author: Fuld, J. Conway, J.

text:
    In the Matter of Leon Rosenbluth, Respondent, against Maurice Finkelstein et al., Constituting the Temporary City Housing Bent Commission of the City of New York, Appellants.
    Argued February 28, 1950;
    decided March 3, 1950.

      Tobias Weiss, Nathan W. Math, Joseph Jay and Alfred Weinstein for appellants.
    It was not arbitrary, capricious or unreasonable for the commission to find an absence of good faith where a landlord-purchaser entered into an agreement allowing his seller to retain two of three apartments in a three-family house, leaving-for his own use the sole apartment occu- ‘ pied by a tenant. (Matter of Keller v. Finhelstein, 274 App. Div. 890; Matter of O’Neill v. Finkelstein, 275 App. Div. 720; Matter of Minio v. Finkelstein, 275 App. Div. 964; Matter of Santoro v. Finkelstein, 276 App. Div. 950; Matter of. Park East Land Corp. v. Finkelstein, 299 N. Y. 70; Chittenden Lbr. Co. v. Silberblatt & Lasher, Inc., 288 N. Y. 396; People v. Ryan, 274 N. Y. 149; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201, 295 N. Y. 748; Matter of Paloma Estates, Inc., 126 F. 2d 72; Unemployment Compensation Comm. v. Aragon, 329 U. S. 143.)

      Victor Whitehorn and Jules Whitehorn for respondent.
   Fuld, J.

Although the appeal has become moot and academic, we refrain from dismissing it "because of the importance of the issue presented. Affecting as it does the administration of the emergency housing legislation in the City of New York, the question is one of major importance and, because it will arise again and again, one that invites immediate decision. (See, e.g., Matter of Glenram Wine & Liquor Corp. v. O’Connell, 295 N. Y. 336, 340; Matter of Lyon Co. v. Morris, 261 N. Y. 497, 499.)

A landlord or one who becomes a landlord by purchasing residential property may not procure an eviction of a tenant unless he first obtains a certificate of eviction from the Temporary City Housing Bent Commission.. That body is, however, under the necessity of issuing such a certificate in any case where the landlord or purchaser, “ because of compelling necessity, seeks in good, faith to recover possession of [the] apartment for Ms own immediate and personal nse and occupancy ” for dwelling purposes. (Administrative Code of City of New York, § U41-7.0, subd. c, par. [2].)

In the case before us, petitioner, a veteran of World War II, purchased a building containing three apartments. Concededly, there was a compelling necessity: for about two years, because of an inability to locate an apartment, he and his wife were forced to share three rooms with another married couple; the situation was further aggravated by petitioner’s wife becoming pregnant and giving birth to a child in September of 1948. Nor can there be any doubt that petitioner was seeking “ in good faith to recover possession ” of the apartment for Ms own use. In point of fact, the Commission, in refusing the certificate, explicitly noted as the ground therefor not that Applicant has failed to establish good faith ”, not that he failed to establish compelling necessity for the premises ’ ’ — two of the reasons on its printed form — but that the “ Seller [was] in possession of an apartment.”

Quite obviously, the Commission either added a new requirement to the statute or misconstrued the term “ good faith ” as there used. Issuance of a certificate, eviction of a tenant, is sanctioned at the hands of a landlord who ‘1 seeks in good faith to recover possession ” of dwelling accommodations for his own immediate occupancy. The words mean precisely what they say, and the Commission may not under the guise of administering the statute ascribe a different or unreasonable meaning to those words. The landlord complies with the statute’s demands if he seeks the eviction with the honest intention and desire to gain possession of the premises for his own use. (See Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 43; see, also, Nofree v. Leonard, 327 Ill. App. 143, 147.)

It is indisputable that petitioner wanted and sought the apartment for the use of himself and his family. There is not the slightest proof or even suggestion that he was motivated by any intent other than to gain a place in which to live. The mere fact that he agreed that his vendor might remain in possession of another apartment in the building does not permit an inference of fraud or bad faith — and no fiat or “ policy ” pronouncement by the Commission can add the one or supply the other. In short, there just is no evidence to cast doubt upon petitioner’s bona fides. The Commission’s determination denying a certificate of eviction was, therefore, without basis or warrant, and decisions such as Matter of Park East Land Corp. v. Finkelstein (299 N. Y. 70) have no application.

