants.

Judgment accordingly.


text:
    In the Matter of George H. Ittleman et al., as Executors of Lena Ittleman, Deceased, et al., Appellants and Respondents. City of New York, Respondent and Appellant.
    Argued May 21, 1941;
    decided July 29, 1941.

      Joseph B. Kenny, Harry B. Chambers, Harry H. Chambers and Leo H. Rich for petitioners, appellants and respondents.
    The sum withheld by the Comptroller to cover the amount of the probable assessment for benefit was part of claimant’s award. Claimants had a statutory right to interest upon it, and that right was never waived. (N. Y. City Charter [L. 1901, ch. 466, as amd.], §§ 981, 988.)

      William C. Chanler, Corporation Counsel (Daniel M. Cohen, Julius Isaacs and Lewis Or gel of counsel), for City of New York, respondent and appellant.
    In accordance with the agreement, the petitioners were paid the amount of the award they agreed to take “ in full settlement ” of their claims. Retention by the Comptroller of the fund to pay assessments against the petitioners’ remaining property was lawful and was part of the method of payment required by the agreement. (Matter of City of New York [Chrystie St.], 264 N. Y. 319; Reilly v. Barrett, 220 N. Y. 170; Grote v. City of New York, 190 N. Y. 235; Matter of Seybel, 120 App. Div. 291; 194 N. Y. 589.) The agreement contained no provision for interest on the fund retained by the Comptroller. There was no default by the city nor any statute requiring the payment of such interest. Interest is, therefore, not recoverable. (Matter of Trustees of New York & Brooklyn Bridge, 137 N. Y. 95; Matter of Bergen, 237 N. Y. 452; Matter of City of New York [East 29th St], 273 N. Y. 62; Gillespie v. City of New York, 3 Edwards’ Ch. 512.)
   Desmond, J.

In June, 1931, a proceeding for the condemnation of a large number of parcels of land at Rock-away Beach in the city of New York had reached a point where awards had been made to the owners and a tentative decree filed. The city, however, was not then ready, and would not be ready for a long time, to fix the amount of the benefit assessments which were to be levied against lands benefited by the improvement. In instances where claimants in the condemnation proceedings were eventually to be charged with such benefit assessments on their remaining lands as well as to be paid awards for their lands taken by the city, it was considered important by the city that the awards be not paid without first deducting the amount of the benefit assessments. The city wished, also, to stop the running of interest on the awards and the claimant-owners wished to collect their awards without waiting for the final fixing of the benefit assessments. At this juncture there was entered into, with the approval of the city’s Board of Estimate, a stipulation between the city and certain of the claimant-owners, including the assignors of the petitioners herein. The stipulation provided, as to those owners who joined in it, that the awards theretofore made to them should be included in a final decree,-that such awards .should be accepted by these consenting claimants, and that the amount of the awards, with interest from the time of the taking of the land but less an amount to be estimated by the Comptroller as necessary to cover the benefit assessments, should be paid to the consenting claimants or their assignees. This estimated amount for benefit assessments was to be held by the Comptroller, the stipulation provided, until the benefit assessments should be finally fixed. There was in the stipulation no mention of any interest to be paid or allowed on the withheld moneys. Under this stipulation there was paid on October 1, 1931, to petitioners as assignees of a consenting claimant, the sum of $131,377, the amount of the award to their assignor, together with interest thereon to that date of $45,346.96, but less $23,315.48, estimated by the Comptroller as the probable amount of the benefit assessment deductible from this award. In April, 1934, this benefit assessment against petitioners was fixed by a final decree at $20,554.42. In June of that year petitioners petitioned the Comptroller for payment to them of the entire withheld amount, on the theory, not now seriously contended for, that none of this assessment was properly due from them. The Comptroller did not pay anything to these petitioners until 1938. Meanwhile, in May, 1936, by a local law adopted by the city of New York (Local Law No. 16 of 1936), the amount chargeable against these petitioners and others, for benefit assessments, was further reduced with the proviso that the surplus held by the Comptroller above the amounts of the benefit assessments, as thus finally reduced, should be repaid by him without interest.” By this local law the benefit assessment chargeable against these petitioners’-withheld amount of $23,315.48 was fixed at $13,319.92 and the Comptroller in 1938 paid to petitioners the difference of $9,996.58, which amount petitioners accepted under protest, claiming interest.

Special Term has held that no interest at all is due them. The Appellate Division modified this determination and allowed them interest from the date of their unfounded demand for the whole amount in 1934, up to the time of payment in 1938, on $2,760.96, which is the difference between the amount originally withheld by the Comptroller and the amount fixed by the 1934 decree.

We agree with Special Term that petitioners here have shown no basis for any allowance of interest. Interest is allowed only when provided for by contract, express or implied, or by statute, or when, as damages, it becomes due after a default by the person liable to pay. (Matter of Trustees of N. Y. & Brooklyn Bridge, 137 N. Y. 95, 98.) Here the stipulation between the city and the owners, although it specified an inclusion of interest in the amount first to be paid to the owners, omitted any mention of interest on the moneys to be withheld. We find no statute requiring the payment of interest on moneys held by the Comptroller on a special contract like the stipulation here. Nor do we find in the record any proof of any default by the Comptroller.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. (See 286 N. Y. 695.)

Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis and Conway, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the Will of Alice D. S. Halsey, Deceased. Allen J. Frick, as Executor of Eleanor H. Frick, Deceased, Appellant; Thomas E. Shipley et al., as Trustees under the Will of Alice D. S. Halsey, Deceased, et al., Respondents.

      Argued May 20, 1941;
    decided July 29, 1941.

      Joseph F. Murray and Charles H. Scott for appellant.
    The trust is invalid. (Matter of Durand, 250 N. Y. 45; Matter of Wilcox, 194 N. Y. 288; Matter of Tamargo, 220 N. Y. 225; Wadsworth v. Murray, 161 N. Y. 274.) The validity or invalidity of a trust must be determined as of the date of death of the testatrix and cannot be affected by the happening of subsequent events. (Bishop v. Bishop, 257 N. Y. 40; Knox v. Jones, 47 N. Y. 389; Matter of Wilcox, 194 N. Y. 288; Matter of Green, 146 Misc. Rep. 530; 239 App. Div. 820; 263 N. Y. 575; Matter of Roe, 281 N. Y. 541.) The will clearly creates a suspension for three lives. After the primary life estate of the husband, the trust for the two daughters is invalid in its entirety. (Knox v. Jones, 47 N. Y. 389; Matter of Perkins, 245 N. Y. 478; Matter of Silsby, 229 N. Y. 396; Matter of Hitchcock, 222 N. Y. 57.) The trust attempted for the two daughters is not separable and must fall in its entirety after the primary life estate of the husband. (Knox v. Jones, 47 N. Y. 389; Matter of Beale, 213 App. Div. 13; Leach v. Godwin, 198 N. Y. 35; Matter of Magnus, 179 App. Div. 359.)

