author: Fuld, J.

text:
    In the Matter of the Accounting of Edward C. Raftery et al., as Surviving Executors and Trustees under the Will of Maurice A. Shea, Deceased, Respondents. Margaret L. Shea et al., Appellants; O’Brien, Driscoll & Raftery et al., Respondents. In the Matter of the Arbitration between Edmund C. Grainger, Respondent, and Shea Enterprises, Inc., et al., Appellants.
    Argued January 3, 1956;
    decided February 17, 1956.
    Argued November 30, 1955;
    decided February 17, 1956.

      F. Walter Bliss and Lawrence R. Condon for appellants in the above-entitled accounting proceeding.
    I. Summary dismissal of objections to the trustees’ account for the period 1940-1949 was erroneous. (Green v. Doniger, 300 N. Y. 238; Hoffman House v. Foote, 172 N. Y. 348; Rudd v. Cornell, 171 N. Y. 114; Garrett v. First Nat. Bank & Trust Co. of Vicksburg, 153 F. 2d 289; Leonard v. Pierce, 182 N. Y. 431; Collins v. Hydorn, 135 N. Y. 320; Matter of Hubbell, 302 N. Y. 246; Matter of Seaman, 275 App. Div. 484, 300 N. Y. 756; Joseph v. Hersig, 198 N. Y. 456; Matter of Adler, 164 Misc. 544.) II. Certain of appellants’ objections to the accounting, covering the period after September 19, 1949, should have been sustained. (Matter of Auditore, 249 N. Y. 335; Matter of Hoyt, 160 N. Y. 607; Bowditch v. Ayrault, 138 N. Y. 222; Matter of People [Bond & Mtge. Guar. Co.], 303 N. Y. 423; City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125; Opera on Tour v. Weber, 285 N. Y. 348; Murray v. Brancato, 290 N. Y. 52.) III. The award of commissions was erroneous if appellants cannot question the trustees ’ account. (Matter of Schliemann, 259 N. Y. 497; Hall v. Hall, 78 N. Y. 535; Matter of Piel, 259 App. Div. 1047, 284 N. Y. 669.) IV. Raftery and Grainger were paid in full all executors’ commissions and no double commissions are payable here. (Cook v. Stockwell, 206 N. Y. 481; Olcott v. Baldwin, 190 N. Y. 99; Matter of Hayden, 172 Misc. 669.) V. The value of the Shea stock was not fixed in accordance with well-established law. (Matter of Roney, 148 Misc. 70; Matter of Reekford, 181 Misc. 211; Matter of Fulton, 257 N. Y. 487; People ex rel. Knickerbocker Fire Ins. Co. v. Coleman, 107 N. Y. 541; Matter of Silverman [Hoe & Co.], 282 App. Div. 252; Matter of Foster, 239 App. Div. 806, 263 N. Y. 639.) VI. The courts below erred in awarding any counsel fees. (Matter of O’Brien, 146 Misc. 555; Matter of Eddy, 207 App. Div. 162; Matter of Owen, 144 Misc. 688; Matter of De Beixedon, 262 N. Y. 168; Matter of Reibold, 278 App. Div. 1013; Matter of Weiler, 281 App. Div. 703; Dykman v. City of New York, 183 App. Div. 859.) VII. Appellants were deprived of their constitutional right to trial by jury on the hearing of fee applications. (Matter of Matheson, 265 N. Y. 81; Matter of Rosenberg, 157 Misc. 490; Matter of Proctor, 267 N. Y. 109; Matter of McKevett, 253 App. Div. 919; Matter of Anderson, 136 Misc. 110; Matter of Pardee, 239 App. Div. 876.)

      Arthur F. Driscoll and John Drew for Edward C. Baftery and others, respondents in the above-entitled accounting proceeding.
    I. The Surrogate did not err in refusing to retry objections involving happenings that antedated the terminal date of the intermediate account. Identical proposed objections had been heard in detail by the Beferee, passed upon after careful study by the Surrogate, included in the appeal to the Appellate Division and urged on this court in support of a motion for leave to appeal. (Tobias v. Ketchum, 32 N. Y. 319; Ward v. Ward, 105 N. Y. 68; Matter of Hopson, 213 App. Div. 395; Matter of Kohler, 231 N. Y. 353; Mee v. Gordon, 187 N. Y. 400; Matter of Edwards, 279 App. Div. 841; Susquehanna Silk Mills v. Rebora, 238 App. Div. 100, 263 N. Y. 539; People v. Continental Cas. Co., 301 N. Y. 79; Kane v. Walsh, 295 N. Y. 198; Brooklyn Public Lib. v. City of New York, 222 App. Div. 422.) II. All of the contentions under appellants’ point II have to do with matters that were presented in detail before the Surrogate. III. The Surrogate would have been in error if he had refused to award commissions to the estate representatives. (Matter of Kohler, 231 N. Y. 353; Orton v. Tannenbaum, 194 App. Div. 214; Matter of Mills, 172 App. Div. 530; Gilkinson v. Third Ave. R. R. Co., 47 App. Div. 472; Mee v. Gordon, 187 N. Y. 400; Tobias v. Ketchum, 32 N. Y. 319; Ward v. Ward, 105 N. Y. 68; Matter of Hopson, 213 App. Div. 395; Matter of Schliemann, 259 N. Y. 497.) IV. The Surrogate found as a fact that the value of the stock constituting the corpus was $3,000,000. There was ample evidence to support that finding. (Matter of Fulton, 257 N. Y. 487; Matter of Silverman [Hoe & Co.], 282 App. Div. 252.) V. Counsel for the estate representatives were entitled to compensation and the awards made by the Surrogate were modest when compared to the great amount of time and effort necessarily devoted to the matter. (Matter of Young, 156 Misc. 801; Jessup v. Smith, 223 N. Y. 203; Matter of Gilman, 251 N. Y. 265; Matter of Proctor, 267 N. Y. 109; Matter of Bloomingdale, 172 Misc. 218; Matter of Mioducki, 257 App. Div. 909; Matter of Rosenberg, 213 App. Div. 167; Dykman v. New York, 183 App. Div. 859.) VI. Appellants'were not entitled to a jury trial in the fixing of counsel fees. (Matter of Boyle, 242 N. Y. 342; Matter of Stark, 118 Misc. 240; Matter of Beare, 122 Misc. 519, 214 App. Div. 723; Matter of Leary, 175 Misc. 254; Matter of Britton, 187 Misc. 70; Matter of Pardee, 145 Misc. 634.)

      Thomas K. O’Brien and Arthur E. Sullivan for Edmund C. Grainger and others, respondents in the above-entitled accounting proceeding.
    I. The Surrogate properly dismissed the objections to the trustees’ account covering the period from 1940 to 1949. (Matter of Shea, 282 App. Div. 1013; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Smith v. Kirkpatrick, 305 N. Y. 66; Karameros v. Luther, 279 N. Y. 87.) II. The Surrogate properly dismissed appellants’ objections to the fiduciaries’ final accounting for the period subsequent to September 19, 1949, the terminal date of the intermediate account. III. Accountants Raftery and Grainger are entitled to fiduciary paying out commissions. IV. The value of 2,400 shares of Shea Enterprises, Inc., was properly fixed by the Surrogate at $3,000,000. V. Counsel fees were properly awarded to the counsel for respondents. (Matter of Britton, 187 Misc. 70; Corn Exch. Bank Trust Co. v. Bankers Trust Co., 268 N. Y. 224; Matter of Maxwell, 218 N. Y. 88; Ellis v. Kelsey, 241 N. Y. 374; Jessup v. Smith, 223 N. Y. 203; Schoenherr v. Van Meter, 215 N. Y. 548; Woodruff v. New York, Lake Erie & Western R. R. Co., 129 N. Y. 27; Downing v. Marshall, 37 N. Y. 380; Matter of Ungrich, 201 N. Y. 415; Matter of Van Volkenburgh, 139 Misc. 437.)

      F. Walter Bliss and Laivrence R. Condon for appellants in the above-entitled arbitration proceeding.
    I. There is no valid contract between these parties as the 1942 and 1946 alleged agreements are unenforcible. (Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82; Matter of Kramer & Uchitelle, 288 N. Y. 467; Matter of Albrecht Chem. Co. [Anderson Trading Corp.], 298 N. Y. 437; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Hesslein & Co. v. Greenfield, 281 N. Y. 26; Matter of Metro Plan v. Miscione, 257 App. Div. 652; Matter of Manufacturers Chem Co. [Caswell, Strauss & Co.], 259 App. Div. 321; Matter of Cheney Bros. [Joroco

      Dresses], 218 App. Div. 652; Ross v. Ross, 233 App. Div. 626, 262 N. Y. 381; Presbyterian Church of Albany v. Cooper, 112 N. Y. 517.) II. The determination of the Surrogate as to the validity of the 1942. and 1946 contracts is not binding upon appellants. (Clark v. Scoville, 198 N. Y. 279; Bell v. Merrifield, 109 N. Y. 202; Stowell v. Chamberlain, 60 N. Y. 272; Matter of Green, 231 N. Y. 237; Elenkrieg v. Siebrecht, 238 N. Y. 254; Louis J. Sigl, Inc., v. Bresnahan, 216 App. Div. 634; Green v. Victor Talking Mach. Co., 24 F. 2d 378; Haverhill v. International Ry. Co., 217 App. Div. 521, 244 N. Y. 582; St. John v. Fowler, 229 N. Y. 270; Rudd v. Cornell, 171 N. Y. 114.) III. Even though the 1946 contract is valid, respondent’s claims are outside the scope of the arbitration provision therein. (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288; Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Kelley, 240 N. Y. 74; Matter of Philip Export Corp. [Leathertone, Inc.], 275 App. Div. 102; Doheny v. Lacy, 168 N. Y. 213; Cowee v. Cornell, 75 N. Y. 91.) IV. Assuming the validity of the 1942 and 1946 agreements and the applicability of the 1936 arbitration clause, respondent’s claims are not arbitrable as they are not bona fide. (Matter of Essenson [Upper Queens Med. Group], 307 N. Y. 68; Matter of International Assn. of Machinists [Cutler-Hammer], 271 App. Div. 917, 297 N. Y. 519; Matter of General Elec. Co. [United Elec. Radio & Mach. Workers of America, C. I. O.], 300 N. Y. 262; Matter of Crosett [Mount Vernon Housing Auth.], 275 App. Div. 1051; Matter of Graphite Metallizing Corp. [United Elec. Radio & Mach. Workers of America, C. I. O.], 271 App. Div. 839; Alpert v. Admiration Knitwear Co., 304 N. Y. 1; Matter of Wenger v. Propper Silk Hosiery Mills, 239 N. Y. 199; Gearns v. Commercial Cable Co., 293 N. Y. 105; Hodkinson v. Haecker, 248 N. Y. 480; Corr v. Hoffman, 256 N. Y. 254.) V. All appellants’ cross claims against respondent should be allowed to be proven. VI. Appellants’ cross claims allowed by the Appellate Division are not limited by the statute of limitations. (General Fireproofing Co. v. Keepsdry Constr. Co., 225 N. Y. 180; Wilson v. Mechanical Orguinette Co., 170 N. Y. 542; Emmerick v. City Bank Farmers Trust Co., 300 N. Y. 417; Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Brundige v. Bradley, 294 N. Y. 345; Title Guar. & Trust Co. v. Hicks, 283 App. Div. 723; Kelly Asphalt Block Co. v. Brooklyn Alcatraz Asphalt Co., 190 App. Div. 750, 232 N. Y. 304; Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324; National Cash Register Co. v. Joseph, 299 N. Y. 200.)

