author: Thacher, J.

text:
    In the Matter of John A. Lyons, as Commissioner of Correction of the State of New York, Appellant, against Leslie F. Robinson, as County Judge of Erie County, Respondent. Anthony Mangano, Intervener, Respondent.
    Argued May 18, 1944;
    decided July 19, 1944.

      Nathaniel L. Goldstein, Attorney-General (Wortley B. Paul and Orrin G. Judd of counsel), for appellant.
    1. Even though a hearing on the question whether the defendant was armed was necessary as to the additional sentence, still the court had no power to revoke such part of the prior sentence as was imposed for the actual robbery. (People v. Krennen, 264 N. Y. 108; People ex rel. Mummiani v. Lawes, 258 App. Div. 643; People v. Schectman, 258 App. Div. 743; Matter of Moore v. Thorn, 245 App. Div. 180, 270 N. Y. 502; People ex rel. Romano v. Brophy, 280 N. Y. 707; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Miresi v. Murphy, 253 App. Div. 441; People ex rel. Trainor v. Baker, 89 N. Y. 460; People ex rel. Wormuth v. Daniels, 169 Misc. 313.) II. The lower courts were in error in construing Matter of Lyons v. Goldstein (290 N. Y. 19) as being authority for the County Court to interrupt the imprisonment which had begun in this case and also in holding that the sentence imposed for the robbery itself was illegal, even though the sentence for the additional term should be invalid. (Matter of Dodd v. Martin, 248 N. Y. 394; Moore v. Thorn, 245 App. Div. 180, 270 N. Y. 502; People ex rel. Paris v. Hunt, 201 App. Div. 573, 234 N. Y. 558; People ex rel. Holton v. Hunt, 217 App. Div. 428; Matter of Cedar, 240 App. Div. 182, 265 N. Y. 620; People v. Elliot, 140 Misc. 685; United States v. Murray, 275 U. S. 347; United States v. LaShagway, 95 F. 2d 200; N. Y. ex rel. Whitman v. Wilson, 318 U. S. 688; People ex rel. Hager v. Hunt, 261 App. Div. 1046; People ex rel. Romano v. Brophy, 280 N. Y. 181; People ex rel. Carr v. Martin, 286 N. Y. 27; Matter of Gregory, 219 U. S. 210.) III. Even though no hearing had been originally held on the question of defendant’s being armed, the court had no power to revoke the existing sentence until the inquiry had been held as we have shown. Since the inquiry showed the defendant to have been armed, the court never had any power to change the sentence in any manner. (People v. Caruso, 249 N. Y. 302; People ex rel. Kammerer v. Brophy, 255 App. Div. 821, 280 N. Y. 618; People ex rel. Albanese v. Hunt, 266 App. Div. 105, 292 N. Y. 528.)

      Christy A. Buscaglia for intervener, respondent.
    I. The sentence imposed on April 2, 1937, was one sentence. It was not divisible or separable. Since it was illegal in part it was wholly illegal and it was in the court’s power and its duty to revoke that sentence in its entirety. (Hager v. Hunt, 26 N. Y. S. 2d 573; People v. Sandoval, 28 N. Y. S. 2d 370; People ex rel. White v. Department of Correction, 259 App. Div. 792; People ex rel. Temple v. Brophy, 248 App. Div. 442; People v. Paradiso, 248 N. Y. 123.) II. The first sentence imposed was one sentence and was properly revoked because it was illegal. The second sentence imposed was therefore legal and proper and is the final judgment. III. The sentence imposed on April 2, 1937, was illegal, improper and void in its entirety because it was imposed in violation of the defendant’s constitutional rights. (People ex rel. Barone v. Fox, 202 N. Y. 616; People ex rel. Am. Ex. Nat. Bank v. Purdy, 196 N. Y. 270; People ex rel. Bridgeport Sav. Bank v. Feitner, 191 N. Y. 88; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 10 N. Y. S. 2d 114; Stuart v. Palmer, 74 N. Y. 183; People v. Workhouse, 163 N. Y. S. 910; People v. St. Saviour’s Sanitarium, 56 N. Y. S. 431; Matter of Lyons v. Goldstein, 290 N. Y. 19.)
   Thacher, J.

On April 2,1937, the intervener was sentenced in the County Court in Erie County to serve a term of not less than three and not more than ten years and an additional term of not less than five and not more than ten years upon a plea of guilty to robbery in the second degree. The additional term of from five to ten years was imposed pursuant to section 1944 of the Penal Law upon the assumption that the crime was committed by the defendant while armed.

On April 3, 1937, the intervener was received at Attica State Prison and commenced service of his sentence. On December 11, 1941, while serving his sentence, the intervener was delivered to the custody of the Sheriff of Erie County on an order issued out of the Erie County Court directing that he be returned to the court for a hearing on the question of whether or not he >yas armed at the time of the commission of the crime. Such a hearing was held and testimony was taken. Thereupon it was determined that the intervener was in fact armed at the time of the commission of the crime for which he had been sentenced on April 2,1937. Having so determined, the County Judge vacated the order of commitment made by him on April 2, 1937, and resentenced the intervener to an indeterminate term of from one year to one year and three months for the substantive crime of robbery in the second degree to which the intervener had pleaded guilty. In addition thereto he reimposed upon the intervener the term of from five years to ten years for having been armed at the time of the commission of the substantive crime. The intervener was then returned to Attica State Prison under an order of recommitment for service of the sentence imposed on December 15,1941. Thereafter the Commissioner of Correction commenced this proceeding under article 78 of the Civil Practice Act for an order directing the County Judge to vacate the order of commitment dated December 15, 1941, and further directing him to reinstate the order of commitment dated April 2, 1937.

Peeling constrained to follow the decision in People ex rel. Hager v. Hunt (261 App. Div. 1046) the Justice at Special Term held that the sentence of April 2, 1937, was “ wholly illegal ”, and that accordingly on December 15, 1941, the intervener was for the first time legally sentenced. Denial of petitioner’s motion followed, with unanimous affirmance in the-Appellate Division.

Petitioner’s contention is that the order of commitment dated December 15, 1941, vacating the former commitment of April 3, 1937, and changing the term of the original sentence for the substantive offense from an indeterminate term of from three to ten years to an indeterminate term of from one year to one year and three months, was unlawful. The original sentence for the substantive crime of not less than three years and not more than ten years it was argued was perfectly valid.

If at the time of the original sentence there was no hearing to determine whether the defendant was armed, the proper practice was to bring the intervener before the sentencing court so that that question could be determined upon a proper hearing. (People ex rel. Romano v. Brophy, 280 N. Y. 181; People v. Krennen, 264 N. Y. 108; People v. Caruso, 249 N. Y. 302.)

We assume for the purpose of this decision that there was no hearing and proceed to a consideration of whether this procedural defect invalidated that part of the sentence which was in no way dependent upon whether the defendant was armed or not.

The validity of the additional or increased sentence authorized by section 1944 depends entirely upon the presence of particular circumstances specified in that section. Such circumstances are no part of the substantive offense but, being in aggravation thereof, upon their existence being shown the court must increase the sentence as required by section 1944. (People v. Krennen, supra; People v. Caruso, supra.) If the presence of such circumstances be not shown, the imposition of the additional term of years is of course invalid (People ex rel. Romano v. Brophy, 280 N. Y. 181 and 707), but it by no means follows that such invalidity in the additional sentence renders the sentence for the substantive offense invalid. The contrary rule is plainly indicated by our amended remittitur in the Romano ease (supra). There the relator in a habeas corpus proceeding was convicted of assault in the second degree and sentenced for a term of from two and a half to five .years for this offense and for a further term of from five to ten years, pursuant to section 1944. The record however failed to disclose facts sufficient to sustain the additional sentence under section 1944, and accordingly we directed that the order dismissing the writ 11 should be reversed, the writ sustained, and the relator discharged from custody.” Thereafter, upon a motion to recall and amend the remittitur, the remittitur was amended by striking therefrom the words 11 and the relator discharged from custody ” and by substituting the following: and the relator to be discharged at the termination of his first sentence unless earlier discharged by the proper State authorities.” We stated: This court merely declares the increased sentence to have been illegal ” (280 N. Y. 707). Thus it was held that the increased sentence under section 1944 for being armed when committing the substantive offense is severable from the sentence for the substantive offense and that the invalidity of the former does not impair the validity of the latter. In our decisions we have often referred to the increased sentence provided by section 1944 as an additional sentence. (People v. Caruso, supra; People v. Procito, 261 N. Y. 376; People ex rel. Romano v. Brophy, supra.) Regarding the additional sentence as sever-able from the sentence for the substantive crime, we conclude that the sentence for the substantive crime was not illegal and that the County Court was without power to modify the sentence. The application to the County Court in this ease was not an appeal to the inherent power of the court to set aside a judgment procured by fraud. Matter of Lyons v. Goldstein (290 N. Y. 19) which was such a case, can have no application here.