      Francis J. Sypher for respondents.
    The will created separate secondary trusts for the daughters. (Vanderpoel v. Loew, 112 N. Y. 167; Matter of Horner, 237 N. Y. 489; Matter of Colgrove, 221 N. Y. 455; Matter of McGeehan, 200 App. Div. 739; 237 N. Y. 575; Greene v. Fitzgerald, 178 App. Div. 941; 223 N. Y. 718; Matter of Horner, 237 N. Y. 489; Matter of Trevor, 239 N. Y. 6; Matter of Drury, 249 N. Y. 154; Matter of Buttner, 243 N. Y. 1.) As the valid alternative provided by the will eventuated, the testamentary disposition must be held valid without regard to any possible invalid alternative. (Matter of Schliemann, 259 N. Y. 497; Matter of Winburn, 265 N. Y. 366; Fowler v. Depau, 26 Barb. 224; Church v. Wilson, 152 App. Div. 844; 209 N. Y. 553; Matter of Chambers, 167 Misc. Rep. 843; 169 Misc. Rep. 124; Schettler v. Smith, 41 N. Y. 328; Matter of Mount, 107 App. Div. 1; 185 N. Y. 162; Matter of Johnson, 233 App. Div. 587; Kiah v. Grenier, 56 N. Y. 220; Tiers v. Tiers, 98 N. Y. 568; Matter of Trevor, 239 N. Y. 6.)
   Desmond, J.

We have here to consider the meaning and validity of the third paragraph of the will of Alice D. S. Halsey.

Testatrix died on July 7, 1931, predeceasing her husband and two daughters. The third paragraph of her will first devises all the residue of her estate to her husband, in trust to collect the income for his own use during his life, and with power to invade the principal to the extent of $500 a year if his needs so require. Upon the death of the husband, testatrix’s will directs the substitution of named persons as trustees of the residuary estate. The third paragraph of the will then continues as follows:

I direct my said substituted trustees to collect the income from my said residuary estate, and after deducting all legal expenses to pay one-half of said income to my daughter, Eleanor, for life and the other half of my said income to my daughter, Eliza, for life.
On the death of either of my daughters, if my daughter so dying should leave issue, then I direct that the principal from which my daughter so dying received the income, shall, be forthwith transferred to the issue of said daughter per stirpes, but in the event of my daughter who may first depart this life, leaving no issue, then I direct that all the income derived from said Trust Estate shall be paid to my surviving daughter.
On the death of my surviving daughter, then I direct my Trustees to convey all cash, securities and assets forming the principal of the Trust in their hands, to the issue of my surviving daughter per stirpes.
In the event, however, of my surviving daughter leaving no issue, then the principal of said Trust is to be conveyed to the issue of my daughter who may first have departed this life.
In the event, however, of neither of my daughters leaving issue, then and in that event upon the death of both of my daughters, I direct my Trustees or their successors to convey all cash and securities forming the principal of this Trust that may be in their hands, to my three nephews, Thomas E. Shipley, James E. Shipley and Walter Penn Shipley, Jr. in equal shares. * * * ”

Testatrix’s daughter Eliza predeceased the husband and left no issue surviving. The daughter Eleanor survived the husband, but died while this proceeding was pending, leaving no issue. The executor of her estate is the appellant. Respondents are the persons named in the will as remainder-men in the event of both the daughters dying without issue surviving, and the substituted trustees.

The Surrogate construed the above-quoted clauses of the will as a disposition in the alternative, as if they read: “ that if both daughters or their issue should survive the husband, each branch should benefit from one-half of the principal, but if one only should survive, the other having predeceased the husband without issue, then such survivor should enjoy the whole.” The Surrogate held that while the first of these alternative contingencies was potentially partially invalid, that is, the cross-limitation upon the death of either daughter without issue after the husband’s death, the second contingency, however, was valid, and, the second contingency having occurred, the trust should be continued for the life of the surviving daughter, Eleanor. The Appellate Division affirmed, with one justice dissenting. Neither court considered the validity of the provision for the disposition of the remainder in the event of both daughters dying without issue.

The difficulty with the determinations made below is that the will itself does not mention the possibility of either daughter predeceasing the husband and contains no alternative provision for such an event. All the provisions in the will are based on the assumption that both the daughters will survive the husband and constitute an attempt at least to make a complete disposition in that eventuality.

The will does not expressly provide that upon the death of the husband the trust shall be divided into separate shares, but a direction to do so will be implied from the direction to divide the income between the daughters, and from the direction that on the death of a daughter leaving issue, the principal from which that daughter received income shall be paid to her issue. (Matter of Colegrove, 221 N. Y. 455; Matter of Horner, 237 N. Y. 489.) The will thus provides á trust for the life of the husband and a trust for each daughter of one-half of the principal remaining upon the husband’s death. The disposition to be made upon the death of each daughter is dependent upon whether she is survived by issue. Since the share to be held in trust for each daughter may vest at the end of her life if she leaves issue surviving, the trust for each daughter may be sustained during her life, irrespective of the validity of the disposition in the event that she should die not survived by issue. (Schettler v. Smith, 41 N. Y. 328.) The validity of the disposition to be made in the event of a daughter dying leaving no issue will be hereinafter considered.

It is to be noted that the will contains no provision for the issue of a daughter who shall predecease the husband of testatrix. Only the principal from which a daughter received the income shall be transferred to her issue. Had testatrix contemplated the death of one of her daughters before the death of her husband, the will would undoubtedly have contained words to the effect that the principal from, which the daughter would have received the income should be transferred to the daughter’s issue. The gift, in the event of the daughter first dying leaving no issue, of all the income to the surviving daughter, when read in its context, is likewise based on the assumption that both daughters will survive the husband of testatrix and constitutes a cross-limitation. The courts below have so construed it. Respondents would have us take the language of this gift from its context and ascribe to it an opposite meaning: that is, the expression of an alternative that if one of the daughters should predecease the husband leaving no issue surviving, the trust for the husband for his life should be continued for the benefit of the surviving daughter during her life. This we cannot do. The will must be read as a whole, and such a reading compels the conclusion that testatrix simply did not anticipate the death of either of her daughters before the death of her husband. Further, an expression of an intent to create a cross-limitation cannot be twisted into an expression of an intent to create an alternative based upon the supposition that no cross-limitation will be necessary. To make the will conform to the fact it would be necessary to add a paragraph to the effect that if one of the daughters should predecease the husband leaving no issue, the original trust should be continued for the benefit of the surviving daughter during her life.