While such a conclusion would ordinarily lead to affirmance of the Appellate Division’s order, a change of circumstances herein prevents such a determination. It appears that, after the Commission had denied a certificate of eviction to him, petitioner obtained another apartment. Accordingly, and solely for that reason, the order of the Appellate Division should be reversed, with costs to the petitioner in this court, and the petition dismissed.

Conway, J.

(dissenting). Recognizing the existence of a serious emergency in the city of New York by reason of the shortage of apartments, the serious threats to the health, safety and general welfare of the inhabitants of the city caused by disruptive practices and abnormal conditions ” and the necessity of preventing chaos and confusion resulting from such disruptive practices, the Legislature has declared it to be the policy of the city to impose certain restrictions upon the rights of eviction of tenants from apartments in the city, for the purpose of - alleviating the present housing emergency and preventing abuses.” (Administrative Code of City of New York, § U41-7.0, subd. a.) To effectuate that policy, the Legislature has prohibited evictions of tenants of apartments, with certain narrow exceptions. As a prerequisite to any action or proceeding to evict, the landlord must obtain from the temporary city housing rent commission, a certificate that his case falls within one of the permissible grounds for eviction. In the instant case, it was necessary for petitioner to demonstrate that “ the landlord, because of compelling necessity, seeks in good faith to recover possession of such apartment for his own immediate and personal use and occupancy as dwelling accommodations”. (Administrative Code, § U41-7.0, subd. c, par. [2].) The commission has here determined that petitioner did not act1 ‘ in good faith ’ ’. There was some basis in the facts of the case for such determination and, unless the courts are to undertake a plenary review of such administrative decisions and substitute their judgment for that of the commission, we must reverse the order of the Appellate Division which has done just that.

The tenant involved herein, one Mintz, occupied his apartment with his wife and two children for upwards of nine years, long prior to the time the premises were purchased by one Landau. Difficulties and disputes relating to the making of necessary repairs in the building and the use of a garage in the rear of the building arose between the tenant and Landau, and as a result, the latter frequently threatened to compel the tenant to remove from the apartment by any means within his power.

The building contains two other apartments in addition to the one occupied by the tenant Mintz. In May of 1948, the petitioner purchased the building from Landau, who, it is alleged, as a condition of the sale, insisted upon obtaining from petitioner a two-year lease of one apartment for himself and a two-year lease of another for his parents. By agreeing to this condition, petitioner gave up any possibility of obtaining occupancy of two of the three apartments in the building. The only other apartment, of course, was that occupied by the tenant Mintz. It is undisputed that petitioner, curious as it seems, made no inspection at any time of the Mintz’ apartment. It is further undisputed that Landau owns another apartment house consisting of some seventy apartments only about four blocks away from the building in question.

Immediately after the alleged purchase of the building, petitioner applied to the commission for a certificate of eviction. The application was opposed by the tenant Mintz on the ground that it was made in bad faith and that there was no compelling necessity for the obtaining possession of his particular apartment. The commission, after reviewing all the information submitted, denied the application with the somewhat cryptic notation: “ Seller in possession of an apartment.” That was-amplified, however, in the commission’s affidavit in opposition to the proceeding subsequently commenced by petitioner to annul its determination. It was therein stated that the commission had found “ that there is a complete lack of good faith on the part of said petitioner.” The affidavit further states: “The Commission has followed a policy of refusing Certificates of Eviction to petitioners who proceed against a tenant other than the seller in possession. The Commission has taken the position that such action is not in ‘ good faith ’ insofar as. the eviction of another tenant is sought, because it would encourage speculation in real estate at the expense of. tenants. The Commission feels and has heretofore held that such self-created need does not. entitle the petitioner to the issuance of a Certificate of Eviction. .***.”■

Special Term denied the motion to annul the determination of the commission, but the Appellate Division, by a closely divided court, reversed and granted petitioner’s application for a certificate of eviction. The majority felt that there was no factual showing of bad faith on petitioner’s part, and that the “ policy ” followed by the commission was an improper attempt to add to the statute provisions not incorporated by the Legislature.

It may be assumed that it would be improper for the commission to adopt an arbitrary “policy” or rule of thumb, applicable to all cases, whatever their facts and circumstances, to refuse a certificate of eviction to a purchaser merely because he has leased an apartment in the premises to the seller. That would be an abdication by the commission of its duty to pass upon the merits of each application. In the instant case, however, the determination of the commission does not necessarily rest upon any such arbitrary “.policy ” or rule of thumb.