Since the County Court found that the intervener was armed at the time he committed the offense, the original sentence, both with respect to the substantive offense and with respect to the additional term of imprisonment imposed pursuant to section 1944, was correct and should not have been disturbed because of the procedural defect which was corrected by the subsequent hearing.

Accordingly, the orders should be reversed, without costs, and the prayer of the petition granted. •

Lehman, Ch. J., Loughran, Lewis, Conway and Desmond, JJ., concur; Rippey, J., taking no part.

Orders reversed, etc.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    George N. Rapee, Respondent, v. Beacon Hotel Corporation, Appellant, et al., Defendants.
    Argued June 12, 1944;
    decided July 19, 1944.

      Joseph F. Murray and Reginald V. Spell for appellant.
    I. Plaintiff was a trespasser, not a guest. (Penal Law, § 1146; Olin v. United Electric Light & Power Co., 82 Misc. 427; People v. Stevens, 109 N. Y. 159; Johnson v. May, 189 App. Div. 196; Kovarik v. Long Island Railroad Co., 189 App. Div. 534; Magar v. Hammond, 183 N. Y. 387; Birch v. City of New York, 190 N. Y. 397; Larmore v. Crown Point Iron Co., 101 N. Y. 391; Kerr v. Kerr, 134 App. Div. 141; Miller v. Miller, 212 App. Div. 114; Curtis v. Murphy, 63 Wis. 4; Wolff v. Fulton Bag & Cotton Mills, 185 App. Div. 436; Morgan Munitions Co. v. Studebaker Corp., 180 App. Div. 530, 226 N. Y. 94.) II. Plaintiff, having obtained entry into the hotel by means of fraud and for an immoral purpose, cannot have the advantage thereof for the purpose of recovering from the defendant. (Riggs v. Palmer, 115 N. Y. 506; Holman v. Johnson, Cowp. 341; Reiner v. North American Newspaper Alliance, 259 N. Y. 250; Gray v. Hook, 4 N. Y. 449; Haynes v. Rudd, 102 N. Y. 372; Morgan Munitions Co. v. Studebaker Corp., 226 N. Y. 94; Quast v. Fidelity Mutual Life Ins. Co., 226 N. Y. 270; Sirkin v. Fourteenth Street Store, 124 App. Div. 384; Gibbs & Sterrett Mfg. Co. v. Brucker, 111 U. S. 597; Roberts v. Criss, 266 F. 296.) III. Plaintiff was guilty of. contributory negligence. IY. There is no evidence of negligence. Y. The court erred in refusing to charge the jury that they would have to find that there was notice.

      Benjamin H. Siff and Bernard Reich for respondent.
    I. The jury’s finding- that there was negligent maintenance of the elevator door was fully justified. II. The issue of contributory negligence was one of fact and was properly determined by the jury. III. Plaintiff was a guest to whom the defendant owed the duty of reasonable care in the maintenance of its elevators. (Tomko v. Feldman, 124 Pa. Super. 429; Hart v. N. Y. C. & H. R. R. R. Co., 205 N. Y. 317; Kenny v. Union Railway Co., 166 App. Div. 497; Lupher v. A. T. & S. F. R. R. Co., 81 Kans. 585; Lucia v. Omel, 46 App. Div. 200.) IV. There was no error in the court’s refusal to charge as requested.
   Loughran, J.

Plaintiff and his fiancee registered at the defendant’s hotel as husband and wife under an assumed name and then went out for the evening. On their return at an early hour the next morning, there was no response to his repeated ringing of the elevator bell at the ground floor, because the elevators were not operated below the mezzanine at that time of day. Eventually the plaintiff leaned against the shaft door of an elevator to listen more closely for what seemed to be the sound of an approaching car. His weight caused the door to slide open and he fell into a pit below. A judgment for his damages has been affirmed and is now challenged by the defendant in this court.

In his charge the Trial Judge said to the jury: “ It was the duty of the defendant to see that the elevator doors were properly closed.'The gates or doors leading to the shafts of the elevator were required to be locked or bolted dr securely fastened on the shaft side, that is, from the inside. * * * The duty which I have charged you-the law imposes upon the defendant in the maintenance and operation of passenger elevators is not diminished by the fact that the plaintiff may have intended to occupy a room with a female not his wife or that he imposed upon the hotel authorities by misrepresenting some person to be his wife, or by making use of an assumed name. I charge you that for the purposes of your consideration of this case the plaintiff was a guest of the hotel and that the obligation of due care as I have charged it to you was applicable to this plaintiff in the same manner as to other guests and to other persons lawfully on the premises. ’ ’ To these instructions . counsel for the defendant took the following exception: “ I respectfully except to that part of your Honor’s charge in which you stated that the plaintiff was a guest of the hotel and the same duty which was owing to any guest of the hotel was due and owing to him.”

On the strength of this exception, the defendant argues that the plaintiff’s fraudulent misrepresentation of his personality made him a trespasser on the hotel premises. We cannot assent to that argument. The misstatement of their names and status by the plaintiff and his companion certainly did not prove that the defendant’s one and only purpose in their case was to treat with other particular individuals who were not present at the time. Foremost on the defendant’s part was an intention to contract with the man and the woman who had put signatures on the register and, that being so, the plaintiff became a guest of the hotel, though the defendant may perhaps have been deceived as to his identity. (See Phelps v. McQuade, 220 N. Y. 232.)

Whether the plaintiff’s trickery was nevertheless enough to disable him from maintaining this action was an additional question. (See Beale on Innkeepers and Hotels, § 136.) The defendant insists there was error in the negative answer that was given thereto in the passage we have quoted from the charge of the Trial Judge. (Cf. Lucia v. Omel, 46 App. Div. 200.) But so much of that excerpt as asserted the plaintiff’s position as a guest was sound, — or so we have said; and a general exception to an instruction that is correct in part cannot be sustained. (Wells v. Higgins, 132 N. Y. 459, 464; Brozek v. Steinway Railway Company, 161 N. Y. 63, 65.) For that reason, the defendant’s exception to the charge is of no avail at this point. The defendant did not in its answer set up the plaintiff’s imposture as a defense. (See Civ. Prac. Act, § 242.) More than that, the motion for dismissal of the complaint made by the defendant at the close of the case did not mention that matter at all. Thus there is no formal warrant in this record for the defendant’s demand that the plaintiff forfeit his recovery for his misconduct.

The defendant invokes the statute against keeping houses of ill-fame. (Penal Law, § 1146.) The .provisions thereof have not persuaded us that we should dismiss this complaint on some theory of public policy. (See Glaser v. Glaser, 276 N. Y. 296, 299; Patton v. United States, 281 U. S. 276, 306; 27 Halsbury’s Laws of England [1st ed.], p. 525, note h. Cf. Flegenheimer v. Brogan, 284 N. Y. 268.)

The judgment should be affirmed, with costs.

Lehman, Oh. J., Rippey, Lewis Conway, Desmond and Thacher, JJ., concur.

Judgment affirmed.


author: Rippey, J.

text:
    Fred Langfelder et al., Appellants, v. Universal Laboratories, Inc., Respondent.
    Argued June 13, 1944;
    decided July 19, 1944.

      Charles Rosenbaum and Maurice Cellar for appellants.
    The •courts of the State of New York should not reject jurisdiction of a cause of action on contract against a foreign corporation for a sum of money alleged to be due and in default. (Travis v. Knox Terpezone Co., 215 N. Y. 259; Equitable L. A. Society v. U. P. R. R. Co., 212 N. Y. 360; Gregonis v. P. & R. Coal & Iron Co., 235 N. Y. 152; Sauerbrunn v. Hartford Life Ins. Co., 220 N. Y. 363.)

