author: Lewis, J. Desmond, J.

text:
    Town of Pelham, Respondent, v. City of Mount Vernon, Appellant.
    Argued January 16, 1952;
    decided April 17, 1952.

      Harold 'Borgwald, Corporation Counsel (William Macy, Walter B. Solinger, II, and Louis B. Pagano of counsel), for appellant.
    I. Plaintiff and defendant never entered into an agreement to maintain the bridge in proportion to their respective assessed valuations. (Potomac Ins. Co. v. Kelly, 173 App. Div. 791; Lapham v. Rice, 55 N. Y. 472; People ex rel. Canton Bridge Co. v. Board of Town Auditors of Town of Horicon, 136 App. Div. 166, 204 N. Y. 609.) II. If plaintiff’s contention is sustained,-an illegal contract will be forced upon the parties. (Macrum v. Hawkins, 261 N. Y. 193.) III. The parties have, since the construction of the bridge, shared the cost of maintenance equally and their course of dealing for thirty-five years constitutes a bar to a recovery as prayed for by plaintiff. IV. The City of Mount Vernon never received any money from the Town of Pelham and is not liable for money paid to a third party. (National Trust Co. v. Gleason, 77 N. Y. 400; Crawford Clothes, Inc., v. Kaufman-8th Ave. Corp., 106 N. Y. S. 2d 609.) V. Assuming that the two 1914 resolutions ripened into a contract, both respondent and appellant abandoned it before any maintenance charges were incurred, and deliberately proceeded to contract for joint maintenance under the Highway Law. (Green v. Doniger, 300 N. Y. 238; McCreery v. Day, 119 N. Y. 1.) VI. Section 61 of the County Law did not supersede the provisions of the Highway Law with respect to bridge maintenance. It created a permissive method only, leaving towns and cities free to maintain bridges under the Highway Law. (Lapham v. Rice, 55 N. Y. 472; People ex rel. Canton Bridge Co. v. Board of Town Auditors of Town of Horicon, 136 App. Div. 166, 204 N. Y. 609; Matter of Town of Saratoga, 160 App. Div. 60, 211 N. Y. 543.)

      Emanuel Schwarts, Town Attorney, for respondent.
    I. The proper division of operation and maintenance costs is in proportion to assessed valuations. (County Law, § 61; Seif v. City of Long Beach, 286 N. Y. 382; Argus Co. v. Mayor, Aldermen & Commonalty of City of Albany, 7 Lans. 264, 55 N. Y. 495; Peterson v. Mayor of City of N. Y., 17 N. Y. 449; Salmon v. Rochester & Lake Ontario Water Co., 120 Misc. 131; New Paltz, H. & P. Traction Co. v. County of Ulster, 202 App. Div. 234, 236 N. Y. 630; Boom v. City of Utica, 2 Barb. 104; McClos

      key v. City of Albany, 7 Hun 472; New York City Employees’ Retirement System v. Eliot, 267 N. Y. 193; Matter of Town of Rutland, 70 Misc. 82.) II. Respondent is entitled to recover excessive payments. (T. J. W. Corp. v. Board of Higher Educ. of City of N. Y., 251 App. Div. 405, 276 N. Y. 644; Ball v. Shepard, 202 N. Y. 247; New York City Employees’ Retirement System v. Eliot, 267 N. Y. 193; People v. Fields, 58 N. Y. 491; Board of Supervisors of Richmond Co. v. Ellis, 59 N. Y. 620; Village of Fort Edward v. Fish, 156 N. Y. 363; Aspinwall v. Sacchi, 57 N. Y. 331; Exchange Mut. Ind. Ins. Co. v. Zurich Gen. Accident, Eire & Life Ins. Co., 122 Misc. 386, 214 App. Div. 713; Asylum of St. Vincent de Paul v. McGuire, 239 N. Y. 375.)
   Lewis, J.

A controversy between the plaintiff-appellant, Town of Pelham, and the defendant-respondent, City of Mount Vernon, was submitted to the Appellate Division on an agreed statement of facts. (Civ. Prac. Act, §§ 546-548.) Upon that submission a nonunanimous order of the Appellate Division directed judgment in favor of the plaintiff. The case comes to us upon appeal by the defendant as of right.

In those circumstances, the scope of our review is limited to the stipulated facts and no others. (Manhattan Stor. & Warehouse Co. v. Movers Assn., 289 N. Y. 82, 86.) Stated otherwise: we may determine legal consequences flowing from the agreed facts but in so doing we may not find additional facts — i c * # * even if the submitted facts logically and reasonably admit of further important inferences which a trier of the fact might very well draw. ’ ’ (Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266, 269; and see Feist v. Fifth Ave. Bank, 280 N. Y. 189, 190; Title Guar. & Trust Co. v. Mortgage Comm., 271 N. Y. 302, 305.)

The question presented for determination is the share each of the two litigants must pay to meet the cost of maintenance and repair of a bridge which now connects those two municipalities.

As to agreed facts: The bridge involved spans the Hutchinson River (Eastchester Creek) — a navigable ,stream — at a point in Westchester County where that stream forms the boundary line between the Town of Pelham and the City of Mount Vernon. The bridge also serves to connect two highways — South Fulton Avenue in the City of Mount Vernon and Pelham Parkway in the Town of Pelham — each of which highways leads to the Hutchinson River. In 1900, pursuant to statutory provisions then effective, the two municipalities built a bridge over the Hutchinson River which was condemned in 1911 by the United States War Department. Thereafter, in the same year, a petition, signed by not less than twenty-five taxpayers, was presented to the Board of Supervisors of the County of Westchester requesting the county to construct a new bridge. Thereupon the Board of Supervisors adopted a resolution that such bridge be constructed, and in 1913 the United States Secretary of War authorized the construction of a county bridge over the Hutchinson River between the Town of Pelham and the City of Mount Vernon.

On January 28, 1914, the Westchester County Board of Supervisors by formal resolution authorized the presentation to the Legislature of an amendment to section 61 of the County Law which would provide that where a county constructs a bridge over a stream which is the boundary line between two municipalities, the latter may agree with the county to maintain such bridge jointly, in proportion to the assessed valuation of the municipalities. On March 30,1914 — before the amendment to section 61 of the County Law (L. 1914, ch. 233, eff. April 8, 1914) became effective — the Common Council of the City of Mount Vernon adopted a resolution providing in part: Resolved * * * that in the event of a bridge being constructed over the navigable inlet from Long Island Sound, separating the City of Mount Vernon from the Town of Pelham * * * at the expense of the County of Westchester, that the City of Mount Vernon will upon the construction and completion thereof assume the care and management of such bridge in conjunction with the Town of Pelham, and will pay its proportionate share of the expenses of the care and maintenance of said bridge thereafter.”

On April 1, 1914 — before the 1914 amendment to section 61 of the County Law became effective — the Town Board of Pelham adopted a resolution providing in part:

“ Whereas an amendment to Section 61 of the County Law has been enacted by the Legislature of this state, permitting municipalities to contract with counties for the maintenance and repair of bridges built at County expense; and

Whereas the Board of Supervisors of Westchester County now propose to build said bridge * * * upon the consideration and condition that said municipalities of Mount Vernon and Pelham enter into a contract with the County of Westchester for the maintaining and repairing of said bridge after completion ;

"Now therefore, be it resolved: That the Supervisor and Town Clerk of Pelham be and hereby are authorised to execute such an agreement on behalf of the Town of Pelham.” (Emphasis supplied.)

By chapter 233 of the Laws of 1914, the Legislature amended section 61 of the County Law — effective April 8, 1914 — to provide in part as follows: * * * In case the bridge is constructed over a stream forming the boundary line between two towns or two cities or between a town and city, then they may agree with the county to operate and maintain such bridge jointly, in proportion to the assessed valuation of such town or city. * * * ” (Emphasis supplied.)

On April 13, 1914, the Westchester County Board of Supervisors adopted a resolution which — after reciting that the above-mentioned amendment to section 61 of the County Law had become effective, and that the two municipalities “ have expressed their willingness to enter into an agreement to maintain and operate a bridge over the Hutchinson River ” in the event the county construct it — authorized the county to execute a contract for the construction of the bridge.

We think it clear that the two resolutions, last quoted above, adopted by the municipalities which are parties to this action, plus the extract from the resolution of April 13, 1914, by the Westchester County Board of Supervisors, indicate that, while the parties were authorised by such resolutions to execute some sort of an agreement with respect to the maintenance of the bridge, the resolutions did not themselves constitute such an agreement. Upon that subject the agreed facts contain the following statement: “ That no written agreement among the plaintiff, defendant and the County of Westchester pursuant to County Law, Section 61, has been located and neither party has any knowledge or information that any such instrument was ever executed or prepared.”