The limitation to the surviving daughter in the event that the daughter first dying leaves no issue is invalid, as that half of the residuary estate would be held in trust for more than two lives. If the daughter first dying should leave no issue, the principal held in trust for her benefit could not vest until the death of the surviving sister, thus the cross-limitation contemplates the holding of such share in trust for the life of the husband and for the lives of both daughters. Moreover, the invalid limitation may not be excised and the remainder accelerated, first, because the remaindermen of such share cannot be determined until the death of both daughters, and, second, because the gift of such share to the remaindermen is in all events invalid. The share of the residue to be held in trust for each daughter cannot vest, if either leaves no issue surviving, until the death of the survivor of- them, a contingency which must endure longer than two lives in being and which is, therefore, invalid. (Schermerhorn v. Cotting, 131 N. Y. 48; Matter of Friend, 283 N. Y. 200.)

It follows that the share of the residue to be held in trust for the life of testatrix’s daughter Eliza became intestate property upon the death of testatrix’s husband, and that since the testatrix’s daughter Eleanor died, without leaving issue surviving, during the course of this proceeding, the share held in trust for her life also became, upon her death, intestate property.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed and the matter remitted to the Surrogate’s Court with directions to proceed in accordance with this opinion, with costs in all courts to each party fifing a separate brief payable out of the estate.

Lehman, Ch. J., Loughran, Finch, Lewis and Conway, JJ., concur; Rippey, J., dissents,

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Jonas Schainuck and David Schainuck, Appellants.
    Argued June 6, 1941;
    decided July 29, 1941.

      Sydney Rosenthal and Benjamin J. Jacobson for appellants.
    Reversible error was committed in refusing counsel’s request to inspect the minutes of examination of witnesses by the fire marshal. (People ex rel. Pincus v. Adams, 274 N. Y. 447; People v. Qualey, 210 N. Y. 202; People v. Walsh, 262 N. Y. 140; People ex rel. Hirschberg v. Board of Supervisors, 251 N. Y. 156; People v. Miller, 257 N. Y. 54.)

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for respondent.
    No error arose out of the refusal by the trial court to permit defendants’ counsel to inspect the minutes of the examinations of the witnesses made by the fire marshal. (People v. Ales, 247 N. Y. 351.)
   Desmond, J.

The defendants, father and son, appeal from a judgment convicting them of arson. The charge is that they set fire to a stock of men’s clothing which was owned by a corporation controlled by them. The fire was in a store in Jamaica, Long Island, leased by the corporation and due to open the following day as one of the corporation’s chain of similar shops. Substantially all the proof on which the conviction rests came from the prosecution witnesses Tunick and Leibson who were employees of the corporation at the time of the fire but were later discharged from that employment. Neither testified that he saw the fire started but each described activities and conversations of the defendants earlier on the day of the fire, which the jury might well have held were part of deliberate preparations by the defendants to burn some worthless or unsalable merchandise in order to collect the insurance on it. After the fire, say both these witnesses, the defendants made damaging admissions ■ to them, urged them to keep secret their knowledge of the cause of the fire and promised rewards to them for holding their tongues. Vigorous efforts were made by the defendants to discredit these witnesses and their narratives, but their testimony was accepted by the jury. There is serious question, however, as to whether the defendants were not deprived of a substantial right by the denial of their requests to be allowed to examine during the trial certain testimony given by these same witnesses in an investigation made by the public authorities before the trial.

Early in the trial, and before either Tunick or Leibsoh had testified, defense counsel established by cross-examination of a Deputy Fire Marshal, who had been called as a witness by the prosecution, that Tunick and Leibson had both given testimony in an investigation of this fire conducted by the New York City Fire Marshal, that each of them had appeared at least twice before this official and that each had first denied any knowledge of the fire and then on a later appearance, accused these defendants of setting it. This Deputy Fire Marshal had the stenographic minutes of these investigations with him in court and was, apparently, consulting them while he testified. Defense counsel asked the court to be allowed to examine these minutes. The District Attorney objected and the court denied the request, on the mistaken ground that such an examination was forbidden by section 779 of the former New York City Charter (Laws of 1901, ch. 466, as amd.) which section was in effect when some of this former testimony was given but had been repealed, before the trial, by the new Charter which went into effect on January 1, 1938. In any case section 779 did not make these examinations before the Fire Marshal generally privileged and confidential, but only forbade their use against the person who gave the testimony. (See People v. Ales, 247 N. Y. 351.) This refusal was, therefore, erroneous, under the rule which permits inspection by the adversary of papers used by a witness on the stand. (See People v. Miller, 257 N. Y. 54.) But the court later qualified the refusal somewhat by offering to allow defense counsel to look at such parts of the testimony as the Deputy Fire Marshal should point to as justifying bis descriptions of the testimony of Tunick and Leibson. Defense counsel did not accept this offer. We do not consider that any serious error was committed at this point.

Defense counsel asked again for the stenographic minutes of this testimony, while he was cross-examining the witness Leibson. At that point in the trial both Tunick and Leibson had admitted giving contradictory statements to the Fire Marshal, testifying that they had first told the Marshal that they knew nothing about the cause of the fire but later had told him the same incriminating story they told at the trial. Again the court denied defense counsel’s request to see this former testimony, on the supposed authority of the New York City Charter and of People v. Ales (supra). Neither that statute nor that case supports the ruling. The majority of the Appellate Division, however, consider that the ruling was right, but for a different reason. The earlier statements made to the Fire Marshal by these witnesses were, says the Appellate Division, not contradictory of the trial testimony of Tunick and Leibson, because these witnesses had admitted at the trial that they had previously made such statements to the Marshal. This argument, as we understand it, runs thus: opposing counsel may attack the credibility of a witness by showing that he has told a different story elsewhere, but if the witness admit his inconsistencies, then the inquiry is at an end and the earlier and different statement of the witness need not be shown to opposing counsel. We do not think such a qualification of the rule of People v. Walsh (262 N. Y. 140) is appropriate in the situation we are examining. In the Walsh case this court said that where a witness in a criminal case testifies to having made a statement to the District Attorney and the statement is in court and inspection by the judge reveals contradictory matter, its use for cross-examination on the question of credibility may and usually should be permitted ” (p. 149). Here the contradictions between bis trial testimony and bis story to the Fire Marshal was admitted by the witness. Was that enough? Did the defense have to rest content with that bare showing? Should not there have been an opportunity to compare, detail for detail, the conflicting versions, and to spread them both before the jury? As it stands now, the jury heard the implicating testimony at full length and with full detail, but as to the exculpating testimony it heard only the conclusory statement of the witness that bis earlier testimony was to the effect that he knew nothing about the fire. ¡

Although the testimony of Tunick and Leibson is not in the record, we have, in order to determine whether this error could be disregarded by the Appellate Division under the provisions of section 542 of the Code of Criminal Pro- j cedure, procured and examined it. We find that Tunick, ' on two appearances at the Marshal’s office and Leibson, on one such appearance, stoutly maintained that they had neither knowledge nor opinion as to the cause of the fire. 1 Besides this, Tunick, at least, in his sworn testimony to the Marshal, put an entirely innocent construction on certain occurrences before and after the fire which, on the trial, he so described as to make them appear to be proofs of guilt.