      Orison S. Marden for respondent. .
    I. The Special Term properly declined to take jurisdiction of the action. (Cohn v. Mishkoff Costello Co., 256 N. Y. 102; Sternfeld v. Toxaway Tanning Co., 290 N. Y. 294; Bickart v. Kelly-Springfield Tire Co., 243 App. Div. 72; Miesse v. Seiberling Rubber Co., 264 App. Div. 373; Koster v. Shenandoah Corp., 258 App. Div. 1079, 283 N. Y. 778; Nothiger v. Corroon & Reynolds Corp., 266 App. Div. 299; Harris v. Weiss Engineering Corp., 267 App. Div. 96; Graybar Electric Co. v. New Amsterdam Casualty Co., 292 N. Y. 246; Cohen v. American Window Glass Co., 126 F. 2d 111; Rogers v. Guaranty Trust Co., 288 U. S. 123.) II'. In declining jurisdiction, the Special Term exercised a judicial discretion and appellate review is limited to determining whether there has been an abuse of such discretion. (Rogers v. Guaranty Trust Co., 288 U. S. 123; Koster v. Shenandoah Corp., 258 App. Div. 1079; Murnan v. Wabash Railway Co.,
      246 N. Y. 244; Civil Practice Act, § 605; Wedemann v. United States Trust Co., 258 N. Y. 315; Matter of Cornell, 267 N. Y. 456.)
   Rippey, J.

The Yadsco Sales Corporation and Delettrez, Inc., a wholly owned subsidiary of the former, were and are corporations organized and existing under the laws of the State of Delaware. On June 29, 1943, the two corporations merged by written agreement and the name of the former as the continuing corporation under the merger was changed to Universal Laboratories, Inc. The agreement was approved by the requisite vote of stockholders representing more than two thirds of the total outstanding capital stock of each of the merging corporations as required by the Corporation Law of Delaware (see §§ 26, 59, 59A, 61, referred to in the complaint and other moving papers) and the merger became effective under that law on the aforesaid date.

The corporate stock of Yadsco Sales Corporation before the ' merger consisted of 7% cumulative preferred stock of a par value of $100 per share and a liquidating value of $110 per share plus accumulated unpaid dividends with interest and certain other preferential rights and common stock of no par value. Delettrez, Inc., had a common stock issue of a par value of $100 per share. The purpose of the merger was to effect a reorganization and recapitalization of Yadsco Sales Corporation. To effect that purpose, by the merger agreement, among other things, the certificate of incorporation of Yadsco and its bylaws are,' in some important respects, amended, its capital stock is reduced and reclassified, its obligation to pay cumulated preferred stock dividends accruing prior to the merger is terminated, the new preferred stock has no par value but a stated liquidating value of $50 per share with annual dividends of $2.50 per share, and the new common stock has a par value of $1 per share. The rights of preferred stockholders are, in some few respects, increased, but, in many more important respects, circumscribed or curtailed and a management committee is given options to purchase common stock over a period of five years at varying prices. Automatically, on the day the merger became effective, each share of preferred stock of Yadsco was converted into one share of the new preferred stock and five shares of the common stock of Universal.

In the certificate of incorporation of the Yadsco Sales Corporation and in its stock certificates, it was provided that, ‘ In the event of any reduction in the capital stock of the corporation resulting in a reduction of the preferred stock either as to number of shares or as to the par value thereof, except a reduction in the number of shares thereof for the purpose of effecting a statutory cancellation of preferred stock purchased for retirement or redeemed, or in the event of a voluntary dissolution of the corporation, the holders of the shares of said preferred stock affected by such reduction and to the extent thereof, or affected by voluntary dissolution, shall be entitled to receive and shall be paid an amount in cash not less than one hundred and ten percent (110%) of the amount of the reduction or in the case of voluntary dissolution one hundred and ten percent (110%) of the par value of their shares, and in any case all cumulated and unpaid dividends thereon and a sum equal to a dividend at the rate of seven percent (7%) per annum from the last dividend date to the date of such reduction or voluntary dissolution.”

Plaintiffs, residents of New York City, are the owners of 370 shares of the preferred stock of the Yadsco Sales Corporation. They assert that the merger was ineffective under Delaware law to cut off their rights and interests in the preferred stock of Yadsco and that those rights must be determined as they existed prior to the merger. On that theory, it is shown that plaintiffs would be entitled to receive from defendant the difference between $110 and $50 par value and the accumulated annual unpaid dividend of 7% . per share on each share of preferred stock held by them. Plaintiffs, in their complaint in equity, as nonassenting stockholders of Yadsco to the merger and upon appropriate allegations, set out in eight causes of action, seek judgment declaratory of their rights in the premises, that those rights as stockholders as they existed before the merger were not affected by the merger and that defendant be directed to pay them the difference between $110 per share as the declared value of their stock since the defendant reduced the numbér of shares of its stock and $50 per share as fixed in the merger agreement and additionally issue to them one share of the new preferred stock plus five shares of the new common stock or, in the alternative, declaring that the cumulated unpaid dividends on their preferred stock were not affected, impaired or satisfied by the merger and that they are entitled to be paid those dividends before any other dividends are paid, directing defendant to issue to them the substituted stock specified in the merger agreement without requiring them to surrender their right to unpaid dividends on the Vadsco stock, restraining the defendant from declaring or paying any dividend upon the new stock of defendant without first providing for the payment of the unpaid accrued dividends on their Vadsco stock, for a temporary injunction from so doing and for such other relief as might be appropriate.

There are cases in which our courts will entertain jurisdiction in suits against foreign corporations where suitors, even stockholders, are entitled to some relief which the State court is competent to grant. But it is well settled that jurisdiction in any case will be declined either in the absence of jurisdiction in the strict sense or where a determination of the rights of litigants involves regulation and management of the internal affairs of the corporation dependent upon the laws of the foreign State or where the court in which jurisdiction is sought is unable to enforce a decree if made or where the relief sought may be more appropriately adjudicated in the courts of the State or country to which the corporation owes its existence (Fletcher, Cyclopedia of the Law of Private Corporations, vol. 17, §§ 8426-8429; Bichart v. Kelly-Springfield Tire Co., 243 App. Div. 72; Travis v. Knox Terpezone Co., 215 N. Y. 259; Cohn v. Mishkoff Costello Co., 256 N. Y. 102; Sternfeld v. Toxaway Tanning Co., 290 N. Y. 294; Nothiger v. Corroon & Reynolds Corp., 293 N. Y. 682; Cohen v. American Window Glass Co., 126 F. 2d 111).

The fact that the third and seventh causes of action seek a money judgment on the basis of an alleged breach of' the contract under which plaintiffs hold the Vadsco stock, which plaintiffs particularly urge as a ground for entertaining jurisdiction, does not change the application of the above-mentioned rules to this case since recovery thereunder may not be had if the merger agreement is valid and binding on the plaintiffs. A representative action was brought in the Chancery Court of the State of Delaware in behalf of all holders of the preferred stock of Vadsco as their rights in such stock existed before the merger to enjoin Vadsco from consummating the then proposed agreement of merger in which action were involved some of the same objections to the agreement which are set up in the instant complaint. That action, were plaintiffs therein successful, would seem to afford plaintiffs the basic relief which they now seek in the instant case. (Porges v. Vadsco Sales Corporation, 32 Atl. 2d 148.) An injunction restraining the merger pendente lite was refused. We are not advised whether that action is still pending. What rights of plaintiffs as preferred stockholders of Vadsco may have been or may be affected by the outcome of that action depends upon the statutory and decisional law of the State of Delaware. In any event, the merger has been accomplished in fact. In the complaint in the instant case, plaintiffs admit that fact. Though the merger is admittedly accomplished, they seek in the third and seventh causes of action to secure a money judgment for the amount by which they claim their stock was depreciated in value by the merger and for unpaid dividends thereon and a decree restraining the operation of the agreement until that amount has been determined and judgment therefor granted. It is not a simple contract on which they sue in which the rights and obligations of the parties are plainly written into the contract a violation of which constitutes a breach giving rise to recovery of a money judgment in a court of law. The laws of the State of Delaware where Vadsco was incorporated as affecting the validity, construction and performance of the contract when made and the laws of that State applicable to the enforcement of the contract and the remedy for its breach, providing no substantial right secured by the contract is by the latter impaired, form, a part of it with the same force and effect as though they were expressly referred to or incorporated in its terms (Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398; People ex rel. City of New York v. Nixon, 229 N. Y. 356, 360-361). Under the laws of that State, a merger is apparently authorized and given effect except under exceptional circumstances but, in any event, a nonassenting stockholder may refuse to accept the merger and obtain money for the value of his stock by proceeding according to the terms of the statute (Porges v. Vadsco Sales Corporation, supra). In the instant case, said causes of action on contract may not be resolved into a money judgment, if at all, except upon a review of the statutes and decisions of Delaware which, under the circumstances, would at least be unseemly and inappropriate for our courts to undertake (cf. Cohen v. American Window Glass Co., supra). Additionally, entertainment of jurisdiction by our courts would necessarily involve regulation and management of the internal affairs of a corporation'dependent upon the laws of the foreign State. “ Considerations of convenience, efficiency and justice point to the courts of the domicile of the corporation for settlement of the issues presented and necessarily involved in a complete determination of the present case ” (Sternfeld v. Toxaway Tanning Co., supra, p. 297). Nor will the fact that the several corporations have their manufacturing plant and a place of business where the. principal business affairs of the corporation are transacted and their records kept within the State of New York change the application of the rule (Sternfeld v. Toxaioay Tanning Co., supra).