The agreed facts further show that the corporation counsel of Mount Vernon in 1910 and the town attorney of Pelham in 1914 rendered an opinion that each municipality was obligated to pay one half the cost of operation and maintenance of the bridge, and that thereafter — for a period of ‘‘ many years ’ ’ the plaintiff and defendant “ shared the cost of operation and maintenance of the new bridge in equal proportions. ’ ’ When repairs to the bridge were made .in 1923, 1932, 1938 and 1947 one half the cost thereof was paid by each municipality, pursuant to resolutions passed by their respective appropriate bodies. Likewise, when traffic lights were installed in 1945, the cost was shared equally by Mount Vernon and Pelham; and “ For many years ” the wages paid to bridge tenders who operated the bridge for twenty-four hours a day were paid in equal shares by the two municipalities.

Finally, there came a time in June, 1949, when the bridge was damaged, and “ extensive repairs ” were required to restore it. Then, for the first time, the Town of Pelham contended that the cost to the two municipalities for the expense of maintenance and repairs to the bridge should not be shared equally — as it had been shared for thirty-five years — but should be determined in proportion to the assessed valuation respectively of the two municipalities. The agreed facts advise us that the assessed valuation of property in the Town of Pelham is “ substantially less ” than property in the City of Mount Vernon.

As plaintiff in this action, the Town of Pelham contends it is entitled to judgment declaring that the bridge was built pursuant to section 61 of the County Law, and that it should share with the City of Mount Vernon the cost of maintenance and repairs thereof in proportion to the assessed valuation of property in each of the two municipalities. The relief sought by the Town of Pelham also includes its demand for an accounting by the City of Mount Vernon for past overpayments, if any, in excess of its proper share of the cost of maintenance and repair of the bridge since its construction, and that the defendant pay to the plaintiff the amount of such overpayments.

The defendant, City of Mount Vernon, contends that it is entitled to judgment declaring that, pursuant to section 232 of the Highway Law, the expense of maintaining the bridge and the cost of repairs thereto should be borne equally by the parties.

It was the view of a majority of the Appellate Division that — ‘ ‘ Although no formal contract was entered into by and between the county and the two municipalities with respect to maintenance costs, the resolutions quoted above must be held to be the agreements contemplated by section 61. The fact that thereafter the municipalities divided such costs equally between them does not preclude the plaintiff from maintaining this action and recovering from the defendant the amount paid in excess of its ratable share by way of contribution, the excess representing part of the obligation of the defendant.” (278 App. Div. 79, 84.) Having reached that conclusion, the Appellate Division by its order — the Presiding Justice dissenting — directed that, within limits fixed by the six-year Statute of Limitations, the plaintiff is entitled to judgment directing that the parties to this action share the cost of maintenance and repair of the bridge in proportion to the respective assessed property valuations and that plaintiff is entitled to recover the amount expended in excess of such share, with interest, and to have the defendant account therefor.

The following considerations have led us to a contrary conclusion: As already noted, the 1914 amendment to section 61 of the County Law (L. 1914, ch. 233) —upon which the Appellate Division decision rests — provides that two municipalities “ may agree with the county to operate and maintain such bridge jointly, in proportion to the assessed valuation of such town or city.” (Emphasis supplied.) Although, pursuant to that statute, the parties hereto could have entered into an agreement for the joint maintenance and repair of the bridge and thereby could have arranged for the assumption of the cost thereof in proportion to the assessed valuation of properties within their limits respectively, they have chosen consistently throughout a period of thirty-five years to do otherwise. In that connection it is significant that the agreed facts contain no statement that the payments made by the parties between 1914 and 1949, when they shared equally the cost of maintenance and repair of the bridge, were due to a mistake of either law or fact. In view of that circumstance, we may not infer that such payments — made on the basis of equality instead of being in accord with the formula prescribed by section 61 id.— were made as a result of mistake. (Cohen v. Manufacturers Safe Deposit Co., supra, p. 269; Matter of Morrissey v. New York State Employees’ Retirement System, 298 N. Y. 442, 450.) Thus by practical construction the parties to this action have demonstrated that they did not intend by contract to apportion the cost of maintenance and repair pursuant to the statutory formula mentioned above. There is distinguished authority for the simple statement —1 ‘ There is no surer way to find out what parties meant, than to see what they have done.” (Insurance Co. v. Dutcher, 95 U. S. 269, 273.)

Mindful of the fact that each of the 1914 resolutions — which a majority of the Appellate Division has construed to constitute an agreement contemplated by section 61 of the County Law — was adopted before April 8, 1914 (the effective date of the statute), we think the resolution of March 30, 1914, by the Common Council of the City of Mount Vernon amounts to no more than authorization by that body to the end that, upon completion by the County of Westchester of the bridge here involved, the city would assume the care and management of such bridge jointly with the Town of Pelham and would thereafter pay its proportionate share of the cost of such maintenance and repair. We also construe the resolution of April 1, 1914, by the Town Board of Pelham as being no more than an authorisation to the supervisor and the town clerk to execute an agreement for the maintenance and repair of such bridge after its completion by the County of Westchester. In our opinion, those 1914 resolutions, in and of themselves, do not constitute an agreement ‘ ‘ with the county ’ ’ as contemplated by section 61 of the County Law. Our conclusion in that regard is reinforced by the agreed fact, already noted, that “ no written agreement among the plaintiff, defendant and the County of Westchester pursuant to County Law, Section 61, has been located and neither party has any knowledge or information that any such instrument was ever executed or prepared.” There is nothing in the 1914 resolutions, nor in the agreed statement of facts which, in our view, justifies the plaintiff’s claim that since 1914 it had a contractual right to contribution by the City of Mount Vernon based upon the formula prescribed by section 61 id. The agreed facts, including as they do uniform and unquestioned acts of the parties over a long period of years when — although prompted by natural self-interest — they shared equally the cost of maintenance and repair of the bridge, has led us to a contrary conclusion. (See Carthage Tissue Paper Mills v. Village of Carthage, 200 N. Y. 1, 14; Morehouse v. Woodruff, 218 N. Y. 494, 502-503.)

Although the stipulated facts disclose no agreement between the parties hereto and the County of Westchester pursuant to section 61 of the County Law as amended in 1914, we think the equal apportionment of the cost of maintenance and repair — which apportionment they adopted and applied from 1914 to 1949 and involved payments voluntarily made for a lawful purpose — was sanctioned by section 250 (now § 232) of the Highway Law. That statute, which makes provision for meeting the cost of construction and maintenance of bridges over waters lying within townships or along any boundary thereof, provides in part: “ * * * When such bridges are constructed over streams or other waters forming the boundary line between a city of the third class and a town, such city and town shall be liable each to pay its just and equitable share of the expenses for the construction, maintenance and repair of such bridges. * * *

There is agreement that the City of Mount Vernon from 1914 to 1949 was a city of the third class. From that fact it follows, within the language of the statute last quoted above, that from 1914 to 1949 each of the parties to this action was liable to pay its “ just and equitable share ” of the cost of maintenance and repair of the bridge which spans a stream forming the boundary-line between the two municipalities. As the agreed facts do not advise us of objection by either municipality to the equal apportionment of expense which they chose to adopt from 1914 to 1949, we cannot say as a matter of law that such apportionment did not meet the statutory requirement of being just and equitable The division of such expense incurred since July, 1949 — when the Town of Pelham first refused to apply thereto the equal apportionment formula — may be the subject of agreement by the parties pursuant to section 131-b of the Highway Law (formerly County Law, § 61). An alternative statutory basis for sharing such expense is also made available by sections 232, 235 and 274 of the Highway Law.

Accordingly, the judgment of the Appellate Division should be reversed, without costs, and judgment ordered declaring that the parties hereto share equally the cost of maintenance and repair of the bridge involved, until such time as other provision therefor shall be made pursuant to statutes then applicable.

Desmond, J.

(dissenting). The parties agree that they are, together, obligated to maintain and repair the bridge described in the opinion of Judge Lewis. They differ, hoAvever, as to the share of such cost which each must pay, and they have, by this submitted controversy on agreed facts, tendered to the courts the question as to whether each must pay half, or whether these expenses are to be borne by the two municipalities in proportion to their assessed valuations. We think the problem is answered by this: since this bridge was built by the county over a stream forming the boundary between plaintiff toAvn and defendant city, the only statute bearing on the obligations of plaintiff and defendant to maintain the structure, is the 1914 (chapter 233 of that year) amendment to what Avas then section 61 of the County Law and is now section 131-b of the Highway Lrav. That enactment, which not only covers this situation but was passed to provide for the maintenance of this particular bridge, reads in part as follows: “In case the bridge is constructed over a stream forming the boundary line between two toAvns or two cities or between a tovm and city, then they may agree with the county to operate and maintain such bridge jointly, in proportion to the assesséd valuation of such town or city.” Since this plaintiff town and this defendant city agree that they are, between them, required to pay these costs, the measure of their respective contributions must be found in the above-quoted statute. Section 232 of the Highway LaAv has nothing to do with this bridge, although it did apply to bridges (like the one replaced by the one here directly involved) built by a town and a city over a stream forming the boundary between them.