      Thomas K. O’Brien and Arthur E. Sullivan for respondent in the above-entitled arbitration proceeding.
    I. A valid contract requiring arbitration exists between respondent and appellant corporations. (Rudd v. Cornell, 171 N. Y. 114; Matter of Compagnie Francaise des Petroles [Pantepec Oil Co., C. A.], 279 App. Div. 851, 305 N. Y. 588.) II. The decree of the Surrogate of Bronx County determining the validity of said contracts of 1942 and 1946 is binding on appellants who requested such determination and appellants are estopped from relitigating said issues. (Rapid Tr. Subway Constr. Co. v. City of New York, 259 N. Y. 472; Blaustein v. Pan Amer. Petroleum & Transport Corp., 293 N. Y. 281; Isaac v. Marcus, 258 N. Y. 257; McNamara v. Powell, 256 App. Div. 554.) III. Respondent’s claims against appellant corporations are substantial and meritorious. IV. Appellants’ cross claims are subject to the six-year statute of limitations and cross claim No. 6 is an invention of appellants’ advocate. (Matter of Shea, 282 App. Div. 1013.)
   Fuld, J.

Although these two appeals were argued at different times, we believe that clarity is promoted by treating them both in one opinion. They revolve about an extended controversy between the heirs of the estate of Maurice A. Shea and the executors and trustees of that estate, Edmund C. Grainger and Edward C. Raftery. In Matter of Shea, the heirs appeal from the Appellate Division’s affirmance of a decree of the Surrogate of Bronx County judicially settling the final account of the executors and trustees. Matter of Grainger (Shea Enterprises) is an appeal by two corporations, wholly owned by the estate, from an order granting an application brought by Grainger to compel arbitration of certain disputes which have arisen between him and the corporations; a cross claim asserted by the corporations against Grainger is also involved.

M. A. Shea was the owner of a large chain of motion picture theatres in the eastern United States. He conducted the business through Shea Enterprises, Inc., a wholly owned corporation, and various subsidiary corporations. In 1936, Shea entered into a contract with Edmund Grainger, a man of high repute and considerable experience in the theatre management field, employing him as general manager of all the theatres. The agreement, calling for the payment to Grainger of a weekly salary and a bonus, specifically recited that, “ if any dispute of any kind or character arises between the parties as to any matter contained in this agreement, then such dispute shall be referred to arbitration ”. Originally to terminate in 1946, the contract was extended, by a 1939 agreement, to run until December 31, 1951.

In 1940, M. A. Shea died. The will named his widow, his children and a son-in-law (coincidentally, also a Shea, named Gerald) as sole beneficiaries of his estate. It provided for a ten-year testamentary trust; during the existence of the trust, the income from the business was to be paid to the beneficiaries, and, on its termination, the ownership of the corporations was to be turned over to them. Grainger, Edward C. Raftery and one Dennis F. O’Brien (since deceased), all close friends of Shea, were named as executors and trustees. Pursuant to the decedent’s wishes as expressed in the will, they elected themselves directors of the various corporations, and Grainger was made president of Shea Enterprises. In addition, as indicated, Grainger was employed as general manager of the business, and his voice was the leading one in guiding its affairs.

In 1942, as the result of a corporate reorganization effected to achieve certain tax benefits, control of the corporations was shifted from Shea Enterprises to Jamestown Amusement Corporation and, as part of the operation, Enterprises transferred and assigned to Jamestown all its right, title and interest in the 1936 employment contract, as amended in 1939, between Grainger and M. A. Shea. In June, 1946, a fourth contract was made, between Grainger and both corporations, extending his employment as general manager from December 31, 1951, to December 31, 1956, and stipulating that “ Except as expressly provided by this agreement the previous agreements shall remain in full force and effect.” The 1946 contract was expressly approved and ratified in writing by all the Shea heirs except William Shea, an incompetent.

The business prospered. In the ten-year period covered by the trust, from 1940 to 1950, its net worth rose from about $1,000,000 to over $3,000,000, and dividends of $1,200,000 were paid to the Shea beneficiaries.

In 1949, Grainger and Raftery, the surviving executor-trustees, filed. their intermediate account, covering the period from decedent’s death to September, 1949. The beneficiaries made no objections to the account, and it was judicially settled by the Surrogate as filed.

As the term of the trust drew to a close, a difference of opinion arose between Grainger and Gerald Shea, as spokesman for the heirs, concerning the proper method of computing the farmer’s bonus under his employment contracts. In December, 1951, Grainger requested that the matter be submitted to arbitration. The response of the heirs was immediate and dramatic. They discharged him as general manager of the business and instituted a proceeding in the Surrogate’s Court in which they charged him and his fellow executor and trustee with fraud and misconduct and sought to have their previously approved intermediate account vacated. They also requested the Surrogate to declare fraudulent and void the 1942 and 1946 contracts adopting and extending Grainger’s employment as general manager until 1956. Since Grainger’s right to arbitrate depended upon the validity of these contracts, the corporations, opposing arbitration, procured a stay of the Supreme Court proceeding to compel arbitration, pending the Surrogate’s determination of that issue.

The Surrogate referred the vacatur proceeding to a Referee to hear and report. After 68 days of hearings, in which a 13-volume record was compiled, the Referee dismissed all of the heirs’ objections and sustained the validity of the Grainger employment contracts. He found the administration of the estate and the business to be without a trace of fraud or constructive fraud by the executors. Rather it is one marked by care and prudence and crowned with exceptional success. ” The Surrogate confirmed the Referee’s report in all respects, the Appellate Division unanimously affirmed (282 App. Div. 1013), and this court dismissed a motion for leave to appeal on the ground that the order involved was nonfinal (307 N. Y. 676).

After the vacatur proceeding had thus come to an end, Grainger reopened the Supreme Court proceeding against the corporations to compel arbitration. He sought arbitration concerning not only the computation of his bonus but also the propriety of his discharge. The corporations, in continued opposition to the application, sought to relitigate the question of validity of the employment contracts, contending that the decree of the Surrogate against the heirs as individuals was not binding-on their wholly owned corporations. The court at Special Term held that the doctrine of res judicata applied to estop them from retrying that issue and ordered that arbitration proceed; as indicated, the Appellate Division affirmed and the corporations ’ appeal from that decision is one of the cases before us.

In the meantime, in January, 1952, Grainger and Eaftery had filed their final account. Appellants again objected, charging numerous acts of misconduct and self-dealing, many identical with those charged in the vacatur proceeding. The Surrogate dismissed all the objections — finding it “ regrettable ” that the Shea heirs had been led to make such unwarranted and unjustified accusations against these executors and trustees ’ ’ — and settled the final account as filed. The appeal of the heirs from the Appellate Division’s affirmance of that decree is the other case before us.

As to that appeal, little is to be gained by detailed treatment of each of the accusations of fraud and misconduct leveled at respondents Grainger and Eaftery. It is enough to say that, as to the objections relating to transactions occurring before September, 1949, they were thoroughly litigated in the vacatur proceeding and decided against the heirs and that, as to the other objections, the record furnishes ample support for the findings made by the Surrogaté, and affirmed by the Appellate Division, that the charges were unwarranted and unjustified. The additional contentions — among them, that the Surrogate erroneously sanctioned “ paying out ” commissions to Grainger and Eaftery and impermissibly awarded counsel fees to their attorneys — have also been considered and found to be not tenable.

The appeal in the proceeding to compel arbitration requires more extended discussion.

There can be no doubt that the employment contracts (the issue of their validity aside) entitle respondent Grainger to arbitration of the disputes concerning the computation of his bonus and his premature discharge. Paragraph 22 of the contract of February, 1936, which remained ‘‘ in full force and effect ” by reason of the June, 1946, agreement, requires arbitration of “ any dispute of any kind or character ” that arises between the parties “ as to any matter contained in ” the agreement. The claims obviously come within these terms. The agreements expressly describe the method for computing Grainger’s bonus and provide that his term of employment shall run until 1956. The appellant corporations contend, however, that the 1942 and 1946 contracts, adopting and extending the previous ones, are invalid, and that arbitration may not be directed until the issue of their validity is tried and determined by the Supreme Court. As to that, respondent maintains that a trial of that issue has already been held and that appellants are bound by the decree rendered against the Shea heirs in the vacatur proceeding.

The general doctrine of res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were necessarily decided therein. (See Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N. Y. 480, 493; Elder v. New York & Pennsylvania Motor Express, 284 N. Y. 350; Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14, 17; Sears Roebuck & Co. v. 9 Ave.-31 St. Corp., 274 N. Y. 388, 400.) “ ‘ Sound public policy ’ ”, this court has written, “ ‘ requires that different judicial decisions shall not be made on the same state of facts, and that a judgment rendered jurisdictionally and unimpeached for fraud shall be conclusive, as to the questions litigated and decided, upon the parties thereto and their privies, whom the judgment, when used as evidence, relieves from the burden of otherwise proving, and bars from disproving, the facts therein determined. ’ ” (Matter of New York State Labor Relations Bd. v. Holland Laundry, supra, 294 N. Y. 480, 493.)

In the case before us, it is indisputable that, if the appellant corporations themselves, rather than the individuals who own all of their stock, had been parties to the vacatur proceeding, they would be bound by the Surrogate’s decree sustaining the validity of the employment contracts. The issue was fully and completely litigated and was necessary to the decision; the Surrogate actually denied the specific request of the heirs for a declaration of invalidity. The only question presented, therefore, is whether appellant corporations are in privity with the Shea heirs, who own all of their stock, so that the decision against the heirs is binding upon the corporations. In our judgment, the lower courts properly held that they are.

Privity ” is usually defined as “ mutual or successive relationships to the same rights of property.” (Haverhill v. International Ry. Co., 217 App. Div. 521, 522, affd. 244 N. Y. 582; Litchfield v. Goodnow, 123 U. S. 549, 551.) “ The ground * * * upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party is, that they are identified with him in interest ”. (Litchfield v. Goodnow, supra, 123 U. S. 549, 551.) A clearer case for application of the doctrine could hardly be imagined than one involving successive attempts to litigate the same question by a corporation and by its owner or owners. Such attempts have been barred on principles of res judicata or collateral estoppel where all of the corporation’s stock was owned by one person (see McNamara v. Powell, 256 App. Div. 554, 558; United States Envelope Co. v. Transo Paper Co., 221 F. 79, 80; cf. Warford Corp. v. Bryan Screw Mach. Products Co., 44 F. 2d 713); the owner, it has been said, “ will not be permitted to use the corporate cloak as a means to avoid the finality of the former adjudication to which he was a party.” (McNamara v. Powell, supra, 256 App. Div. 554, 558.) Manifestly, the situation is no different where all of the stockholders of a family corporation, rather than an individual who owns the entire corporation, have appeared and participated in the prior action which resulted in an unfavorable adjudication.