It follows that the discretion exercised by the lower courts in declining jurisdiction was not abused.

The judgment should be affirmed, with costs. (See 293 N. Y. 767.)

Lehman, Ch. J., Loughban, Lewis, Conway, Desmond and Thachee, JJ., concur.

Judgment affirmed.


author: Lewis, J.

text:
    In the Matter of Philip A. Hines, Respondent, against Fiorella H. La Guardia et al., Constituting the Board of Estimate of the City of New York, as Trustees of the New York City Employees’ Retirement System, et al., Appellants. In the Matter of Richard Welling, Appellant, against Harry W. Marsh et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents. Philip A. Hines, Intervener, Respondent.
    Argued May 25, 1944;
    decided July 19, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel and Fred Iscol of counsel), for Fiorello H. La Guardia and others, appellants.

      11. Eliot Kaplan for Richard Welling, appellant.
    L.No legal appointment in the civil service may be effected until authorization and approval as provided by the Civil Service Law has been given by the Municipal Civil Service Commission. (Matter of Welling v. Fullen, 164 Misc. 456, 252 App. Div. 856, 276 N. Y. 690; People v. Ingham, 107 App. Div. 41, 183 N. Y. 547; People ex rel. Ewell v. Robson, 251 App. Div. 689; People ex rel. Chamberlain v. Knox, 45 App. Div. 518; People ex rel. Hannan v. Board of Health, 153 N. Y. 513; Matter of Chiaverini v. Murray, 262 N. Y. 573; Matter of Scahill v. Drsewucki, 269 N. Y. 343; Brown v. Craig, 209 App. Div. 11.) II. The statute involved is clear and does not require administrative interpretation based on alleged long practice or procedure. (Van Loon v. Lyons, 61 N. Y. 22; People ex rel. W. S. El. Co. v. C. T. & E. S. Co., 187 N. Y. 58; City of New York v. New York City Ry. Co., 193 N. Y. 543; Palmer v. Board of Education, 276 N. Y. 222; Matter of Andresen v. Rice, 277 N. Y. 271; People ex rel. N. Y. C. R. R. Co. v. Limburg, 283 N. Y. 344; Neuberger v. Commissioner, 311 U. S. 83; United States v. San Francisco, 310 U. S. 16; People ex rel. Ewell v. Robson, 251 App. Div. 689; Matter of Welling v. Fullen, 164 Misc. 456, 252 App. Div. 856, 276 N. Y. 690; People ex rel. Savings Bank v. Butler, 147 N. Y. 164; Matter of Kornbluth v. Reavy, 261 App. Div. 60, 285 N. Y. 859; People v. Kaye, 212 N. Y. 407; People v. 131 Boerum Street Co., 233 N. Y. 268; Matter of Camfield v. Mealy, 288 N. Y. 149.) III. The proceeding herein brought under article 78 of the Civil Practice Act is proper.

      H. H. Nordlinger and J. M. Binnes for Citizens Budget Commission, Inc., amicus curiae, in support of appellants’ position.
    I. Respondent Hines was not legally appointed to the Department of Hospitals on November 5, 1942. He was not in city service on November 9, 1942, when he filed his second application for retirement; nor on December 15, 1942, the date as of which he sought to be retired. Compliance with section 15 of the Civil Service Law has long since been held to be a prerequisite to effective provisional appointment. An employee may not be appointed first and later approved by the Civil Service Commission. (People ex rel. Ewell v. Robson, 251 App. Div. 689, 253 App. Div. 127, 278 N. Y. 585; People v. Ingham, 107 App. Div. 41, 183 N. Y. 547; Matter of Welling v. Fullen, 164 Misc. 456, 252 App. Div. 856, 276 N. Y. 690; Matter of Welling v. Bissell, 171 Misc. 90; Matter of Goss v. Rice, 160 Misc. 698, 249 App. Div. 895.) II. Rule V, section IX, subdivision 7, of the Rules of the Municipal Civil Service Commission requires (a) a vacancy of an emergency character and (b) that it is not practicable either to secure a person by certification from an eligible list or to conduct a noncompetitive examination in the absence of such a list in time to meet such emergency. (Gallagher v. City of New York, 115 App. Div. 662; McBride v. City of New York, 56 App. Div. 520; Deering v. City of New York, 107 N. Y. S. 934.) III. If subdivision 7 were construed to rqean anything else but a public emergency of the character involved in the McBride and Gallagher eases, it would clearly violate the provisions of section 15 of the Civil Service Law and would be illegal. (Matter of Hilsenrad v. Miller, 284 N. Y. 445; Matter of Camfield v. Mealy, 288 N. Y. 149; O’Malley v. Board of Education, 160 App. Div. 261.) IV. Respondent Hines having failed to meet the statutory conditions for retirement, his retirement was properly denied. (Matter of Eberle v. LaGuardia, 285 N. Y. 247; Matter of Camfield v. Mealy, 288 N. Y. 149.) V. Subdivision 1 of section 15 of the Civil Service Law is clear and unambiguous and its construction is for the courts. An administrative construction cannot thwart the plain purpose of a valid law. (Neuberger v. Commissioner, 311 U. S. 83; United States v. San Francisco, 310 U. S. 16; Estate of Sanford v. Commissioner, 308 U. S. 39; City of New York v. New York City Ry. Co., 193 N. Y. 543; People ex rel. W. S. El. Co. v. C. T. & E. S. Co., 187 N. Y. 58; Burns v. Weber, 171 Misc. 808; Matter of Davison, 137 Misc. 852, 236 App. Div. 684; Matter of Naughton v. Boyle, 129 Misc. 867; Vivien v. Board of Education, 30 N. Y. S. 2d 73.) VI. The remedy sought in the Welling case is an appropriate one under the decisions.

      Samuel D. Smoleff for Citizens Union of City of New York, amicus curice, in support of appellants ’ position.
    It is not in the public interest to permit the Civil Service Commission to give retroactive validity to employment in the public service. This is illustrated by the present case, where the action was taken for the obvious purpose of validating a pension application, and not in the interests of the merit system. (Matter of Wittekind v. Kern, 281 N. Y. 701; Matter of Ackerman v. Kern, 281 N. Y. 87.)

      Robert J. Eagar for respondent.
    I. Respondent Hines fully complied with all requirements of the Administrative Code for his retirement allowance and it is the statutory duty of the Board of Estimate to retire him on the date fixed in his application. (Roddy v. Valentine, 268 N. Y. 228; Ogden v. Saunders, 12 Wheat. 213.) II. Retroactive certification does not constitute ‘a violation or contravention of the Civil Service" Law and the intervener-respondent was legally in the service of the city, effective November 5, 1942. (People ex rel. Hannan v. Board of Health, 153 N. Y. 513; Cherubino v. Meenan, 253 N. Y. 462; Matter of Natelson v. Portfolio, 291 N. Y. 291; Weinstein v. McKenzie, 177 Misc. 451; Gallagher v. City of New York, 115 App. Div. 662; Matter of Shanahan v. Jenkins, 166 Misc. 433; People ex rel. Ewell v. Roberts, 10 Misc. 764; Meade v. Lamarche, 150 App. Div. 42; Matter of Verdecanna v. Carey, 285 N. Y. 130.) III. For an order of mandamus under article 78 of the Civil Practice Act the petition in Welling v. Marsh is insufficient in law and improper.
   Lewis, J.

These two proceedings bring into controversy the status in civil service of Philip A. Hines, formerly First Deputy Clerk in the office of the City Clerk of the City of New York. He resigned from that position on September 3,1942, and claims thereafter — on November 5, 1942 — to have been appointed clerk in the Department of. Hospitals of that city. Four days later — on November 9, 1942 — he applied for service retirement with pension allowance to be effective December 15, 1942. The appellants challenge the legality of Hines’ alleged reappointment to service on November 5, 1942, upon which rests his right to pensioned service retirement.