The majority opinion here holds that the three resolutions, passed by the town, city and county respectively, and quoted in the majority opinion, did not constitute the agreement required by the above-quoted language of section 131-b. We think those resolutions have that meaning and effect, and that, despite any imperfections of language, they could mean nothing else. The county, as shown by the April 13, 1914, resolution of its Board of Supervisors, determined to build this bridge at county expense, on the faith of the two resolutions theretofore passed by the town and city, each of which authorized an agreement to share maintenance costs in proportion to assessments. The county was not required by any statute to replace this bridge, and building it, in reliance on the town and city resolutions, constituted an acceptance by the county of an offer so made by the town and city. There is nothing to the contrary in the submitted facts.

If it were the law — and we do not agree that it is — that a formal written agreement was necessary, then the submission of controversy here is itself incomplete and equivocal, and would require a dismissal of the cause (see Marx v. Brogan, 188 N. Y. 431, 437; 1165 Fifth Ave. Corp. v. Alger, 288 N. Y. 67, 71), since the submission goes only so far as to say that no copy of any such formal writing has been found, and leaves open to inference, if the fact be material, whether or not such a document was ever signed.

The legal opinions rendered by the corporation counsel of Mount Vernon in 1910, and by the town attorney of Pelham in 1914, hdve no bearing whatever on this controversy, although mentioned in the submission, since each of those opinions concerns maintenance costs on the old bridge, to which section 232 {supra) of the Highway Law applied, and which old bridge was replaced by the bridge we are concerned with here, which was built at county expense and not completed until 1916, as the submission shows.

The judgment should be affirmed, without costs.

Conway, Dye and Froessel, JJ., concur with Lewis, J.; Desmond, J., dissents in opinion in which Loughban, Ch. J., and Fuld, J., concur.

Judgment reversed, etc. [See 304 N. Y. 594.]


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Lillian Holtfoth, Appellant, v. Rochester General Hospital, Respondent. John Holtfoth, Appellant, v. Rochester General Hospital, Respondent.
    Argued January 17, 1952;
    decided April 17, 1952.

      Arthur L. Mepham for appellants.
    I. There was ample evidence to sustain the finding by the jury that defendant was negligent. (Sadowski v. Long Island R. R. Co., 292 N. Y. 448; Huston v. County of Chenango, 253 App. Div. 56; Imbrey v. Prudential Ins. Co., 286 N. Y. 434; Santos v. Unity Hosp., 301 N. Y. 153; Griffen v. Manice, 166 N. Y. 188; Foltis, Inc., v. City of New York, 287 N. Y. 108; Dittiger v. Isal Realty Corp., 290 N. Y. 492; Lessig v. New York Central R. R. Co., 271 N. Y. 250; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176; Larsen v. Lackawanna Steel Co., 146 App. Div. 238; Ditmars v. Renz, 269 N. Y. 191; Witkowicz v. Amalgamated Properties, Inc., 264 App. Div. 156.) II. Both plaintiffs were free from contributory negligence. III. There were no errors in the court’s charge or refusals to charge which were prejudicial to defendant or which require a reversal. (Schweinburg v. Altman, 145 App. Div. 377, 207 N. Y. 681; Vallone v. City of New York, 271 App. Div. 984; People v. Abraitis, 189 App. Div. 312; Small v. Housman, 220 N. Y. 504.)

      Robert C. Winchell for respondent.
    I. Plaintiffs failed to prove any negligence on the part of defendant. II. Plaintiffs failed to prove any notice, actual or constructive, to defendant of any defect in the chair. (Wynn v. Carlin, 135 App. Div. 795; Dougherty v. Weeks & Son, 126 App. Div. 786; Miller v. Gimbel Bros., 262 N. Y. 107; Blaivas v. Amalgamated Bank of N. Y., 260 App. Div. 872.) III. Plaintiff proved herself guilty of contributory negligence. (Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., 253 N. Y. 324; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Monacelli v. State of New York, 295 N. Y. 332.) IV. The court’s charge and refusals to charge at the time the jury returned for instructions were erroneous and prejudicial to defendant. (Steinert v. Brunswick Home, Inc., 172 Misc. 787, 259 App. Div. 1018; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176; Dambmann v. Metropolitan St. Ry. Co., 180 N. Y. 384; Ferris v. Sterling, 214 N. Y. 249; McKelvey v. Delaware, L. & W. R. R. Co., 253 App. Div. 109; Galino v. Fleischmann Realty & Constr. Co., 130 App. Div. 605; Chapman v. Erie Ry. Co., 55 N. Y. 579.)
   Lewis, J.

The plaintiff, Lillian Holtfoth, seeks damages for personal injuries suffered by her while a patient in the defendant hospital and alleged to have been due to the defendant’s negligent failure to furnish a safe appliance and equipment for her use. As recovery by her husband in his separate action — for deprivation of his wife’s services and for the cost to him of his attempt to effect her cure — will depend upon the success of his wife’s action, reference will be made only to the action in which she is plaintiff, unless otherwise expressly noted.

The plaintiff entered the defendant hospital as a patient following an accident in which she had suffered a fracture of the neck of the right femur where it enters laterally into the right hip socket of the pelvic bone. When surgery had accomplished the pinning of the fractured bone in apposition and in good alignment, and a period of convalescence had passed, the plaintiff was permitted to move about the hospital on crutches without allowing her right foot to touch the floor. She was also permitted at times to sit in a wheel chair to which was attached equipment, presently to be described, to accommodate patients recovering from leg fractures. The equipment attached to the wheel chair furnished to the plaintiff by the defendant on the date she was injured included two separately operated leg rests which, when not in use, hung down on either side of the chair front. At times, when either leg rest was in use, it could be raised to a horizontal position at the level of the chair seat and thus afford support for a disabled leg when extended. When so elevated the leg rest could be held stationary in the desired position by a ratchet or notched locking device on the under side. The function of that locking device — important to our inquiry — was described by the defendant’s medical director as “ * * * a safety measure on it so that, if undue pressure is placed upon that leg rest, with the vertical leg rest out like that, it will go down. The reason for that is, if you don’t have a safety valve release, and you put undue pressure on it way out like that, you would throw the whole thing clear way forward.”

Immediately before the accident which befell the plaintiff in the defendant hospital she was seated in a wheel chair of the type described above. Her left leg was flexed so that her left foot rested on a lower cross piece which served as a foot support. At that time her disabled right leg was extended and rested on the right leg rest then elevated to a position almost horizontal with the chair seat. According to her testimony, which stands uncontradicted, the plaintiff, in an effort to alter the position of her body as a means of gaining a more comfortable posture, raised herself slightly by pressing down on the arms of the chair and by exerting slight pressure on her left foot. As she did so, the right leg rest “ went down ” tipping the chair forward slightly and causing her right foot to strike the floor in such a manner as to break anew the bone structure at the right hip socket and to dislodge from its imbedded position the surgical nail which had been inserted to hold the fractured femur in place.

For injuries thus sustained by the plaintiff and for her resulting disability a jury at Trial Term returned a verdict in her favor. At the Appellate Division — where one Justice dissented— the judgment entered at Trial Term was reversed on the law and facts and the complaint was dismissed. The circumstance last mentioned requires us to consider facts adduced at the trial in the aspect most favorable to the plaintiff and to accord to her the benefit of every favorable inference which can reasonably be drawn from those facts. (Faber v. City of New York, 213 N. Y. 411, 414; Osipoff v. City of New York, 286 N. Y. 422, 425; De Wald v. Seidenberg, 297 N. Y. 335, 336-337.)

We find in the record at hand no basis for the assertion by . plaintiff’s counsel that the doctrine of res ipso loquitur applies. Her evidence at the trial was not presented on that theory. The case was tried as one based upon alleged negligence of the defendant hospital in furnishing plaintiff with a facility — a wheel chair — which was defective. Thus pleaded and tried, the plaintiff’s case does not lend itself to the doctrine of res ipso loquitur. (Bressler v. New York R. T. Corp., 270 N. Y. 409, 413; and see Schlesinger v. New York Tel. Co., 296 N. Y. 537; Whitcher v. Board of Educ., 233 App. Div. 184, 185; Goodheart v. American Airlines, 252 App. Div. 660, 662.)

