author: Lehman, J. Hubbs, J.

text:
    Lillian Cohen, Respondent, v. Lincoln Savings Bank of Brooklyn et al., Appellants.

      Argued June 7, 1937;
    decided October 5, 1937.
    I. Maurice Wormser, Allan C. Rowe, Paul E. Mead and Bernard Fliashnick for appellants.
    The indorsement by the impostor was not a forgery. He was the person to whom plaintiff intended her indorsed check to be delivered and was the person who was intended to receive the proceeds of the check. (Strang v. Westchester County Nat. Bank, 235 N. Y. 68; Halsey v. Bank of New York & Trust Co., 270 N. Y. 134; Phelps v, McQuade, 220 N. Y. 232; First Nat. Bank v. American Exchange Nat. Bank, 49 App. Div. 349; 170 N. Y. 88; Holub-Dusha Co. v. Germania Bank, 164 App. Div. 279; American Surety Co. v. Empire Trust Co., 237 App. Div. 522; Sherman v. Corn Exchange Bank, 91 App. Div. 84; Seaboard Nat. Bank v. Bank of America, 51 Misc. Rep. 103; 118 App. Div. 907; 193 N. Y. 26.)

      Leo Guzik and Ephraim S. London for respondent.
    The check having been delivered to Abrams for delivery to the true owner of the award who did not indorse the check, the indorsement was a forgery as a matter of law. (Oriental Bank v. Gallo, 112 App. Div. 360; 188 N. Y. 610; Gallo v. Brooklyn Sav. Bank, 199 N. Y. 222; Mercantile Bank v. Silverman, 148 App. Div. 1; 210 N. Y. 567; Palm v. Watt, 7 Hun, 317; American Surety Co. v. Empire Trust Co., 262 N. Y. 181; Shipman v. Bank of State of New York, 126 N. Y. 318; National Metro Bank v. Realty App. & Title Co., 47 Fed. Rep. [2d] 982; District Nat. Bank v. Washington Loan & Trust Co., 65 Fed. Rep. [2d] 831.)
   Lehman, J.

A check for $4,500, drawn upon Irving Trust Company by Lincoln Savings Bank to the order of the plaintiff, a depositor of the savings bank, was indorsed in blank by the plaintiff and handed by her to her husband, Samuel Goldberg, with authority to use the check in payment for the assignment to her of a half interest in an award of $10,000 made in proceedings for the condemnation of a parcel of real property. An attorney, William L. Abrams, had previously offered to sell the award to Goldberg at a discount. After some negotiations they agreed that the sale should be made at a discount of ten per cent. Goldberg at that time did not, so far as appears, know or care who was the owner of the award. What he wanted was, of course, a valid assignment by the owner of record of the award which Abrams had agreed to sell and he retained an attorney, Feinstein, to search the title so that he might know who the owner of record was.

On the day set for the closing, Goldberg, accompanied by this attorney, went to Abrams’ office. There he met Kurtz, another attorney, who claimed that he represented the owner of the award. A man who came into the office a little later was introduced by Kurtz as Harry Wolter, the owner. Goldberg told Abrams, that he was in a hurry and wished to leave. Abrams, Goldberg and Goldberg’s lawyer, Feinstein, then went into another room. Goldberg had arranged that the plaintiff, his wife, should buy and pay for half the award and Samli Building Corporation, of which he was president, the other half. He had checks from both in his possession. He handed them indorsed in blank to Abrams and said to him: “ Assign these checks to the proper owner and deliver to Mr. Feinstein the assignment of the papers to be recorded.” He saw Abrams write over the blank indorsements the words “ Pay to the order of Harry Wolter.” Then Goldberg left the office.

The man introduced as Harry Wolter was in fact an impostor named Dennis. He executed and acknowledged an assignment of the award in the name of Harry Wolter. It was a forgery and resulted in no transfer of title to any award. Because Goldberg, Feinstein and Abrams believed that the stranger was Harry Wolter, the record owner of the award, and that his written assignment would pass good title to the award, the impostor received the checks which were payable only to the order of Harry Wolter. The impostor then indorsed the checks in the name of Harry Wolter and induced the defendant Jacoby to believe that he was in fact Harry Wolter, the payee named in the check obtained from the plaintiff, and to discount the check. Jacoby deposited the check in his own bank. Bearing Jacoby’s indorsement as well as the indorsement of two banks, it was presented at the Irving Trust Company, upon which it was drawn, and there paid in due course. The fraud was revealed some months thereafter. The plaintiff has received nothing for her check because no assignment by Dennis could transfer title to an award for property belonging to Harry Wolter as record owner. Her account in the savings bank has been charged with the amount of the check which was intended as payment for an assignment from Harry Wolter and which was payable only to the order of Harry Wolter, though Harry Wolter never indorsed or transferred the check. She has recovered judgment for the amount so charged against her, upon a finding that the signature of Harry Wolter, placed upon the check by an impostor, who has no right to that name, is a forgery just as the same signature placed by the same impostor upon the assignment is a forgery. Under the judgment the loss must ultimately fall upon the impleaded defendant Jacoby who paid value for it.

The Negotiable Instruments Law [Cons. Laws, ch. 38] provides (§ 42): “ Where a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.” In considering the effect of an indorsement made by one who falsely impersonates a payee named in a negotiable instrument, the courts have usually treated the statutory provision as a restatement of the common law and, at least, so far as concerns the problem as presented in this case, no distinction need be drawn.

We have said recently: “ In determining whether there was a forgery the true test is whether or not the indorsement of the name of the payee was made by the person who was intended by the drawer to be the payee. If such person indorsed, there is no forgery.” (Halsey v. Bank of New York & Trust Co., 270 N. Y. 134, 138.) We apply that test here. It is indeed the test which is almost universally applied in determining whether there has been a forgery. It is to be noted, however, that both at common law and under the statutory rule, a signature which is forged or made without authority of the person whose signature it purports to be ” may not be wholly inoperative,” but, on the contrary, may confer a right against a party to a negotiable instrument if “ the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.” A distinction between a case where there has been no forgery or want of authority and a case where a party against whom it is sought to enforce a right is precluded from setting up the forgery or want of authority ” seldom carries any practical consequences; and the courts may at times ignore distinctions in thought which carry no practical consequences. Thus sometimes a confusion seems to creep' unnoticed into many opinions which discuss the effect of a signature on a negotiable instrument made by a party who has been given possession of the instrument but is not named therein. The question of whether a challenged indorsement of the name of the payee has been made by the person who was intended by the drawer to be the payee then becomes obscured and confused with the question of whether a party against whom a right is asserted is “ precluded ” from setting up the forgery.

Where a person has been induced by fraud to draw a check to the order of an existing person, whose name and identity has been fraudulently assumed by another, and to deliver the check to the impostor, it has been held by most courts that an indorsement by the impostor is not a forgery and the bank upon which it is drawn may pay it upon such indorsement. “ This result may be reached in several ways, none of which is^without difficulty.” (See McKeehan, The Negotiable Instruments Law, 41 American Law Register [N. S.], 499, 503, reprinted in Brannan’s Negotiable Instruments Law [2d ed.], pp. 220, 247, 248.) In that article the author says: “ As a matter of fact, the courts base their decision on the first ground, namely, that the bank has merely carried out the drawer’s intent. Here and there an expression may be singled out which seems to countenance one or more of the other views [negligence, estoppel, etc.], but a fair reading of the opinions shows that one idea dominates nearly all of them, namely, that the money has been paid to the person for whom it was really intended. The reasoning is briefly this: A man’s name is the verbal designation by which he is known, but the man’s visible presence affords a surer means of identification. C. was deceived as to the man he was dealing with, but he dealt with and intended to deal with the visible man who stood before him, identified by sight and hearing. Thinking that this man’s name was B., he drew the check to B.’s order intending thereby to designate the person standing before him; so the bank has simply paid the money to the person for whom it was intended.” (Cf. Halsey v. Bank of New York & Trust Co., supra.)

An academic legal problem may be greatly simplified by excluding, in its formulation, all facts which might introduce conflicting considerations to be weighed in the balance in reaching a sound conclusion. Legal problems, as presented in actual litigation, are seldom free from such complications. The rule that the payee of the check is the particular person who was intended by the drawer to be the payee can hardly be questioned. The name by which he is designated is merely the tag by which the intended person may be identified. A person, though bearing that name, if not the person intended, has no title to the' check and cannot indorse or transfer title to it. (Graves v. American Exchange Bank, 17 N. Y. 205.) When an instrument is made payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable,” the instrument is payable to bearer. (Negotiable Instruments Law, § 28, subd. 3.) Even before the Negotiable Instruments Law was adopted, a bill payable to a fictitious payee was payable to bearer without being indorsed by the maker or the person to whom it was delivered. (Plets v. Johnson, 3 Hill, 112; Central Bank of Brooklyn v. Lang, 1 Bosw. 202; Irving Nat. Bank v. Alley, 79 N. Y. 536.) When the instrument is payable to the order of a fictitious or non-existent person, and the person making it so payable has been induced to believe that he is describing an existing person as payee, no other person can acquire any right or title to the instrument. (United Cigar Stores Co. v. American Raw Silk Co., 184 App. Div. 217; affd., 229 N. Y. 532; Shipman v. Bank of State of New York, 126 N. Y. 318.)

Every valid instrument which is not payable to bearer must be payable to a determinate payee and where it appears that the maker intended a particular person to be the payee, the payee so intended even though designated by a wrong name and even though he induced the maker to deal with him through fraudulent misrepresentation as to his responsibility, character or name, is the real payee and can by indorsement transfer title to the instrument. “ Although one may be deceived as to the name of the man with whom he is dealing, if he dealt with and intended to deal with the visible person before him the check may properly be indorsed by the impostor.” (Halsey v. Bank of New York & Trust Co., supra, p. 139.)

Thus if we assume the premises of the problem as formulated by the author of the article, viz., that the maker of a check though deceived as to the man he was dealing with ” yet intended to deal with the visible man who stood before him, identified by sight and hearing,” and if thinking that this man’s name was B., he drew the check to B.’s order intending thereby to designate the person standing before him,” then there can be little if any room for disagreement with the conclusion, generally accepted by courts and academic writers, that a drawee bank which pays the check upon the indorsement of the person intended to be the designated payee “ has simply paid the money to the person for whom it was intended.”