The statute requires that the application of a landlord to recover possession of an apartment be “in good faith ”. The phrase is broad and general, as indeed it must be, to enable the administrative agency some latitude in the discharge of its statutory duty to “ effectuate the purposes ” of the law. (Administrative Code, § Uál-7.0, subd. m.) The phrase is not expressly defined in the statute, but it seems clear that it connotes something more than the mere absence of misrepresentation and dishonesty, as the Appellate Division decided. If •that were all that the Legislature meant by “in good, faith it would hardly seem necessary to have included the express requirement of good faith, for certainly the commission could refuse a certificate to an applicant guilty of misrepresentation and dishonesty even without express authority. It seems plain that the Legislature, in using, the phrase, meant to confer upon the commission authority to regulate the “ disruptive practices ” which threatened the health, safety and general welfare of the inhabitants of the city. Our language in Matter of Park East Land Corp. v. Finkelstein (299 N. Y. 70, 74-75) with reference to the word “ substantial ” contained in the same statute, is apposite here: “ Substantial ’ is a word of general reference which takes on color and precision from its total context. Having little if any meaning when considered in abstract or in vacuum, it must be defined with reference to the peculiar legal and factual setting in which it occurs. [Citation.] Although there are certainly instances where application of such a term poses questions of statutory construction — a matter for the courts — that is not true here. There is no necessity for the courts to formulate, case by ease, a completely inclusive and exclusive definition , of what constitutes violating a ‘ substantial obligation ’ of the tenancy; that task is left to the commission, the agency administering the local rent laws. In the functioning of that body, ‘ substantial constitutes a flexible g^lide for the exercise of its discretion to grant or withhold an eviction certificate. Applied in that manner, the word has an intelligible connotation, a meaning consistent with the design of the emergency legislation.” (Emphasis supplied.)

In the instant case, the commission has determined that petitioner was not acting “ in good faith ” in applying for a certificate of eviction under the circumstances. Strong and compelling reasons lie behind that determination. Petitioner was certainly aware of the emergency situation existing in the city. He was, in fact, an unhappy victim of that emergency. Yet he entered into an arrangement for the purchase of a building with three apartments whereby he voluntarily relinquished any possibility of occupying two of those. apartments in reliance upon the expectation that he could evict the third tenant, a stranger to the agreement, and thus, in effect, solve his own difficulties by transferring those same difficulties to the stranger. There is the further strong suggestion that the seller, who undoubtedly could have secured accommodations in his seventy-family apartment house for himself, his parents or petitioner, joined in the arrangement out of animosity towards the tenant. I think there was ample basis in the record to sustain the commission’s determination that petitioner, in becoming a party to the plan, acted in bad faith and was not entitled to a certificate of eviction.

To deny the commission power to deal effectively with situations such as the one presented here may jeopardize the eviction control program and, to some degree, encourage those evils which it was the declared policy of the Legislature to avert. Unrestricted use of the device here employed certainly would promote both evictions and inflationary speculation. (See affidavit quoted, supra, pp. 407-408.) As stated by the commission in its brief, “ The tenant is to go out so that the seller and his parents may stay in. It is only the eviction of this tenant that makes it possible for the old owner to make the profitable sale without loss of possession. ’ ’ The commission brief also properly points out that In adopting a course aimed to deprive the tenant of his housing accommodations, the landlord [petitioner] also restricted his opportunity to satisfy his own need for housing. He was not compelled to buy the house here in question. But he chose to do so even though the seller required him to dispose of two-thirds of the accommodations in that house. He deliberately limited his opportunity to satisfy his own need, so that it could be relieved only through the eviction of the tenant. By electing to make a purchase in which he disposed of two-thirds of the accommodations in the house he bought, the landlord. acted to continue his own need. Such self-continued need negates a showing of good faith under the statute.”

Prior to the Appellate Division decision herein, the commission’s power to find an absence of good faith, upon the particular facts of situations similar to the instant case, has uniformly been upheld. (See Matter of Keller v. Finkelstein, 274 App. Div. 890; Matter of O’Neill v. Finkelstein, 275 App. Div. 720; Matter of Minio v. Finkelstein, 275 App. Div. 964.) It is of the utmost importance to our problem that, with knowledge of these decisions and with knowledge of the commission’s attitude in these matters, the local legislative body has repeatedly re-enacted the statute without altering it in regard to the requirement of good faith. (See Local Laws, 1948, No. 41 of City of New York, and Local Laws, 1949, Nos. 7, 22, 73, of City of New York.) The case thus comes squarely within the familiar principle of statutory construction, well stated in Matter of Gilmore v. Preferred Accident Ins. Co. (283 N. Y. 92, 97): “ * * * The use of these terms, therefore, falls within the recognized principle that where terms have been defined by the courts and the Attorney-Greneral, it is presumed that the continued use of those terms by the Legislature subsequent to the definitions is in accordance with the meaning thus defined.” (See, also, Matter of Scheftel, 275 N. Y. 135, 141, and cases there cited.)