The interests of the heirs in the Surrogate’s Court proceeding and the appellant corporations in this case are identical. Both have sought to invalidate the 1942 and 1946 contracts because of alleged fraud and self-dealing by respondent and the other executor-trustees with the properties of the Shea estate. It was the heirs, the actual and benefical owners of appellants, who alone stood to lose or gain by the outcome in each case; for all practical purposes, the corporation was the heirs, the heirs, the corporation. If there had been any doubt as to their being represented, their position posited and their interests protected in the Surrogate’s Court, the corporations would not have sought to stay the Supreme Court proceeding in 1951 nor requested that the issue of the contracts ’ validity be determined in the vacatur proceeding. By adopting that course of action, they elected to have that question decided by the Surrogate rather than the Supreme Court, and this circumstance alone is enough to estop them from now attempting to avoid the binding force of the Surrogate’s decree. There would have been no purpose in deferring the Supreme Court hearing until the Surrogate had decided the issue of validity, unless his finding was to be decisive in both proceedings.

As earlier indicated, appellants made a cross motion, requesting the submission to the arbitrators of seven so-called cross claims, in the event that arbitration was directed. The court at Special Term ordered the submission of one of them, upon respondent’s consent, and denied the other six; the Appellate Division, however, modified, by directing the submission of five of the six remaining cross claims. Appellants contend that the Appellate Division should also have submitted the remaining cross claim, that numbered (6) in their affidavit, which asserts that “ Grainger is liable to Shea Enterprises, Inc. for a sum approximating $100,000 in the matter of the calculation of his bonus,” because of corporate moneys “ which he expended, and for which he allowed no return to the Shea companies. ’ ’

There is no reason to treat this cross claim differently from the others. "Whether or no it has merit is not a matter for the courts. Although the claim is described with less than exemplary clarity or specificity, it directly relates to the computation of respondent’s bonus and is, therefore, a dispute arising under the employment contracts. Those contracts require arbitration of “ any dispute of any kind or character * * * as to any matter contained in ” them. Under such a broad clause, appellants are entitled to have any counterclaims or setoffs that they may have against Grainger arising out of the employment contracts submitted to the arbitrators. (Cf. Matter of Stone [Freezer], 304 N. Y. 649, affg. 280 App. Div. 103; Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392, 403-404; Matter of Priore [Schermerhorn], 204 App. Div. 332, affd. on other grounds 237 N. Y. 16; see, also, Sturges on Commercial Arbitrations and Awards [1930], § 75, p. 236.)

Appellants raise one further point. They contend that the Appellate Division improperly directed the arbitrators to apply the six-year statute of limitations to their cross claims, for the reason that the application of the statute of limitations, like other questions of law, is a matter that should be left exclusively to the arbitrators. (Cf. Application of Reconstruction Finance Corp., 106 F. Supp. 358 [S. D. N. Y.]; Sturges, op. cit., § 218, p. 502.) It is not, however, necessary here to consider or pass upon the question. The record reveals that appellants themselves insisted that the statute of limitations be applied to measure and limit the claims asserted against them by respondent G-rainger, and the court at Special Term adopted their position. In view of that, they may not be permitted to have the arbitrators decide their own cross claims without regard to that restriction. Whatever, therefore, may be the rule in another case, even-handed justice and principles of common fairness require that we uphold the Appellate Division in ordering that the cross claims also be measured by the statute of limitations.

It follows that the Appellate Division order should be affirmed, except insofar as it denied appellants ’ request to submit the sixth cross claim. However, in combining and rephrasing the other two cross claims that concern the computation of bonus, one of which covers a period solely from 1941 to 1945, the Appellate Division submitted the latter claim and confined both to that period (Third Decretal Paragraph, item [c]). While this may have been inadvertent, it does patently conflict with that portion of the order limiting all of the cross claims to the six-year statute of limitations, which would bar any claims arising prior to 1948. Consequently, the Third Decretal Paragraph must be modified to make it clear that the arbitrators may consider all matters affecting the computation of the bonus, including.appellants’ sixth cross claim, subject only to the six-year time limitation which, according to the Final Decretal Paragraph, must govern all the cross claims.

In the proceeding in the Surrogate’s Court, the order of the Appellate Division should be affirmed, with costs to all parties appearing and filing briefs herein, payable out of the estate.

In the arbitration proceeding, the order of the Appellate Division should be modified to substitute for item (c) in its Third Decretal Paragraph the following:

“ (c) the computation of bonus paid to petitioner, including but not limited to (1) the participation by petitioner in capital gains realized and his nonparticipation in capital losses sustained and (2) the expenditure by petitioner, of corporate moneys without allowing any return to the corporations,”

and, as so modified, affirmed, without costs.

In Matter of Shea: Conway, Ch. J., Desmond, Froessel, Van Voorhis and Burke, JJ., concur; Dye, J., taking no part.

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

In Matter of Grainger (Shea Enterprises): Conway, Ch. J., Desmond, Froessel, Van Voorhis and Burke, JJ., concur ; Dye, J., taking no part.

Order of Appellate Division modified in accordance with the opinion herein and, as so modified, affirmed, without costs.

      . This portion of the order reads as follows: “the arbitrators herein shall consider and pass upon the matters and issues set forth below * * *: (c) the computation of bonus paid to petitioner between the years 1941 and 1945, both inclusive, including but not limited to the participation by petitioner in capital gains realized and his nonparticipation in capital losses sustained ”.


source: Caselaw Access Project

author: Fuld, J. Van Voorhis, J. Desmond, J.

license: Public Domain

text:
    Margarida De Clara, as Administratrix of the Estate of Francisco De Clara, Deceased, Appellant, v. Barber Steamship Lines, Inc., et al., Defendants, and New York Dock Company, Respondent, and Third-Party Plaintiff-Respondent. Barber Securities Corporation, Third-Party Defendant-Respondent.
    Argued November 22, 1955;
    decided February 17, 1956.

      Thomas Grimes and Thomas C. Gusaoh for appellant.
    I. Defendant was responsible for the dangerous condition of Pier 38. (Murrain v. Wilson Line, 270 App. Div. 372, 296 N. Y. 845; Appel v. Muller, 262 N. Y. 278; Bernstein v. Olian, 77 F. Supp. 672; Abrams v. Manhattan Dial Mfg. Co., 190 Misc. 106;
      Noble v. Marx, 298 N. Y. 106; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; Cullings v. Goetz, 256 N. Y. 287; Lafredo v. Bush Term. Co., 261 N. Y. 323; Potter v. New York, O. & W. Ry. Co., 261 N. Y. 489.) II. There are no errors of law that require a new trial. (Haefeli v. Woodrich Eng. Co., 255 N. Y. 442; Ford v. Grand Union Co., 268 N. Y. 243; Le Roux v. State of New York, 307 N. Y. 397.) III. The only issue of fact undisposed of is the amount of the verdict. (Betzag v. Gulf Oil Corp., 298 N. Y. 358, 301 N. Y. 576.)

      John F. X. Finn, George A. Garvey, Lillian E. Cuff and Constantine P. Lamb os for respondent.
    I. The Appellate Division properly dismissed the complaint. Plaintiff failed to prove any actionable negligence on the part of defendant New York Dock Company. II. Sole control of Pier 38 was in the tenant, defendant sharing no part of such control with the tenant. (Pratt, Hurst & Co. v. Tailer, 135 App. Div. 1; Eisen v. Baudouine, 169 App. Div. 549, 184 App. Div. 883, 229 N. Y. 535; Murrain v. Wilson Line, 270 App. Div. 372, 296 N. Y. 845; Cullings v. Goetz, 256 N. Y. 287; Potter v. New York, O. & W. Ry. Co., 261 N. Y. 489; Lafredo v. Bush Term. Co., 261 N. Y. 323; Dick v. Sunbright Steam Laundry Co., 307 N. Y. 422; Williams v. Saratoga Co. Agric. Soc., 277 App. Div. 742; Dickey v. Masonic Foundation Corp., 266 App. Div. 763.) III. Even if defendant was under a duty to plaintiff’s intestate to repair — which defendant asserts it was not — such duty was subject to a condition precedent that defendant be given written notice of the need for repairs, and no such notice was ever received or sent. (Antonsen v. Bay Ridge Sav. Bank, 292 N. Y. 143; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; McCarrick v. Liverpool Corp., [1947] A. C. 219; Fisher v. Walters, [1926] 2 K. B. 315; Morgan v. Liverpool Corp., [1927] 2 K. B. 131; Torrens v. Walker, [1906] 2 Ch. 166; Griffin v. Pallet, [1926] 1 K. B. 17; Bottomley v. Bannister, [1932] 1 K. B. 458.) IV. Since the widow and dependent son of plaintiff’s intestate elected to take compensation and failed to commence a statutory action against the third-party wrongdoer within the time limited by section 29 of the Workmen’s Compensation Law, there resulted an assignment of their cause of action, if any, for the wrongful death of plaintiff’s intestate to the insurance carrier. Hence they had no right to maintain this action and are not the real parties in interest. (Olker v. Salomone, 283 App. Div. 948; Skakandy v. State of New York, 274 App. Div. 153, 298 N. Y. 886; Eisenberg v. Adler Realty Co., 299 N. Y. 572; Taylor v. New York Central R. R. Co., 294 N. Y. 397; United States Fidelity & Guar. Co. v. Graham & Norton Co., 254 N. Y. 50; Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367.) V. Since the cause of action on the beneficial interest of the widow and dependent son was assigned to the insurance carrier which paid the compensation, and since there was no proof that the adult children suffered any pecuniary loss or injury by reason of the death of plaintiff’s intestate, the complaint should have been dismissed. (Gross v. Abraham, 306 N. Y. 525; Holmes v. City of New York, 269 App. Div. 95; Matter of Dennison, 203 Misc. 1004.) VI. The Appellate Division properly held that it was error for the trial court to instruct the jury that constructive notice was sufficient against the owner and that the owner might be held liable if it retained any measure of control over the demised premises. VII. The Appellate Division properly held that the trial court erred in excluding defendant’s evidence that it did not receive notice of the defect from the lessee until after the accident, that it acted on the notice and that the lessee paid for the expense of the repairs. The trial court also erred in excluding other evidence on the question of control. VIII. Even if the court should find that the complaint should not have been dismissed, there are other issues of fact which at the very least require a new trial.
   Fuld, J.

Francisco De Clara, a stevedore, was killed on Pier 38, Atlantic Basin, Brooklyn, New York, when a large metal door fell upon him. The pier where the accident occurred was owned by the New York Dock Company and leased to the Barber Steamship Lines, Inc. De Clara was employed by the Atlantic Stevedoring Company, an independent contractor engaged by Barber to load and unload its vessels.