In any examination of the cases which have considered the problems arising from false impersonation of a named payee, it quickly appears that the real difficulty has been in determining whether the intended payee was in truth the person bearing the name by which the payee was designated or was the visible person who had assumed that name in order to misrepresent his responsibility or character. Seldom, if ever, is possible argument excluded that the payee named and not the visible person, who by fraud obtains the instrument, was the payee actually intended, and there are border cases where the line is hard to draw between the impostor who appropriates what is intended for another, and the impostor who deceives by misrepresenting his responsibility or character.” (Strang v. Westchester County Nat. Bank, 235 N. Y. 68, 72.)

It has been said that In these fraudulent impersonation cases, the maker or drawer of the instrument may be said to have a double intent. First, he intends to make the instrument payable to the person before him, or to the person writing at the other end of the line, in case the negotiation is by correspondence. Second, he intends to make the instrument payable to the person whom he believes the stranger to be. The courts have almost unanimously held that the first is the controlling intent except where the named payee was already known to the maker or drawer, as in Cundy v. Lindsay, 3 A. C. 459, and Rossi v. Nat. Bank, 71 Mo. App. 150, supra, or was more particularly identified in some manner, e. g., by some designation, description or title, as in the case of Mercantile Nat. Bank v. Silverman, 148 App. Div. 1; 132 N. Y. Supp. 1017, supra, in which cases the courts treat the second as the controlling intent.” (Brannon on the Negotiable Instruments Law [5th ed.], pp. 310, 311.)

Perhaps, in truth, both intents are so inseparable that the choice of one intent rather than the other is purely arbitrary ■— an example of rationalization, perhaps unconscions, to reach a desired result. (Cf. Keel v. Wynne, 210 N. C. 426, and note in 15 N. C. L. Review 186 [1937].) Nevertheless an examination of the cases in other jurisdictions can leave no doubt that, as Brannan points out, in most jurisdictions it has been held that the first is the controlling intent ” (Montgomery Garage Co. v. Manufacturers Liability Ins. Co., 94 N. J. L. 152; see note in 22 A. L. R. p. 1228; Land Title & Trust Co. v. Northwestern Nat. Bank, 196 Penn. St. 230; see note in 50 L. R. A. p. 75; Id. v. Id., 211 Penn. St. 211; see note in 52 A. L. R. p. 1329), though a minority sustain the view that the latter intent is controlling. (Tolman v. American Nat. Bank, 22 R. I. 462; Keel v. Wynne, supra.) We do not attempt in this opinion to analyze these cases in detail. In none are the facts exactly similar to those presented in the case under consideration. It is sufficient to point out that even in those cases which apply the so-called “ majority rule ” there was proof of an antecedent fraud by which a stranger induced a person to deal with him by masquerading as another and the negotiable instrument was made payable to the impostor as a result of the antecedent fraud and the negotiations induced thereby; and it appeared that the instrument was delivered to consummate the dealings with the stranger and with intent that it should be paid to him, though that intent may have been coupled with a second intent of the drawee “ to make the instrument payable to the person whom he believes the stranger to be.” It was the finding of this first intent which has dictated the conclusion in every case where a bank has been exonerated of fault in the payment of a negotiable instrument to a person not named in the instrument.

Thus it was said in Montgomery Garage Co. v. Manufacturers Liability Ins. Co. (94 N. J. L. 152): We think that the rule is where, as here, the drawer of a check delivers it for a consideration which turns out to be fraudulent, to an impostor under the belief that he is the person whose name he has assumed and to whose order the check is made payable, a bona fide holder for a valuable consideration paid to the impostor upon his endorsement of the payee’s name, is entitled to recover from the drawer, it appearing that the person to whom the check was delivered was the very person whom the drawer intended should endorse it and receive the money, and that the drawer made no inquiry before issuing the check concerning the identity or credit of the named payee, who was unknown to the drawer.” (Italics are ours.) The broader statement of the rule that the drawer of a check, draft or bill of exchange who delivers it to an impostor, supposing him to be the person whose name he has assumed, must bear the loss, is itself “ limited by the hypothesis that the impostor is supposed to be the person named as payee.” (Cf. Land Title & Trust Co. v. Northwestern Nat. Bank, supra, and note in 50 L. R. A. p. 75, and especially note on the second appeal in 52 A. L. R. p. 1329.) Indeed, the rule in such case that the drawer does not bear the loss in the absence of intent or some form of estoppel is so well established by precedent and statute that it seems hardly open to challenge.

In every case in this court where the loss has been imposed upon the drawer there has been proof of dealings between the drawer and another person who deceived the drawer as to his name and identity and there has been a finding that the drawer delivered the instrument to the impostor as the consummation of such dealings or negotiations and with intent that the instrument should be paid to the person with whom such dealings were previously had even though that person was designated by a name he did not bear. (Cf. especially First Nat. Bank v. American Exchange Nat. Bank, 170 N. Y. 88.) No person can become a holder for value ” of a negotiable instrument by transfer from a person not named therein and who has no title thereto or authority to transfer it. A person who pays value for an instrument takes the risk that the person named therein as payee is not the person designated and intended as payee, at least where the party to the instrument against whom a right thereunder is asserted has not by act or default contributed to the deception. He may protect himself against such risk by requiring sufficient identification or guaranty by others upon whom reliance can be placed. The drawer of an instrument payable to a named payee is under no duty to assure himself that the person to whom it is delivered is the payee so named or is entitled to receive it in his behalf. Though Goldberg erroneously believed that the visible person was in fact Harry Wolter, the person entitled to the check as consideration for the promised assignment of the award, reasonable care did not require that he determine it. He and Abrams were justified in delivering to him the check made out to Harry Wolter in reliance on the fact that the check could not be transferred except by Harry Wolter, the named payee, or paid except upon an order made by him. (Mercantile Nat. Bank v. Silverman, 148 App. Div. 1; affd. on opinion below, 210 N. Y. 567.) That may be true, indeed, even where there is some doubt in the mind of the drawer whether the person to whom the check is delivered may not be masquerading as the named payee. (Gallo v. Brooklyn Sav. Bank, 199 N. Y. 222.) Unless the evidence in this case dictates the inference that Goldberg or Abrams had the actual intent that the visible person, though masquerading as Wolter, should receive payment of the check, there can be no ground for reversing the judgment.

We have pointed out at the beginning ol the opinion that the negotiations for the purchase of the award were conducted by Goldberg entirely with Abrams. The plaintiff and Goldberg, her representative, had no dealings or communications of any kind with the impostor or indeed with the owner of the property until the moment that the impostor came into the room, and even thereafter, so far as appears, their only dealing with him was, through their agent, to hand him the check indorsed to the order of Harry Wolter. The absence of all prior dealings differentiates this case from every case which has been cited to sustain the contentions of the appellants. The premises fall upon which the conclusion in those cases rested that the drawer must bear the loss. Here there was no antecedent fraud by which the drawer was induced to enter into a transaction with the impostor. At the time when Goldberg left the office knowing that the checks were payable only to the order of Harry Wolter, the assignment had not been executed, delivered or examined. The impostor did not deceive by misrepresenting his responsibility or character.” He deceived by inducing Goldberg and Abrams to believe that he was Harry Wolter who, as they thought, was assigning an award which he owned, and thus he succeeded in appropriating what was intended for another. (Strang v. Westchester County Nat. Bank, supra.)

Physical presence is, as we have said, often a surer means of identification ” than a designated name {Halsey v. Bank of New York & Trust Co., supra, p. 139), but as we also pointed out in the same case, only where physical presence is combined with antecedent dealings and intention “ to deal with the visible person.” “ The fact that the vendor deals with the person personally rather than by letter is immaterial, except in so far as it bears upon the question of intent.” (Phelps v. McQuade, 220 N. Y. 232, 234.)

The appellants stress testimony of Goldberg that he intended that the checks should be delivered to Kurtz or his client. Of course Goldberg so intended. He accepted the introduction of the impostor as Harry Wolter, the true owner. He had no reason to suspect fraud. There was no reason to require further identification. He named as payee the person whom he intended, i. e., Harry Wolter, the owner, from whom he expected to receive an assignment. He authorized delivery to the impostor because he believed that he was the person so intended. Under these circumstances it certainly cannot be said as matter of law that the payee intended was the visible person with whom there had been no previous dealings and who could have no possible right to the check unless he was, as he claimed, Harry Wolter, the payee named therein. Any question of fact that may exist has been resolved in favor of the plaintiff. The only case in this State which in some aspects might seem to support the plaintiff’s case is Hartford v. Greenwich Bank (157 App. Div. 448; affd., 215 N. Y. 726). After labored attempts to distinguish that case in United Cigar Stores Co. v. American Raw Silk Co. (supra), and to limit it in Strang v. Westchester County Nat. Bank (supra), this court definitely overruled the case in Ulmann Co. v. Central Union Trust Co. (257 N. Y. 563), and thus definitely established the rule that only a payee named in the instrument or identified by' previous dealings and intended to be described by that name can transfer title to the instrument.

It has. been said that both commercial practice and legal theory tend more and more to disregard everything except that which actually appears on the instrument.” (McKeehan, The Negotiable Instruments Law, 41 American Law Register [N. S.], p. 449.) Only in that way can merchants rely upon the rule that a negotiable instrument in the hands of an innocent purchaser will be paid according to its tenor and intent and will not be paid otherwise. The judgment in favor of the plaintiff enforces rights in accordance with the written instrument and in accordance with commercial practice and especially the practice upon the closing of title, and it accords with the decisions of this and other States.

The judgment should be affirmed, with costs.

Hubbs, J.

(dissenting). The city of New York made an award in a condemnation proceeding to Harry Wolter. William L. Abrams, an attorney who also apparently dealt in condemnation awards, met Samuel Goldberg, the plaintiff’s husband, and offered to sell him a condemnation award at a discount. Later Goldberg and Abrams agreed upon the price to be paid for the award and Goldberg referred Abrams to bis attorney, Irving Feinstein, who would search the record title, attend to the legal details and fix a date for closing.

The plaintiff gave her husband, Goldberg, full authority as her agent to handle the matter. Goldberg, who had known Abrams for some time, relied upon him for the regularity of the transaction and relied upon his own attorney, Feinstein, in the matter of the title. Feinstein and Goldberg met Abrams at his office to close the transaction. Attorney Albert Kurtz, who was supposed to represent the owner of the award, was also present, and was dealt with as the attorney for an impostor called Harry Wolter, who appeared at the office and was introduced as Harry Wolter. Goldberg testified that he believed him to be the person from whom he purchased the award. Goldberg had in his possession a check issued by the defendant Lincoln Savings Bank for $4,500, and drawn on Irving Trust Company, payable to the order of plaintiff, a depositor, who had indorsed it in blank and delivered it to her husband, Goldberg. He handed the check to Abrams with instructions to deliver it to Attorney Kurtz or his client.