The order of the Appellate Division should be reversed and that of Special Term affirmed.

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

Order reversed, etc. [See 300 N. Y. 713.]


source: Caselaw Access Project

author: Puld, J.

license: Public Domain

text:
    In the Matter of Manufacturers Trust Company, Appellant, against Henry W. Ralph, as Register of the City of New York, Respondent.
    Argued March. 1, 1950;
    decided April 13, 1950.

      George B. Balamut and William I. Bodier, Jr., for appellant.
    I. The phrase “ amount involved in a chattel mortgage ”, as used in the Administrative Code, means the actual present loan made by the mortgagee to the mortgagor. (Matter of Wurlitzer Co. v. Byrne, 175 Misc. 81, 261 App. Div. 896, 286 N. Y. 569; Matter of Warren Commercial Refrigerator Sales Corp. v. Byrne, 286 N. Y. 570; Matter of Maxson Corp. v. Ralph, 182 Misc. 144, 268 App. Div. 753, 294 N. Y. 880; Franklin Soc. v.
      Bennett, 282 N. Y. 79.) H. A tax statute should be interpreted so as to avoid the incidence of double taxation. (Matter of Gooley, 186 N. Y. 220.) III. Any ambiguity in a tax statute must be construed in favor of the taxpayer. (People v. Ryan, 274 N. Y. 149; Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Howitt v. Street & Smith Publications, 276 N. Y. 345; Matter of Good Humor Corp. v. McGoldrick, 289 N. Y. 452; Matter of Wurlitzer Co. v. Byrne, 175 Misc. 81, 261 App. Div. 896, 286 K Y. 569.) IY. The doctrine of practical construction supports appellant’s construction of subdivision 14. (Matter of Carns [Ralph], 181 Misc. 1047; Bullock v. Cooley, 225 N. Y. 566; Matter of Kolb v. Holling, 285 N. Y. 104.) V. A certificate of stockholders’ consent to a corporate chattel mortgage is not an “ instrument affecting chattels ” within the meaning of subdivisions 13 and 14 of section 1052-13.0 of the Administrative Code. (Matter of Wurlitzer Co. v. Byrne, 175 Misc. 81, 261 App. Div. 896, 286 N. Y. 569; Matter of Warren Commercial Refrigerator Sales Corp. v. Byrne, 261 App. Div. 895, 286 N. Y. 570; Rochester Sav. Bank v. Averell, 96 N. Y. 467; Karasik v. People’s Trust Co., 252 F. 324, 252 F. 337; Black v. Ellis, 129 App. Div. 140, 197 N. Y. 402; Matter of Victoria Fusilli Co., 79 F. 2d 611; Matter of J. A. M. A. Realty Corp., 92 F. 2d 3; Willcox v. Goess, 92 F. 2d 8; Matter of Constantine Tobacco Co., 290 F. 128; People v. Richards, 108 N. Y. 137.)

      John P. McGrath, Corporation Counsel (Morris R. Weitzer, Harry E. O’Donnell and Reuben Levy of counsel), for respondent.
    I. Subdivision 14 of section 1052-13.0 of the Administrative Code requires the register to base his fee for filing a chattel mortgage on the “ amount involved ”. The expression ‘ ‘ amount involved ’ ’ can only mean all of the money for which the mortgaged chattels are security. The proper fee chargeable must, therefore, be computed on the amount of $3,515,243.59 for which the chattels stand as security, and not merely on the $4,049.74 advanced on the day the chattel mortgage was executed. (Culver v. Kurn, 193 S. W. 2d 602 [Mo.]; Matter of Winton Shirt Corp., 104 F. 2d 777.) II. The requirements of section 16 of the Stock Corporation Law as to filing a certificate' of stockholders ’ consent to mortgage chattels, and the text of the certificate itself, clearly indicate that it is an “ other instrument affecting chattels ” within the meaning of subdivision 14 of section 1052-13.0' of the Administrative Code. The fee-for filing and entering such certificate must, therefore, he governed by this subdivision;
   Puld, J.