In addition to his wife, De Clara left eight children, one of whom was a minor. The Workmen’s Compensation Board made an award of death benefits to the widow and her infant son. Ten months later, having in the meantime been appointed administratrix of her husband’s estate, she brought this action to recover damages for Ms wrongful death. Although plaintiff joined as defendants both the owner of the pier and its tenant, Barber, service of process was vacated and set aside as against the latter, for reasons not here material (277 App. Div. 1118), and that defendant is no longer in the case. The remaining defendant, the dock company, disclaims liability on the ground that it had parted with possession and control of the pier, and, in addition, disputes plaintiff’s standing to maintain the action.

Pier 38, where the accident occurred, was about 950 feet long, with large sliding doors — 85 of them — along each side. Each door was 23 feet high and 10 feet wide, weighed 1,700 pounds, and was suspended from an overhead track by 2 hangers. Attached to each hanger were 4 wheels, 2 large ones running along the top of the rail and 2 smaller ones underneath, linked by a pin, being designed to guide the larger wheels and prevent them from coming off the track. The bottom of each door fitted into a metal groove in the floor of the pier. If in proper condition, the doors could be moved easily by two employees, called “ slingmen,” who would slide them open to permit the stevedores to load or unload cargo on the vessels and close them when the day’s work was done.

For some time before the accident, the estimates varying from two months to two years, difficulty had been experienced in opening and closing the door involved in the accident. Six or eight men were needed to move it instead of the usual two, and on a number of occasions crowbars were used. On the night of the accident, when the dock boss ordered the door closed, about eight men, including De Clara, pushed on it for upwards of five minutes without being able to budge it; suddenly, it fell, crushing and fatally injuring De Clara. Examination after the accident disclosed that the center pins linking the two small guide wheels at each end of the door were bent, creating an opening between the rail and guide wheels, which, the evidence showed, could have caused the large wheels to come off the rail and the door to fall.

By the lease between defendant dock company and its tenant, the landlord agreed, upon receiving written notice from the tenant, to make repairs to and maintain said premises in as good condition as they were when accepted by the Tenant, reasonable wear and tear excepted ’ ’. The lease further provided, however, that, ‘ ‘ Without operating as a waiver of the requirement of such notice, the Landlord shall have the right at any time or times * * * to examine ” the premises and “ make such repairs and alterations as it shall deem necessary for [their] safety and preservation”. Nothing was said in the lease about repairs by the tenant, and the only evidence on the subject indicated that Barber was not even permitted to make any.

Pier 38 was one of 30 piers owned by defendant on the Brooklyn water front. To police those piers and observe all that went on, defendant had watchmen, and to maintain them and keep them in safe condition and proper repair it also had a superintendent of maintenance and a crew of about 20 men stationed on them “ all the time.” It was the job of this latter group to inspect the premises, and, if repairs were considered necessary, to make such repairs immediately, without even notifying the tenant. More particularly, defendant’s superintendent was on Pier 38 every day during some weeks and never less than two or three days a week at any time, attending not only to the routine “maintenance repairs” — for which defendant landlord paid — but also to those repairs necessitated by damage caused by the tenant — for which the tenant paid.

Barber gave no written notice, or, for that matter, any notice, prior to the accident, that there was anything wrong with the door or that it needed repairing. However, defendant’s superintendent acknowledged that he had heard, some time before the accident, that difficulty was being encountered with one of the doors and that crowbars were being used to open and close it.

Although he warned against the use of such crowbars, he made no inspection or inquiry to locate or track down the defective door. At the close of plaintiff’s case, and again at the close of the entire case, defendant moved to dismiss the complaint on the ground, among others, that the evidence failed to establish that it had such possession and control of the pier as to subject it to liability in tort. The trial judge denied the motions and submitted the issue of possession and control to the jury, and it returned a verdict of $65,000 in plaintiff’s favor. The Appellate Division, although affirming the “ implied findings, except as to the amount of the verdict,” reversed on the law and dismissed the complaint. It declared that defendant 1 ‘ owner was not liable in tort for a mere breach of the covenant to repair, more particularly where the covenant was to repair after notice and no notice was given, nor for a failure to exercise its right to examine the demised premises ” (285 App. Div. 1062, 1063).

We first address ourselves to the question of plaintiff’s standing to maintain this action. It is urged, in reliance upon the Workmen’s Compensation Law (§ 29, subd. 2), that the passage of more than six months between the time of the award of death benefits and the commencement of the present suit effected an assignment of the cause of action to the insurance carrier and prevented anyone but the carrier, or the administratrix in its name, from bringing the suit. Defendant’s position would be sound if the deceased employee’s only next-of-kin were dependents. (See, e.g., Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 375; United States Fidelity & Guar. Co. v. Graham & Norton Co., 254 N. Y. 50, 55.) But where, as here, the deceased also left adult children who are not dependents, the statutory assignment is effective only to the extent of the dependents’ beneficial interest, and the suit may be brought solely ‘ ‘ through an administrator as the statutory trustee of the entire group of beneficiaries” (United States Fidelity & Guar. Co. v. Graham & Norton Co., supra, 254 N. Y. 50, 55), a group embracing the carrier as well as the nondependents. (See Matter of Zirpola v. T. & E. Casselman, Inc., supra, 237 N. Y. 367, 375; Gross v. Abraham, 306 N. Y. 525, 530.) Consequently, plaintiff, as administratrix, not only had standing, but, indeed, was the only person authorized, to institute the suit. Of course, any recovery will be received by her as trustee for distribution to those entitled to share, in proportions later to be determined. (Decedent Estate Law, § 133; see, also, Matter of Zirpola v. T. & E. Casselman, Inc., supra, 237 N. Y. 367, 372.) As to the other points directed to the subject of the nondependent children’s “ pecuniary injury,” it is enough to say that we have examined them and found them lacking in merit. (See, e.g., Gross v. Abraham, supra, 306 N. Y. 525, 531; Thomas v. Utica & Black Riv. R. R. Co., 6 N. Y. Civ. Pro. Rep. 353, 354, affd. 34 Hun 626, affd. 98 N. Y. 649.)

However, as already indicated, the primary question posed by the appeal concerns the imposition of a tort liability upon defendant. We put to one side the decisions dealing with the duty of care owed by a landlord out of possession to the person on property to which members of the public are admitted or to the passerby on a city street or public way adjoining the leased premises. (See, e.g., Appel v. Muller, 262 N. Y. 278, 282; Lafredo v. Bush Term. Co., 261 N. Y. 323, 327; Cullings v. Goetz, 256 N. Y. 287, 293.) In a case such as the one before us, involving neither premises abutting upon a public street, a traveler on a highway nor property open to the public, the sine qua non of liability in tort is retention by the landlord of a measure of occupation and control over the leased premises. The governing rule was given definitive statement in Cullings v. Goetz (supra, 256 N. Y. 287); the court there held, and the holding has been reiterated over the years, that the requisite reservation of control is not effected or accomplished by a mere promise on the part of the landlord to make repairs at the tenant’s request. (See, e.g., Lafredo v. Bush Term. Co., supra, 261 N. Y. 323; Solomon v. Brooklyn Cornett Utilities, 291 N. Y. 593; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422, 424.)

The rationale underlying the rule, and it was set forth by Judge Cardozo in the course of his opinion in the Cuttings case, is that a covenant or agreement to repair “ at the request of the lessee ”, without more, constitutes, “ not a reservation by an owner of one of the privileges of ownership ”, but rather “ the assumption of a burden for the benefit of the occupant with consequences the same as if there had been a promise to repair by a plumber or a carpenter ” (256 N. Y., at p. 291). The court did, however, assume “ the possibility of so phrasing and enlarging the rights of the lessor that occupation and control will be shared with the lessee ’ ’, and specifically called attention to decisions in Massachusetts “ that draw a distinction between a covenant merely to repair and one to maintain in safe condition with supervision adequate to the end to be achieved ’ ’ (256 N. Y., at pp. 290-291). And, the court continued (p. 291), In the case now at hand, the promise, if there was any, was to act at the request of the lessee.”

Here, then, in Cullings itself, is recognition that a landlord may retain the essential control of leased property by reserving to himself the right, to be exercised in his independent discretian — as distinguished from “ a promise * * * to act at the [tenant’s] request” (256 N. Y., at p. 291) — to enter the premises at any and all times and make repairs upon his own responsibility. Indeed, in recent years, this court has found evidence of such control in an act of repair made by the landlord after the accident, even though the primary duty of repair rested upon the tenant. (See Noble v. Marx, 298 N. Y. 106, 108; see, also, Antonsen v. Bay Ridge Sav. Bank, 292 N. Y. 143, 146; Scudero v. Campbell, 288 N. Y. 328, 329.) While these cases do not relax the requirement of requisite control in the landlord, they do indicate that such control may be demonstrated by a showing of something less than ‘ ‘ 1 the power and the right to admit people to the premises and to exclude people from them’”. (Cf. Cullings v. Goetz, supra, 256 N. Y. 287, 290; Lafredo v. Bush Term. Co., supra, 261 N. Y. 323, 325.)

Be that as it may, the prerequisite power of control may not be inferred from a mere covenant to repair; that is what the court held in Cullings v. Goetz (supra, 256 N. Y. 287) and nothing we now say is intended to curtail that ruling. In the case before us, however, there is much more than such a covenant. Not only by the lease which it made with the tenant, but by the practice and procedure actually followed, defendant landlord kept and retained a general supervision over the premises. Besides agreeing to repair upon notice, defendant reserved ‘ the right at any time ” to go upon the demised property, inspect it and ‘ ‘ make such repairs and alterations as it shall deem necessary for [its] safety and preservation ”. The large degree of control which this provision reflects is further accentuated both by the fact that the tenant had neither the right nor the duty to repair the premises and by the fact that the landlord had its own watchmen to guard and police them, as well as its own superintendent of maintenance and a crew of 20 men to inspect them, spot the defects and make needed repairs.

An owner of a number of parcels of a specialized character may, as here, develop an extensive system of machinery for making inspections and repairs through trained personnel. Such an owner does not expect the tenant to duplicate the necessary machinery and paraphernalia or procure the manpower required to search out and correct defects on the property. This is particularly so where the tenant is assured (as was Barber herein) that the landlord will inspect and repair without waiting to be asked; under such circumstances, he will not be inclined to make repairs on his own, even if free to do so. A landlord who has the right to come and go upon the leased premises as he pleases for the purpose of inspection and repair and who is at liberty to correct any defect as soon as it is found, must be regarded as having thereby reserved a privilege of ownership, sufficient to give rise to liability in tort.

In the light of the record before us, evidence designed to demonstrate that the tenant exercised some control of the pier, is totally indecisive, and completely beside the point, as to whether the landlord shared such control with the tenant. For that reason, the trial court was fully justified in excluding testimony, offered by defendant, that Barber had, after the accident, requested defendant to repair the door and that it had done so.