Goldberg saw Abrams write over the blank indorsement of plaintiff, “ pay to the order of Harry Wolter.” At the same time he delivered to Abrams another check for an assignment of an interest in the award to a third party. That check is not involved in this action.

Goldberg testified that he gave the two checks to Abrams to deliver to Attorney Kurtz or his client. The man who represented himself as Harry Wolter was an impostor. His true name was Dennis. He executed and acknowledged an assignment of the award in the name of Harry Wolter and it was delivered to plaintiff’s attorney. He indorsed the check in the name of Harry Wolter and transferred it to the defendant Jacoby who became an innocent holder for value. The check was presented in due course to the Irving Trust Company, the drawee, and paid. The defendant Lincoln Savings Bank, the drawer, charged the amount against the account of the plaintiff, the payee.

This action is to recover from the Lincoln Savings Bank the amount of the check upon the ground that the indorsement was a forgery and, therefore, that the charge of the amount against the plaintiff’s account should be canceled. The other parties were interpleaded and judgment over sought against them.

The assignment of the award was stricken from the records as it was a forgery. If this judgment is affirmed, the loss will fall upon the appellant Jacoby, an innocent holder for value, as judgment over has been recovered by each of the other defendants. If the indorsement of the name Harry Wolter on the check made by the impostor Dennis was a forgery, the loss must be borne by the appellant Jacoby as he was the person who accepted the check from Dennis, the impostor, and thereafter transferred it.

“ One who obtains possession of a bill or note by means of a forged indorsement acquires no interest in the instrument, although he is ignorant of the forgery, and has no right to enforce its payment against any party to it unless such party is estopped or precluded from setting up the defense of forgery.” (8 Am. Jur., Bills and Notes, § 605; Negotiable Instruments Law [Cons. Laws, ch. 38], § 42; Shipman v. Bank of State of New York, 126 N. Y. 318; Seaboard Nat. Bank v. Bank of America, 193 N. Y. 26.)

On the other hand, if Goldberg, acting as plaintiff’s agent, intended to deliver the check to-Dennis, believing him to be Harry Wolter, the owner of the award, then the indorsement of the name “ Harry Wolter ” on the check was not a forgery, although made by an impostor for the purpose of accomplishing a fraud. (First Nat. Bank v. American Exchange Nat. Bank, 170 N. Y. 88; Halsey v. Bank of New York & Trust Co., 270 N. Y. 134; Montgomery Garage Co. v. Manufacturers’ Liability Ins. Co. 94 N. J. L. 152; s. c., 22 A. L. R. p. .1224, and note in which many cases from various jurisdictions are collated; 7 Am. Jur., Banks, § 599.)

A contrary view is held by the courts of Rhode Island and a few other States. (Tolman v. American Nat. Bank, 22 R. I. 462.)

The rule prevailing in those States is not the law of this jurisdiction. Thus, the question for determination on the undisputed evidence is whether the indorsement of the check by Dennis, the impostor, in the name of Harry Wolter, constituted a forgery.

Under the Negotiable Instruments Law the fact that the check was procured from Goldberg by fraud does not constitute a defense as against Jacoby, an innocent purchaser for value, or justify a recovery against the appellant bank which issued the check and charged the amount against the plaintiff’s account.

If an impostor deceives a drawer of a negotiable instrument as to identity by posing as another, and the instrument is delivered to and indorsed by him in the name of the person whom he fraudulently represents himself to be, his indorsement is not a forgery and a subsequent innocent holder for value may enforce it against the maker. The same principle applies under the facts in this case. (Montgomery Garage Co. v. Manufacturers’ Liability Ins. Co., supra, and note in 22 A. L. R. p. 1224; First Nat. Bank v. American Exchange Nat. Bank, supra; Halsey v. Bank of New York & Trust Co., supra.)

The underlying basic principles which have induced a great majority of courts to adopt that rule are the business necessity of keeping commercial paper negotiable; the fact that the maker delivers the instrument to the person intended, although deceived as to the actual identity of that person (Land Title & Trust Co. v. Northwestern Nat. Bank, 196 Penn St. 230; see note in 50 L. R. A. p. 75; s. c., 211 Penn. St. 211; Robertson v. Coleman, 141 Mass. 231; Strang v. Westchester County Nat. Bank, 235 N. Y. 68; First Nat. Bank v. American Exchange Nat. Bank, supra; Halsey v. Bank of New York & Trust Co., supra); the fact that a maker has the opportunity of ascertaining the true identity of a person to whom the instrument is delivered while a purchaser for value of the instrument may know the signature of the drawer and rely upon it but cannot in the ordinary cource of business know to whom the maker intended to deliver the instrument; and finally that where one of two innocent persons must suffer a loss, that loss should fall upon the one who was at fault in the first instance and made the loss possible. (United States v. National Exchange Bank, 45 Fed. Rep. 163; Central Nat. Bank v. National Met. Bank, 31 App. Cas. [D. C.] 391; Montgomery Garage Co. v. Manufacturers’ L. I. Co., supra; McHenry v. Old Citizens Nat. Bank. 85 Ohio St. 203.)

It is often difficult to determine whether an impostor has appropriated an instrument intended for someone else or by fraud has induced the delivery of the instrument to himself. If the impostor has appropriated that which was intended for another and indorsed it in the name of the other, his indorsement constitutes a forgery and the maker is not liable.

In many cases there exists two intents on the part of the drawer. He may intend by issuing the instrument to pay a debt to his creditor or to pay the vendor of property which he intends to purchase and at the same time he may intend to deliver the instrument to an impostor who is present and fraudulently represents himself to be the creditor or vendor with whom the maker supposes he is dealing. In such cases, ordinarily the actual presence of the impostor and the delivery of the instrument to him constitutes the controlling intent. An indorsement by the impostor does not constitute a forgery and the loss must fall upon the one who in the first instance had it within his power, before placing in circulation a negotiable instrument, to ascertain the actual fact. (Robertson v, Coleman, supra.)

The question here presented is not the delivery of a check to a fictitious payee, in which case a different rule may be applicable. (7 Am. Jur., Banks, § 601.) Neither is it a case where a check is delivered to an agent to be delivered by him to his principal, in which case an indorsement by an impostor constitutes a forgery. (7 Am. Jur., Banks, § 600.)

Only one inference can be drawn from the undisputed facts here involved. No one present knew the true Harry Wolter. Dennis, the imposter, was introduced as Harry Wolter and Goldberg testified that he believed him to be the owner of the award and that he was present with his attorney, Kurtz, to close the transfer of the award. He also testified as follows: Q. Did you give the two checks to Abrams to deliver to Kurtz or his client? A. Yes.”

The only client Kurtz had, so far as Goldberg knew, was the impostor introduced as Harry Wolter. Goldberg’s instructions, according to his testimony, were to deliver the check to Kurtz or his client. His client, according to the testimony, was the imposter. True it is that at one time in his testimony, Goldberg stated that he instructed Abrams to “ assign the checks to the proper owner,” but he also testified that he believed the impostor to be the person from whom he purchased the award, and, therefore, the owner. It is perfectly clear that Goldberg believed the impostor to be the true Harry Wolter, the owner of the award, and that he intended the check to be delivered to him upon his executing and delivering an assignment of the award. The impostor, at the same time, executed and. delivered an assignment of the award in the name of Harry Wolter and it was accepted by the attorney for the plaintiff and the check was delivered as Goldberg instructed and intended it should be. Goldberg determined for himself the identity of the person to whom he instructed the check to be delivered and plaintiff is bound by his act. In those circumstances, the indorsement of the check by the impostor was not a forgery and there can be no recovery in this action. This is not a case where a purchaser has negotiatedwith the owner for the purchase of property and by -fraud was induced to deliver a check to an impostor representing himself to be the owner. Here the purchaser did not know the true Harry Wolter, the owner, and had never communicated with him. The only person known as Harry Wolter was the impostor to whom Goldberg gave instructions that the check should be delivered.

While it is unfortunate that the plaintiff must suffer the loss caused by the fraud, it would be equally unfortunate if the innocent purchaser for value of the check should be required to bear the loss when he was entirely free from fault.

The judgment should be reversed, with costs and the complaint dismissed.

Loughran, Finch and Rippey, JJ., concur with Lehman, J.; Hubbs, J., dissents in opinion in which Crane, Ch. J., concurs; O’Brien, J., taking no part.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Brown-Lipe Gear Company, Respondent, against Arthur M. Ferris et al., Constituting the Board of Assessors of the City of Syracuse, Appellants.
    Argued October 1, 1937;
    decided October 5, 1937.

      James C. Tormey, Corporation Counsel (A. M. Beach of counsel), for appellants.
    Chapter 449 of the Laws of 1935, authorizing the Board of Review of Taxes and Assessments of the city of Syracuse, is valid and con. stitutional and the second question submitted should be answered in the negative. (Matter of Wendell v. Lavin, 246 N. Y. 115; Matter of McAneny v. Board of Estimate, 232 N. Y. 377; People ex rel. Chamberlain v. Forrest, 96 N. Y. 544; Matter of Hermance v. Board of Supervisors, 71 N. Y. 481; People ex rel. Citizens Lighting Co. v. Feitner, 81 App. Div. 118; People ex rel. Simon v. Bradley, 207 N. Y. 592; People ex rel. Met. St. Ry. Co. v. Tax Commrs., 174 N. Y. 417; Matter of Morgan v. Furey, 186 N. Y. 202; People v. Pinckney, 32 N. Y. 377; People ex rel. Welch v. Bard, 209 N. Y. 304.) The order appealed from is not proper as a matter of law and the first question submitted should be answered in the negative. (Bannon v. Bannon, 270 N. Y. 484.)

      Maurice F. Lane for respondent.
    The order appealed from is proper as matter of law. (Matter of Household Realty Corp., 158 Misc. Rep. 667.) Chapter 449 of the Laws of 1935 establishing the Board of Review is unconstitutional and void. (Household Realty Corp. v. Ferris, 158 Misc. Rep. 667; Matter of Wendell v. Lavin, 246 N. Y. 115; People v. Raymond, 37 N.Y. 428; People ex rel. Met. St. Ry. Co. v. Tax Commrs., 174 N. Y. 417; People v. Pelham, 215 N. Y. 374; Matter of Morgan v. Furey, 186 N. Y. 202; Matter of Brenner, 170 N. Y. 185; Devoy v. City of New York, 36 N. Y. 449.) Chapter 449 of the Laws of 1935 constitutes a delegation of administrative authority whichjs in violation of section 19 of article 6 of the New York Constitution. (Matter of Richardson, 247 N. Y. 401; People ex rel. Washington v. Nichols, 52 N. Y. 478; Matter of Hathaway, 71 N. Y. 238; People ex rel. Welch v. Bard, 209 N. Y. 304; Matter of Davies, 168 N. Y. 89; People v. Hall, 169 N. Y. 184; Matter of Gilroy, 11 App. Div. 65; Citizens Sav. Bank v. Town of Greenburgh, 173 N. Y. 215; Matter of Wood, 2 Cow. 29; Case of Supervisors of Election, 114 Mass. 247; Board of Supervisors v. Todd, 97 Md. 247.)
   Per Curiam.