The jury, we think, did not have here a satisfactory opportunity to measure and weigh credibility by the use of both sets of testimony. We adopt the view that the right to scrutinize prior inconsistent statements cannot be cut off by the mere admission by the witness that he has been guilty of inconsistency. (3 Wigmore on Evidence [3d ed.], § 1037; 3 Wharton’s Criminal Evidence [11th ed.], § 1309.) This we consider a just and logical application of the rule of People v. Walsh, at least in situations where the conviction stands or falls on the truthfulness of prosecution witnesses. Judge Crouch in his opinion in People v. Walsh (supra), quoted some of the language of Judge Cooley’s famous opinion in People v. Davis (52 Mich. 569); we add another excerpt from the latter opinion: “* * * if there shall be in the possession of any of its [the State’s] officers information that can legitimately tend to overthrow the case made for the prosecution, or to show that it is unworthy of credence, the defense should be given the benefit of it.” The valuable right recognized in the Walsh case, to confront an important witness before the jury with the details and ramifications of his various statements, will be of little use in such cases if the witness can prevent searching cross-examination on the parts and items of his earlier statement by merely saying generally that he had made such a statement. Here the earlier statements of Tunick and Leibson might, if shown to the jury, have convinced it that the witnesses who told such differing tales could not be believed, on any occasion, that it was unsafe to base a conviction on their testimony. When the jury has not been allowed to make this determination for itself, we cannot say that the error is insubstantial.

The judgments should be reversed, and a new trial ordered.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


author: Lewis, J.

text:
    John B. Chinnery et al., as Trustees of William Kennedy Construction Company, Inc., Respondents, v. Kennosset Realty Co., Inc., Appellant.

      Argued June 3, 1941;
    decided July 29, 1941.

      C. Elmer Spedick and Arthur L. Reuter for appellant.
    A debtor must protect security given for a loan. (Work v. Tibbits, 87 Hun, 352; Furness v. Union Nat. Bank, 147 Ill. 570; McNeil v. Cobb, 186 App. Div. 177; King v. Van Vleck, 109 N. Y. 363; Jackson v. American Cigar Box Co., 141 App. Div. 195.) There was no evidence from which the jury could have inferred an agreement to reimburse the construction company. (Miller v. Schloss, 218 N. Y. 400; Collyer v. Collyer, 113 N. Y. 442; Matter of Altman, 149 Misc. Rep. 115; Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90; Von Reitzenstein v. Tomlinson, 249 N. Y. 60; Bank of United States v. Manheim, 264 N. Y. 45; Ford v. McAdoo, 231 N. Y. 155; Matter of Case, 214 N. Y. 199; Kelly v. Nassau El. R. R. Co., 227 N. Y. 39.)

      George J. Hirsch and Elliot L. Krause for respondents.
    Bankrupt paid defendant’s obligations upon requests made by defendant, and as a result of threats made to bankrupt. (Treece State Bank v. Wade, 283 S. W. Rep. 714; Kennedy v. Conrad, 91 Mont. 356.) Under the doctrine of subrogation, plaintiffs are entitled to recover of defendant moneys paid by the bankrupt in discharge of defendant’s debts. (Cole v. Malcolm, 66 N. Y. 363; Pittsburgh-Westmoreland Coal Co. v. Kerr, 220 N. Y. 137; Gerseta Corp. v. Equitable Trust Co., 241 N. Y. 418.) Defendant was and is the record and actual owner of the Syosset property. As owner, it was hable for the cost of maintaining and preserving its own property. (Brock v. Poor, 216 N. Y. 387; Matter of Vannier v. Anti-Saloon League, 238 N. Y. 457.) There was no obligation on the part of the bankrupt to pay defendant’s debts. Bankrupt was not indebted to defendant, nor did it have any interest in it. (Rapid Transit Subway Constr. Co. v. City of New York, 250 N. Y. 472.) The jury’s verdict in favor of plaintiffs was supported by evidence that bankrupt paid defendant’s debts upon the request of defendant and as a result of threats of suit made to bankrupt. (Wylde v. Northern R. R. Co. of New Jersey, 53 N. Y. 156; Brock v. Poor, 216 N. Y. 387; Jackson v. Hooker, 76 N. J. Eq. 592.)
   Lewis, J.

The plaintiffs, as liquidating trustees of William Kennedy Construction Company, Inc.— to which reference will be made as Construction Company — have thus far sustained the right which they assert in this action to recover from the defendant corporation moneys paid by Construction Company, prior to its bankruptcy, for the alleged benefit of the defendant. We have granted to the defendant permission to appeal from a judgment entered upon an order of the Appellate Division which unanimously affirmed a judgment of Trial Term entered upon a jury’s verdict in favor of the plaintiffs.

In 1933 William Kennedy, William Kennedy, Jr., and Katherine Kennedy Babcock each owned a one-third interest in a country estate of seventy acres at Syosset, Long Island. At the same time Construction Company, and its only stockholders William Kennedy and William Kennedy, Jr., were heavily indebted to Title Guarantee and Trust Company. When the Trust Company demanded security for an extension of the loan the obligors had no property which could then be pledged except the two-thirds interest owned by William Kennedy and William Kennedy, Jr., in the Syosset property. Recognizing the fact that to mortgage the Syosset property would jeopardize their position with their creditors, the two Kennedys, with the co-operation of Katherine Kennedy Babcock, arranged to form the defendant corporation, Kennosset Realty Co., Inc., for the purpose of holding the title to the Syosset property. The stock in the new corporation was then divided and issued to the two Kennedys and Mrs. Babcock in equal parts and thereafter the three owners pledged the entire stock issue to the Trust Company as the additional security required by the bank for the debt owed by Construction Company and the two Kennedys. A fact important to our present inquiry is that at no time was either William Kennedy or William Kennedy, Jr., an officer or director of the defendant corporation.

It also appears that, for a period of years prior to the incorporation of the defendant, Construction Company had paid from its funds the taxes, repairs, insurance and other expenses connected with the maintenance of the Syosset property. After the defendant was incorporated, Construction Company continued to pay the maintenance expenses as in former years. In 1935 a default occurred in payments due from Construction Company and the two Kennedys upon their debt to the Trust Company. That default led to a sale by the Trust Company of the defendant corpora-' tion’s stock which had been pledged as collateral. Then followed proceedings in which Construction Company was adjudicated bankrupt. In due time the plaintiffs were appointed liquidating trustees and thereafter commenced the present action against the defendant corporation to recover, as alleged assets of the bankrupt, the payments made by Construction Company, prior to its bankruptcy, for taxes, fire insurance and other items for the maintenance of the Syosset estate. Upon the trial of the action the defendant corporation introduced no evidence. However, appropriate and timely motions in its behalf were made to dismiss the complaint and for the direction of a verdict in its favor. The defendant’s right to challenge the denial of those motions is preserved by exceptions duly taken.