Nor is plaintiff barred from recovery by reason of Barber’s failure to give notice of the defect to defendant. If the suit were one by the tenant against the landlord for breach of the covenant to repair, the written notice required by the lease might operate as a condition precedent to recovery. (See, e.g., Hirsch v. Radt, 228 N. Y. 100, 105.) Once it be decided, however, that the landlord shared control with the tenant, the lease provision is irrelevant in a suit brought by a third party and, in determining the landlord’s liability in tort, the usual rules relating to notice in negligence actions apply. If the owner acquires knowledge of a defective condition or is otherwise chargeable with knowledge or notice thereof, he is subject to liability for injuries sustained because of his failure to correct that condition. (See Magid v. City of New York, 259 N. Y. 618, affg. 234 App. Div. 38; Murray v. Usher, 117 N. Y. 542; see, also, Ford v. Grand Union Co., 268 N. Y. 243, 247; Glenn v. Oakdale Contr. Co., 257 N. Y. 497; Haefeli v. Woodrich Eng. Co., 255 N. Y. 442, 448-449; De Milt v. Hart, 235 N. Y. 464.) In the present case, there was ample evidence to charge defendant with constructive notice of the defective condition of the pier door. There was testimony that for a long period of time eight men were used to move the door, where only two should have been required; that crowbars were being employed in the operation; and that defendant’s superintendent was not only aware that crowbars were being used but had ordered the practice stopped. Under the circumstances, the jury could, as it did, properly find that defendant had such constructive notice as to impose upon it the duty of locating the faulty door and repairing it.

We are left only with the precise disposition to be made of the case. The dismissal of the complaint was unwarranted, and the judgment of the Appellate Division must, therefore, be reversed. Since that court, while otherwise affirming the jury’s “ implied findings of fact,” registered disagreement with the size of the verdict and characterized it as “ grossly excessive ”, we may not reinstate the judgment of the trial court. (See Cohen and Karger, Powers of the New York Court of Appeals, pp. 566-567.) Nevertheless, there remains open to the Appellate Division the alternative of either ordering a new trial because of the excessiveness of the verdict or permitting the verdict to stand in a reduced amount upon plaintiff’s consent to such a reduction. The case should, accordingly, be remitted to the Appellate Division for the limited purpose of enabling it to deal with that matter. (See Betzag v. Gulf Oil Corp., 298 N. Y. 358, 301 N. Y. 576.)

The judgment of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the case remitted to that court for further proceedings, not inconsistent with this opinion, in relation to the excessiveness of the verdict.

Van Voorhis, J.

(concurring). I agree with Judge Desmond’s statement of the law, but consider that the facts of this case distinguish it from Cullings v. Goetz (256 N. Y. 287) in that the pier where this accident occurred was one of 30 owned and leased by respondent on the Brooklyn water front, that by the leasing arrangements the tenant was forbidden to make repairs, that respondent had watchmen and a crew of 20 men stationed constantly on these piers for the purpose of discovering and repairing defects, and that this was done regularly by respondent without notifying the tenant. Plaintiff’s intestate was killed by the falling of a sliding door 23 feet in height and weighing 1,700 pounds, which respondent and not the tenant was equipped to repair, and would normally have discovered and repaired in the usual course of business. Respondent had retained control of these piers to perform this kind of work which the tenant was prevented from doing. Under these circumstances, it seems to me that respondent is not exonerated as matter of law, and that the dismissal of the complaint should be reversed without curtailing the precedent of Cullings v. Goetz (supra).

Desmond, J.

(dissenting). I dissent and vote to affirm.

The heart of this decision is in that part of the majority opinion which says that a landlord may be held liable solely because of a covenant in the lease permitting him “ to enter the premises at any and all times and make repairs upon his own responsibility.” None of the cited cases, nor any other case I have seen, so holds. Indeed, Noble v. Marx (298 N. Y. 106, 110), one of the most recent decisions listed in the majority opinion here, is exactly to the contrary, holding as it does that an express reservation in the lease, to the landlord, of the right to enter is not enough to prove control in the landlord. The true and only rule in this State is that of Cullings v. Goetz (256 N. Y. 287, 290) which says that the power of control which will make a landlord liable is “ ‘the power and the right to admit people to the premises and to exclude people from them ’ ” (see Warren on Negligence in the New York Courts, Vol. 2A, p. 374). Not only has that Cullings rule never been revised by this court but it was the sole and express basis for exculpation of the landlord in Lafredo v. Bush Term. Co. (261 N. Y. 323) where the facts were identical with those in this case with the single exception that the Lafredo lease did not confer on the landlord an express permission to re-enter the premises for repair purposes. The Lafredo lease, like the lease in the present case, was of a pier and sheds thereon. In neither case was any so-called “ right to inspect and repair ” of any practical importance since in each situation defendant landlord maintained a large repair force and in fact did all the repairs.

The judgment should be affirmed, with costs.

Conway, Ch. J., Froessel and Burke, JJ., concur with Fuld, J.; Van Voorhis, J., concurs in result in a separate opinion in which Conway, Ch. J., also concurs; Desmond, J., dissents in an opinion; Dye, J., taking no part.

Judgment reversed, etc.


author: Per Curiam.

text:
    Mary A. Taylor, as Administratrix of the Estate of Frank E. Taylor, Deceased, Appellant, v. Interstate Motor Freight System, Respondent.
    Argued November 16, 1955;
    decided February 17, 1956.

      John P. Cox, William J. Flynn, Joseph Swart and Edward J. Murty, Jr., for appellant.
    I. Final determination of proper exercise of discretion rests with this court. (Matter of Flagler, 248 N. Y. 415; Matter of Oystermen’s Dock Co. v. Downing, 258 N. Y. 156; Nelson v. Hersch, 264 N. Y. 316; Bata v. Bata, 304 N. Y. 51; Karlin v. Karlin, 280 N. Y. 32; People v. Parkin, 263 N. Y. 428.) II. The existence of special circumstances justifies retention of tort actions by New York State courts. (Murnan v. Wabash Ry. Co., 246 N. Y. 244; Yesuvida v. Pennsylvania R. R. Co., 200 Misc. 815.) III. Special circumstances have previously been held to justify retention of tort actions. (Salomon v. Union Pacific R. R. Co., 197 Misc. 272; Williamson v. Palmer, 181 Misc. 610; Randle v. Inecto, Inc., 131 Misc. 261.) IV. The record reveals special circumstances which throw the balance in favor of plaintiff.

      John F. Canale and Mortimer Allen Sullivan for respondent.
    I. Final determination of proper exercise of discretion rests with this court. II. The unanimous opinion of the Appellate Division is correct and should be affirmed, (de la Bouillerie v. de Vienne, 300 N. Y. 60; Wedeman v. United States Trust Co. of N. Y., 258 N. Y. 315; Murnan v. Wabash Ry. Co., 246 N. Y. 244; Yesuvida v. Pennsylvania R. R. Co., 200 Misc. 815; Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152; Brandao v. United Fruit Co., 183 Misc. 683; Collard v. Beach, 81 App. Div. 582; Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315.) III. There are no special circumstances existing in the present case to warrant the trial of this action in the courts of the State of New York.
   Per Curiam.

This action was brought by plaintiff to recover for the wrongful death of her husband as a result of a collision which occurred in the State of Ohio. Decedent was the driver of one of two tractor-trailer trucks involved in the accident. He resided in Pennsylvania.

The tractor-trailer truck driven by the decedent was owned by New York Car Carriers, Inc., a New York corporation having its office in Buffalo, New York. He was an employee of New York Car Carriers, Inc. He reported to and was paid by the Buffalo, New York, office of the New York Car Carriers, Inc. At the time of the accident, the decedent was engaged in the course of his employment. The decedent’s widow and children have been awarded benefits by the Workmen’s Compensation Board of the Department of Labor of New York State.

The other tractor-trailer truck was owned by Interstate Motor Freight System, a Michigan corporation, the defendant. A certificate of authority to do business in New York State had been issued to Interstate upon its statement and designation, making the Secretary of State its agent for the purpose of accepting service. Interstate had an office for the transaction of business in the city of Buffalo, New York. It transacts its trucking business throughout the State. Service of the summons was made on the Secretary of State.

On February 9, 1954, under section 29 of the Workmen’s Compensation Law, Michigan Mutual, the insurer, served a notice upon the widow to commence a third-party action against any other party responsible for her husband’s death. Her failure to commence her action before March 11, 1954, would operate to assign her cause of action to Michigan Mutual, the insurer.

Mrs. Taylor commenced this action on March 9, 1954. By respective statutes, the time within which to commence an action in Pennsylvania expired on October 1, 1953, and in New York, Ohio and Michigan, on September 30, 1954.

Special Term denied the motion of the defendant to vacate service of the summons and complaint and to dismiss the action, finding special circumstances warranting the exercise of discretion in favor of assuming jurisdiction of the suit. The Appellate Division reversed the order of Special Term upon the ground that Special Term exceeded its discretionary power in this case ”.

The statement by the Appellate Division that this reversal was “ on the law ” (as well as in. discretion) and other statements in its opinion suggest to us that the Appellate Division believed that there was a controlling and inescapable public policy mandating dismissal. There does exist a public policy against entertaining such suits between nonresidents but ‘ ‘ there is no absolute prohibition against such suits ” (Bata v. Bata, 304 N. Y. 51, 56). The power to dismiss is still a discretionary one (Bata v. Bata, supra, p. 55). Where there are special and unusual circumstances such as are here shown without dispute and favoring acceptance of the suit, those special and unusual circumstances must be given adequate consideration.

The judgment of the Appellate Division should be reversed and the case remitted to that court for further proceedings not inconsistent with this opinion.

Conway, Ch. J., Desmond, Froessel, Van Voorhis and Burke, JJ., concur in Per Curiam opinion; Dye, J., taking no part.

Fuld, J., concurs in the following memorandum: I agree with the court’s decision, understanding it, as I do, as a remission to permit the Appellate Division to exercise its discretion fully and independently.

Judgment reversed, etc.


author: Burke, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Robert White, Appellant.
    Argued October 18, 1955;
    decided February 17, 1956.

      Milton Schilback and Robert White, in person, for appellant.
    Appellant is entitled to a hearing on his allegation that his plea of guilty was obtained by fraud. (Matter of Hogan v. New York Supreme Court, 295 N. Y. 92; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Richetti, 302 N. Y. 290; Matter of Bojinoff v. People, 299 N. Y. 145; People v. Langan, 303 N. Y. 474; People v. Guariglia, 303 N. Y. 338.)

      Frank S. Hogan, District Attorney (Leonard E. Reisman and Charles W. Manning of counsel), for respondent.
    Grounds for coram nobis having been conclusively refuted by the documentary proof, the motion was properly denied without a hearing. (People v. Sadness, 300 N. Y. 69; People v. Daiboch, 265 N. Y. 125; People v. Gowasky, 244 N. Y. 451; People v. Chichester, 262 App. Div. 567; Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Guariglia, 303 N. Y. 338; People v. Langan, 303 N. Y. 474; People v. Richetti, 302 N. Y. 290.)
   Burke, J.