We agree with the Appellate Division that the challenged statute (L. 1935, ch. 449) attempts to transfer to a board to be appointed by State officers essential functions theretofore belonging to the Assessors of the city of Syracuse and is, therefore, invalid. (N. Y. Const, art. X, § 2; People v. Raymond, 37 N. Y. 428; People ex rel. Metropolitan St. Ry. Co. v. State Board of Tax Commissioners, 174 N. Y. 417. See Prescott v. Ferris, 251 App. Div. 113.) We pass on no other issue.

The order should be affirmed, without costs, and the questions certified answered in the affirmative.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Order affirmed, etc.


text:
    In the Matter of Peter J. Devine, Appellant, against Jacob W. Osmann, Respondent, Impleaded with Others.
    Argued October 7, 1937;
    decided October 8, 1937.

      J. Irwin Shapiro and Abraham Schlissel for appellant.
    The Special Term had power to make and was justified in making the order directing a recount of the ballots. (Matter of Holley, 268 N. Y. 484.)

      Samuel Brenner and Samuel Weiss for respondent.
    The moving papers are wholly deficient to warrant the granting of any of the relief which the appellant sought, The determination by the Appellate Division was, therefore, correct. (Matter of Dolen, 225 App. Div. 78; People ex rel. Watkins v. Board of Canvassers, 25 Misc. Rep. 444; People ex rel. McCourt v. Whalen, 199 App. Div. 861; Matter of Whitman, 225 N. Y. 1; People ex rel. Larkin v. Palmer, 27 Misc. Rep. 569; 163 N. Y. 201; Matter of Coughlin, 137 App. Div. 283; 198 N. Y. 613; People v. Cook, 8 N. Y. 67; People ex rel. May v. Strang, 137 App. Div. 848; People ex rel. McLaughlin v. Ammenwerth, 135 App. Div. 893; 197 N. Y. 340; Matter of Friedman, 239 App. Div. 146.)
   Per Curiam.

The Appellate Division for the second judicial department has reversed on the law an order of the Special Term of the Supreme Court for Nassau county which directed, among other things, that the duly constituted election officials should make a correct determination of the number of protested, void and blank ballots cast in the primary of the Democratic party for the nomination of a candidate for the office of Supervisor to be voted for at the general election to be held on November 2, 1937, to open the ballot boxes, to separate, designate and segregate the protested, void and blank ballots from the valid votes cast as required by law, to recanvass and recount the votes cast and to correct the returns thereof.

There are nine election districts in the city of Long Beach, Nassau county, where the primary was held. It appears that there were received by the inspectors of election in the nine election districts in that city and counted and tallied by them as valid ballots, 963 for the petitioner, 967 for Jacob W. Osmann and 896 for Robert C. O’Grady. Thus there were 2,826 ballots counted as valid. It does not appear how many electors voted or attempted to vote at the primary. There is a record of 44 void ballots in the sealed envelopes returned by the inspectors of election of the various districts while the official tally sheets indicate that there were 62 void ballots. Inscriptions on the sealed envelopes show that they contain 147 protested ballots while no reference thereto is made on the tally sheets. The tally sheets indicate that 377 blank ballots were cast. Evidence is presented that protested and void ballots were counted as valid and deposited in the ballot boxes with the valid ballots and that there were other serious irregularities in connection with the canvass and returns by the election inspectors of the votes cast. It appeared that the irregularities were such as to render it impossible to make a determination as to who was rightfully nominated.

In Matter of Holley (268 N. Y. 484) we called attention to the limitation and extent of the powers of the court or a justice thereof within the judicial district to make an order such as the one here presented under subdivision 2 of section 330 of the Election Law (Cons. Laws, ch. 17). We said that, as to matters covered by that section, the power is plenary. The court exercised its power within the field covered by the provisions of that section. It exercised its discretion as above indicated upon evidence sufficient to warrant its exercise. Upon the facts shown by the petition and the moving affidavits, a determination of who was rightfully nominated is neither impracticable nor impossible and the order was not illegally granted as matter of law. (Matter of Holley, supra.)

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Httbbs, Loughran, Finch and Bippey, JJ., concur.

Ordered accordingly.


author: Rippey, J.

text:
    Larme Estates, Inc., Respondent, v. Omnichrome Corporation, Appellant.
    Argued September 29, 1937;
    decided October 19, 1937.

      Nathan Weinstein, Marshall H. Rosett and Joseph Rosenbaum for appellant.
    The judgment entered in the City Court action does not resolve the issues in the instant action in plaintiff’s favor. (Tennant v. Dudley, 144 N. Y. 504; Emery v. Litchard, 137 Misc. Rep. 885;
      Sweet v. Henry, 175 N. Y. 268; People ex rel. Norwich Pharmacol Co. v. Porter, 228 App. Div. 54.) The causes of action are different. (Perry v. Dickerson, 85 N. Y. 345; Carlson v. Albert, 117 App. Div. 836; Marine Transit Corp. v. Switzerland General Ins. Co., 263 N. Y. 139; Wille v. Maier, 256 N. Y. 465; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.) The same issues were not determined in the City Court action. (Marine Transit Corp. v. Switzerland General Ins. Co., 263 N. Y. 139; Bell v. Merrifield, 109 N. Y. 202; Rudd v. Cornell, 171 N. Y. 114; Watson v. Ross, 168 App. Div. 788; Russell v. Place, 94 U. S. 606; McCarty v. Lehigh Valley R. R. Co., 160 U. S. 110; United States v. Adams, 281 U. S. 202; Oklahoma v. Texas, 256 U. S. 70; De Sollar v. Hans-come, 158 U. S. 216; Watson v. Ross, 168 App. Div. 788.) Defendant sets forth defenses which were not pleaded or available in the prior suit. (Abbott v. Stern Bros., 248 App. Div. 161; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Cromwell v. County of Sac, 94 U. S. 351; Nesbit v. Riverside Independent District, 144 U. S. 610; Jacobson v. Miller, 41 Mich. 90.) Defendant has numerous real defenses to plaintiff’s cause of action. (Macauley v. Press Pub. Co., 170 App. Div. 640; 222 N. Y. 696; Graves v. Kaltenbach & Stephens, Inc., 205 App. Div. 110; 237 N. Y. 546; Beck v. Fybern Holding Corp., 238 App. Div. 25.)

      Joseph Feldman, Irwin H. Rosenberg, Herbert M. Rosenberg and Louis Rosenberg for respondent.
    There is no bona fide defense to this action. (Cammack v. Slattery & Bro., Inc., 241 N. Y. 39; Steinberg v. Simon, 179 App. Div. 67; Meyers v. Knights of Pythias, 194 App. Div. 405; Mitchel v. Dunmore Realty Co., 156 App. Div. 117; Hopfan v. Knauth, 156 Misc. Rep. 545; Strasburger v. Rosenheim, 234 App. Div. 544.) The prior judgment constitutes a conclusive adjudication as to the invalidity of the alleged defenses pleaded in this action. (Dunham v. Townshend, 118 N. Y. 281; People v. Flack, 216 N. Y. 123; Canfield v. Harris & Co., 252 N. Y. 502; Crouse v.
      McVickar, 207 N. Y. 213; Old Town Woolen Co. v. Fish-man & Son, Inc., 218 App. Div. 472; DeForest Radio Tel. & Tel. Co. v. Triangle Radio Supply Co., 243 N. Y. 283; Johnson v. Tyng, 1 App. Div. 610; Secular v. Bookstaber, 136 App. Div. 868.)
   Rippey, J.

On June 19, 1934, Hans Von Fraunhofer and Joseph S. Friedman entered into a written contract whereby the former employed the latter as a research chemist in color photography and color cinematography in connection with the development of processes, materials and machinery useful in connection therewith for a term of three and one-half years commencing June 20, 1934, at a salary payable in monthly installments at the end of each month of $1,800 for the first six months, $6,000 for the next year, $7,500 for the following year, and $9,000 for the last year, and at a salary of $12,000 per year, payable in monthly installments at the end of each month, for an additional period of five years in the event the contract should be extended for that additional period. Friedman agreed (1) to devote his time and attention and give his best efforts and skill to Von Fraunhofer and perform such services as might be demanded of him (2) not to enter the employ or render any services during the term of employment to any other person or engage in business on his own account or become interested with any other person in business (3) that he would not, during such term, communicate or divulge to others or use for others’ benefit any trade processes or secrets used by Von Fraunhofer (4) that any new discoveries or inventions made by him and new formulas, new apparatus or machinery, new methods and technique developed by him should belong to Von Fraunhofer who might procure letters patent thereon, and to install plants and teach therein methods and processes of operation as directed.

Von Fraunhofer thereafter assigned the agreement to the Omnichrome Corporation. On December 28, 1934, that corporation and Friedman entered into an agreement in writing by which the latter agreed (1) to reduce his salary from $500 to $300 per month until the corporation reached actual production (2) to deposit with the corporation, on or before January 1, 1935, a full and complete statement of all formulas, chemical and otherwise, that are used or employed in the process of color photography and color cinematography, more particularly covered by certain patent applications (3) to permit an assignment of the agreements by the Omnichrome Corporation to any subsidiary or affiliate corporation, whereupon the Omnichrome Corporation would be relieved from any obligation to him, and (4) that, otherwise, the agreement of June 19, 1934, should remain in full force and effect. On January 3l, 1935, the Omnichrome Corporation acknowledged receipt of the chemical formulas used by Friedman to that date and notified him that his services had been turned over to the Photo-Chemi&al and Dye Corporation for the period from January 1, 1935, to June 30, 1935, to whom he was to report and that one or the other corporation would pay his salary.