The plaintiffs, as respondents upon this appeal, argue in support of the judgment that the payments by Construction Company were for the use and benefit of the defendant corporation and were made upon its request or in its behalf; that as to such requests the law implies a promise of repayment by the defendant.

We find in the record no evidence of an authorized request by the defendant that the payments here in suit and claimed to be for its benefit, should be made by Construction Company. It is not disputed that such payments were made upon the direction of “ either Mr. Kennedy, Jr., or Mr. Kennedy, Sr.” — the routine being that one of them would hand to the employee in charge of Construction Company’s books the bill to be paid, with the direction: “ Pay this. Charge it to Syosset.” It also appears that “ Syosset ” was the caption of the account, upon the books of Construction Company, in which were entered: “All the expenses and carrying charges of the property at Syosset.” The defendant’s obligation, if any, to reimburse Construction Company for these payments must be determined as of the time the payments were made. Those payments were made between October, 1934, and November, 1936. At that time and at all times, as we have seen, neither William Kennedy nor William Kennedy, Jr., was an officer of the defendant corporation. They were, however, officers and owned the entire outstanding stock of Construction Company. Accordingly they had authority to direct Construction Company to make such payments — as they had done for a long period of years. They had, however, no authority, and no evidence of authorization appears in the record, upon which the jury could find that the defendant had requested Construction Company to make such payments.

It is suggested that there is evidence that in some instances payments of taxes and insurance due upon the Syosset property were made in response to a request for such payments by a representative of the Trust Company. But such evidence is not enough to charge the defendant corporation with the obligation to repay Construction Company. There is no proof that the Trust Company representative who made the requests was then an officer of the defendant corporation; nor is there proof that he was authorized by the defendant to make such a request in its behalf. In that connection the fact must not be overlooked that Construction Company was one of the three obligors upon the debt due the Trust Company for which the stock of the defendant was pledged as collateral. When demands were made by the Trust Company through its representative for the payment of taxes and insurance upon the Syosset property, there was nothing in the fact that Construction Company made such payments which served to obligate the defendant corporation to reimburse Construction Company. It was beneficial to Construction Company — a debtor of the Trust Company — to comply with proper demands by its creditor.

There is no evidence that the practice by Construction Company, relating to its payment of the maintenance expenses of the Syosset property after the incorporation of the defendant, differed in any particular from that which prevailed before the defendant corporation was formed. It is undisputed that prior to 1934 bills for the maintenance of the Syosset property were paid from the funds of Construction Company, such payments being made by the direction of William Kennedy, or William Kennedy, Jr. Although evidence is not lacking that the same routine prevailed after 1934, we note the additional fact that the verified complaint herein demanded of the defendant corporation the repayment to the plaintiffs of disbursements by Construction Company between July, 1934, and November, 1936, which amounted in all to $27,573.96, of which many items are for personal service and supplies furnished to the occupants of the Syosset estate. True it is, that upon the trial the plaintiffs amended the complaint by striking out many items covering payments by Construction Company for supplies and personal service furnished at the Syosset estate. But we fail to find in the record any evidence from which a jury could find that, when the two Kennedys, as officers of Construction Company, directed that company to make the payments here in suit, there was an expectation that Construction Company would be reimbursed by the defendant.

In the circumstances shown by the record payments made for the maintenance of the Syosset property constituted Construction Company a volunteer. The lack of proof of authority in either William Kennedy or William Kennedy, Jr., on behalf of the defendant corporation, to request that such payments be made, defeats the plaintiffs’ right to recover herein. “A contract cannot be implied in fact where the facts are inconsistent with its existence; * * * or against the intention or understanding of the parties; * * * The assent of the person to be charged is necessary and unless he has conducted himself in such a manner that his assent may fairly be inferred he has not contracted.” (Miller v. Schloss, 218 N. Y. 400, 406, 407.)

The judgments should be reversed and the complaint dismissed, with costs in all courts. (See 286 N. Y. 701.)

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    Ellen M. Berner, an Infant, by Theophilus H. Berner, Her Guardian ad Litem, Respondent, v. Board of Education, Union Free School District No. 1, North Tonawanda, Appellant. Theophilus H. Berner, Respondent, v. Board of Education, Union Free School District No. 1, North Tonawanda, Appellant.
    Argued June 2, 1941;
    decided July 29, 1941.

      Alpheus R. Phelps and Salem G. Mansour for appellant.
    There was no breach by appellant of any legal duties owed to the infant respondent. The appellant was under no duty to enact express rules and regulations governing the conduct of pupils in the high school corridors before the commencement of classes. (Hoose v. Drumm, 281 N. Y. 54; Kantor v. City of New York, 251 App. Div. 454; Gow v. Glasgow Education Authority, [1922] Sess. Cas. 260.)

      Heffren J. Cohen and Joseph Ambrusko for respondents.
    There was a duty of care owing by the defendant to the infant plaintiff which the defendant failed to perform, as the result of which such plaintiff was injured. (Garber v. School District No. 1, 251 App. Div. 214; Smith v. Board of Education, 255 App. Div. 924; Rafsky v. New York City, 257 App. Div. 855; Fritz v. City of Buffalo, 277 N. Y. 710; Williams v. Board of Trustees, 204 App. Div. 566; 210 App. Div. 161; Popow v. Central School District No. 1, 277 N. Y. 538; Herman v. Board of Education, 234 N. Y. 196; Lessin v. Board of Education, 247 N. Y. 503; Rapisardi v. Board of Education, 242 App. Div. 647.) The defendant was under a duty to provide some degree of supervision or to make and enforce rules or regulations, any of which might have prevented this accident. Having failed to do so, it was clearly negligent. (Hamburger v. Cornell University, 240 N. Y. 328; Fritz v. City of Buffalo, 277 N. Y. 710; Popow v. Central School District No. 1, 277 N. Y. 538; Augustine v. Town of Brant, 249 N. Y. 198; Van Dyke v. City of Utica, 203 App. Div. 26; Williams v. Board of Trustees, 210 App. Div. 161; Smith v. Board of Education, 255 App. Div. 924; Garber v. School District No. 1, 251 App. Div. 214; Lessin v. Board of Education, 247 N. Y. 503; Herman v. Board of Education, 234 N. Y. 196.)
   Lewis, J.