However, upon this record we cannot agree with the decision reached by the Appellate Division that * * * the plaintiff failed to prove facts from which the jury could find any actionable negligence on the part of the defendant hospital.” (278 App. Div. 1018.) In addition to evidence to which reference has been made, there is testimony by the plaintiff’s husband that while he was in his wife’s hospital room on the night before her injury, he noticed a wheel chair near her bed and, while examining it casually, he observed that, when he “ took hold ” of the right leg rest and ‘ set it in on a notch and pressed on it ”, it would “ snap down ” with very little pressure, and that the left leg rest held better. Although the plaintiff was lying in her bed when her husband was fussing ” with the wheel chair, as she termed it, and although the chair was the one involved in the accident which befell her the following day, there is no evidence that before the accident she was informed or had reason to know that the right leg rest when elevated would drop down under light pressure. In fact, there is no evidence that at the time the right leg rest dropped down the plaintiff had exerted upon it even slight pressure.

In that connection, we find no merit in the defendant’s suggestion that the examination of the leg rests by plaintiff’s husband on the night before the accident served to bar his recovery in his separate action for medical expenses and loss of services. There is no evidence that at the time of his examination he had knowledge that the particular wheel ch^ir which was in his wife’s room had been used by her or would be used by her thereafter. In fact, in view of the lack of exception by the defendant, the following statement in the court’s charge to the jury became the law of the case: “ If she [the plaintiff wife] is entitled to a verdict at your hands, then her husband would be entitled to a verdict in his action.”

As a patient the plaintiff could rightfully expect from the defendant hospital the exercise of reasonable care in the selection and maintenance of equipment and facilities furnished for her use. That standard of reasonable care in the performance of an administrative act required of the defendant that the wheel chair provided for plaintiff’s use would be in a safe condition — as to structure and maintenance — for the use to which it was put in the care of the plaintiff. (Iacono v. New York Polyclinic Medical School & Hosp., 269 App. Div. 955, affd. 296 N. Y. 502; cf. Sheehan v. North Country Community Hosp., 273 N. Y. 163, 165-166; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176, 178-180.) Upon the record before us the decisive question was whether there was any substantial evidence that the proximate cause of plaintiff’s injuries was a failure by the defendant properly to perform the administrative act mentioned above. We think there was such evidence which presented a question of fact for determination by a jury.

Accordingly, the judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Ch. J., Conway, Desmond, Dye, Fuld Emd Froessel, JJ., concur.

Judgments reversed, etc.


author:
Conway, J.
      Desmond, J.
      Fuld, J.

text:
    The People of the State of New York, Respondent, v. Arthur P. Jacoby, Appellant.
    Argued January 24, 1952;
    decided April 17, 1952.

      Ransom, Pratt for appellant.
    Lacking a sworn information of the charge against defendant, the City Court was without jurisdiction to render judgment convicting defendant of violation of section 43 of the Penal Law and to impose sentence thereon. (People ex rel. Baker v. Beatty, 39 Hun 476; People v. Ostrosky, 95 Misc. 104; People v. James, 11 App. Div. 609; People v. Mortefogolio, 56 N. Y. S. 2d 496; People v. Sledge, 192 Misc. 934; People v. Patrick, 175 Misc. 997; People v. Stevens, 190 Misc. 441; People v. Grogan, 260 N. Y. 138; People v. Belcher, 302 N. Y. 529; People v. Bertram, 302 N. Y. 526; People v. Wallens, 297 N. Y. 57.)

      Harry K. Morton, District Attorney, for respondent.
    I. There is a substantive law violation. (People v. Tylcoff, 212 N. Y. 197.) II. No written information is required by statute and none is necessary. (People v. Gade, 6 N. Y. S. 2d 1018; People v. Burns, 19 Misc. 680; People v. Carter, 88 Hun 304; People ex rel. Rose v. Addition, 189 Misc. 102.) III. The plea of guilty and conviction thereon should stand. (People v. Radaha, 69 N. Y. S. 2d 722; People v. Dennis, 132 Misc. 410.)
   Conway, J.

This is an appeal from an order of affirmance of the County Court of Steuben County affirming a judgment of conviction of the Corning City Court.

The Corning City Court was established by chapter 142 of the Laws of 1905. By section 90 of the act the court was given jurisdiction in criminal proceedings with power to hold Courts of Special Sessions. It was also given the additional power and jurisdiction ‘1 in the first instance to hear, try and determine all charges for misdemeanors * * As to this latter additional jurisdiction conferred by the Legislature, there were no special provisions concerning complaints, informations or summary hearings of misdemeanor charges.

There is nothing in the record to indicate that the City Court Judge sat as a Court of Special Sessions although appellant’s brief is based upon the theory that he did. The return of the Judge recited: “ No information was filed but attached hereto is a sworn statement of the defendant which was filed with the Court at that time.” It also recited That on July 13 [14], 1950, at a regular term of Corning City Court, Arthur P. Jacoby was brought before your deponent, as such Judge, by Officer Howard Cole, and was charged with violation of Section 43 of the Penal Law.” It would appear, therefore, that the City Court Judge acted under the jurisdiction granted him by the Legislature to try the defendant in the first instance ” for a misdemeanor.

In any event the defendant, nineteen years of age, appeared voluntarily before the City Court Judge on July 14, 1950, with an affidavit which he had composed, typed and sworn to before a notary public. It reads as follows:

“ July 14, 1950.

State of New York,

County of Steuben, ss:

City of Corning,

I, Arthur Phillippe Jacoby, being duly sworn, deposes and says. I have been told that I did not make this statement unless I wish to do so and that I know that whatever I say may be used against me in a criminal action.

I further state that I make the following statement of my own free will and without any threats being used against me and without any promises being made to me.

I am 19 years of age and single and reside in Parkville, Mo. I am working at Corning Glass Works.

On June 28, 1950, at about 2:30 P.M. I was driving through the streets of Corning. I saw two girls on the campus of Northside High School playing tennis and, while in the car, let down my pants. After a short time I drove on. I then went home. At about 11:25 P.M. on July 9,1950,1 was again driving around in my car when I saw two girls on Dodge Avenue and I, for the purpose of having a little excitement, nothing else, decided to scare them. I approached them, pretending that it was a hold-up but they ran away. I then left.

I can never remember having done anything such as this before. I think that it was caused more by a desire for excitement or urge to see if I could get away with something I had never done before than anything else.

I have typed the foregoing statement in the presence of Officer Howard Cole and I swear that it is all true to the best of my knowledge. I know what it means to swear to a statement and I know that swearing to a false statement makes me guilty of an additional crime.

signed,

A. PHILLIPPE JACOBY

I

Subscribed and sworn to before me this 14 day of July, 1950.

Charles E. Hattse

Notary Public, No. 51-(illegible)

State of New York, Steuben County My Commission Expires March 31, 1952. ’ ’

Thereupon, as the return discloses, more than an hour was spent by the court, representatives of the police department, city attorney, the defendant, his father and his clergyman in discussing the proper charge to be made against the defendant. After this lengthy discussion, participated in by defendant, the conclusion was reached that he should be charged with a violation of section 43 of the Penal Law, as the return continues, rather than some other section of the Penal Law such as exposure of private parts of a person. This was done to protect the defendant as far as possible because of his youth.”

Whatever may have been the reason for the selection of section 43 of the Penal Law, it would appear to have been a wise selection, for it is a catch-all section which, insofar as here applicable, reads as follows:

“ § 43. Penalty for acts for which no punishment is expressly prescribed.

“ A person who wilfully and wrongfully commits any act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly prescribed by this chapter, is guilty of a misdemeanor * * *.”

The acts of the defendant as designated and described by him were clearly wilful and wrongful in the language of section 43. It could he argued that, implicit in the defendant’s confession of wrongdoing, was a violation of section 1140 of the Penal Law as well as an attempt to commit assault in the second degree under subdivision 5 of section 242 of the Penal Law, if not indeed the commission of attempted robbery in the third degree under section 2128 of the Penal Law. On the other hand it may be argued that the confession did not include all of the elements necessary to charge the commission of those crimes. However, as we have seen, after consideration of the facts by the City Court Judge, the city attorney, the defendant, his father and clergyman, a decision was made by the City Court Judge that section 43 of the Penal Law had been violated by an act “ which openly outrages public decency * * As the return discloses it was only ‘ ‘ then that the arrest was formally made and entered upon the Police and Court records. * * * [B]efore the defendant was allowed to plead guilty he was duly informed of all his rights including his right to be represented by counsel, his right to have a trial, either by the Court or by a jury, at his election, the right to he released on bail and have the case adjourn[ed] until he obtained counsel, his right to apply to a Court of Record to have the matter transferred to County Court. He was also advised of the possible penalty involved and of the fact that a conviction after a plea of guilty amounts to the same thing as a conviction after trial.”

Thereupon the defendant pleaded guilty to the offense of Disorderly Conduct Sect. 43 of the Penal Law ”. The words “ Disorderly Conduct ” are surplusage to be disregarded in view of the record.

It is now urged upon us that the City Court of Corning had no jurisdiction of the subject matter because no proper information had been filed and that is the sole question — of jurisdiction — which is presented to us.