The defendant by affidavit alleges that on February 11,1930, he pleaded guilty to grand larceny in the second degree in the Court of General Sessions, New York County, relying upon the alleged fraudulent misrepresentation of an assistant district attorney that upon a plea of guilty he would be sentenced as a second felony offender. He further alleges in paragraphs 11 (clause [d]) and 13 of the affidavit that he abandoned attempts to withdraw his guilty plea and did not appeal from his sentence, relying upon the misrepresentation of the sentencing Judge that he would receive a pardon after serving seven years’ imprisonment.

Court records disclose the following facts: On April 1, 1929, after a notice of appearance was filed by Harrison & Collins as counsel, the defendant entered a plea of not guilty. Leroy Campbell, Esq., was substituted and assigned as .counsel to the defendant on January 27, 1930. On January 29, 1930, a trial was commenced on the charge of grand larceny, first degree, which resulted in a mistrial. Subsequent to the guilty plea on February 11th, the defendant was arraigned for sentence on February 28, 1930, in the presence of his counsel, at which time the assistant district attorney requested an adjournment for the purpose of filing an information. The court then stated that it appeared from the report that the defendant was a fourth or fifth offender. Later, on March 11, 1930, the defendant through his attorney refused to answer when arraigned on an information read to him, charging him with three prior felony convictions, including a Federal judgment.

At the time he agreed to the plea, all the convictions were well known to the defendant, as his admissions later prove. On April 15, 1930, the information was once more read to him in the presence of his attorney, and he again remained mute. The court directed the impaneling of a jury to try the defendant on the information. After the jury was impaneled, the counsel for the defendant moved with the consent of the District Attorney to have a juror withdrawn and a mistrial declared. The defendant then admitted he was the same person mentioned in the information, but reserved the right to challenge the legal effect of the Federal conviction. The court, as required by the statute, sentenced the defendant as a fourth offender for the term of life. On the sentencing the following colloquy took place:

The Court: I sentence the defendant to State Prison for the natural term of his life. I make this recommendation that after he has served a term of seven years in State Prison he be a subject for pardon by the Governor of the State of Hew York, and I add my recommendation that he receive favorable consideration, by the Governor of the State of Hew York, for a pardon, after he has served a term of seven years in State Prison.
Mr. Tighe [attorney for defendant] : You hold, if the defendant were not subject to section 1942 of the Penal Law, that you would sentence the defendant to seven years for the crime he has committed.
“ The Court: If the defendant were not subject to life imprisonment under the Baumes Act, I would sentence the defendant to seven years imprisonment in State Prison.”

It is conceded that the defendant’s commitment papers to State prison contained the recommendation of the Judge of General Sessions. On May 12, 1930, Leroy Campbell, Esq., as attorney, filed a notice of appeal which was not prosecuted. During the prison term the defendant by several applications unsuccessfully sought to have the Federal conviction adjudged a misdemeanor. Thereafter the defendant made several applications for executive clemency.

The defendant’s motion for a writ of error cor am nobis to vacate and set aside the judgment of General Sessions rendered April 15, 1930, was denied without a hearing. The Appellate Division unanimously affirmed the order denying the motion.

On this appeal the defendant contends that the Court of General Sessions erred in denying a hearing on the claim of fraud as the defendant’s allegations are uncontradicted.

The mere averment of fraudulent misrepresentation is meaningless unless the averment discloses acts evidencing reliance upon the alleged misrepresentation. The record demonstrates that the defendant knew he had been convicted of three separate crimes prior to the plea. The defendant was represented by counsel on February 28, 1930, on March 11, 1930, on April 15, 1930, and on May 12, 1930. During this period he knew of his three prior convictions and was aware that the District Attorney and the court were cognizant of the convictions. The absence of minutes showing that he was represented by counsel on February 11, 1930, the day of pleading, is not evidence that he relied upon a fraudulent misrepresentation. He knew his plea of guilty would add to his criminal record a fourth conviction. The notation on the indictment proves that the plea was taken in open court. From February 28 until May 12, 1930, both the defendant and his counsel were fully apprised by the District Attorney and the court that he was to be sentenced as a fourth offender. It is impossible to conjure even a feigned reliance in the face of these plain warnings. Hence the failure of the defendant or his counsel to allude to the alleged fraudulent misrepresentation from February 28, 1930, through May 12, 1930, although the time and the occasion were repeatedly given to the defendant to do so, is evidence rebutting even a suggestion of reliance. In his affidavit the defendant concedes that prior to sentence he abandoned reliance upon the so-called agreement. The defendant’s application for a writ of coram nobis depends, therefore, on the alleged promise of the Judge at General Sessions that he would receive a pardon after serving seven years’ imprisonment.

The allegations of the defendant are contradicted by the documentary proof and by the conduct of the defendant, his attorney, the District Attorney and the court. The allegation that all parties concerned agreed that he was a second offender and not a fourth offender is directly disproved by the notations on the indictment, and on the information and the minutes of the hearings held in 1930. The defendant’s claim of judicial misrepresentation in regard to a pardon is unsubstantiated. The allegation that he attempted to withdraw his plea and that the request was denied is refuted by the minutes of the hearings which show no such request.

We said in People v. Richetti (302 N. Y. 290, 298): “ A presumption of regularity exists only until contrary substantial evidence appears (People ex rel. Wallington Apts. v. Miller, 288 N. Y. 31, 33; Galpin v. Page, 18 Wall. [U. S.] 350, 365; 9 Wig-more on Evidence [3d ed.], § 2491).” Charges made in coram nobis are subject to the criteria relied upon in all causes to determine where the truth lies. Bare allegations not confirmed by the recorded facts and contrary to the conduct of the defendant and his attorney, are insufficient in law to warrant the granting of a hearing. The defendant is not entitled to a hearing on charges lacking factual support. Due process does not require a court to accept every sworn allegation as true. Many sworn allegations are palpably untrue, not improbable or unbelievable, but untrue. (Taylor v. Alabama, 335 U. S. 252; Foster v. Illinois, 332 U. S. 134.) The allegations in this case fit this description.

The test is whether there is, as a matter of law, a dispute of fact which entitles the defendant to a hearing. (People v. Richetti, 302 N. Y.290, supra; Rice v. Olson, 324 U. S. 786.) We have stated “ that Federal due process requires no trial if the State courts be convinced, on the record, that there is no reasonable probability at all, that defendant’s averments are true.’7 (People v. Richetti, supra, pp. 295-296.) The record in this case “ convincingly demonstrates ” the falsity of the allegations. (People v. Guariglia, 303 N. Y. 338, 342.)

The defendant’s version of the alleged misrepresentation of the assistant district attorney is contradicted by the clear showing of the lack of an opportunity for reliance, indeed the impossibility of reliance, in view of the personal knowledge of the defendant of his criminal career and of the warnings of the court. Therefore, there is no dispute of fact as to reliance upon the alleged misrepresentation of the assistant district attorney. The interpretation of the statement of the Judge at General Sessions as a “guaranty” of executive clemency is a mere conclusion, legally insufficient to warrant a hearing, as it raises no issue of fact but only represents an opinion of the defendant. A recommendation cannot be construed as a promise or guarantee or truly characterized as such. The language used by the court does not permit even the inference of a promise.

There is no question of due process. The defendant was assigned and was represented by counsel who had defended him at the abortive trial prior to the plea. The documentary proof shows he was informed in the presence of his counsel at three separate hearings that he was to be sentenced as a fourth offender. During 1931 and 1932 three separate habeas corpus proceedings were brought by the defendant but the habeas corpus writs were dismissed. Subsequently in 1932 and 1938 the defendant instituted proceedings in an attempt to establish that the conviction in the Federal court was not a felony convictian, within the meaning of section 1942 of the Penal Law, but did not in any way complain of the alleged acts of the District Attorney or the court in reference to the charges now made. There is no question of credibility for — assuming the allegation as to the representation by the assistant district attorney to be true — the basis for belief was dissipated by the proceedings on the information. If the plea had been made in error or accepted in error, the minutes of the proceedings on the information would so state. The minutes, on the contrary, show that the defendant was to be sentenced as a fourth offender and contain neither a reference to a conditional plea as a second offender nor an attempt by the defendant to withdraw the plea. Indeed the minutes record the refusal of the defendant to take any position as to his criminal status. Here we have not only the failure to overcome the presumption of regularity but documentary proof evidencing regularity.

The Judge of General Sessions and the Justices of the Appellate Division have unanimously found that the charges have been conclusively refuted and that there is no genuine triable issue. There is more than sufficient evidence to sustain the determination. The order of the Appellate Division should be affirmed.

Desmond, J.

(dissenting). Since I see no ground for refusing this defendant a trial of his sworn allegations, I vote to remit to General Sessions with directions to hold such a trial. Defendant alleges that, when unrepresented by counsel, he pleaded guilty in reliance on a fraudulently made promise by the prosecutor that, if defendant would plead guilty, he would be sentenced as a second offender, only. People v. Guariglia (303 N. Y. 338, 343.) holds that these allegations require a trial, unless ‘ ‘ conclusively ” shown by documentary evidence to be false. Not only are this defendant’s averments not conclusively disproven by any record, they are not even met with a direct denial. What the People did file as an answer was a collection of excerpts and notations from the indictment and from the clerk’s records and the minutes of proceedings, all as of dates after defendant pleaded guilty. These later occurrences and circumstances, while they might make it seem probable to a trier of the facts that defendant is not telling the truth, certainly should not deprive him even of a trial of the issue. As recently as January 9th of this year, the United States Supreme Court (Herman v. Claudy, 350 U. S. 116, following Palmer v. Ashe, 342 U. S. 134, 137) held that a defendant’s constitutional right to such a trial could not be denied on paper showings like those in this record (see Chessman v. Teets, 350 U. S. 3 [1955]).

It is impossible for me to reconcile the decision now being made in this case with the controlling precedents of Matter of Lyons v. Goldstein (290 N. Y. 19); Matter of Hogan v. New York Supreme Court (295 N. Y. 92); and People v. Richetti (302 N. Y. 290), restated a few months ago in People v. Lain (309 N. Y. 291, 294).

The order should be reversed and the matter remitted to the Court of G-eneral Sessions for trial.

Conway, Ch. J., Fboessel and Van Vooehis, JJ., concur with Bubke, J.; Desmond, J., dissents in an opinion in which Fuld, J., concurs; Dye, J., taking no part.

Order affirmed.


text:
    The People of the State of New York, Respondent, v. Samuel Abelson, James Lagala, Hyman Becker, Arthur J. Fromen, Jules Kramer, Anthony Perrone, Joseph Lape, Samuel Siegel, Harry A. Rosen, Alias Al Rosen, Appellants.
    Argued November 28, 1955;
    decided February 17, 1956.