The Legislature has given to boards of education of union free school districts, including the defendant-appellant in the present case, “ the superintendence, management and control of * * * union free schools,” within their respective districts and has imposed upon such boards the duty “ to establish such rules and regulations concerning the order and discipline of the schools, in the several departments thereof, as they may deem necessary to secure the best educational results.” (Education Law [Cons. Laws, ch. 16], § 310, subds. 2 and 12; cf. id., § 275, subd. 9.)

In the present case we are to determine whether there is any substantial evidence to establish that the proximate cause of personal injuries sustained by the infant plaintiff was a failure by the defendant to perform the statutory duties thus imposed.

The infant plaintiff was a member of the senior class of North Tonawanda High School,— a school in which were registered 1,200 pupils of whom 800 attended the morning session which commenced at eight o’clock. The school was under the supervision of the defendant Board of Education. Its staff of teachers numbered forty, including the principal. The school building was opened on the morning of each school day at seven o’clock, after which hour pupils were permitted within the building to go to their lockers and to the study hall, or to remain in the corridors. They were not permitted to enter their class rooms until eight o’clock. The principal of the school, whose office was on the second floor, arrived at seven-thirty a. m.; the teachers were required to be present at seven-forty-five A. m.

On the morning of the accident the infant plaintiff, having arrived from Martinsville in the school bus at about seven-thirty, entered the school building and went directly to the second floor. As she turned a corner in the second floor corridor she was struck in the left eye by a tennis ball and thus sustained the injury for which she has been awarded damages against the defendant Board of Education. The pupil, Winters, who threw the ball,, had arrived at the school about seven-twenty-five A. M. and had brought with him two old tennis balls to give to a friend. There were not more than five pupils in the upper corridor when he and a companion, Klein, commenced to roll one of the tennis balls back and forth on the floor. They had played in this fashion for about five minutes when another pupil intercepted the ball and threw it to Winters. The accident occurred when Winters in turn attempted to throw the ball to Klein.

There is proof that prior to the accident there had been occasional instances of youthful antics by students, which had taken place in the second floor corridor near the door of the principal’s office. It appears, however, without contradiction, that no casualty had resulted from these juvenile pranks and the occasions had been few when either principal or teachers were called upon to stop the play or to remonstrate with the participants. Rules were in force which forbade snow balling and throwing hard objects on the school premises ” but there was no proof of a rule which specifically warned against throwing a tennis ball indoors.

Upon the subject of rules the trial justice charged the jury, in response to the defendant’s request and without exception by the plaintiffs, that before recovery could be had by the plaintiffs it must appear that a failure by the defendant to adopt rules was the proximate cause of the accident. The ruling thus made became the law of the case.

In that connection, and bearing upon the. question of the necessity for such rules, the only proof that balls had been thrown inside the school building prior to the accident came from the following witnesses: The plaintiff herself could remember only one prior occasion during the four years of her attendance at the school when she had seen a ball thrown inside the building. As to that single instance the plaintiff testified that the teacher spoke to the boys and the play stopped. Another girl, who had been present when the accident occurred and was called as a witness by the plaintiff, had never before seen a ball thrown back and forth or against a wall, inside the building, during the four years of her high school course. She did recall three or four occasions when she had seen a ball being bounced ” on the floor up and down.” The third witness, called by the plaintiffs, was also a girl who had attended the school for four years, during the last year of which she had reached the building on school days between seven and seven-ten a. m. She had never seen boys “ playing ball ” or playing jwith a ball ” inside the building. She testified that just prior to the accident, which she witnessed, the two boys, Winters and Klein, were not throwing the ball through the air. They were rolling it back and forth along the floor until Winters made his final catch and for the first time had thrown it through the air when it struck the plaintiff. The school principal testified that prior to plaintiff’s injury it had never been brought to his attention that balls had been thrown inside the building. The two boys, Winters and Klein, had never before played ball inside the building. Winters had seen a ball tossed back and fprth but “ no great distance; ” Klein had seen a ball bounced on the floor.

In the determination of this appeal we are not required to define the scope of the defendant’s statutory duties. We have seen that according to the law of the case, as prescribed by the trial justice in his charge, the jury was instructed that the defendant’s liability required as its basis proof that the proximate cause of the accident was a failure by the defendant to adopt rules which would have prevented it.

We find in the record no substantial evidence that, prior to the accident which befell the infant plaintiff, the defendant Board of Education or its agents in immediate charge of the school, had permitted ball playing inside the school; nor is there proof that there had been ball throwing indoors or other behavior by the pupils which in character was so dangerous as to render the corridors unsafe for use, or from which danger to pupils could be foreseen.

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

Lehman, Ch. J., Loughran, Finch and Conway, JJ., concur; Rxppey and Desmond, JJ., dissent.

Judgments reversed, etc.


author: Rippey, J.

text:
    Ernest Howell, as Administrator of the Estate of Annie E. Howell, Deceased, Respondent, v. John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Appellant.

      Argued June 9, 1941;
    decided July 29, 1941.

      William B. Moore for appellant.
    The administrator of the insured’s estate, not being the beneficiary designated in the policies, is not entitled to maintain the action. (Ruoff v. John Hancock Mut. Life Ins. Co., 86 App. Div. 447; Ferretti v. Prudential Ins. Co., 49 Misc. Rep. 489; Matter of O’Neill, 143 Misc. Rep. 69; McCarthy v. Prudential Ins. Co., 224 App. Div. 350; Tarasowski v. Prudential Ins. Co., 113 Misc. Rep. 248; Cohen v. John Hancock Mut. Life Ins. Co., 135 App. Div. 776; Strang v. Prudential Ins. Co., 263 N. Y. 71; Cirrincioni v. Metropolitan Life Ins. Co., 223 App. Div. 461.) Plaintiff failed to prove compliance with the terms of the policies with respect to the furnishing of satisfactory proofs of death. (Acee v. Metropolitan Life Ins. Co., 219 App. Div. 246; Roscoe Lumber Co. v. Standard Silica Cement Co., 62 App. Div. 421; Shumowat v. Metropolitan Life Ins. Co., 259 App. Div. 783; Skripko v. John Hancock Mut. Life Ins. Co., 249 App. Div. 783; Strang v. Prudential Ins. Co., 263 N. Y. 71.) Waiver by defendant of the provisions of the policies with respect to the filing of satisfactory proof of death was neither properly pleaded nor sufficiently proved. (Glaser v. Home Ins. Co., 190 N. Y. 6; Wachtel v. Equitable Life Assur. Society, 266 N. Y. 345.)