On April 17, 1936, the Larme Estates, Inc., as assignee of Friedman, commenced this action against the Omnichrome Corporation to recover $17,000 damages, with interest from September 15, 1935, for breach of the contract of June 19, 1934. It was alleged that defendant repudiated the contract on September 15, 1935, and refused to permit Friedman longer to perform. . Defendant denied all the material allegations of the complaint except the execution and assignment of the contract and set up separate, distinct and complete defenses of (1) payment (2) mutual cancellation of the contract on May 1, 1935 (3) abandonment of the contract by Friedman (4) violation of the provision of the contract not to divulge trade secrets and secret processes, and (5) violation of the provisions requiring him to deposit formulas, etc. Defendant also set up two affirmative partial defenses, the first one of which was to the effect that Friedman had obtained other employment and the second was that he could or should have done so and thereby reduced defendant’s liability. Defendant also counterclaimed for $100,000 damages for breach of contract on the part of Friedman, alleging that he had communicated defendant’s trade secrets and formulas to others and had injured its business and profits thereby. Plaintiff did not reply.

Thereupon plaintiff moved, on affidavits, to strike out the answer and for a reference to assess damages and for judgment on the complaint. The motion was granted. Defendant appealed and the order was affirmed by a divided court. The Appellate Division allowed an appeal to this court and certified two questions:

“1. Is the judgment in the City Court action res adjudicate on the issues raised in this action?
“2. Is the plaintiff entitled to summary judgment, striking out the answer and referring the matter to an official referee to assess damages as a matter of law on the facts recited in the papers herein? ” and stayed all proceedings pending determination of this appeal.

- Plaintiff asserted and the Appellate Division has held that defendant is here estopped to assert any of these defenses by virtue of an adjudication in the City Court of the City of New York in a suit in which Friedman was plaintiff and the Photo-Chemical and Dye Corporation and the Omnichrome Corporation were defendants, under date of February 10, 1936, in which plaintiff recovered judgment against both corporations for $500 by consent. The complaint in the City Court action set up two causes of action. The first cause of action was against Omnichrome Corporation only and was based on the two written agreements above mentioned, the allegation that plaintiff entered into and continued in the employ of Yon Fraunhofer until December 28, 1934, and continued in the employ of the Omnichrome Corporation thereafter until September 15, 1935, when he was discharged, and the allegation that there was due and owing from the Omnichrome Corporation for salary from June 1, 1935, to September 15, 1935, inclusive, the sum of $1,550, less $150 previously paid. The second cause of action was against both defendants upon a quantum meruit for the same sum for the services during the same period. There was no allegation in the first cause of action under which recovery could be had against the Photo-Chemical and Dye Corporation nor did plaintiff claim any .right to recover against it under that cause of action. Recovery against it was possible only under the allegations of the second cause of action which did not involve any adjudication on the written contracts. The cause of action then was solely on a quantum meruit for past services performed prior to September 15, 1935. Here, plaintiff sued for the agreed value under the written contract for services to be performed after September 15, 1935, to the end of the contract period but which, it is alleged, plaintiff was not permitted by defendant to perform because he was, on that date, discharged. None of the defenses set up in the City Court action and here set up were pertinent to the cause of action upon which there was an adjudication in the previous action, no decision was there made as to any of them and the adjudication there creates no estoppel to assert the defenses here. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304, 307; Wille v. Maier, 256 N. Y. 465.) It is clear, therefore, that there was, in fact, no adjudication between Friedman and the Omnichrome Corporation on any issue involved under the pleadings in the case at bar. A judgment here will not destroy or impair rights and interests established by the former judgment. (Marine Transit Corp. v. Switzerland General Ins. Co., 263 N. Y. 139.) The parties stand here in the same position as if the suit in the City Court had never been commenced. The court has unanimously reached that conclusion.

However, a majority of this court agree with the Appellate Division (250 App. Div. 538, 541) that upon the affidavits of both parties no substantial issue of fact is presented and that “ there seems to be no showing of merit entitling the defendant to defend, save for the admeasurement of damages.” The minority, of which I am one, is of a contrary opinion but we must defer to the majority.

It follows that the order of the Appellate Division should be affirmed, with costs, the first question certified answered in the negative, and the second question in the affirmative .

Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crane, Ch. J., concurs with Bippey, J., that there is a question of fact to be tried.

Order affirmed, etc.


text:
    In the Matter of James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants, against S. Howard Cohen et al., Constituting the Board of Elections in the City of New York, Respondents. John R. Crews, as Chairman of the County Committee of the Republican Party of the County of Kings, et al., Interveners, Appellants.

      Argued October 13, 1937;
    decided October 19, 1937.

      Paul Windels, Corporation Counsel (William C. Chanter, Jeremiah M. Evarts and Robert H. Schaffer of counsel) for petitioners, appellants.
    The Election Law and the Civil Service Law have not been changed or superseded by section 1006, subdivision a, of the new charter but, on the contrary, are specifically continued in force by section 1002, subdivision b, unchanged and unsuperseded in so far as they affect the positions to which they are applicable. (Matter of Kane v. Gaynor, 144 App. Div. 196; 202 N. Y. 615; Matter of O’Keeffe v. Finegan, 275 N. Y. 550; Johnson v. City of New York, 274 N. Y. 411.) The Legislature of the State of New York could and did authorize the city of New York to adopt a provision for electing public officers by a system of proportional representation without regard to existing general laws of the State relating to the conduct of elections or selection of election officials. (Bareham v. City of Rochester, 246 N. Y. 140; Browne v. City of New York, 241 N. Y. 96; People ex rel. McClelland v. Roberts, 148 N. Y. 360; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Mooney v. Cohen, 272 N. Y. 33; Johnson v. City of New York, 274 N. Y. 411.)

      A. David Benjamin for John R. Crews, as Chairman of the County Committee of the Republican Party of the County of Kings, intervener, appellant.
    The directors of the count, consultants and assistants provided for by section 1006, subdivision a, of the new city charter are election officials within the contemplation of section 6, of article 2, of the State Constitution, and sections 40 to 45 of the Election Law (Cons. Laws, ch. 17). (Matter of Kane v. Gaynor, 144 App. Div. 196; 202 N. Y. 615.) The provisions of section 1006, subdivision a, of the new city charter are legally effective to permit the Municipal Civil Service Commission to conduct non-competive examinations to determine the qualification of such election officials. (Matter of Mooney v. Cohen, 272 N. Y. 33; Johnson v. City of New York, 274 N. Y. 411.)

      Gabriel L. Kaplan for Kenneth R. Simpson, as Chairman of the County Committee of the Republican Party of the County of New York, intervener, appellant.
    The Legislature may provide that the qualifications of election officers shall be determined by non-competitive examination. Such election officers, despite the change in civil service classification, still must be initially nominated by the respective county chairmen of the two dominant political parties. (People ex rel. McClelland v. Roberts, 148 N. Y. 360; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435.) The new city charter modifies the provisions of sections 40 to 45 of the Election Law, dealing with the method of qualifying election officers, as well as section 9 of the Civil Service Law which places all election officers in the unclassified service. (Matter of Mooney v. Cohen, 272 N. Y. 33; Johnson v. City of New York, 274 N. Y. 411.)

      Samuel D. Smoleff

    for Citizens Union of the City of
    New York et al., amici curiæ. The city, having the power to adopt a system of proportional representation, logically possesses the incidental power to set up the machinery of the system, particularly in respect to functions for which the election law makes no provision. (Johnson v. City of New York, 274 N. Y. 411; People ex rel. Werner v. Prendergast, 206 N. Y. 405.) There is no conflict between the election law and the New York charter in respect to the method of selecting employees to conduct the central count of ballots in a proportional representation election. The charter creates a new and special class of employees, unknown to the election law. (Bareham v. City of Rochester, 246 N. Y. 140; Matter of Mooney v. Cohen, 272 N. Y. 33.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John C. Crary of counsel) for respondents.
    No clear legal duty of the Board of Elections to submit lists of names of persons, to act as proportional representation ballot canvassers, to the Municipal Civil Service Commission, can be observed in the provisions of law upon which the petitioners rely. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464.) If the canvassers be considered as employees of the Board of Elections, then they may be named or removed at pleasure by said board under section 36 of the Election Law and are thus exempt from any examination by the Civil Service Commission.
      (Story v. Craig, 231 N. Y. 33; Matter of Blondheim v. Cohen, 248 App. Div. 75; 272 N. Y. 520; Matter of O’Keeffe v. Cohen, 275 N. Y. 550.) The provisions of section 1006, subdivision a, of the New York city charter are ineffective to alter, amend or supersede the general and State-wide provisions of the Civil Service Law and the Election Law and no authority vests therefrom in the Municipal Civil Service Commission of the City of New York to qualify by examination the appointees of the Board of Elections. (Matter of Mooney v. Cohen, 272 N. Y. 33; Bank of Chenango v. Brown, 26 N. Y. 467; Cleveland v. City of Watertown, 222 N. Y. 159; Browne v. City of New York, 241 N. Y. 96; Bareham v. City of Rochester, 246 N. Y. 140.)
   Per Curiam.

Article XII, section 2, of the Constitution, known as the Home Rule provision, provides that the Legislature on a message from the Governor and by two-thirds vote of the members of each house may pass any law relating to the property, affairs or government of a city. By this method the Legislature amended or revised the charter of the city of New York. This it did in effect when it passed chapter 867 of the Laws of 1934, as amended by chapter 292 of the Laws of 1935, wherein it provided for the appointment of a Commission to prepare a new charter which would become effective upon submission to and approval by the voters of the city.

In Matter of Mooney v. Cohen (272 N. Y. 33) this court decided that the charter so adopted and approved was a legal enactment and not in violation of the provisions of the Constitution.

Chapter 867 of the Laws of 1934, it must be noted, was Passed, by a two-thirds vote, on emergency message and message of necessity.” One of the provisions of this chapter reads: * * * No provision in such charter for the election of any elective officers by any system of proportional representation shall become effective, however, unless the definite question with respect to the adoption of such system for the election of such officers shall have been separately submitted and approved at such election by the affirmative vote of a majority of the qualified electors voting thereon at the same election.” The proposed new charter contained provisions for the election of elective officers by a system of proportional representation, therein set forth which read as follows:

“ § 1002-b. Elections of councilmen by proportional representation shall be conducted by the election authorities prescribed by the election law, and the provisions of the election law with respect to nomination of candidates, decimation of nominations, filling of vacancies, notices to candidates, objections to petitions, rulings thereon, judicial proceedings and all other matters so far as applicable shall govern except in the method of counting the votes for councilmen and except as provision is otherwise made herein.”
“ § 1006-a. Preparations for central count for each borough. Previous to every election at which councilmen are to be elected, the board of elections shall designate a central counting place for each borough where the ballots shall be brought together and counted publicly; shall appoint for each borough a board of two competent persons, one from each of the two political parties which, at the general election next preceding, cast the highest and next highest number of votes, to act as directors of the count for such borough; shall employ a sufficient staff of assistants for each borough, who shall likewise be selected to secure equal representation of the same two .parties, and shall make suitable arrangements for the counting and recording of the ballots, subject to the provisions of this charter. The board of elections shall prepare and provide all necessary forms and equipment. All the employees for such central count shall be chosen after passing non-competitive examinations under the jurisdiction of the civil service commission, except that the directors of the count and consultants to advise the directors of the count may be employed without such examination in the discretion of the board of elections.”