      William B. Mahoney for Hyman Becker and others, appellants.
    I. There was a complete failure by the People to make out a prima facie case against any of the defendants on any of the counts. There was no proof of the corpus delicti of the crime and the indictment should have been dismissed at the close of the People’s case. (People v. Erickson, 302 N. Y. 461;
      People v. Sacks, 276 N. Y. 321; Ruloff v. People, 18 N. Y. 179; People v. Cuozzo, 292 N. Y. 85; People v. Taddio, 292 N. Y. 488; People v. Weiss, 290 N. Y. 160; People v. Goldstein, 295 N. Y. 61; People v. Charney, 269 App. Div. 680; People v. Giro, 197 N. Y. 152; People v. Deacons, 109 N. Y. 374.) II. The alleged identity of the voices of defendants was not established in a satisfactory way. The court failed to consider such question as a matter of law. The identification of voices was without foundation and the indictment should have been dismissed. (Murphy v. Jack, 142 N. Y. 215; People v. McKane, 143 N. Y. 455; People v. Strollo, 191 N. Y. 42; People v. Dunbar Contr. Co., 215 N. Y. 416; People v. McDonald, 177 App. Div. 806; People v. Sacks, 276 N. Y. 321; People v. Davino, 284 N. Y. 486, 288 N. Y. 423.) III. The People failed to establish the single conspiracy charged in the first count of the indictment or any other conspiracy. (People v. Friedlander, 280 N. Y. 436; People v. Winter, 288 N. Y. 418; Linde v. United States, 13 F. 2d 59; United States v. Lekacos, 151 F. 2d 170; Kotteakos v. United States, 328 U. S. 750.) IV. Defendants’ motion to dismiss the indictment on the ground that the evidence before the Grand Jury was insufficient as a matter of law to justify its return should have been granted. (People v. Nitzberg, 289 N. Y. 523.) V. The court’s failure in its charge to marshal the facts in the complicated case was prejudicial error. Furthermore, the court’s failure to assist the jury when informed that some of the jurors did not understand the definition of conspiracy constituted prejudicial error. (People v. Odell, 230 N. Y. 481; People v. Buchalter, 289 N. Y. 181; People v. Fanning, 131 N. Y. 659; People v. Becker, 210 N. Y. 274; People v. Aszkler, 264 App. Div. 938; People v. Birch, 283 App. Div. 844; People v. Flynn, 290 N. Y. 220; People v. Gonzalez, 293 N. Y. 259; People v. Lupo, 305 N. Y. 448.) VI. It was error for the court to allow the jurors to speculate on the jargon contained in the testimony. The court admitted it did not understand the same and would require the District Attorney to produce explanatory proof. There was a complete failure to produce the same. (People v. Samuels, 302 N. Y. 163; People v. Strait, 148 N. Y. 566.) VII. The court’s abrupt interference with and eventual breaking off of the summation of defense counsel was prejudicial to defendants and constituted error. (People v. Kelly, 94 N. Y. 526; People v. Mayer, 132 App. Div. 646; People v. Buchalter, 289 N. Y. 181.) VIII. The court erroneously admitted conversations relating to instances outside the scope of the conspiracy. Also, the court failed to exercise discretion to delete vulgar and filthy language, and then informed the jurors that, in his mind, it formed a pattern of conversation which was material to the conspiracy. (People v. Vaccaro, 288 N. Y. 170; People v. Ryan, 263 N. Y. 298; People v. Feld, 305 N. Y. 322.)

      John I. O’Day for James Lagala and another, appellants.
    I. The testimony of the witness Robinson to the effect that, after hearing hundreds of telephonic conversations on his recording device, he was able, three months later, to identify the voice of eighteen of the conversants, was incredible as matter of law. (People v. Dunbar Contr. Co., 215 N. Y. 416; People v. Strollo, 191 N. Y. 42.) II. Since the witness Robinson testified that he had not identified either of these appellants or any other defendant in his testimony before the Grand Jury, there was not presented to that body evidence to make out a prima facie case and the indictment should be dismissed. (People v. Nitzberg, 289 N. Y. 523.) III. The People failed to establish a prima facie case against these appellants since there was no proof of a conspiracy, there was no proof that any “ trial or contest of skill, speed and power of endurance of horses or men ’ ’ took place on any of the dates in question, and there was no proof that the contents of the conversations recorded related to wagers or bets upon any such contests. (People v. Winter, 288 N. Y. 418; People v. Friedlander, 280 N. Y. 437; People v. Cuozzo, 292 N. Y. 85; People v. Taddio, 292 N. Y. 488.) IV. The court was in error in allowing the jury to have access to typewritten transcripts of certain recordings as an aid to their interpretation of them. (People v. Feld, 305 N. Y. 322; People v. O’Keefe, 281 App. Div. 409, 306 N. Y. 619.) V. The court improperly allowed the District Attorney to examine appellant Lagala’s trial counsel as to that appellant’s presence at the scene of the incriminating phone calls. VI. The court committed error in charging the jury in that: (1) It took away from the jury the question as to whether appellant Lagala was ” Jimmy Dale ”, and (2) it failed to marshal the evidence for the benefit of the jury. (People v. Becker, 210 N. Y. 274; People v. Fanning, 131 N. Y. 659; People v. Aszkler, 264 App. Div. 938.)

      John 8. McGovern for Samuel Abelson and others, appellants.
    I. The identification of appellant Lape as a perpetrator of these misdemeanors, based solely on the hearing of a voice over a telephone which voice was not known at the time of hearing it and did not become known until nearly three months later, was not sufficient to send the case to the jury and was not sufficient to justify the jury in finding appellant guilty beyond a reasonable doubt and to overcome the presumption of innocence with which he was clothed. (Murphy v. Jack, 142 N. Y. 215; People v. Crum, 272 N. Y. 348; People v. Strollo, 191 N. Y. 42; People v. Dunbar Contr. Co., 215 N. Y. 416; Mankes v. Fishman, 163 App. Div. 789; Woodruff v. Benesch, 112 Misc. 489; People v. McDonald, 177 App. Div. 806; People v. Trybus, 219 N. Y. 18.) II. The People failed to prove beyond a reasonable doubt the crime of book-making as alleged in counts 20 and 22 of the indictment and there was no adequate proof of all the elements of the crime described in section 986 of the Penal Law. (People v. Erickson, 302 N. Y. 461; Bamman v. Erickson, 288 N. Y. 133; Watts v. Malatesta, 262 N. Y. 80; Ruloff v. People, 18 N. Y. 179 ; People v. Cuozzo, 292 N. Y. 85; People v. Taddio, 292 N. Y. 488; People v. Carroll, 54 Cal. App. 684; People v. Giro, 197 N. Y. 152; People v. Deacons, 109 N. Y. 374; People v. Popoff, 289 N. Y. 344.) III. There was no adequate proof of a conspiracy. (People v. Friedlander, 280 N. Y. 437; People v. Winter, 288 N. Y. 418; Linde v. United States, 13 F. 2d 59; Kotteakos v. United States, 328 U. S. 750.) IV. The trial court, in his charge to the jury, failed to marshal the facts in this long and complicated case and the jury was left to its own devices to sift out and apply the evidence as best they could. This is error. (People v. Odell, 230 N. Y. 481; People v. Buchalter, 289 N. Y. 181; People v. Fanning, 131 N. Y. 659; People v. Becker, 210 N. Y. 274; People v. Aszkler, 264 App. Div. 938; People v. Birch, 283 App. Div. 844; People v. Flynn, 290 N. Y. 220; People v. Gonzales, 293 N. Y. 259; People v. Lupo, 305 N. Y. 448.) V. The motion of appellants to dismiss the indictment on the ground that the evidence before the Grand Jury was insufficient as a matter of law should have been granted.

      John S. McGovern for Jules Kramer, appellant.
    I. The appellant Kramer adopts the same argument as made in the brief of appellants Joseph Lape and Samuel Abelson under point one of the argument for appellant Lape. II. There was no adequate proof of conspiracy. There was a complete failure to establish the conspiracy as alleged in the indictment. No single conspiracy was proven. And the court’s failure, in his charge, to marshal the facts in this complicated case was prejudicial error. And the court’s failure to assist the jury when informed that some of the jurors did not understand the definition of conspiracy constituted reversible error. III. There was no adequate proof of all the essential elements of the crime described in section 986 of the Penal Law. IV. Due process of law was denied appellants and was not observed in the failure to follow the provisions of section 813-a of the Code of Criminal Procedure, and section 605 of the Federal Communications Act was violated and the legislation designated as section 813-a of the Code of Criminal Procedure is unconstitutional.

      Abe Roth for Harry A. Rosen, appellant.
    It was error for the court to receive evidence obtained by wire tapping (if the rule of evidence of the Adams, Defore and Richter cases is abandoned). (People v. Adams, 176 N. Y. 351; People v. Defore, 242 N. Y. 13; People v. Richter’s Jewelers, 291 N. Y. 161; People v. Le Doux, 155 Cal. 535; People v. Mayen, 188 Cal. 237; People v. Bonzales, 20 Cal. 2d 165; People v. Kelley, 22 Cal. 2d 169; People ex rel. Kenny v. Adams, 292 N. Y. 65.)

      John F. Dwyer, District Attorney (Merrill G. Windelberg and Leonard Finhelstein of counsel), for respondent.
    I. The identification of defendants was sufficient beyond a reasonable doubt. (Mack v. State, 54 Fla. 55; Commonwealth v. Hayes, 138 Mass. 185; Murphy v. Jack, 142 N. Y. 215; People v. Levis, 96 Misc. 513; People v. Strollo, 191 N. Y. 42; People v. Dunbar Contr. Co., 215 N. Y. 416; Rimes v. Carpenter, 61 Misc. 614; People v. McDonald, 177 App. Div. 806; Woodruff v. Benesch, 112 Misc. 489; Ogden v. People, 134 Ill. 599.) II. The court charged the jury fully, fairly and impartially in accordance with all provisions of law. III. The evidence of the People established the guilt of defendants beyond a reasonable doubt. (People v. Suffolk Contr. Co., 171 App. Div. 645; People v. Connolly, 253 N. Y. 330; People v. Peckens, 153 N. Y. 576.) IV. The evidence before the Grand Jury was sufficient to return this indictment. (People v. Nitzberg, 287 N. Y. 183, 289 N. Y. 523.) V. The evidence established beyond a reasonable doubt the usage and meaning of the language of defendants-appellants. (People v. McDonald, 177 App. Div. 806.) VI. The court’s discretion was properly exercised in fixing reasonable time limitations for summations; no prejudice was sustained by the termination of the summation of one defense counsel, who had exceeded the time limitation and additional time granted. (People v. Kelly, 94 N. Y. 526.) VII. The court admitted evidence only within the scope of the indictment and the vulgarity of defendants-appellants was their pattern of speech. VIII. The transcripts were accurate and were properly given to the jury during the playing of the recordings as an aid. IX. The cross-examination of Lagala’s trial counsel, sworn as a witness by the defense, was fair and proper and without prejudice.
   Per Curiam.

The judgments of conviction of the nine appellants must be reversed and a new trial ordered for the following reasons: (1) the proof of voice identification was inadequate to send the question to the jury, (2) the People failed to prove, prima facie, that appellants were engaged in a single conspiracy to commit the crime of book-making, (3) the People failed to prove, prima facie, that appellants, or any of them, committed the crime of book-making, and (4) there was no explanation given to the jury of the meaning of the jargon employed by the telephone conversants.