By the first proceeding — Matter of Hines v. La Guardia — - the petitioner seeks an order directing the Board of Estimate of . the City of New York, as trustees of the New York City Employees’ Retirement System, to approve the petitioner’s service retirement and to grant him a retirement allowance. By the second proceeding — Matter of Welling v. Marsh — in which Philip A. Hines, the petitioner in the" first proceeding, is an intervener, the petitioner Welling, a resident-citizen and taxpayer of the city of New York, seeks an order directing the Municipal Civil Service Commission to correct its records to show that the intervener served as a temporary clerk in the Department of Hospitals in the city of New York only during the period from December 14 to December 16,1942.

At Special Term the petitioner’s motion in the Hines proceeding was denied and the order sought in the Welling proceeding was granted. At the Appellate Division, where the order of Special Term in each proceeding was reversed on the law and facts, two justices dissenting, the petitioner’s motion in the Hines proceeding was granted and the order sought at Special Term in the Welling proceeding was denied.

On August 31,1942, the Mayor of the City of New York transmitted to the City- Council a formal report which had been filed with him by the Commissioner of Investigation relating to irregularities in the office of the City Clerk.' Among other matters the report contained a statement of alleged facts upon which a finding was made that Philip A. Hines had demonstrated his lack of fitness- for public employment. Three days thereafter, on September 3, .1942, Hines resigned as First Deputy City Clerk thereby terminating his relation as a city employee. (Matter of Doering v. Hinrichs, 289 N. Y. 29, 33; see, also, Matter of Eberle v. LaGuardia, 285 N. Y. 247, 251-252.) On the date when he resigned he also filed an application for service retirement as of October 3, 1942. When that application came before the Board of Estimate at its meeting of October 8, 1942, it was disapproved. Thereafter, on November 5,1942, there was made, under rule V, section IX, subdivision 6 of the Buies of the Municipal Civil Service Commission, the purported appointment of Hines to the competitive position of Clerk Grade I in the Department of Hospitals of the City of New York. His annual salary was fixed at $960; his assignment of work was at the Municipal Sanitarium at Otisville, N. Y. The printed form upon which the appointment was made was received in the office of the Municipal Civil Service Commission on December 4, 1942, and contained data indicating that the appointment was under rule V, section IX, subdivision 6, and was for a period of fifteen days beginning November 5,1942. On December 14,1942, the Municipal Civil Service Commission approved the Hines payroll for a period from November 5, to December 15,1942. On November 9,1942 — five days after his alleged reappointment to city service — Hines filed with the Board of Estimate a second application for service retirement to be effective December 15, 1942. That application was disapproved by the Board at its meeting of January 14, 1943, and led to the present Hines proceeding.

The resignation filed by Hines as First Deputy City Clerk withdrew him from city service and served to deprive him of the right to pensioned service retirement unless there is proof of his legal reappointment to a position in city service under conditions which would qualify him for a retirement allowance. (Administrative Code, § B3-36.0, and see Matter of Eberle v. La Guardia, supra, pp. 251-252.) In other words the petition in the Hines proceeding was properly denied unless there was evidence before the court of compliance by Hines with section B3-36.0 of the Administrative Code which provides in part: .

“ Betirement of a member for service shall be made by the board [of estimate] as follows:
“ 1. Any member in city-service may retire upon written application to the board setting forth at what time, not less than thirty days subsequent to the execution and filing thereof, he desires to be retired, provided that such member at the time so specified for his retirement shall have attained the minimum age of retirement provided for the group of which he shall be a member at such time.” (Italics added.)

Unless the purported reappointment of November 5, 1942, was legal Hines was not a member in city-service ” within section B3-36.0 (supra) when he made his application for pensioned service retirement on November 9, 1942. Our inquiry is thus narrowed to the question of the legality of that appointment allegedly made on that date.

We find no evidence that Hines took an examination of any kind before his purported appointment of November 5, 1942. His name was on no appropriate civil service list of those eligible for the position to which he now asserts a legal appointment. Indeed, it is undisputed that no eligible list for that position had existed since 1940. In connection with such appointment Hines had not been nominated to the Civil Service Commission for noncompetitive examination; nor was he certified by the Civil Service Commission as qualified for appointment to the position of Clerk Grade I in the Department of Hospitals after noncompetitive examination. These, we think, are prerequisites for an effective provisional appointment made under rule V, section IX, subdivision 6 of the Rules of the Municipal Civil Service Commission. That rule embodies the essential provisions of Civil Service Law, section 15, subdivision 1, which provided, until amended by chapter 377 of the Laws of 1944:

§ 15. Exceptions from competitive examination. Positions in the competitive class may be filled without examination as follows:
“ 1. Whenever there are urgent reasons for filling a vacancy in the competitive class and there is no list of persons eligible for appointment after competitive examination, the appointing officer may nominate a person to the state or municipal commission for non-competitive examination, and if such nominee shall be certified by such commission as qualified after such noncompetitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination, but such provisional appointment shall not continue for a-longer period than four months, nor shall successive provisional appointments be made to the same position under this subdivision.”

The reappointment of Hines — which was concededly provisional in character — was not made in compliance with the statute quoted above and violated rule V, section IX, subdivision 6 of the Rules of the Municipal Civil Service Commission. (People ex rel Ewell v. Robson, 251 App. Div. 689, 691, 253 App. Div. 127, 129 [reargument], affd. 278 N. Y. 585.)

What was said in People v. Ingham (107 App. Div. 41 at p. 45, affd. on opinion below 183 N. Y. 547), applies here with equal force — “ The several provisions of the Civil Service Law clearly indicate that it was the intention of the Legislature that all persons seeking employment in the civil service and who came within the provisions of the Civil Service Law, should be declared to be eligible by certificate of the officers or boards created by such law. It was not the intention of the Legislature that an appointment could be made subject to the approval of such officers or boartds.” (Emphasis supplied.)

We thus find ourselves unable to accept the argument made in behalf of Hines that retroactive certification does not contravene section 15, subdivision 1 of the Civil Service Law (supra). “ The Civil Service Law does not authorize the Commission to make a certification ‘ conditioned ’ upon ‘ future investigation ’ which may be conducted after an appointment has been made * * * ” (Matter of Wolff v. Hodson, 285 N. Y. 197, 204). Nor can we agree with the statement made in support of the position taken by Hines on this appeal that the important consideration in this case is that the appointment of the respondent was an urgent appointment and as such, speed was the necessary factor in having him report for his employment.” The record contains evidence which makes highly improbable the asserted urgency of the Hines reappointment on November 5, 1942. Upon that subject we cite as admitted facts the affirmative allegations in the answer in the Hines proceeding, to which no reply was served. (Civ. Prac. Act, § 1292.) Prom those allegations it appears that the provisional appointment of Hines on November 5,1942, was made “ for the sole purpose of affording [him] the privilege of having the Board of Estimate pass upon his application for service retirement.” Urgent reasons,” as that phrase is used in section 15 subdivision 1 of the Civil Service Law (supra), implies something more impelling — something more essential to the city’s well-being — than the qualifying of an employee for provisional service retirement. That such was the “ sole purpose ” of the reappointment is made even more plain by the application for pensioned service retirement filed by Hines on November 9, 1942 — four days after the reappointment of November 5, 1942 — and designated by him to be effective December 15, 1942.

We do not find in. section 15 of the Civil Service Law or in rule V, section IX, subdivision 6 of the Buies of the Municipal Civil Service Commission ambiguity sufficient to raise a reasonable doubt as to the intention of the framers of those laws. In such circumstances we may not, in the solution of our problem, give weight to administrative practice — upon which rests the Appellate Division decision — which practice followed a course not approved by either statute or rule. Administrative practice may not thwart a statute the purposes of which are as clear as those here involved. (People ex rel. W. S. El. Co. v. C. T. & E. S. Co., 187 N. Y. 58, 66-67; City of New York v. New York City Ry. Co., 193 N. Y. 543, 549-550; Neuberger v. Commissioner, 311 U. S. 83, 88-89.)

In the Hines proceeding the failure by the petitioner to establish that he .was an employee in city service .on November 9, 1942, makes legally ineffectual his application on that date for pensioned service retirement.

In the Welling proceeding there are allegations in the petition, and affirmative allegations in the answer to which no reply was interposed (Civ. Prac. Act, § 1292), from which it may be inferred that on December 14, 1942, the Municipal Civil Service Commission approved the qualifications of Philip A. Hines and authorized his provisional appointment and employment in the Department of Hospitals. We have concluded in the Hines proceeding that such action by the Commission may not be given retroactive effect. Confining our decision in the Welling proceeding to the issues" raised by the pleadings it follows in that proceeding that there must be a reversal of the order of the Appellate Division and an affirmance of the order at Special Term.

In each proceeding the order of the Appellate Division should be reversed and that of Special Term' affirmed, without costs.