We shall assume that whether or not the City Court Judge of Corning sat as a Court of Special Sessions, an information was required. By statute, in the city of New York an information must be signed by the District Attorney. (Code Crim. Pro., § 742.) There is no such requirement for Steuben County. Inde'ed, as correctly conceded in appellant’s brief, There appears to be no explicit constitutional or statutory provision stating in so many words that there must be sworn, written information setting forth the charge against defendant in all cases of which the Special Sessions has, in the first instance exclusive jurisdiction.” Our court, however, has declared the common law as to informations so that defendants accused of crime may be properly protected. Such declaration, of course, is apart from and does not affect the general common law that jurisdiction in a proper case may be obtained and conferred by consent or waiver or by appearance and participation in proceedings before the court.

We have very recently in People v. Schultz (301 N. Y. 495, 497), in an appeal from Special Sessions in Orange County, where the same statutory rules are applicable as in the city of Corning, pointed out what an information should contain, after quoting with approval from People v. Zambounis (251 N. Y. 94, 96) which we repeat in part: “ "'The defendant should be informed of the nature of the charge against him and of the act constituting it, not only to enable him to prepare for trial, but also to prevent him from again being tried for the same offense. ’ ” It cannot be said that that was not scrupulously done here nor that the two, reasons given any longer exist. The defendant himself was permitted to depose to his own statement of the nature of the charge which should be made against him and of the act or acts constituting it and finally, after participation in conference and plea of guilt, to designate the Penal Law section violated. We had occasion to say substantially the same in People v. Belcher (302 N. Y. 529, 535, Fuld, J.) as in People v. Schultz (supra) when discussing an information serving the function of a pleading following a lawful arrest as here-. “ Since, then, the information was based upon requisite ‘ legal evidence ’, pointing the commission of the crime and defendant’s probable guilt * * * no further deposition was called for and the officer was not required to particularize the evidence on which he relied * *

In People v. Brous (296 N. Y. 1028), we had before us an information which stated legal conclusions only, without allegations of fact, and which was made by one who had not seen the defendant at the premises on the day of the claimed commission of a violation of section 986 of the Penal Law in the county of Nassau. There having been there, as here, a lawful arrest and no' objection made to the form of the information upon arraignment and before trial, we decided that the defendant had waived objection to it and that the court had jurisdiction both of the defendant and the subject matter. We affirmed the judgment of conviction.

But it is said that an information must be signed and sworn to and put in writing by someone other than the defendant himself ; that while a defendant would naturally know more about what he did than a policeman or lay witness, form must be observed for defendant’s protection and no affidavit detailing his acts by a prospective defendant alone may be ‘ ‘ termed ’ ’ an information so that he may confer jurisdiction of the subject matter upon the court though the defendant stand before it and confer jurisdiction of his person. It is true as said by the continental jurist, Jhering, as translated and approved by Sir Frederick Pollock (The Genius of the Common Law, p. 21): Form is the sworn foe of caprice, she is Freedom’s twin sister ” (see address of Chief Judge Cullen before Brooklyn Bar Association, January, 1913, upon his retirement from the Court of Appeals) but we have never so exalted form that in the act of so doing it has been necessary to put aside reason and substance. Where justice and reasonableness pointed the way we have not hesitated to treat a paper, which was of particular form, as that which it was in truth and substance, in determining even our constitutional jurisdiction and thus bringing ourselves to the merits of a situation. (Matter of Huxley, 294 N. Y. 146, 148; Matter of Bunting, 288 N. Y. 388, 393.) Similarly we have held that it is not necessary for an indictment or an information to allege violation of a section of the Penal Law by section number and that it is not necessary to allege a violation of the Penal Law by a recital of the name of the crime since that was an irregularity which was waived by the defendant when he pleaded guilty. (People ex rel. Childs v. Knott, 187 App. Div. 604, 613, affd. 228 N. Y. 608; People v. Dwyer, 160 App. Div. 542, 547, affd. 215 N. Y. 46; People v. Adler, 174 App. Div. 301, 303; People ex rel. Kondrk v. Foster, 299 N. Y. 329; People ex rel. Carr v. Martin, 286 N. Y. 27, 32.) So here we treat the defendant’s affidavit as the information on this unusual record.

Finally, it should be said that it is urged upon us that in People v. Grogan (260 N. Y. 138, 142) and in People v. Zambounis (251 N. Y. 94, 96, supra) it was said that the information must state the crime charged against the accused and that here the crime with which the defendant was charged was not named. That statement in those two cases was common law as declared by us in cases where it was applicable. Both cases were ones in which it was possible to name the crimes constituting violations of the particular sections involved. Here, as we have seen from section 43 of the Penal Law as quoted (supra), that was not possible. The section had no appropriate heading or title. It was a catch-all section. The Legislature when it undertook in section 742 of the Code of Criminal Procedure to provide for the contents and form of an information in a Court of Special Sessions in the city of New York provided for just such a case. It provided that the name of the crime, if it had one, should be inserted in the information, but that if the crime had no general name that then there be inserted a brief description of it as given by statute. If that method was applicable when the form and contents of the information were provided for, it is even more apt when no provision at all has been made. It was done here (1) by the careful description of defendant’s acts as composed by him and then (2) by his participation in the selection of the Penal Law misdemeanor section which he had violated by such acts, and (3) his plea of guilty thereto. That was more than sufficient.

The judgment should be affirmed.

Desmond, J.

(concurring). This appeal should be dismissed, but I concur for affirmance, since the result of affirmance and dismissal is the same. Defendant has no standing here since, not only by his plea of guilty but by his every act and utterance, he knowingly, deliberately and in his owm interest waived all of the objections he now asserts. He surrendered himself to the police, he made a free, frank, sworn confession and he was fully informed by the Judge as to his rights to counsel and to trial. Then, after full consideration and on the advice of his father and his clergyman, he pleaded guilty to the misdemeanor charge of violating section 43 of the Penal Law, and was given a suspended sentence.

No appeal lies from a criminal judgment entered on a plea of guilty unless the sentencing court lacked jurisdiction either of the subject matter of the crime adjudged, or of the person of the defendant. The City Judge of Corning has, by express statute, subject-matter jurisdiction over misdemeanors (see L. 1905, ch. 142, § 90). He acquired jurisdiction over the person of this defendant when the latter, by voluntarily appearing and pleading guilty, waived the filing of a written complaint or information. As was noted years ago (People v. Bell, 31 N. Y. Crim. Rep. 370), our Criminal Code nowhere says in so many words that a written information must be filed in misdemeanor cases (and there is nothing to that effect in the Corning City Court Act, supra). Perhaps that requirement may be inferred from such statutory language as that of section 699 of the Code of Criminal Procedure, mandating that the charge against the defendant must be distinctly read to him ’ ’. Certainly, there has developed in the decisions an assumption, which should not be rejected at this late day, that a defendant is entitled to be confronted with a written charge. However, it by no means follows that he cannot waive such a writing. People v. Carter (88 Hun 304, 306) held, in 1895, that a plea of guilty amounts to such a waiver, and that case has been frequently followed, and never overruled (see People v. Burns, 19 Misc. 680, 682; People v. Park, 92 Misc. 369, 376).

That such a waiver is valid can hardly be doubted. It is traditional New York law that a defendant may waive anything except the court’s jurisdiction over the subject matter of the crime, unless such a waiver is prohibited by the Constitution, or by a statute or by a strong public policy (Pierson v. People, 79 N. Y. 424, 429; People v. Rathbun, 21 Wend. 509, 542; People v. Wiechers, 179 N. Y. 459, 464; People ex rel. Prince v. Brophy, 273 N. Y. 90, 97). Even as to an indictment, the only reason a waiver thereof is not valid and effective is that the State Constitution (art. I, § 6) expressly deprives the court of jurisdiction over a felony unless there be an indictment found by a grand jury (People ex rel. Battista v. Christian, 249 N. Y. 314, 318, 319; see Commonwealth v. Dailey, 66 Mass. 80, 82, 83; Schick v. United States, 195 U. S. 65). There is, of course, no such constitutional or statutory bar to the waiver of an information, and, at least in cases like this one, no reason for setting up a public policy against it. It is hard to see why a defendant, by pleading guilty, may effectively waive the all-important rights of trial, confrontation of witnesses, etc., but cannot waive what would, in this case, be the merest formality, that is, the presentation to him of a formal written accusation. The purposes of such an information (see People v. Schultz, 301 N. Y. 495; People v. Belcher, 302 N. Y. 529, 534) are two: first, to inform defendant of the charge against him, a piece of information which this defendant obviously had; and second, to prevent him from being tried again for the same offense, a protection accomplished here by the filing with the court of defendant’s own detailed confession. If we are to obey the commands of sections 684 and 764 of the code that we disregard pure formalities and nonprejudicial omissions, we must, I think, let this judgment stand.