As to (1): The People’s case against the appellants rests upon the testimony of a special investigator for the District Attorney who, pursuant to the authority of two Supreme Court orders, listened in on over one hundred telephone conversations during some two weeks’ time for six hours each day and then identified the nine appellants and at least ten others, three months later, as possessing voices he had previously heard in such telephonic wire tapping. At the time he heard the voices he did not know the persons to whom any of the voices belonged except appellants Promen and Becker. While the investigator was listening in on the unfamiliar voices, he was busily making pencilled notes and attempting to record the substance of the conversations on the telephones.

There is, in this record, no individual identification of the voices of the telephone conversants but, rather, a collective or general description. Accordingly, on the state of this record we hold, as a matter of law, that the investigator’s identification of voices he heard on the telephones as belonging to appellants falls below the standard necessary to rebut the presumption of innocence and to prove the guilt of the appellants beyond a reasonable doubt.

As to (2): The indictment charges that appellants entered into a single conspiracy to commit the crime of book-making. However, the evidence against appellants does not spell out the details of any specific or unified effort but rather a series of disconnected transactions from which, at the most, inference of several conspiracies may be drawn.

As to (3): The People failed to prove the corpus delicti of the crime of book-making which is the acceptance of bets on a professional basis “ * * * upon the result of any trial or contest of skill, speed or power of endurance of man or beast * * (Penal Law, § 986.) There is no proof in this record that on the days set forth in the indictment (a) any horse races were run, (b) the names mentioned in the conversations were the names of horses, (c) any such horses were entered or ran in races on such dates, (d) any baseball games were played on the dates designated, or (e) any boxing matches were staged on such dates or that the names heard in the conversations were the names of participants who engaged in such boxing matches.

As to (4): The tapped conversations were carried on in a jargon, which the People claim is the jargon of book-makers. At no time did the People qualify an expert to explain to the court and jury the meaning of the expressions used. In the course of the trial the Presiding Justice himself remarked that the jargon ‘1 is unfamiliar to me, although the words are our English language ”. Despite this, the jury was given no explanation of the meaning of the expressions in question but was permitted to speculate as to their meaning.

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

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

Judgments reversed, etc. i


text:
    Joseph Gluckman, Appellant, v. Anthony Froehlich et al., Respondents.
    Argued May 24, 1955;
    decided July 8, 1955.

      Otho 8. Bowling and Marita A. Kelly for appellant.

      Francis B. Froehlich and Henderson Morrison, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ.


author: Van Voorhis, J.

text:
    Marcus J. Youmans, as Administrator with the Will Annexed of Conrad C. Mesick, Deceased, et al., Appellants, v. State of New York, Respondent. Marcus J. Youmans, as Administrator with the Will Annexed of Conrad C. Mesick, Deceased, et al., Appellants, v. State of New York, Respondent.
    (Claim No. 30716.)
    (Claim No. 30717.)
    Argued April 14, 1955;
    decided July 8, 1955.

      Richmond, I). Moot for appellants.

      Jacob K. Javits, Attorney-General (Richard H. Shepp and Henry S. Manley of counsel), for respondent.
   In each claim the appeal from the judgment — which constitutes the appealable paper — dismissed, with costs, upon the ground that no substantial constitutional question is presented.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel and Burke, JJ.; Van Yoorhis, J., dissents in part in the following opinion: ^

Van Voorhis, J.

(dissenting in part). There appears to have been an issue of fact concerning whether the claimants or the State owned the lands upon the southerly side of the Troy-. Schenectady State Road, which are claimed to have been appropriated by the State in 1949 without payment of compensation to the owners. Under such circumstances, I agree that no constitutional question is presented and that those appeals should be dismissed. It has been decided on conflicting evidence that those claimants did not own the lands which they contend were expropriated.

The situation is different, however, regarding the Conrad and Frank Mesick parcels (claims Nos. 30716, 30717) abutting the northerly side of this highway. The undisputed evidence shows, as it seems to me, that they owned land which was taken from them in 1949 without payment of compensation. Concededly, nothing was paid for the reason that the State took the position that it already had become the owner of the same land through an earlier condemnation proceeding conducted in 1907. Inasmuch as it appears as matter of law that these claimants owned these parcels, which were appropriated by the State in 1949 without payment of compensation, a substantial constitutional question is presented. Section 7 of article I of the State Constitution directs that Private property shall not be taken for public use without just compensation.” The evidence permits no other conclusion than that this is what has been done in the case of these two Mesick parcels. Consequently an appeal to this court may be taken as of right under section 7 of article VT of the Constitution and section 588 of the Civil Practice Act upon the ground that a constitutional question is directly involved.

The fact that these two parcels were owned by claimants and hence were expropriated by the State conclusively appears from the condemnation map filed in the 1907 proceeding. If these lands had been condemned in 1907 and were already owned by the State, there was no reason on account of which the State should again have taken proceedings to condemn them in 1949. The 1907 condemnation map (exhibit B in the present proceedings) contains a description by metes and bounds of the land which was condemned at that time, the location of Avhich is also shown on that map. Some of the landmarks which are shown on the 1907 condemnation map also appear upon the condemnatian map of 1949. These established locations demonstrate that more land is being appropriated in 1949 (for which nothing has been paid) than was taken in 1907. Other evidence confirms this fact.

For these reasons, the judgments in the case of claims Nos. 30716 and 30717 should be reversed, and those claims should be remitted to the Court of Claims with directions to make suitable awards.

Appeals dismissed, etc.


text:
    Joseph A. Napoletan et al., Appellants, v. State of New York, Respondent. Donald J. Keeler et al., Appellants, v. State of New York, Respondent. Marcus J. Youmans, as Administrator with the Will Annexed of Conrad C. Mesick, Deceased, et al., Appellants, v. State of New York, Respondent. Marcus J. Youmans, as Administrator with the Will Annexed of Conrad C. Mesick, Deceased, et al., Appellants, v. State of New York, Respondent. Marcus J. Youmans, as Administrator with the Will Annexed of Conrad C. Mesick, Deceased, et al., Appellants, v. State of New York, Respondent.
    (Claim No. 30732.)
    (Claim No. 30836.)
    (Claim No. 30792.)
    (Claim No. 30791.)
    (Claim No. 30837.)
    Argued April 14, 1955;
    decided July 8, 1955.

      Richmond D. Moot for appellants.

      Jacob K. Javits, Attorney-General {Henry 8. Manley and Richard H. Shepp of counsel), for respondent.
   In each claim, the appeal from the judgment — which constitutes the appealable paper — dismissed, with costs, upon the ground that no substantial constitutional question is presented. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Robert Youkon, Milton Youkon, Nicholas Youkon, Peter Youkon, Dorothy Youkon, Blanche Youkon and Helen Youkon, Appellants.
    Argued June 9, 1955;
    decided July 8, 1955.

      Jacob W. Friedman for appellants.

      Joseph F. Gagliardi, District Attorney (M. Morton Fdmiston, Jr., and Douglas L. McGuire of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Cowway, Ch. J., Desmowd, Dye, Fuld, Froessel, Yaw Yoorhis and Burke, JJ.


text:
    In the Matter of the Construction of the Will of Arthur C. James, Deceased. American Seamen’s Friend Society et al., Appellants; James Foundation of New York, Inc., et al., Respondents.
    Argued May 24, 1955,
    decided July 8, 1955.

      William C. Chanler, Knowlton Durham, Harold A. Scheminger and John B. Jessup for American Seamen’s Friend Society and others, appellants.

      Francis A. Brick, Jr., and Richard Y. Holcomb for Society for Promoting the Gospel among Seamen of the Port of New York, appellant.

      A. Donald Mackinnon, respondent in person; Harrison Tweed, William Eldred Jackson and Janet P. Kane for James Foundation of New York, Inc., and others, respondents.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Fboessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of the Claim of Frank Fiol, Respondent. Calmar Steamship Corporation, Appellant; Edward Corsi, as Industrial Commissioner, Respondent.
    Argued April 21, 1955;
    decided July 8, 1955.

      Edward C. Perkins, Ralph L. McAfee and Jack E. Brown for appellant.

      Jacob K. Javits, Attorney-General (Francis R. Curran and Henry S. Manley of counsel), for Edward Corsi, as Industrial Commissioner, respondent.

      Seymour W. Miller, Israel G. Seeger and Irving A. Logue for Seafarers International Union of North America, Atlantic and Gulf District, A. F. of L., amicus curiae, in support of respondents’ position.
   Order affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel, Van Voorhis and Burke, JJ.


text:
    Beatrice Spellman, Appellant, v. Helen Spellman, Respondent.
    Argued June 6, 1955;
    decided July 8, 1955.

      Philip L. Zenner for appellant.

      Albert E. Bond and James M. Ryan for respondent.
   Judgment affirmed, with costs. (See Le Fleur v. Vergilia, 280 App. Div. 1035.) No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Triple Cities Construction Co., a Copartnership, Appellant, v. Dan-Bar Contracting Co., Inc., Defendant, and Maryland Casualty Company, Respondent.
    Argued May 25, 1955;
    decided July 8, 1955.

      James B. Gitlits for appellant.

      William F. Conway for respondent.
   Order affirmed, without costs. First question certified answered in the negative. Second question certified answered in the affirmative. No opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    In the Matter of Leon M. Freed, Appellant, against Sonia Freed, Respondent.
    Argued June 7, 1955;
    decided July 8, 1955.

      Robert L. Callahan for appellant.

      Samuel L. Greenberg and Emanuel Greenberg for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Max Shapiro, Respondent.
    Argued June 3, 1955;
    decided July 8, 1955.

      Peter Campbell Brown, Corporation Counsel (Seymour B. Quel and James J. Hurley of counsel), for appellant.

      James Adikes and William E. Kennedy for respondent.
   Order affirmed, no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ.


text:
    Marxman Pipes, Inc., Appellant, v. Columbia Pictures Corp., Respondent.
    Argued June 1, 1955;
    decided July 8, 1955.

      Henry Amster and Milton Lipson for appellant.

      Ferdinand Pécora and Stuart Q. Schwarts for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Ch. J., Desmond, Dye, Fuld, Froessel. Van Vooehis and Burke, JJ.


author: Per Curiam:

text:
    The People of the State of New York, Respondent, v. Wallace H. Brown, Appellant.
    Argued May 25, 1955;
    decided July 8, 1955.

      Bernard Meyer son and Frank A. Jablonka for appellant.

      Harry C. Brenner, District Attorney (Bernard C. Smith of counsel), for respondent.
   Per Curiam:

The judgment of the County Court and the judgment of the Court of Special Sessions, Town of Brookhaven, Suffolk County, should be reversed and the information dismissed, upon the ground that the evidence is insufficient in law to warrant a finding of guilt beyond a reasonable doubt.

Concur: Conway, Ch. J., Desmond, Dye, Ftjld, Froessel, Van Voorhis and Burke, JJ.

Judgments reversed, etc.