      Myron J. Shon for respondent.
    Plaintiff, in his representative capacity as administrator, is the proper party plaintiff. (Genet v. De Graaf, 27 App. Div. 238; Killian v. Met. Life Ins. Co., 251 N. Y. 44; Schumacher v. Great Eastern C. & I. Co., 197 N. Y. 58; Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Mansbacher v. Prudential Ins. Co., 273 N. Y. 140; McCarthy v. Prudential Ins. Co., 252 N. Y. 459; Nolan v. Prudential Ins. Co., 139 App. Div. 166; Matter of Shanley, 95 Misc. Rep. 427; Thompson v. Prudential Ins. Co., 119 App. Div. 666; Castronuovo v. John Hancock Mut. Life Ins. Co., 235 App. Div. 633; People v. Commercial Alliance Life Ins. Co., 21 App. Div. 533.) Under the pleadings there was no issue as to the furnishing of proofs of death. (Lemmer v. Metropolitan Life Ins. Co., 225 App. Div. 823; Kelly v. Met. Life Ins. Co., 15 App. Div. 220; Holmes v. Jones, 121 N. Y. 461; Roscoe Lumber Co. v. Standard Silicia Co., 62 App. Div. 421; Continental Leather Co. v. Liverpool, B. & R. P. S. Nav. Co., 228 App. Div. 707; Irving Trust Co. v. Eisenberg, 238 App. Div. 149; Friedman v. Blauner, 219 App. Div. 326; Paige v. Willet, 38 N. Y. 28; Levy v. D., L. & W. R. R. Co., 211 App. Div. 503; Wuesthoff v. Germania Life Ins. Co., 107 N. Y. 580; Smith v. Prudential Ins. Co., 147 App. Div. 580; Chinnery v. U. S. Industrial Ins. Co., 15 App. Div. 515; Hincken v. Mut. Ben. Life Ins. Co., 50 N. Y. 657.) The complaint alleged a waiver by an unconditional disclaimer of liability and the answer admitted the fact and alleged a rescission by the defendant. (Glazer v. Home Ins. Co., 190 N. Y. 6; McCarthy v. Prudential Ins. Co., 252 N. Y. 459; Neal, Clark & Neal Co. v. L. & L. & G. Ins. Co., 178 App. Div. 730; O’Neill v. Buffalo Fire Ins. Co., 3 N. Y. 124; Lang v. Eagle Fire Co., 12 App. Div. 39; Grattan v. Met. Life

      Ins. Co., 80 N. Y. 281; Sherri v. Nat. Surety Co., 124 Misc. Rep. 450; 215 App. Div. 808; 243 N. Y. 266; Wachtel v. Equitable Life Assur. Soc., 251 App. Div. 172; Darling v. Protective Assur. Soc., 71 Misc. Rep. 113; Paige v. Willet, 38 N. Y. 28; Demuth Glass Mfg. Co. v. Early, 131 App. Div. 203; Levy v. D., L. & W. R. R. Co., 211 App. Div. 503.)
   Rippey, J.

Annie Howell died June 13, 1935, and her husband, Ernest Howell, was named administrator of her estate. As such administrator, he brought this action to recover from defendant the face value of two insurance policies on. her life.

Upon the trial on September 22, 1937, the plaintiff introduced the two policies and the letters of administration in evidence and rested. Defendant then moved to dismiss the complaint upon the ground, specifically set up as an affirmative defense and also appearing, it was asserted, on the face of the policies, that plaintiff was not entitled to maintain the action in his representative capacity, it being urged that the insured had specifically designated the husband individually as beneficiary, and upon the further ground that, in any event, plaintiff had failed to prove compliance with the terms of the policies with respect to furnishing defendant with proofs of death of the insured. Decision on the motion was reserved, whereupon the defendant rested without offering any evidence and renewed its motion to dismiss. Decision was again reserved. On June 1, 1938, judgment was entered for the plaintiff for the full face value of the policies, with costs. By the pleadings and during the discussion that followed defendant’s motion to dismiss the case after plaintiff rested, substantial admissions of receipt and retention of proofs of death by defendant were made. The issues were narrowed down to the two questions, (1) whether the action may be maintained by plaintiff' in his representative capacity and (2) whether proofs of claim by Howell as the individual beneficiary meet the requirements of the policies when suit is brought by him in his representative capacity as administrator. Those were the only questions thus presented to the trial court for decision and are the only questions open to review here.

The policies are commonly known as industrial policies;” each was specified on its face by the company to be a “ WHOLE LIFE POLICY: PAYABLE AT DEATH.” One policy was dated October 25, 1933, No. 24963332, for $200 with weekly premium of twenty-five cents and stated that the insured, Annie E. Howell, was forty-nine years of age at her next birthday. The other policy was numbered 25856575, dated July 4, 1934, fixed $114 as the full amount of the policy, called for a weekly premium of fifteen cents and stated that the age of the insured at her next birthday was fifty years. Otherwise all terms and provisions of the policies were identical.

Each contract of insurance, on the first page, provided that, in consideration of the payment of the premium stipulated, the defendant granted the insurance with the privileges and benefits and subject to the conditions and provisions on this and the three following pages which are hereby made a part of this contract and constitute the entire contract between the parties hereto.” Then follows the number, the date of the policy, the name of the insured, the full amount of the policy, age of insured at next birthday, weekly premium, and number of the soliciting agent as above stated in a box which also included the following items in this form:

Name of Insured Name of Beneficiary • Relationship to ANNIE E. HOWELL ERNEST HOWELL Insured HUSBAND

Next appears the following specific clause: “ On satisfactory proof of the death of the Insured made in the manner and to the extent required herein and upon surrender of the Policy and Premium Receipt Books, the Company will pay the amount due hereunder. The Company may make any payment or grant any non-forfeiture benefit provided herein either to the beneficiary above named, if living, or to such other living beneficiary as may be duly and finally designated, and recognized by endorsement hereon, or to the Executor or Administrator of said Insured or to any relative by blood or connection by marriage, or to any person appearing to the Company to be equitably entitled thereto by reason of having incurred expense in any way on behalf of,the Insured for burial or for any other purpose; and the receipt of any such payee shall be conclusive evidence that payment has been made to the person or persons entitled thereto and that all claims under this policy have been fully satisfied.”

We need not refer in detail to numerous other provisions of the policies except to say that each provides for change of beneficiary, for automatic extended term insurance after three years, for alternative options of paid-up policy or cash surrender value after five years and for accidental and death benefits indicating some control over the policy and proceeds by the insured and the possibility of definite vested interest in its proceeds by the insured under certain conditions.