I pass over without discussion, as quite irrelevant, two groups of cases: first, those where the question was as to the sufficiency of the information to support a warrant of arrest (People v. Bertram, 302 N. Y. 526), and, second, those where the statement of facts in a written information did not allege a crime at all (People v. Grogan, 260 N. Y. 138). I omit, also, as unnecessary, any consideration of whether defendant’s written confession could be treated as the information here (it was not, apparently, so treated in the City Court). The only question here is as to whether this defendant could, and did, waive the filing of a written information. I think he could, and did.

The judgment should be affirmed.

Fuld, J.

(dissenting). Without any formal information or complaint having been filed against him, and indeed without any charge of any kind specifying acts sufficient to constitute a crime, defendant, a youth of nineteen, unrepresented by counsel, was convicted in the City Court of Corning upon his plea of guilty to the crime of violating section 43 of the Penal Law.

Filed with the City Court was a statement — sworn to before a notary — which defendant had made shortly before to the police and in which he asserted that he had done certain acts on two different days. The return of the city judge who had presided over the court, explicitly reciting that “No information was filed ’ ’, establishes not only that the statement was not treated as an information, but that it was following its submission and after a discussion before the court that defendant was charged orally with a violation of section 43. It was at that point that ‘ ‘ the arrest was formally made and entered upon the Police and Court records.” There is no showing in the return, however, that the oral charge was supplemented by any information or complaint in writing, or by any specification whatever — oral or in writing — of the acts charged against defendant.

We all seem to be agreed that prosecution for a misdemeanor can proceed only upon a written information designating the offense charged and setting out the acts allegedly committed by the defendant constituting that offense — and, indeed, there can be no doubt of that proposition. However, Judge Conway, writing for affirmance {supra, p. 40), asserts that defendant’s self-accusatory statement may be treated as the essential information, while Judge Desmond, in his opinion {supra, p. 41), urges that the necessity for such an information was waived by defendant’s act of pleading guilty. I cannot agree with either hypothesis. As to the first, defendant’s statement was not regarded, and could not be regarded, as the information demanded by law. As to the second, compliance with the basic elements of an information is a jurisdictional requirement which cannot be waived or dispensed with by a plea of guilty.

Section 145 of the Code of Criminal Procedure defines an information as “ the allegation made to a magistrate, that a person has been guilty of some designated crime.” Implicit in that definition, as this court long ago observed, is the requirement that the allegation be presented in writing and under oath. (See People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 389.) Section 699 of the Code, applicable generally to misdemeanor prosecutions in courts of special sessions outside the city of New York, provides that the defendant, upon arraignment, must be informed ‘ ‘ of the charge against him ’ and of his right to counsel, and that the charge * * * must be distinctly read to him, and he must be required to plead thereto ”. As was pointed out in an early decision of the General Term, the obvious inference from the direction that the charge be read to the defendant, is that the charge — that is the ‘ allegation ’ ’ of section 145 — cannot be an oral one, but must necessarily be in writing. (See People ex rel. Baker v. Beatty, 39 Hun 476, 477.)

Real notice of the true nature of the charge ” against the defendant in a criminal case has been described as “ the first and most universally recognized requirement of due process ”. (Smith v. O’Grady, 312 U. S. 329, 334.) In that regard, the courts have scrupulously insisted that “ a person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court.” (Albrecht v. United States, 273 U. S. 1, 8; see, also, Weeks v. United States, 216 F. 292, 293 [C. A. 2d], cert. den. 235 U. S. 697; Clark, Handbook of Criminal Procedure [1895], p. 104.) In our own court, we have similarly enforced the requirement, in misdemeanor prosecutions both in the Court of Special Sessions of the City of New York (People v. Zambounis, 251 N. Y. 94, 97) and in courts of special sessions outside of New York City (People v. Grogan, 260 N. Y. 138, 142), that the prosecution must be based upon an information which states the offense charged and sets out the acts constituting the crime with the same clarity as an indictment ”. In requiring the same exactness in. this regard in an information as in an indictment, we necessarily assumed that the information would have the same formal embodiment in a writing as an indictment. (Cf. People v. Grogan, supra, 260 N. Y. 138, 142.)

Indeed, these formal requirements have their roots in the common law of England. From the earliest times in England an information charging a misdemeanor had to be in writing. There were two kinds of such informations: in one category, informations filed by the Attorney-General, generally for offenses more immediately against the king or the public safety; in the other, informations filed by an official known as the Master of the Crown Office, through whom, for the most part, prosecutions at the suit of private complainants were initiated. (See Weeks v. United States, supra, 216 F. 292, cert. den. 235 U. S. 697; 1 Bishop, New Criminal Procedure [4th ed., 1895], p. 427; Clark, Handbook of Criminal Procedure, op. cit., pp. 128-129.) Eestrictions were at an early date imposed upon the presentation of informations by the Master of the Crown Office. (4 «fe 5 Will, «fe Mary, ch. 18.) In essence, however, there were certain fundamental requisites common to both types of prosecutions. In each case, the information had to be a writing filed of record,” and defendant was entitled to the same notice as in the case of an indictment. (See Blackstone, Commentaries on the Law [Gavit ed., 1941], bk. 4, ch. 23, pp. 880-881.) Hawkins (Pleas of the Crown, bk. 2, ch. 26, § 4), in discussing the form of an information, wrote that an Information differs from an Indictment in little more than this, that the one is found by the oaths of twelve men, and the other is not so found, but is only the allegation of the officer who exhibits it, whatsoever certainty is requisite in an indictment, the same at least is necessary also in an information, and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital.”

Though there may perhaps be warrant for greater informality in the case of prosecutions for offenses below the grade of misdemeanors (cf. People v. Grogan, supra, 260 N. Y. 138, 141; Reg. v. Millard, 6 Cox C. C. 150), similar relaxation of standards cannot be sanctioned where, as in this case, we are dealing with a misdemeanor tried before a Court of Special Sessions * * * a crime, not one of those minor offenses dealt with summarily by magistrates.” (People v. Grogan, supra, 260 N. Y. 138, 141-142.)

Some confusion has crept into the cases through the failure to distinguish between the matter of securing jurisdiction over the person of the defendant and the matter of proceeding with the prosecution after the defendant has been brought before the court. (Cf., e.g., People v. Carter, 88 Hun 304, 306.) Where a defendant is lawfully arrested without a warrant, or otherwise voluntarily submits himself to the jurisdiction of the court, that dispenses with any need for a written information or deposition as a predicate for the issuance of a warrant of arrest. The fact that the court has properly secured jurisdiction of the person of the defendant cannot, however, eliminate the requirement that “a formal and sufficient accusation ” be lodged against him as the basis for proceeding with the prosecution. (See Albrecht v. United States, supra, 273 U. S. 1, 8.) As has been pointed out in the leading case of Weeks v. United States (supra, 216 F. 292, 293, cert. den. 235 U. S. 697), A court can acquire no jurisdiction to try a person for a criminal offense unless he has been charged with the commission of the particular offense and charged in the particular form and mode required by law. If that is wanting, his trial and conviction is a nullity, for no person can be deprived of either life, liberty, or property without due process of law.”

It is urged that defendant’s statement to the police may itself be regarded as the requisite information in writing. As noted, however, the city court did not so view the statement. But, beyond that, I am unable to understand how a self-accusatian can in any event constitute a charge ” in the legal sense, or, for that matter, in any other sense, for it is of the very essence of such charge that someone other than the accused — either a public officer or a private complainant — shall present the accusation to which the defendant must answer. It would be an anomaly in our “ accusatorial ” system of criminal law enforcement (see Watts v. Indiana, 338 U. S. 49, 54), to sanction prosecution on the basis of a self-accusatory statement by the defendant rather than a formal accusation proffered on behalf of the People. Any such extraordinary method of procedure could easily be productive of great abuse, with consequences prejudicial to the People as well as to an accused. It is noted in Stephen’s History of the Criminal Law of England (Yol. 1, p. 244) that in England “ since the Norman conquest * # * there have been * # # three modes of accusation, namely, appeal or accusation by a private person, indictment or accusation by a grand jury, and informations which are accusations either by the Attorney-General or by the Master of the Crown Office.” The modes of prosecution in this state have been of an analogous order. It would mark an innovation in the law to sanction self-accusation as an additional mode of prosecution.

Lacking in the instant case, moreover, is, not only the formal accusation demanded by law, but any accusation whatever sufficient to show that any crime was committed. If the charge on which defendant has been convicted is to be taken to be the oral charge of violating section 43, it is clear that the record fails to show any specification of acts relied upon by the People as showing the commission of that crime. Just as in People v. Zambounis (supra, 251 N. Y. 94, 97), we held that an information in the Court of Special Sessions of the City of New York cannot be supplemented or pieced out by the affidavits in the Magistrates’ Court ”, so in the instant case the oral charge of violation of section 43 could not be ‘ ‘ supplemented or pieced out ” by defendant’s statement.