Lehmax, Ch. J., Loughrax, Bippey, Coxway and Desmoxd, JJ., concur; Thacher J., taking no part.

Ordered accordingly.


author: Per Curiam.

text:
    Jacques Gelardin, Appellant, v. Flomarcy Company, Inc., Respondent.
    Argued June 5, 1944;
    decided July 19, 1944.

      Eli J. Blair and Sidney B. Cardoso for appellant.
    The Appellate Division had no power to dismiss the complaint on the merits because the defendant by introducing evidence waived the exception to the denial of the motion to dismiss the complaint at the end of the plaintiff’s case, and the failure of the defendant to move to dismiss the complaint at the end of the entire case is a concession and admission that there was a question of fact for submission to the jury. (People v. Davis, 231 N. Y. 60; Eno v. Klein, 236 N. Y. 543; Murtha v. Ridley, 232 N. Y. 488; Boyles v. Blankenhorn, 220 N. Y. 624; Porges v. U. S. Mortgage & Trust Co., 203 N. Y. 181; Erie R. Co. v. Linnekogel, 248 F. 389; Atkinson v. Sanders, 250 N. Y. 170; Imbrey v. Prudential Insurance Co., 286 N. Y. 434.)

      Louis B. Brodsky and Saul Gordon for respondent.
    The Appellate Division did exceed its powers in finally disposing of the case on defendant’s appeal. (Shotwell v. Dixon, 163 N. Y. 43; Doniger v. Berger, 241 App. Div. 23; Zeffiro v. Porfido, 265 App. Div. 185; Gambino v. John Lucas & Co., 263 App. Div. 1054; Dougherty v. Houlder, Weir & Boyd, Inc., 182 App. Div. 609; Raible v. Hygienic Ice & Refrigerating Co., 134 App. Div. 705; Matter of Burnham, 234 N. Y. 475.)
   Per Curiam.

No motion was made by the defendant at the close of the case for dismissal of the complaint or direction of a verdict. This was a concession by the defendant that there was evidence which warranted submission of the case to the jury. In that state of the record, the Appellate Division was without power to dismiss the complaint. (Eno v. Klein, 236 N. Y. 543.)

The judgment of the Appellate Division should be modified so as to order a new trial, with costs to the appellant to abide the event.

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

Judgment accordingly.


text:
    New York Central Railroad Company, Appellant, v. Beacon Milling Company, Inc., Respondent.
    Argued June 5, 1944;
    decided July 19, 1944.

      Harold H. McLean for appellant.
    I. The charges sued for were authorized by the Interstate Commerce Commission and were not published in violation of any order of the Commission. (Emergency Freight Charges, 1935, Ex Parte No. 115, 208 I. C.C. 4, Beacon Milling Co., Inc., v. New York Central R. R. Co., 157 I.C.C. 635; Fifteen Percent Case, 1931 [Ex Parte 103], 178 I.C.C. 539; United States v. Louisiana, 290 U. S. 70; Birmingham Slag Co. v. United States, 11 F. Supp. 486; Matter of Transit Commission v. Long Island R. R. Co., 291 N. Y. 109.) II. The charges sued for, being computed in strict accordance with the tariffs, are the charges which are legally applicable.' (Penna. R. R. Co. v. International Coal Co., 230 U. S. 184; Robinson v. Balt, & Ohio R. R. Co., 222 U. S. 506; Louis. & Nash, R. R. v. Maxwell, 237 U. S. 94; Pennsylvania R. R. Co. v. Titus, 216 N. Y. 17; Davis v. Portland Seed Co., 264 U. S. 403.) III. The Interstate Commerce Commission has the sole ■ and exclusive jurisdiction to determine the lawfulness of interstate rates contained in tariffs duly published, and filed with it. (Algoma Coal & Coke Co. v. United States, 11 F. Supp 487;
      Phillips v. Grand Trunk Ry., 236 U. S. 662; G. No. Ry. v. Merchants Elev. Co., 259 U. S. 285; Lowden v. Simonds etc. Grain Co., 306 U. S. 516; Arizona Grocery v. Atchison Ry. Co., 284 U. S. 370.)

      August G. Gutheim, of the District of Columbia Bar, for respondent.
    I. The charges sued for are solely emergency charges, they were unauthorized by the Interstate Commerce Commission, and they are assessed in violation of that Commission’s outstanding order in the Beacon case. (Birmingham Slag Co. v. United States, 11 F. Supp. 486; United States v. Louisiana, 290 U. S. 70.) II. A shipper or consignee is under no obligation to pay rates and charges specified in an applicable tariff if such rates and charges exceed those authorized or prescribed by the Interstate Commerce Commission for the transportation service rendered. (Cleveland, C. C. & St. L. Ry. Co. v. Mills Bros., 101 Ohio St. 173; Beeghly v. Public Utilities Commission, 104 Ohio St. 158; Pittsburgh and Lake Erie Rd. Co. v. Public Utilities Commission of Ohio, 128 Ohio St. 469; Pennsylvania R. Co. v. Public Utilities Commission, 130 Ohio St. 469; Baltimore & O. S. W. Ry. Co. v. Shirk, 56 Ind. App. 42; Nashville Traffic Bureau v. L. & N. R. R. Co., 53 I.C.C. 37; City of Springfield, Tenn., v. L. & N. R. R. Co., 53 I.C.C. 603; North Packing & Provision Co. v. Chicago, B. & Q. R. Co., 174 I.C.C. 338, 340; Ralston Purina Co. v. Atlanta, B. & C. R. Co., 174 I.C.C. 722, 723; Wisconsin Retail Lumbermen’s Assn. v. Ann Arbor R. Co., 241 I.C.C. 400; Ott Coal Co. v. Ann Arbor R. Co., 253 I.C.C. 677.) III. The Interstate Commerce Commission has sole and exclusive jurisdiction to determine the lawfulness of interstate rates only when such determination requires administrative action by the Commission; otherwise, the courts have jurisdiction to determine the issue. (G. No. Ry. Co. v. Merchants Elev. Co., 259 U. S. 285; Arizona Grocery v. Atchison Ry. Co., 284 U. S. 370; Great Northern Ry. Co. v. Armour & Co., 26 F. Supp. 964; Indiana Harbor Belt R. Co. v. Jacob Stern & Sons, 37 F. Supp. 690.)
   Per Curiam.

The orders of the Interstate Commerce Commission in Emergency Freight Charges (1935, Ex Parte No. 115) (208 I.C.C. 4), and the subsequent proceeding in the same case (215 I.C.C. 439) and the emergency transit rates published as Items Nos. 70 and 75 of the emergency tariffs override the order of the Interstate Commerce Commission in Beacon Milling Company v. New York Central R. R. Co. (157 I.C.C. 635), so far as necessary to permit the emergency rates and charges to be applied to the transportation and service here in question. Accordingly, the defendant, if aggrieved by these rates, must find its remedy, if any, in proceedings before the Interstate Commerce Commission. (Louis, & Nash. R. R. v. Maxwell, 237 U. S. 94, 97; Pennsylvania R. R. Co. v. Titus, 216 N. Y. 17, 22.)

No appeal having been taken from the denial of the plaintiff’s motion, we are without power to direct summary judgment in its favor.

The judgments should be reversed and the defendant’s motion for summary judgment denied, with costs in all courts, without prejudice to any proceedings which the defendant may hereafter institute before the Interstate Commerce Commission.

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

Judgment accordingly.


text:
    In the Matter of Nicholas Kiriloff, Respondent, against A. G. W. Wet Wash Laundry, Inc., et al., Respondents. State Industrial Board et al., Appellants.
    Argued May 18, 1944;
    decided July 19, 1944.

      ■Archibald G. Thacher and John M. Cullen for Fund for Reopened Cases, appellant.
    I. Section 25-a of the Workmen’s Compensation Law was enacted and the Fund for Reopened Cases was thereby created as part of an agreed compromise piece of legislation, contained in a single bill, which, by its terms, swept aside all limitations of time previously existing within which applications for compensation might be made, and, at the same time, created a special fund upon which, after the lapse of certain clearly stated periods of time, the obligation to pay awards to claimants against solvent employers and their solvent insurance carriers, was imposed. This special fund is a new concept in Workmen’s Compensation Law legislation; is not a security or guarantee or reinsurance fund and its liability to respond in a proper case is in no way dependent upon the insolvency of claimants’ employers or of their insurance carriers. (Harrison v. Northern Trust Co., 317 U. S. 476; United States v. Monia, 317 U. S. 424; Foster Packing Co. v. Haydel, 278 U. S. 1.) II. “ Payment ” means “ actual payment ”. The construction of “ date of the last payment ”, by the court below, to the effect that this meant “ when payment should have been made ”, cannot be sustained as a matter of law nor upon the facts. (Agency of Canadian Car & F. Co. v. American Can Co., 258 F. 363; Beals v. Home Insurance Co., 36 N. Y. 522; Root v. Kelley, 39 Misc. 530; Dennett v. Goelet, 143 Misc. 195; Stokes v. Stokes, 34 App. Div. 423; Rodgers v. Robson, 147 Mich. 656; Bank v. Harris, 96 N. C. 118; Blanchard v. Blanchard, 122 Mass. 558; Matter of Harkavy, 178 Misc. 507.)