This provision for the election of Councilmen by proportional representation was submitted to the People in accordance with this mandate of chapter 867 and was overwhelmingly carried as stated in our decision in Johnson v. City of New York (274 N. Y. 411), holding the provision and the adoption constitutional.

Necessarily this system of electing Councilmen by proportional representation modifies or amends the Election Law (Cons. Laws, ch. 17) in so far as its provisions are inconsistent therewith, or are supplemental thereto.

The persons appointed pursuant to section 1006, subdivision a, of the charter, now adopted, to act as directors of the count and the staff of assistants to aid in such a count or canvass are officials within the meaning of article II, section 6, of the Constitution, and must be appointed as representing the two political parties as therein designated. The new charter has in no way violated this provision nor attempted to change the Election Law in this particular. In so far, however, as the Election Law provides for a qualifying examination by the election board (See §§ 40, 41, 42) of the officials so designated by the chairmen of the two respective parties, these new charter provisions place this duty upon the Municipal Civil Service Commission.

We find nothing unconstitutional in this change. These officials to make or assist in the canvass of the vote for Councilmen must be appointed from each of the two dominant parties as designated in article II, section 6. There must be an equal number from each party — equal representation, but whereas the Board of Elections by the Election Law is to determine the qualifications in accordance with that law, this duty is now passed to the Municipal Civil Service Commission.

That the Legislature by a two-thirds vote on an emergency message could provide directly for such an examination for canvassers or election officials by amendment to the charter of the city of New York is beyond question. That it has done so by chapter 867 of the Laws of 1934 in the way above indicated seems also quite evident, and we so hold.

In the case of Matter of O’ Keeffe v. Finegan (275 N. Y. 550), decided by this court October 12, 1937, there was no act of the Legislature authorizing the Municipal Civil Service Commission to conduct any qualifying examination for election officials, and we held that the matter rested under the provisions of the Election Law with the Board of Elections.

All that these provisions (accomplish is this: The Election Law now provides for a qualifying examination by the Board of Elections. The Legislature by this amendment of the charter now provides for such an examination by the Municipal Civil Service Commission.

For these reasons the orders should be reversed and the motion for mandamus as prayed for in the petition granted, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Lottghran and Finch, JJ., concur; Bippey, J., dissents.

Ordered accordingly.


text:
    In the Matter of Lawrence T. Gresser et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents. Thomas J. Towers, Respondent. In the Matter of the Application of Lawrence T. Gresser et al., Respondents. S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents; Thomas J. Towers, Appellant. In the Matter of the Application of Henry A. Soffer, Respondent. S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents; Thomas J. Towers, Appellant.

      Argued October 22, 1937;
    decided October 22, 1937.

      James I. Cuff, Michael A. Castaldi and William F. Bowe for appellants in first proceeding.
    As a matter of law the Board of Elections was without power to reject the Gresser certificate as it was valid on its face and no objections were filed thereto. (Matter of McGrath, 189 App. Div. 140; Matter of Lindgren, 232 N. Y. 59; Matter of Frankel, 212 App. Div. 664; Matter of Wicksel v. Cohen, 262 N. Y. 446.) As a matter of law the Democratic county committee duly nominated Lawrence T. Gresser. (Matter of Broat, 6 Misc. Rep. 445.)

      James I. Cuff, Milton H. Friedman and George Kent Weldon for Lawrence T. Gresser et al., respondents in second proceeding.
    The certificate of nomination of Thomas J. Towers as nominee of the Democratic party for the office of Justice of the City Court for the county of Queens was invalid. (Matter of Gruskin, 272 N. Y. 578; People ex rel. Oliver v. Board of Police Commissioners, 10 Misc. Rep. 200; People ex rel. Klinker v. Board of Police Commissioners, 31 N. Y. Supp. 469.)

      Richard J. Barry for Thomas J. Towers, respondent in first proceeding and appellant in second and third proceedings.
    The alleged nomination of Lawrence T. Gresser was null and void. (Bernstein v. Kritzer, 253 N. Y. 410; Ga Nun v. Palmer, 216 N. Y. 603.) The executive committee of the county committee of the Democratic party of Queens county had the power and authority to nominate the appellant-respondent, Thomas J. Towers. (Election Law [Cons. Laws, ch. 17], § 131, subd. 7.) The certificate of nomination of Thomas J. Towers as a matter of law in all respects complies with subdivision 9 of section 131 of the Election Law. (Matter of Lauer v. Board of Elections, 262 N. Y. 416; Matter of Mellen v. Board of Elections, 262 N. Y. 422; Bramley v. Miller, 270 N. Y. 307; Matter of Cunningham v. McCloskey, 246 App. Div. 543; Matter of Darling, 189 N. Y. 570; Matter of Waters, 248 App. Div. 830; Matter of Brickman, 248 App. Div. 467.) A major political party should not be deprived of a right to have its candidate on the ballot. (Matter of Kehoe, 45 Misc. Rep. 132; 97 App. Div. 637; Matter of Lauer v. Board of Elections, 262 N. Y. 416.)

      Benjamin Adler for Henry A. Soffer, respondent in third proceeding.

      Paul Windels, Corporation Counsel (Leonard M. Wallstein, Jr., of counsel), for Board of Elections of City of New York, respondent.
   Per Curiam.

At the duly called primaries held in the county of Queens Charles W. Froessel was nominated as the candidate of the Democratic party for justice of the City Court of New York,< county of Queens. Thereafter he duly declined the nomination. A meeting of the Democratic County Committee of the county of Queens was called to fill the vacancy caused by such declination. At that meeting great confusion existed and a nomination was not made prior to some time after eleven o’clock at night. A motion was made to adjourn the meeting. That motion was carried and the meeting legally adjourned. So the Special Term held after a hearing, and its findings have been duly affirmed by the Appellate Division.

After the adjournment of the meeting, another meeting was attempted to be held, and temporary officers were elected, and the meeting thereupon attempted to nominate Lawrence T. Gresser. A certificate of nomination was filed with the Board, of Elections of the City of New York, certifying that Lawrence T. Gresser had been duly nominated and the certificate was in accordance with section 131, subdivision 9, of the Election Law (Cons. Laws, ch. 17). At a subsequent meeting the Executive Committee of the Democratic party of Queens county, acting under the assumption that no legal nomination had been made at the prior meeting of the County Committee, proceeded to nominate for the office of justice of the City Court, Thomas J. Towers, and a certificate of his nomination was filed with the Board of Elections. Two certificates of nomination having been filed with the Board of Elections, after a hearing it rejected the certificate which attempted to nominate Gresser. Thereafter, at a hearing at Special Term, it was determined that prior to the alleged nomination of Lawrence T. Gresser the County Committee had duly adjourned and that, therefore, his certificate of nomination was null and void. The Appellate Division has affirmed the finding of Special Term, and, as a question of fact was presented, this court is without jurisdiction to review such question of fact.

For the purposes of this appeal it may, therefore, be assumed that the nomination of Lawrence T. Gresser was invalid and the decision of the Appellate Division-to that effect must be affirmed. We are required to determine whether Thomas J. Towers was legally nominated as the candidate of the Democratic party by the Executive Committee of the County Committee. The determination of that question depends upon the construction of section 131, subdivision 7, of the Election Law and rules 10 and 14 of the Democratic County Committee of Queens county.

Rule 14 provides that a party nomination by the Democratic party of a candidate for a vacancy in an elective office required to be filled at a general election shall be made by the members of the County Committee. Rule 10, which defines the powers and duties of the Executive Committee of the County Committee, provides: “ The Executive Committee shall immediately upon its election, at all times when the County Committee is not actually in session, have power and possess and exercise all the rights, privileges, powers and duties which the said County Committee may have, possess and exercise.” We have reached the conclusion that where a vacancy has occurred and the County Committee has failed to exercise its powers conferred by rule 14, to fill such vacancy, and is not in session, that the Executive Committee, under rule 10, possesses the power to fill such vacancy. Otherwise, one of the two dominant political parties would be in the position of not having a candidate nominated upon the ballot for the office in which a vacancy has occurred, which would be contrary to the spirit and policy of our Government and the Election Law.

Various technical objections have been made to the sufficiency of the documents filed with the Board of Elections by the Executive Committee in certifying the nomination of Thomas J. Towers. We do not think that those objections justify the rejection of the nomination made by the Executive Committee.

In the first above-entitled proceeding the order of the Appellate Division affirming the order of the Special Term dismissing the petitioner’s application for an order directing the board of elections to accept as valid the certificate of nomination of Lawrence T. Gresser should be affirmed without costs.

In the second above-entitled proceeding the order of the Appellate Division reversing the order of the Special Term which held that Thomas J. Towers was the duly nominated candidate for City Court Judge should be reversed and the order of the Special Term affirmed without costs.

In the third above-entitled proceeding the order of the Appellate Division reversing the order of the Special Term which denied petitioner’s application to declare rmll and void the certificate of nomination of Thomas J. Towers should be reversed and the order of the Special Term affirmed without costs.

Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur; Lehman, J., taldng no part.

Ordered accordingly.


text:
    William J. Sheils, Appellant, v. Edward J. Flynn, as Secretary of State, et al., Respondents. William Cronin, as Chairman of the Democratic County Committee of Westchester County, Intervener, Appellant; Charles H. Griffiths, as Chairman of the Republican County Committee of Westchester County, Intervener, Respondent.
    Argued October 27, 1937;
    decided October 27, 1937.