As regards that statement — even if it could be deemed the equivalent of an information — it falls short, and in two distinct respects, of what the law demands. For one thing, it fails to satisfy the basic requisite that an information charge the defendant with “ some designated crime ” (Code Crim. Pro., § 145). While that requirement may not make it necessary to specify by section number the statute on which the prosecution is predicated (see People v. Dioquardo, 303 N. Y. 514), it is essential that there be some definite identification of the particular crime of which the defendant is accused. (See People ex rel. Sampson v. Dunning, 113 App. Div. 35, 40; see, also, People v. Zambounis, supra, 251 N. Y. 94, 96; People v. Grogan, supra, 260 N. Y. 138, 142.) The merest examination of defendant’s statement reveals that it does not charge that defendant is “ guilty of some designated crime,’ and this is a jurisdictional defect which may not be overlooked.” (People ex rel. Sampson v. Dunning, supra, 113 App. Div. 35, 40; see, also, People v. Grogan, supra, 260 N. Y. 138, 142.) Only by a process of surmise can the statement be read as charging or identifying a particular crime, and it is significant that Judge Coxway, in his opinion, suggests, not one, but several possible criminal charges (supra, p. 37).

The statement is inadequate to fulfill the function of an information for the further reason that it fails to show the commission of acts sufficient to spell out any crime at all. That defendant let down ” his “ pants ” while in his auto-bile, as recited in the statement, does not establish — without additional facts which do not appear in this record — that he “ wilfully and lewdly ” exposed his person, or that he did so in a public place or in the presence of others, in violation of section 1140 of the Penal Law. Nor is the additional recital in the statement that the defendant approached two girls while in his car, and “ for the purpose of having a little excitement, nothing else ” and to scare them ” pretended “ that it was a hold-up ’ sufficient, without more, to establish the crime either of attempted assault (Penal Law, § 242, subd. 5) or of attempted robbery (Penal Law, § 2128), as suggested in Judge Coetway’s opinion {supra, p. 37). The facts stated fall far short of alleging the commission of either crime; apart from other deficiencies, the requisite element of criminal intent is nowhere alleged. (See, e.g., People v. Katz, 290 N. Y. 361.)

Nor does the statement charge a violation of section 43. It asserts no acts which seriously ” injured the person or property of another, seriously ” disturbed or endangered the public peace or health,” or openly ” outraged public decency,” within the ambit of that provision. (Cf. People v. Bruzzano, 302 N. Y. 605; People v. Corrigan, 253 N. Y. 301; People v. Tylkoff, 212 N. Y. 197; People v. Baylinson, 211 App. Div. 40; People v. McDermott, 111 App. Div. 380.) What is more, by its terms the statute is applicable only where ‘ no other punishment is expressly prescribed ”, and, if the recitals in the statement could conceivably spell out a criminal offense, it would be one encompassed within some section other than section 43. (See, e.g., People v. Bruzzano, supra, 302 N. Y. 605.)

Clearly, then, the requisite information was lacking, and its absence constitutes a jurisdictional defect which cannot be cured or overcome by waiver or consent or by plea of guilty. As this court has declared, “ waiver is not permitted where a question of jurisdiction or fundamental rights is involved and public injury would result.' A privilege, merely personal, may be waived; a public fundamental right, the exercise of which is requisite to jurisdiction to try, condemn and punish, is binding upon the individual and cannot be disregarded by him.” (People ex rel. Battista v. Christian, 249 N. Y. 314, 318.)

In the Battista case (supra, 249 N. Y. 314), it was the constitutional requirement of indictment by a grand jury in felony cases that we held could not be waived by plea of guilty (cf., also, People v. Miles, 289 N. Y. 360, 363), but the underlying principle is not limited to rights guaranteed by the constitution. Accordingly, the doctrine of waiver has not barred us from condemning departures from such fundamental statutory rules of procedure as the failure of the trial judge to charge the jury, even in cases tried in a court of special sessions (see People v. Wallens, 297 N. Y. 57, 62-63), the omission of the prosecuting attorney to make an opening statement to the jury (see People v. Romano, 279 N. Y. 392, 395; People v. Levine, 297 N. Y. 144, 147), or the failure of the court to ask the defendant before imposing sentence whether he has any legal canse to show against pronouncement of sentence. (See People v. Craig, 295 N. Y. 116, 120.)

No less fundamental is the requirement, rooted in tradition and sound public policy, and announced by statute, that prosecution for a crime shall be based on a formal accusation in writing — whether it be indictment or information — designating the crime charged and setting forth the acts alleged to constitute the crime. Compliance with that requirement is essential to the jurisdiction of the court to proceed with the prosecution (see People v. James, 11 App. Div. 609; People ex rel. Sampson v. Dunning, supra, 113 App. Div. 35, 40; Weeks v. United States, supra, 216 F. 292, 293, cert. den. 235 U. S. 697; Albrecht v. United States, supra, 273 U. S. 1, 8), and Consent cannot give a court jurisdiction or authorize a substantial change in its fundamental mode of proceeding.” (People ex rel. Battista v. Christian, supra, 249 N. Y. 314, 320.)

Particularly where, as in this ease, the conviction rests on a plea of guilt to a charge which, as noted above, fails to state acts sufficient to constitute any crime, the conviction must be condemned as jurisdictionally defective and a nullity notwithstanding the plea. (See People v. Bell, 31 N. Y. Crim. Rep. 370; People v. Rosenkrantz, 123 Misc. 335; People v. Lindner, 133 Misc. 728; People v. Williams, 135 Misc. 564; People v. Bush, 140 Misc. 59; People v. Huyck, 171 Misc. 467; People v. Patrick, 175 Misc. 997; People v. Kugelman, 188 Misc. 135; People ex rel. Prudhomme v. Superintendent of N. Y. State Reformatory for Women, 21 N. Y. S. 2d 563.) The plea constitutes an admission of guilt only of the acts specified in the charge, and since nowhere in the record is there any specification of acts sufficient to constitute a crime, the plea is obviously without meaning or effect. (Cf., e.g., People v. Kugelman, supra, 188 Misc. 135, 137; People ex rel. Prudhomme v. Superintendent of N. Y. State Reformatory for Women, supra, 21 N. Y. S. 2d, 563, 565.)

The mere fact that a plea of guilty has been entered has not barred review in this court of the legal sufficiency of the information, where the information was challenged by motion to dismiss prior to the plea. (See People v. Rudnick, 280 N. Y. 5; People v. Blue, 295 N. Y. 620.) While failure to question the information’s legal adequacy in the trial court may render it immune from challenge on appeal, where the essential elements of the crime charged have been established by evidence adduced at a trial (cf. People v. Wiechers, 179 N. Y. 459; People v. Willett, 213 N. Y. 368, 375), that omission cannot, without doing violence to fundamental principles of justice, be given the effect of validating a conviction which rests solely on a plea of guilt to a nonexistent or insufficient information. (See People v. Bell, supra, 31 N. Y. Crim. Rep. 370, 375.)

Termination of a criminal “ trial ” by a plea of guilty, following quickly upon self-accusation, may save time and may even avoid delaying formalities, but surely those considerations cannot justify the by-passing of essential guarantees and safeguards with which the centuries have silrrounded those accused of crime. Not with mere technicality or form are we here concerned, but rather with a “ fundamental * * * principle of justice and fair dealing ”; as this court wrote in the Zambounis case (supra, 251 N. Y. 94, 97): “Forms and procedure still have their place and purpose in the administration of the law; without them we would have chaos. Much impatience is being shown with the technicalities of the law, and at times it is justified. The requirement that an indictment and an information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law. ’'

The judgment should be reversed and the charge dismissed.

Loughban, Oh. J., and Dye, J., concur with Conway, J.; Desmond, J., concurs with Conway, J., in separate opinion; Ftjld, J., dissents in opinion in which Lewis and Fboessel, JJ., concur.

Judgment affirmed.

      . The word “ charge ” is defined in Webster’s New International Dictionary (2d ed., 1948, p. 452), as “an accusation of a wrong or offense; allegation”.


author: Desmond, J.

text:
    Thomas J. Bata et al., Respondents, v. Jan A. Bata, Appellant.
    Argued March 13, 1952;
    decided April 17, 1952.

      Henry Cohen and Beate Bloch for appellant.
    I. The complaint should be dismissed, on the doctrine of. forum non conveniens* (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; Severnoe Securities Corp. v. London & Lancashire Ins. Co., 255 N. Y. 120; Wedemann v. United States Trust Co., 258 N. Y. 315; Sauerbrunn v. Hartford Life Ins. Co., 220 N. Y. 363; Rothstein v. Rothstein, 272 App. Div. 26, 297 N. Y. 705; Colorado State Bank v. Gallagher, 76 Hun 310; Wertheim v. Clergue, 53 App. Div. 122; Sternfeld v. Toxaway Tanning Co., 290 N. Y. 294; Bata v. Bata, 302 N. Y. 213; Gulf Oil Corp. v. Gilbert, 330 U. S. 501.) II. The Court of Appeals has power to review the ruling below. (Long Park, Inc., v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Burdick v. Freeman, 120 N. Y. 420; Sternfeld v. Toxaway Tanning Co., 290 N. Y. 294.)