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Orrin G. Judd of counsel), for State Industrial Board, appellant.
    I. Within the purview of section 25-a of the Workmen’s Compensation Law, the date of last payment of compensation was January 9, 1932, instead of April 20, 1927. Therefore three years had not elapsed between the date of the last payment of compensation and July 13, 1933, when the claimant made an application for reopening, and section 25-a was not applicable. (Matter of Cretella v. New York Dock Co., 289 N. Y. 254.) II. It was not the intention of the Legislature to charge the special fund created by section 25-a with awards merely because they were uncollectible from the employer and insurance carrier. III. The State Industrial Board was without power to close the case at bar in order to charge the Fund for Beopened Cases with the obligation of paying the award.

      Albert Adams and Albert Watman for claimant-respondent.
    I. The history and purpose of section 25-a have repeatedly been considered by the Appellate Division and by this court, and a re-analysis seems unnecessary at this time. However, if further consideration is required, it should be concluded again that the law was enacted for the benefit of such claimants. (Matter of Tipton v. Lang’s Bakery, 250 App. Div. 696, 275 N. Y. 572; Matter of Riddle v. General Ice Cream Corp., 262 App. Div. 353; Matter of Becker v. Marcy State Hospital, 264 App. Div. 643.) II. The phrase “ three years from the date of the last payment of compensation- ” is not to be taken literally. (Flynn v. Prudential Ins. Co., 207 N. Y. 315; Bell v. Mayor, etc., of N. Y., 105 N. Y. 139; United States v. Anderson, 194 U. S. 394; Heath v. Ross, 12 Johns. 140; Judd v. Seekins, 62 N. Y. 266; Collier v. Field, 1 Mont. 612; Rader v. Ervin, 1 Mont. 632; Wright v. Hanna, 210 Penn St. 349; Gray v. State, 72 Ind. 567.) III. Even if the construction of section 25-a should be literal, the claimant is entitled to have this case marked closed so that he may now make a fresh application to reopen it. (Matter of Kiriloff v. A. G. W. Wet Wash Laundry, Inc., 257 App. Div. 37.)
   Lewis, J.

We are to determine whether, in the circumstances disclosed by this record, an award to the claimant-respondent may be made against the Fund for Beopened Cases created by section 25-a of the Workmen’s Compensation Law.

The relief which the claimant seeks has been denied by a decision of the State Industrial Board, which was reversed at the Appellate Division (257 App. Div. 37, 266 App. Div. 931; and see 282 N. Y. 466). The case comes to us upon appeals by the Industrial Board and the Fund for Reopened Cases.

The record discloses that in an industrial accident suffered by the claimant on December 12, 1923, he sustained injuries which were classified as constituting temporary total disability and led to a succession of awards against his employer ahd the insurance carrier. More than eight years later, on March 24, 1932, after the claimant had' been paid awards which totaled $3,500,— the maximum compensation allowable for temporary total disability (L. 1922, ch. 615, § 15, subd. 2) —the case was marked closed' ” by the Industrial Commissioner. Thereafter, on July 13, 1933, the claimant applied to the Industrial Board to reopen his case- and to reclassify his condition as permanent partial disability. The case was reopened on October 11, 1933, and awards were made thereafter against the employer and insurance carrier based upon findings of permanent partial disability during the period from July 12, 1932 to May 2, 1936, and permanent total disability from May 2,1936 to February 26,1937.

The controversy now before us arises from the fact that when the claimant’s case was reopened in 1933 and when awards were made thereafter his employer had long since withdrawn from business and the insurance carrier was in the process of liquidation because of insolvency. The result df these latter circumstances was that awards which had been made to the claimant after January 9, 1932, were not paid. The last compensation award actually paid to him was on January 9, 1932, for disability during the period from November 11, 1925, to April 20,. 1927. Meanwhile, however, since its reopening on October 11, 1933, the claimant’s case was continued open ” and has so remained.

When the claimant found that he would be unable to collect from his employer and from its insolvent insurance carrier the awards made to him since January 9, 1932, he applied to the Industrial Board in 1937 for an order directing that his case, which remained “ open,” should be closed and then reopened — his submission being that such procedure under section 25-a of the Workmen’s Compensation Law would create in his favor an obligation by the Fund for Reopened Cases to pay the awards which had proved to be otherwise uncollectible.

Aside from the legal aspects of the unusual procedure suggested by the claimant to the Industrial Board and again suggested on this appeal, we find it difficult to bring to mind facts which would prompt the Board to close a compensation case unless circumstances exist which dictate that the case should not remain open. We are dealing here with a continuing condition of disability which has not been fully and finally compensated. There is in the record an express finding by the Industrial Board, unreversed by the Appellate Division, that since the “ claimant’s application [was] .filed with the Industrial Board on July 13, 1933 to reopen this case, the said case remained an open and continuous case since 1933, and still is an open and continuous case.” If for sufficient reason the case is closed by the Industrial Board in accord with the claimant’s application we have been referred to no facts of record and no statutory authority which would warrant its immediate reopening. In that connection we have it in mind that The Board has no power except that found in the Workmen’s Compensation Law ”, and that “ Its continuing jurisdiction must be exercised in accordance with law, and does not authorize nor justify departure from statutory mandate.” (Matter of Ryan v. American Bridge Co., 243 App. Div. 496, 499, affd. 268 N. Y. 502.)

If upon the claimant’s application his case is ordered closed, we find no provision in the Workmen’s Compensation Law which authorizes the Industrial Board to grant the further relief sought by the claimant, viz., an immediate reopening of his case to enable him to take advantage of section 25-a. As we read that statute its provisions, when applied to the facts of record before us, do not avail the claimant. Insofar as material here the statute (prior to amendment by L. 1940, eh. 686) provided: “ § 25-a. Notwithstanding other provisions of this chapter, when an application for compensation is made by an employee or for death benefits in behalf of the dependents of a deceased employee, and the employer has secured the payment of compensation in accordance with section fifty of this chapter, (1) after a lapse of seven years from the date of the injury or death and claim for compensation previously has been disallowed or claim has been otherwise disposed of without an award of compensation, or (2) after a lapse of seven years from the date of the injury or death and also a lapse o] three years from the date of the last payment of compensation. provided, however, that where the ease is disposed of by the payment of a lump sum the date of last payment for the purpose of this section shall be considered as the date' to which the amount paid in the lump sum settlement would extend if the award had been made on the date the lump sum payment was approved at the maximum compensation rate the employee’s earnings would warrant * * * testimony may be taken * # * and if an award is made it shall be against the special fund provided by this section * * (Italics supplied.)

By the statute quoted in part above the Legislature has authorized the creation of the Fund for Reopened Cases and has formulated conditions which limit the liability of that fund. In the present case it appears that more than seven years had elapsed between the date of claimant’s injury (December 12, 1923) and the date when he applied to reopen his case (July 13, 1933) —thus qualifying the claimant’s application within that portion of the statutory condition quoted above in italics which required a lapse of at least seven years between those dates. We conclude, however, that proof is lacking of compliance with the remaining statutory condition or limitation upon which liability of the Fund for Reopened Cases may be predicated. The statutory limitation of three years had not elapsed between the date (January 9, 1932) when the last payment of compensation was made to the claimant and the date (July 13, 1933) when he made his present application.

The order which we now review was based upon a construction of the statutory limitation with which we are not in accord. The Appellate Division ruled that — “The [statutory] phrase ‘ three years from the date of the last payment of compensation ’ is not to be taken literally. It should receive a reasonable, liberal and practical construction. As thus construed it means three years from the date when compensation should have been paid.” (257 App. Div. 37, 39.) (Emphasis supplied.)

We agree that the language chosen by the Legislature to define the condition by which it limited liability of the Fund for Reopened.Cases “ should receive a reasonable, liberal and practical construction.” We do not agree, however, that when so construed the clear language employed to state that limitation — three years from the date of the last payment of compensation ’1 may be interpreted to mean — ‘ ‘ three years from the-, date when compensation should have been paid. ’ ’ Our conclusion is that a literal construction of the legislative language is clearly indicated. If there is to be a departure from the literal meaning of the language employed to define the limitation in question, such a variance as that suggested by the Appellate Division may be accomplished only by legislative action, not by judicial construction.