In accord with the wording of the policies, when proofs of the death of the insured were presented, the defendant might pay the insurance to someone who should, in its opinion, meet the description contained in the facility of payment ” clause whom, at its sole and exclusive option, it might select to receive the proceeds of the policies. The wording of the policies completely refutes any contention that the defendant expressly promised to make payment to any specific person or class of persons to the exclusion of others named under the “ facility of payment ” clause. It did not expressly promise to pay the face value of the policies to the named beneficiary or to the administrator of the insured. In this jurisdiction and by the weight of authority elsewhere, where a beneficiary is definitely named to whom an express promise is made to make the required payment, “ the only effect of the clause is to provide the eompany with a defense, in case it has paid thereunder. It neither grants nor takes away a cause of action from any person ” (Wokal v. Belsky, 53 App. Div. 167, 171; Golden v. Metropolitan L. Ins. Co., 35 App. Div. 569; and annotations in 28 A. L. R. 1350; 49 A. L. R. 939; 75 A. L. R. 1435). If the company fails to exercise its option under that clause, payment may be compelled by the named beneficiary (McCarthy v. Prudential Ins. Co., 252 N. Y. 459). The effect of the clause cannot be different where no beneficiary is named to whom an express promise to pay is made. The insurance company will not be permitted to defeat the purpose of the insurance by failing to exercise its option under the facility of payment ” clause whether a beneficiary is named or not. Where no express promise is made to pay any designated person, the administrator is the party to sue and may compel payment (Matter of Howley, 133 Misc. Rep. 34; Williams v. Metropolitan Ins. Co., [Mo. App.] 233 S. W. Rep. 248; Heubner v. Metropolitan Ins. Co., 146 Ill. App. 282; Lewis v. Metropolitan L. Ins. Co., 178 Mass. 52).

If ambiguity exists, the contracts must be construed in manner most favorable to the insured (Killian v. Metropolitan L. Ins. Co., 251 N. Y. 44). It is the duty of the courts to ascertain the sense in which language is used in the policy; as an aid in making such a determination, consideration must be given to the subject-matter and surrounding circumstances (Griswold v. Sawyer, 125 N. Y. 411; Bartlett v. Goodrich, 153 N. Y. 421). There can be no doubt that the insured was actuated by the purpose and intended to make provision for her husband, if he survived her, to the exclusion of all others. The husband was named in the policies as beneficiary. Though defendant made no express promise to pay the insurance to him, such a promise will be implied and it is immaterial that he was also named as a party in the “ facility of payment clause to whom optional payment could be made. Such designation did not exclude him from claiming as sole beneficiary. Since the defendant failed to take advantage of its option under the facility of payment clause, the proceeds of the policies belonged to him alone as against the others named in the “ facility of payment ” clause (Nolan v. Prudential Ins. Co., 139 App. Div. 166; McCarthy v. Prudential Ins. Co., 252 N. Y. 459; annotation in 75 A. L. R. 1435). The promise having been made to the deceased and the cause of action having accrued upon and not prior to the death of the insured, in the absence of any provision of the policies to the contrary, the plaintiff might declare either in his individual capacity as beneficiary or in his representative capacity (Castronuovo v. John Hancock Mut. Life Ins. Co., 235 App. Div. 633; Munroe v. Providence Permanent Firemens’ Relief Assn., 19 R. I. 363; McCarthy v. Metropolitan Life Ins. Co., 162 Mass. 254). If the claim was due to plaintiff as an individual, it was immaterial so far as defendant is concerned that. he sued in his representative character (Biddle v. Wilkins, 1 Pet. [U. S.] 686; Security First National Bank v. King, 46 Wyo. 59; McCarthy v. Metropolitan Life Ins. Co., supra; Kane v. Paul, 14 Pet. [U. S.] 33; 21 Am. Juris., Executors and Administrators, § 949).

By the terms of the contract as made, receipt by defendant of proof of death of the insured was a condition precedent to recovery (Strang v. Prudential Ins. Co., 263 N. Y. 71, 74). In case of death, the policies required that satisfactory proof of death be furnished and proofs of claim be made on blanks to be provided by the company which should contain full answers of the claimant, physician and other persons to all the questions asked therein and conform to the requirements thereof. Mere notice of death was not enough. The condition can only be performed by furnishing evidence in some form of the truth of the fact stated in the notice, and upon which the right of action depends ” (O’Reilly v. Guardian Mutual Life Ins. Co., 60 N. Y. 169, 173; Bellas v. N. Y. Life Ins. Co., 300 Mass. 471). Upon the trial, plaintiff offered no evidence of death of the insured nor did he produce or offer in evidence proofs of claim. The deficiency in proof was supplied by the admissions of defendant in the pleadings and upon the trial. Defendant admits in its answer that the insured died on June 13, 1935, as alleged in the complaint. It is alleged in the complaint that subsequent to the death of the insured and in the month of May, 1936, the plaintiff gave or caused to be given to the defendant notice of death of the insured and that all conditions of the policy required to be performed precedent to recovery were fully performed and complied with. Although the answer contains a general denial of those allegations, the defendant nevertheless alleged affirmatively in the answer that Ernest Howell, the said beneficiary, has delivered certain papers to the defendant as proofs of death of the insured and has made claim for the payment of the proceeds of the said policies.” Those papers were accepted and retained by defendant without objection and were not produced or offered by it in evidence on the trial.

Defendant did not claim that the proofs of claim were insufficient in substance to comply with all terms of the policies. It was asserted only that the proofs were furnished by Howell as an individual beneficiary and not in his capacity as administrator of the estate of the insured and consequently they could not be relied on as sufficient under the terms of the policies. When the company received, accepted and retained the proofs of claim, it admitted that they were in form sufficient (Crotty v. Union Mutual Life Ins. Co., 144 U. S. 621, 626; Timayenis v. Union Mutual Life Ins. Co., 21 Fed. Rep. 223; Jennings v. Mutual Life Ins. Co., 148 Mass. 61; Weed v. Hamburg-Bremen F. Ins. Co., 133 N. Y. 394, 408). The policies did not require that proofs of claim should be presented by any specific person or while acting in any specific capacity. When presented by a party in interest, they were available for what they were worth to any one who had a right to sue (Kelly v. Metropolitan Life Ins. Co., 15 App. Div. 220, 222; Lindblom v. Metropolitan Life Ins. Co., 210 App. Div. 177; Lemmer v. Metropolitan Life Ins. Co., 225 App. Div. 823; Wuesthoff v. Germania Life Ins. Co., 107 N. Y. 580, 592), particularly where, as in this case, the same person was the individual beneficiary and the administrator (Delamater v. Prudential Ins. Co., 52 Hun, 615; 24 N. Y. St. Repr. 98). Admissions in proofs of claim to insurance, companies are not necessarily binding on those presenting the proofs (Wachtel v. Equitable Life Assur. Soc., 266 N. Y. 345, 351). By retention of the proofs, , defendant did not admit the truth of the facts therein stated (Crotty v. Union Mut. Life Ins. Co., supra). As a condition precedent to payment the contracts provided only that satisfactory proofs of death of the insured .be furnished. Defendant admitted in its answer that the insured died on June 13, 1935, as alleged in the complaint, and on the trial that the proofs of claim established that fact.

The judgment should be affirmed, with costs. (See 286 N. Y. 700.)

Lehman, Ch. J., Loughran, Finch, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.