      Inzer B. Wyatt for respondents.
    I. The New York Supreme Court plainly has jurisdiction of this in personam action. It is of no significance that some of the property involved may be located outside New York. The first question certified should be answered “ no ”. (Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N. Y. 474; Meyers v. Credit Lyonnais, 259 N. Y. 399; Hutchinson v. Ward, 192 N. Y. 375.) II. The Court of Appeals has no power to answer the second question certified because it does not present a “ question of law ”, but rather a question of discretion. The second question certified should not be answered. (Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152; Wedemann v. United States Trust Co., 258 N. Y. 315; Rothstein v. Rothstein, 272 App. Div. 26, 297 N. Y. 705; Gray v. Vought & Co., 243 N. Y. 585; Los Angeles Investment Securities Corp. v. Joslyn, 282 N. Y. 438; Braunworth v. Braunworth, 285 N. Y. 151; Mencher v. Chesley, 297 N. Y. 94; Bata v. Bata, 302 N. Y. 213.) III. The character of the controversy makes it particularly appropriate that New York, as the center of international trade and finance, should exercise its discretion to retain jurisdiction. IV. A forum more appropriate than New York has not been shown. (Gulf Oil Corp. v. Gilbert, 330 U. S. 501.) V. The Court of Appeals lacks power to review the discretionary exercise of jurisdiction below. (Long Park, Inc., v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Sauerbrunn v. Hartford Life Ins. Co., 220 N. Y. 363; Wedemann v. United States Trust Co., 258 N. Y. 315.)
   Desmond, J.

Plaintiffs are the widow and son, and defendant is the half brother, of Thomas Bata who died a citizen and resident of Czechoslovakia, in 1932. Plaintiffs live in Canada, defendant in Brazil. During his lifetime, Thomas Bata was the principal officer (and, say plaintiffs, the sole owner) of a world-wide shoe manufacturing business, which was carried on through a number of corporations and companies, organized under the laws of many States and countries, one of them being a New York corporation. The complaint in this action says that after Thomas Bata’s death, defendant, who had been employed in the business, became its manager and executive director, with the consent of plaintiffs. Plaintiffs claim to be, under the laws of Czechoslovakia, the heirs and universal successors ” of Thomas Bata. The complaint alleges that the widow was inexperienced in business and that the son was a minor, and that they reposed great confidence in defendant, but that he, violating his duty to them, obtained and retains various certificates representing Thomas Bata’s ownership in some of the companies, that he (defendant) has illegally obtained for himself other newly issued stock in said companies, that he has organized new corporations to carry on the Bata business and has had their stocks issued to himself, that he has taken for his own use moneys belonging to the Bata companies, that he has wrongfully asserted individual ownership in himself of all the shareholdings which were the property of Thomas Bata at the latter’s death, and has refused plaintiffs’ demand that he turn over such shares to plaintiffs or to account for them, or for their earnings or proceeds. The prayer for judgment demands that defendant be declared to hold all the property formerly of Thomas Bata, and its accretions, in trust for plaintiffs, that he be required to account to plaintiffs for the Bata businesses and their proceeds, and that he deliver and pay over to plaintiffs all such property and its proceeds.

The summons in this action was served (in April, 1949) on defendant in New York City, while he was attending a stockholders’ meeting of the New York Bata corporation, at a time when, he says, he had come to New York to prepare for the trial of another action, to which we will refer.

Defendant did not answer the complaint herein, but moved to dismiss it on the ground that the court has no jurisdiction over the subject matter of the action, or, in the alternative, that the court decline to entertain jurisdiction. Although the first of those grounds asserts an absolute lack of subject-matter jurisdiction, and the first of the Appellate Division’s two questions certified to us deal with that assertion, defendant does not press it here. Since such jurisdiction is clearly present (Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N. Y. 474, 478), we will say no more about it, except to answer the first certified question in the negative.

The second certified question is this: 1 ‘ Did the Appellate Division err in affirming the order of Special Term denying defendant’s motion to dismiss complaint upon the ground that the Supreme Court should not exercise jurisdiction of this action? ” Respondent insists that this question has to do with a mere exercise of discretion by the courts below, and that we, accordingly, are without power to answer it. Of course, when a court, on the ground of forum non conveniens, dismisses an action which it could entertain, it is exercising a discretionary power (Rothstein v. Rothstein, 272 App. Div. 26, affd. 297 N. Y. 705). But where, as here, there is a refusal to dismiss, a true question of law may result: that is, the question of whether there has been a violation of a fundamental policy as to the exercise of jurisdiction, in other words, an abuse of discretion (see Langfelder v. Universal Laboratories, 293 N. Y. 200; Burdick v. Freeman, 120 N. Y. 420, 425, 426). It is the practice of this court so to interpret a certified question (like the one quoted at the beginning of this paragraph) as to present a problem of law, not a review of a purely discretionary decision (see Epstein v. National Transp. Co., 287 N. Y. 456, 461, and cases cited in Cohen and Karger, Powers of the New York Court of Appeals, p. 378, n. 91, 92). Taking that approach to this appeal, we treat this second certified question as an inquiry as to whether the courts below had power, under New York rules as to forum conveniens out non conveniens, to take, this case.

So many of the cases applying the forum non conveniens doctrine are in tort, that it was thought, or held, at one time that only tort cases felt the doctrine’s impact (see Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152, 159, citing Furbush v. Nye, 17 App. Div. 325). However, it is now clear that the courts have power, in contract and other kinds of property litigation between nonresidents, to decline, as well as to accept, jurisdiction (Wedemann v. United States Trust Co., 258 N. Y. 315; Rothstein v. Rothstein, 272 App. Div. 26, affd. 297 N. Y. 705, supra; see Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 509). The doctrine then, is not necessarily inapplicable to cases like the present one, and so we must examine into the particular circumstances here to see whether they are such as to make the Supreme Court of New York County an inappropriate forum for the trial of the cause.

Defendant points out that it is the 11 convenience ” of the court, and not that of the parties, which is the primary consideration (see Pietraroia v. New Jersey & H. R. R. & F. Co., 197 N. Y. 434, 439). The reason for rejecting certain suits between nonresidents is one of public policy: that our courts should not be vexed with litigations between non-resident parties over causes of action which arose outside of our territorial limits ” (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 323-324). However, since there is no absolute prohibition against such suits, and since jurisdiction in a suit between nonresidents may exist both as to defendant’s person and as to subject matter, the countervailing considerations as to appropriateness, or not, of our forum, must be examined in each case, and, ‘1 unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed ” (Gulf Oil Corp. v. Gilbert, supra, p. 508). This defendant, as reasons for dismissal, points first, to the necessity, on this trial, of applying the laws of a number of foreign countries, some of them civil law jurisdictions; second, to the necessity for the appearance of witnesses from many lands; third, to the unreasonable burden on our courts of trying so large a case with so little local connection; fourth, to the alleged unenforcibility of any judgment entered in New York against this nonresident defendant; fifth, to the relative smallness of the Bata assets in New York State (most of those assets being, apparently, in Brazil, as the Appellate Division’s opinion remarks), and, finally, to the supposed hardship on defendant of trying the case here.

Plaintiffs, on the other hand, tell us that there is valuable Bata property in New York, including about $16,000 in a bank, a residence property, and business records and documents. They point out that one of the Bata corporations is incorporated under our laws, and has an office here, at which office defendant was served with process. We are reminded, too, that there are pending in the New York courts two other litigations between these parties, one of which has already been tried and reviewed by the Appellate Division (see 279 App. Div. 182), and other lawsuits involving Bata assets or interests, in which defendant is a party, but not plaintiffs. Plaintiffs say, and not unreasonably, that this is a most unusual case in which, with the assets scattered all over the world, there is no one appropriate ” forum, and that the difficulties and inconveniences listed by defendant would be found, in greater or less number, in any suit brought anywhere to determine these issues. In other words, much of the inconvenience ” is not local, but inherent in the situation out of which the lawsuit arises. As to enforcibility of a probable judgment, we note that part of the relief prayed for is a declaration of rights, an adjudication which, in the strict sense, is not “ enforcible ” at all.

We realize that this suit may, when it comes to trial, be found to involve property, transactions and laws almost entirely foreign to New York State. Nevertheless, on the record before us, we cannot say that there was no basis at all for retaining jurisdiction here.

The order should be affirmed, with costs, and both questions certified answered in the negative.

Lottghban, Ch. J., Lewis, Conway, Dye, Fuld and Fboessel, JJ., concur.

Order affirmed, etc.