The order of the Appellate Division should be reversed and that of the State Industrial Board affirmed, without costs.

Lehman, Ch. J., Loughban, Conway, Desmond and Thacheb, JJ., concur; Rippey, J., taking no part.

Ordered accordingly.


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    Michael Katapodis, as Administrator of the Estate of William Katapodis, Deceased, Appellant and Respondent, v. La Salle Trucking Corporation et al., Appellants; Ridgelawn Homes, Inc., Respondent, et al., Defendants.
    Submitted June 7, 1944;
    decided July 19, 1944.

      Edmund F. Lamb and Thomas J. Irving for plaintiff-appellant and respondent.
    I. There was overwhelming evidence from which the jury could find liability on the part of defendant Eidge Contracting Co. as to both elements of negligence, and no prejudicial error was committed by the trial court in the admission or rejection of evidence or in the charge to the jury as respects this defendant. (Johnson v. R. T. K. Petroleum Co., 289 N. Y. 101; Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217.) II. Whether the backing of trucks across the sidewalk was fraught with danger to pedestrians or not, was a question of fact for the jury, and the Appellate Division erred in holding as a matter of law that it was not inherently dangerous. (Mullins v. Siegel-Cooper Co., 183 N. Y. 129; Rohlfs v. Weil, 271 N. Y. 444; Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217; Wright v. Tudor City Twelfth Unit, Inc., 276 N. Y. 303; Simmons v. Radio Printing Corp., 279 N. Y. 783; Schwartz v. Merola Bros. Construction Corp., 290 N. Y. 145.) III. The infant intestate was not chargeable with contributory negligence. (Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Reiss v. City of New York, 231 App. Div. 42; Meyer v. Inguaggiato, 258 App. Div. 331, 282 N. Y. 810; Grealish v. Brooklyn, Queens Co. & S. R. R. Co., 130 App. Div. 238, 197 N. Y. 540.)

      Frank P. Luongo for La Salle Trucking Corporation, defendant-appellant.
    I. There was no negligence in the operation of this appellant’s truck. II. The infant was guilty of contributory negligence, as a matter of law. (Levy v. City of New York, 255 App. Div. 857, 280 N. Y. 637; Hart v. Town of Brookhaven, 261 App. Div. 923.)

      George J. Stacy and Joseph Kane for Ridge Contracting Co., Inc., defendant-appellant.
    I. The case was improperly submitted to the jury upon erroneous theories. (Phillipson v. Ninno, 233 N. Y. 223; Greenberg v. Schlanger, 229 N. Y. 120; Hawn v. Malcolm, 171 App. Div. 120; Booth v. Meyer, 256 App. Div. 831; Tapley v. Ross Theatre Corp., 246 App. Div. 559; Assalone v. Hazel, 243 App. Div. 176; Piper v. New York State Railways Co., 185 App. Div. 184.) II. There was no failure of duty on the part of appellant Ridge Contracting Co. (Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217; Hyman v. Barrett, 224 N. Y. 436; Martin v. Pettit, 117 N. Y. 118; Macauley v. Barr & Lane, Inc., 264 App. Div. 741.) III. Appellant Ridge Contracting Co. is not responsible for the operation of the truck by Queeno. (Hayhl v. Drees, 247 App. Div. 90, 272 N. Y. 577; Fritz v. Krasne, 273 N. Y. 649; Brown v. Steamship Terminal Corp., 267 N. Y. 83; Bartolomeo v. Bennett Contracting Co., 245 N. Y. 66; Charles v. Barrett, 233 N. Y. 127; Irwin v. Klein, 271 N. Y. 477; Cullen v. Thomas, 153 App. Div. 797; O’Loughlin v. Mackey, 182 App. Div. 637.)

      Edward A. Harmon and William E. Lowther for Ridgelawn ' Homes, Inc., defendant-respondent.
    Ridgelawn Homes, Inc., was guilty of no negligence. (Schwartz v. Merola Bros. Construction Corp., 290 N. Y. 145; Weinfeld v. Kaplan, 282 N. Y. 348; Moore v. Wills, Inc., 250 N. Y. 426; Briggs, Inc., v. N. Y. Public Library, etc., Foundations, 260 App. Div. 218; Levy v. Socony-Vacuum Oil Co., 260 App. Div. 1044; Schneyer v. Leblang Realty Corp., 248 App. Div. 175; Latini v. Zavodnick, 254 N. Y. 346; Hyman v. Barrett, 224 N. Y. 436.)
   Per Curiam.

The judgment in favor of the plaintiff and against the defendants, Ridge Contracting Co., Inc., and La Salle Trucking Corporation should be affirmed, with costs. On this record we think it was error for the Appellate Division to reverse the judgment of Trial Term as to the defendant Ridge-lawn Homes; Inc. From the nature of the work — involving the backing of heavy dump trucks across a public sidewalk — a question of fact was presented whether the duty imposed upon the owner of the property was nondelegable and whether the owner met the standard of care thus required. (Boylhart v. Di Marco & Reimann, Inc., 270 N. Y. 217, 221; Schwartz v. Merola Bros. Construction Corp., 290 N. Y. 145, 152.) The plaintiff should be granted a new trial as against the defendant Ridgelawn Homes, Inc., with costs to abide the event.

As to the defendants Ridge Contracting Company, Inc., and La Salle Trucking Corporation, the judgment should be affirmed, with costs; as to the defendant Ridgelawn Homes, Inc., the judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur; Lehman, Ch. J., dissents as to Ridge-lawn Homes, Inc., and votes to affirm.

Judgment accordingly.


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    Francis A. Van Suetendael, as Administrator De Bonis Non of the Estate of Arthur J. Van Suetendael, Deceased, Respondent, v. Achille O. Van Suetendael et al., Individually and as Liquidating Directors and Trustees of Phillipsburgh Construction Company, Appellants.
    Argued April 3, 1944;
    decided July 19, 1944.

      William A. Walsh, Jr., and William A. Walsh for appellants.
    Plaintiff’s cause of action is barred by the Statute of Limitations. (Rundle v. Allison et al., 34 N. Y. 180; Mills v. Mills, 115 N. Y. 80; Keys v. Leopold, 241 N. Y. 189; Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259; Gobel, Inc. v. Hammerslough, 263 App. Div. 1, 288 N. Y. 653; Pierce v. Pierce, 253 App. Div. 445, 280 N. Y. 562; Lynch v. Jones, 179 App. Div. 613; Dressel v. Hanser, 101 Misc. 574; McGlinchey v. McGlinchey, 179 Misc. 160; Simis v. Simis, 146 App. Div. 655.)

      Morris F. ■Goldstein, Abraham P. Inselstein and Maurice S. Degenstein for respondent.
    The defense of Statute of Limitations wás properly overruled. (Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Hart v. Goadby, 72 Misc. 232; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Goldstein v. Schachne, 261 App. Div. 922; Lightfoot v. Davis, 198 N. Y. 261; Matter of Courtade, 173 Misc. 726; Seely v. Seely, 164 App. Div. 650; Hanson v. National Surety Co., 257 N. Y. 216; Dumbadse v. Lignante, 244 N. Y. 1; Matter of Newgold, 260 App. Div. 918, 285 N. Y. 860; Wechsler v. Bowman, 285 N. Y. 284; Hanover Fire Ins. Co. v. Morse D. D. & R. Co., 270 N. Y. 86; Schenck v. State Line Telephone Co., 238 N. Y. 308; Clarke v. Gilmore, 149 App. Div. 445.)
   Per Curiam.

The cause of action against defendant Achille O. Van Suetendael individually accrued no later than February, 1929, when that defendant rendered an accounting but omitted any reference to the decedent’s interest in the real estate and bank accounts. At that time the decedent’s adult son already knew that the estate had an interest in these assets. The action not having been commenced until November, 1940, this cause of action was barred by the ten-year Statute of Limitations (Civ. Prac. Act, §§ 15, 53).

The cause of action against both defendants as directors of Phillipsburgh Construction Company accrued no earlier than December 15, 1937, when that corporation was dissolved. It was therefore not barred by any Statute of Limitations. The evidence amply supported the findings of the courts below on this phase of the case.

The judgment of Special Term, as modified by the Appellate Division, should be further modified by striking out the second, third and fourth decretal paragraphs thereof, and, as so modified, affirmed, without costs.

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

Judgment accordingly.