      Julius Weiss, Timothy A. McCarthy and William J. O’Shea, Jr., for plaintiff, appellant.
    The Constitution declares who may vote by absentee ballot. None other than those who possess the qualifications can lawfully vote. (People ex rel. Smith v. Pease, 27 N. Y. 45; People ex rel. Judson v. Thacher, 55 N. Y. 525; People ex rel. Frost v. Wilson, 62 N. Y. 186; Interstate Com. Comm. v. Louisville & Nashville R. R. Co., 227 U. S. 88; Matter of Doey v. Howland Co., 224 N. Y. 30; Miller v. City of Amsterdam, 149 N. Y. 288; Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488; Matter of Helfrick v. Dahlstrom M. D. Co., 256 N. Y. 199.) The statements of special circumstances contained in the challenged applications are unsupported conclusions of the ultimate fact which the statute requires to be established by proof. (Kundolf v. Thalheimer, 12 N. Y. 593; Interstate Com. Comm. v. Louisville & Nashville R. R. Co., 227 U. S. 88; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488.) Certain of the applicants were not qualified absentee voters. (Matter of Baker, 126 Misc. Rep. 49; 215 App. Div. 791.) The affirmative defenses of failure to protest and waiver are lacking in merit, and should have been dismissed at the trial. (Matter of Hearst v, Woelper, 183 N. Y. 274; People ex rel. Deister v. Wintermute, 194 N. Y. 99; People ex rel. Judson v. Thacher, 55 N. Y. 525; People ex rel. Dailey v. Livingston, 79 N. Y. 279; People ex rel. Smith v. Pease, 27 N. Y. 45.)

      Edward K. Kennedy and Walter G. C. Otto for intervener, appellant.
    Public policy and established legal principles demand that absentee votes be counted only when issued and cast according to law. (People ex rel. Nichols v. Board of Canvassers, 129 N. Y. 395; Straughan v. Meyer, 268 Mo. 580; Weber v. O’Connell, 215 N. W. Rep. 538; Rasp v. McHugh, 237 N. W. Rep. 395; Bulling-ton v. Grabow, 296 Pac. Rep. 1059; Matter of Baker, 126 Misc. Rep. 49; 215 App. Div. 791; Drake v. State, 144 N. Y. 414; Loewy v. Gordon, 129 App. Div. 459; Matter of Bristol v. Buck, 201 App. Div. 100; 234 N. Y. 504.) Where the applicant for an absentee ballot was required by statute to give a statement of “ special circumstances ” requiring his absence, such statement is essential to give the Board of Elections jurisdiction to issue an absentee ballot. The trial court erred in holding valid applications depending on special circumstances where the applicant had merely written “ business,” “ away on business ” or words of similar import. (People ex rel. Rogers v. Spencer, 55 N. Y. 1.)

      William A. Davidson, County Attorney (Frank J. Clay don of counsel), for Board of Elections of County of Westchester, respondent.
    The Board of Elections of the County of Westchester in passing upon applications for absentee ballots acts in a judicial or quasi-judicial capacity and its action is not subject to review in this proceeding. (People ex rel. Smith v. Hoffman, 166 N. Y. 462; Eastman Kodak Co. v. Richards, 123 Misc. Rep. 83; People ex rel. Chadbourne v. Voorhis, 236 N. Y. 437; People ex rel. Harris v. Commissioners, 149 N. Y. 26; Matter of Wicksel V. Cohen, 262 N. Y. 446; People ex rel. Francis v. Common Council, 78 N. Y. 33; People ex rel. Husted v. Board of Trustees, 93 App. Div. 599; Matter of Beck, 245 Fed. Rep. 967; United States Trust Co. v. Mayor, 144 N. Y. 488; Stanley v. Jay St. Connecting Railroad, 182 App. Div. 399; 227 N. Y. 639.) The absentee ballots issued by the Board of Elections were in proper form and even if they were not the plaintiff, and the public have waived any objection thereto. (Matter of Lauer v. Board of Elections, 262 N. Y. 416; Matter of Town of Groton, 63 Misc. Rep. 370; People ex rel. Hirsh v. Wood, 148 N. Y. 142; Matter of Peters, 60 Misc. Rep. 420; Matter of McDade, 43 App. Div. 303; People ex rel. Simmons v. Knickerbocker, 225 App. Div. 212; 250 N. Y. 594; People ex rel. Nichols v. Board of Canvassers, 129 N. Y. 395; Matter of Merow, 112 App. Div. 562; Salducco v. Etkin, 155 Misc. Rep. 361; 244 App. Div. 681; 268 N. Y. 606; Matter of Houligan, 55 Misc. Rep. 5.)

      John J. Dillon, Alfred M. Bailey and Walter W. Westall for intervener, respondent.
    The absentee ballots, considered as a whole, were entirely valid. (People ex rel. Hirsh v. Wood, 148 N. Y. 142; Matter of Lauer v. Board of Elections, 262 N. Y. 416; Matter of Merow, 112 App. Div. 562; Matter of Town of Groton, 63 Misc. Rep. 370; 134 App. Div. 991; People ex rel. Williams v. Board of Canvassers, 105 App. Div. 197; Matter of Arnold, 32 Misc. Rep. 439; Matter of Houligan, 55 Misc. Rep. 5; Matter of Deitz, 87 Misc. Rep. 610.) The Board of Elections acts judicially in passing upon applications for absentee ballots, and its determination is not subject to attack in this action. (People ex rel. Francis v. Common Council, 78 N. Y. 33; Matter of Wicksel v. Cohen, 262 N. Y. 446; United States v. Doherty, 27 Fed. Rep. 730; McLeod v. Receveur, 71 Fed. Rep. 455; Matter of Beck, 245 Fed. Rep. 967; Siskiyou County v. Gamlich, 110 Cal. 94; Board of Commissioners of Crawford County v. State, 191 Ind. 335; Bartlett v. N. Y. C. R. R. Co., 195 Mass. 299; Mayor v. Davenport, 92 N. Y. 604; Buffalo & State Line R. R. Co. v. Board of Supervisors, 48 N. Y. 93; Stanley v. Jay St. Connecting Railroad, 182 App. Div. 399; 227 N. Y. 639; People ex rel. Brink v. Way, 179 N. Y. 174.) Even if the court possesses the power of review, the result of the election cannot be changed in the plaintiff’s favor. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Glenn v. Gnau, 251 Ky. 3; Wood v. Duff-Gordon, 222 N. Y. 88; Jones v. Smith, 264 S. W. Rep. 950.)
   Per Curiam.

Where the Board of Elections under sections 117 and 118 of the Election Law (Cons. Laws, ch. 17) determines that the application and affidavit submitted therewith by a duly qualified voter is sufficient to permit bim to vote as an absentee voter, the vote cannot be questioned in this action after election, where the vote has been received without objection or challenge and the jurisdictional defects are not sufficient to change the result.

We do not approve by this decision the form of the affidavits submitted.

The judgment should be affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgment affirmed.


text:
    Aaron Rabinowitz et al., as Trustees, Appellants, v. President and Directors of Manhattan Company, Respondent.
    Argued June 2, 1937;
    decided July 13, 1937.

      Simon H. Bifkind and Sidney B. Nussenfeld for appellants.

      Wilkie Bushby, Elihu Root, Jr., and Leo Gottlieb for respondent.

      Olin Potter Geer for Cornelius J. Smyth, as trustee, amicus curiæ.

   Judgment affirmed, with costs, on the authority of Weil v. President & Directors of Manhattan Co. (275 N. Y. 238). No opinion.

Concur: Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey. JJ. Taking no part: Crane, Ch. J.


text:
    Brooklyn and Queens Transit Corporation, Respondent, v. City of New York, Appellant.
    Argued June 10, 1937;
    decided July 13, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair, Oscar S. Cox, Sol Charles Levine and Meyer Bernstein of counsel), for appellant.

      Harold L. Warner, Henry Root Stern, Paul D. Miller and George D. Yeomans for respondent.
   Orders reversed and complaint dismissed, with costs in all courts. Question certified answered in the negative on the authority of New York Rapid Transit Corp. v. City of New York (275 N. Y. 258). No opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Lands for a Public Park, and Opening and Extending East 32d Street and Other Streets, in the Borough of Brooklyn. Gerritsen Basin Development Corporation et al., Appellants.
    Argued March 23, 1937;
    decided July 13, 1937.

      Ralph L. Baldwin for Gerritsen Basin Development Corporation, appellant.

      Charles Lamb, Alfred J. Talley, James A. McKaigney and Edmund J. Delany for Thomas F. White Company, appellant.

      Bernard Cowen and Josiah A. Stover for Helena K. Wyeth et ah, amici curiæ.

      Paul Windels, Corporation Counsel (Paxton Blair, Joseph F. Mulqueen Jr., and Reuben Levy of counsel), for respondent.
   Order affirmed, with costs, because of the failure of the claimants to clearly establish their title to the land in question. We do not pass upon the southerly boundary of the Hudde and Gerritsen grant. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York, Respondent, v. Frederick C. Steup and Chester W. McNally, Appellants.
    Argued May 24, 1937;
    decided July 13, 1937.

      James I. Cuff and James I. McGuire for Frederick C. Steup, appellant.

      James I. Cuff for Chester W. McNally, appellant.

      William Copeland Dodge, District Attorney (Abraham J. Gellinoff and Lyon Boston of counsel), for respondent.
   As to each defendant, judgment affirmed. No opinion.

Concur: Lehman, O’Brien, Hubbs, Finch and Rip-pet, JJ. Dissenting: Crane, Ch. J., and Loughran, J.


text:
    In the Matter of The City of New York, Respondent, Relative to Acquiring Title to Lands along the Northerly Shore of Jamaica Bay in the Boroughs of Brooklyn and Queens for the Improvement of the Water Front. Harry A. Hanbury, Appellant.
    Argued May 27, 1937;
    decided July 13, 1937.

      Leon Sacks for appellant.

      Paul Windels, Corporation Counsel (Lewis Orgel, Paxton Blair and Alfred D. Jahr of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    United Verde Copper Company, Appellant, v. Irving Trust Company, et al., Respondents.
    Argued June 1, 1937;
    decided July 13, 1937.

      Albert Mannheimer, I. L. Broadwin and Joel Irving Friedman for appellant.

      Joseph M. Proskauer, George H. Savage, J. Alvin Van Bergh and Eugene Eisemann for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Belmont Iron Works, Appellant, v. Pacific Coast Direct Line, Inc., Respondent.
    Argued June 1, 1937;
    decided July 13, 1937.

      Ernie Adamson and Julius L. Goldstein for appellant.

      Aaron U. Homnick and John W. Van Gordon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Genevieve W. Greene, Appellant, v. Lockport Exchange Trust Company et al., Respondents.
    Argued June 1, 1937;
    decided July 13, 1937.

      John B. Doyle, W. Alfred Brim, Emmett McLoughlin, Jr., and Jerome H. Shapiro for appellant.

      Noel S. Symons, Henry D. Warren and Franklin R. Brown for Lockport Exchange Trust Company et al., respondents.

      J. Carl Fogle for Niagara County National Bank & Trust Company et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Dissenting: Rippey, J.


author: Crane, Ch. J.

text:
    Catherine Donohue, as Administratrix of the Estate of John Donohue, Deceased, Respondent, v. City of New York et al., Defendants, and Jamaica Water Supply Company, Appellant.
    Argued June 1, 1937;
    decided July 13, 1937.

      Jackson A. Dykman and Jules Haberman for appellant.

      Frank L. Tyson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, O’Brien, Loughran and Rippey, JJ.; Crane, Ch. J., dissents in the following opinion, in which Hubbs and Finch, JJ., concur:

Crane, Ch. J.

(dissenting). The Jamaica Water Supply Company dug a ditch across One Hundred and Twenty-second street at One Hundred and Ninth avenue in the borough of Queens, city of New York. It was about six feet deep, the dirt being thrown up on its south side making a pile three and a half feet high. The grade of the street was being lowered by others and the company was lowering its water main. The New York Code of Ordinances, chapter 23, article 1, section 3, subdivision 1, provides: Every person engaged in digging down or paving any street, or building therein any sewer, drain or trench for any purpose * * * shall erect such a fence or railing about the excavation or work as shall prevent danger to persons traveling the street * *

The company had no fence or railing along or about this trench; there was the pile of dirt three and a half feet high to guard approach from the south and an electric light on the northeast comer of the intersecting streets. The plaintiff’s witnesses say there were red lights at each end of the trench, and the defendants1 witnesses say that there were three others in the middle of One Hundred and Twenty-second street. As to the lights, therefore, there is conflicting testimony. A railing sufficient to “ prevent danger to persons traveling the street ” would not be sufficient to prevent children at all times from playing on the dirt or about the trench. The ordinance did not require a fence or railing to keep children out or away from the place (Johnson v. City of New York, 208 N. Y. 77), nor of such strength as to make it impossible for any one to drive into the opening; the fence or railing was intended to be a protection or warning to travelers on the street using reasonable care. The ordinance, had no application to one who drove deliberately or intentionally into or over the trench nor to one so drunk that he could not see where he was going.

- John Donohue was twelve years old. About seven o’clock in the evening of October 4, 1932, he was playing in and about this trench when an automobile came through One Hundred and Twenty-second street from the south, ran over the pile of dirt and killed him. The driver disappeared.

If the driver were negligent and the company also negligent in not having guards or barriers to warn him of the trench, and this negligence contributed to the accident, then the plaintiff has a cause of action against either or both. On the other hand , if the driver were so drunk or intoxicated that the absence of a railing or guard did not play any part in the accident, did not contribute to it, then the driver alone was responsible. In other words, the company is not liable unless the absence of lights or guards was the cause or a contributory cause of the disaster. The negligence of the company toward travelers on the street would not make it liable for an accident due solely to the act of another.

The defendant offered evidence to show that one Michael McCormack was the driver of the automobile and was so intoxicated shortly before and after the accident that he could not drive properly. This evidence was excluded. This I think was error. The jury might have found that with an embankment three and a half feet high alongside the trench and an electric light almost over it, the driver because of his condition did not know what he was doing or where he was going and in consequence was solely responsible for the death of young Donohue. These at least were questions for the jury and the evidence should have been received.

The attorney for the respondent in his brief says that McCormack was indicted, tried and the case dismissed; that the People could not show that McCormack drove the car; further that he is dead and was never served with the summons in this case. All this has nothing to do with this defendant who may show by a preponderance of evidence, even if the People could not beyond a reasonable doubt, that McCormack was the driver and solely responsible for the occurrence.

The exclusion of this competent evidence should lead to a reversal of the judgment and to a new trial.

Judgment affirmed.


text:
    First Trust & Deposit Company, Respondent, v. Syrdelco, Inc., et al., Defendants, and Louis L. Hurwitz et al., Appellants.
    Argued June 1, 1937;
    decided July 13, 1937.

      Benjamin E. Shove for appellants.

      H. Duane Bruce and Donald H. Yeomans for respondent.
   Appeal dismissed, with costs. Appellants are not aggrieved parties. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Charles J. Fisher, Jr., an Infant, by Mary E. Fisher, His Guardian ad Litem, Respondent, v. Samuel P. Bartley et al., Appellants.
    Argued June 1, 1937
    decided July 13, 1937.

      Francis L. Driscoll and Lorenz J. Brosnan for appellants.

      Frank P. Ufford and St. Clair Hertel for respondent.
   Judgments reversed and new trial ordered, with costs to abide the event. It was error to instruct the jury in the text of the memorandum decision of the Appellate Division rendered on the former appeal (246 App. Div. 609). These instructions in effect allowed the jury to find the defendants liable for a mere error of judgment. No opinion. (See 275 N. Y. 544.)

Concur: Crane, Ch. J., Lehman, O’Brien and Lough-ran, JJ. Dissenting: Hubbs, Finch and Rippey, JJ.


text:
    Charlotte Doncourt, Appellant, v. Kenneth Doncourt, Respondent.
    Argued June 2, 1937;
    decided July 13, 1937.

      Julian T. Abeles, L. Lawrence Green and Leopold Bleich for appellant.

      Almet B. Latson, Jr., for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loitghran, Finch and Rippey, JJ.


text:
    Benjamin Apfel, Respondent, v. London Guarantee & Accident Co., Ltd., Appellant.
    Argued June 2, 1937;
    decided July 13, 1937.

      Everett W. Bovard and William E. Lowther for appellant.

      Jacob Goldberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    John F. Pitz, Sr., Respondent, v. James J. Munro, as Receiver for Richmond National Bank of New York, Appellant, Impleaded with Another.
    Argued June 3, 1937;
    decided July 13, 1937.

      William F. McDermott, Noah A. Stancliffe, George T. Barker and John L. Farrell for appellant.

      Bertram F. Bongard and Joseph D. Nunan, Jr., for respondent.
   Judgment affirmed, with costs; no opinion. (See 275 N. Y. 540.)

•Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs Lottghran, Finch and Rippey, JJ.


text:
    Edward J. Byrne et al., Appellants, v. Harry Hasher, Defendant, and John Loeb, Respondent.
    Submitted June 4, 1937;
    decided July 13, 1937.

      Michael A. Hayes and John P. Wourms for appellants.

      Irving I. Goldsmith, Monroe Collenburg, Frank Rashap and Joseph L. Roesch for respondent.
   Judgment affirmed, with costs. (See Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14.) No opinion.

Concur: Crane, Ch. J., Lehman, Htjbbs, Lottghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Charles G. Comstock, Respondent, v. Harry Bensky, Appellant.
    Argued June 9, 1937;
    decided July 13, 1937.

      Jay Leo Rothschild, Arthur S. Jarcho and Leo F. Potts for appellant.

      Samuel S. Pines and Leo E. Falkin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: Lehman and OíBrien, JJ.


text:
    American Bulb Company, Inc., et al., Respondents, v. William Spiwak et al., Defendants and Poswil Realty Corporation, Appellant. Charles Niemann, Respondent, v. William Spiwak et al., Defendants, and Poswil Realty Corporation, Appellant.
    Argued June 3, 1937;
    decided July 13, 1937.

      Isidore Ginsberg and L. Robert Hitsig for appellant.

      Meyer Kreeger and Maurice Rogen for respondents.
   In each action: judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York, Respondent, v. Major Green, Appellant.
    Argued June 3, 1937;
    decided July 13, 1937.

      Charles Pope Caldwell, Richard J. Barry and Henry P. Lipscomb for appellant.

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Merton B. Sullivan et al., Appellants, against James E. Finegan, Individually and as President of the Municipal Civil Service Commission of the City of New York et al., Respondents.
    Argued June 3, 1937;
    decided July 13, 1937.

      Seth T. Cole for appellants.

      PaulWindels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel), for respondents.
   Order affirmed, with costs; no opinion. (See 275 N. Y. 581.)

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Pinch and Rippey, JJ.


text:
    Joseph Lewis, Appellant, v. Board of Education of the City of New York, et al., Respondents.
    Argued June 4, 1937;
    decided July 13, 1937.

      Joseph Wheless for appellant.

      Paul Windels, Corporation Counsel (William C. Chanler and Thomas W. A. Crowe of counsel), for respondents,
   f Appeal dismissed, with costs, on the ground that the constitutional question is not the sole question involved in the appeal. No opinion.

Concur: Crane, Ch. J., Lehman, Hhbbs, Lohghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    John J. Hanley, Respondent, v. City of New York, Appellant.
    Argued June 4, 1937;
    decided July 13, 1937.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Robert H. Schaffer), for appellant.

      Sidney Sugarman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehmast, Hubbs, Lottghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Herman M. Albert, Appellant and Respondent, v. City of New York, Respondent and Appellant.
    Argued June 4, 1937;
    decided July 13, 1937.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Robert H. Shaffer of counsel), for defendant, respondent and appellant.

      Sidney Sugarman for plaintiff, appellant and respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Bertha Hubert et al., Respondents, v. Carll Tucker, Appellant, Impleaded with Another.
    Argued June 4, 1937;
    decided July 13, 1937.

      Everett W. Bovard and Henry L. Ugnetta for appellant (in Fisher action).

      Edgar J. Treacy, William H. Stieglitz and Patrick S. Mason for appellant (in Hubert action).

      Samuel L. Sargent and Isidor Enselman for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Httbbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Gramatan National Bank and Trust Company of Bronxville, Appellant, v. Florence M. Smith et al., Respondents.
    Argued June 4, 1937;
    decided July 13, 1937.

      William L. Rumsey for appellant.

      Monroe J. Cahn and Alfred S. Schechter for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Edwin J. O’Rourke, Appellant, v. William Hutton, Jr., as Commissioner of Public Safety of the City of Troy, Respondent.
    Submitted June 4, 1937;
    decided July 13, 1937.

      James A. McCarthy for appellant.

      Frank S. Parmenter, Corporation Counsel (John P. Judge of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Ann Winkler, an Infant, by Arthur G. Winkler, Her Guardian ad Litem, et al., Respondents, v. American Sundries Co., Inc., Appellant.
    Submitted June 4, 1937;
    decided July 13, 1937.

      Alfred M. Bailey, William W. Bailey and John J. Kirwan for appellant.

      George J. Shimm for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Htjbbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    New York Title Insurance Company, Respondent, v. Louise Gerdes, Appellant, Impleaded with Another.
    Argued June 2, 1937;
    decided July 13, 1937.

      Samuel Silbiger for appellant.

      Albert A. DuPont and Stephen J. Masse for respondent.
   Judgment affirmed, with costs; no opinion.

, Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs Lottghran, Finch and Rippey, JJ.