Provision for the payment of fees incident to filing chattel mortgages and other specified instruments is found in section 1052-13.0 of the Administrative Code- of the City of New York. After providing, a fee of twenty-five cents for filing “ any paper other than satisfaction,, chattel mortgage, bill of sale, conditional bill of sale or other instrument affecting chattels ” (subd. 5) and a fee of $1.25 for filing a chattel mortgage,, a bill of sale of chattels, or a satisfaction of a chattel mortgage or conditional bill of sale “ or any instrument affecting, chattels ” (subd. 13), the statute prescribes a graduated fee of $1.25 for each one hundred thousand dollars or fraction thereof ” when the amount involved in a chattel-mortgage or other instrument affecting chattels ” is $100*000 or more (subd. 14).

We are called upon to determine, first, whether ‘ ‘ the amount involved ” is the particular sum of money advanced when the mortgage is' executed or the amount of the entire indebtedness which the mortgage is given to secure and, second, whether a certificate of stockholders’ consent, provided for by section 16 of the Stock Corporation Law,- is an ‘ ‘ instrument-affecting chattels ” within the meaning of the provisions- of the Administrative Code quoted.

In the case before us, Manufacturers Trust Company, petitioner herein1, prior' to August, 1947, made a number of loans, secured by chattél mortgages, to John J. Casale, Inc. Bach of those mortgages had been filed and a filing fee paid. In August of Í947, Casale borrowed $4,049.74 from petitioner, and, in return, delivered a chattel mortgage on a Mack truck costing that amount and, along with it, a certificate of stockholders’ cónsent certifying that the holders of not less than two thirds of the Outstanding shares of stock of' the Corporation had consented to the mortgage. The mortgage Was to secure not only the current $4,049 advance but also all other indebtedness owed by Casale to the bank. Thus, it was expressly recited that it was given upon- condition that the mortgagor pay that item of $4,049' and ‘ all other Indebtedness * * * Whether heretofore, contemporaneously herewith or hereafter created and the mortgagor acknowledged that the truck “ hereby mortgaged ” was “ collateral security for the note or notes of even date # * * and for any and all liabilities and obligations ” Of Gas ale to the bank: ‘ ‘ now in existence or hereafter incurred ’ ’. Secured by the chattel mortgages already referred to, the prior indebtedness totaled over $3,500,000.

The bank presented the mortgage and the cpnsent certificate to the Register of the City of New York for filing; it tendered a fee of $1.25 for the mortgage and twenty-five cents for the certificate — plus an additional indexing fee of thirty cents for each document. The Register, however, demanded a filing fee of $45 — plus the thirty cent indexing fee, about which there is no dispute — for each. The petitioner, refusing to pay such fees, brought the present proceeding to compel the Register to file the papers for the smaller amounts tendered.

The court at Special Term agreed with the position taken, by the Register, and the Appellate Division, two justices dissenting, affirmed.

As we read the statute, the “ amount involved ” in a chattel mortgage can only mean the amount of the indebtedness which the mortgage is given to secure. It cannot be the particular amount of money advanced at the time the mortgage is executed, if that is less than the entire debt, for, even when that smaller sum is paid, the mortgage remains in full force, the chattel continues burdened with its lien, until the entire debt is satisfied. As already indicated, both mortgage and consent certificate expressly recited that the Mack truck was to constitute security not only for the $4,049 loan but for the prior indebtedness of $3,500,000 as well. In thus spreading the lien of the mortgage to cover the entire debt, the bank has assured itself that, even after the $4,049 loan is paid, the mortgage will not be discharged, or the truck released from the lien, until it receives the full three and a half million dollars advanced. Since, then, the mortgagor’s entire obligation is in fact the amount involved ”, the filing fee must be measured by the total debt secured. (See e.g., People ex rel. Banner Land Co. v. State Tax Comm., 244 N. Y. 159, 163; People ex rel. United States Tit. Guar. Co. v. State Tax Comm., 230 N. Y. 102, 104.)

While, in the case of mortgages upon real property, it is only the amount of the increased mortgage indebtedness that measures and fixes the tax to be paid when a supplemental ” or “ additional ” mortgage is recorded (see Matter of Park & 46th St. Corp. v. State Tax Comm., 295 N. Y. 173; Matter of Defiance Paper Co. [Browne], 294 N. Y. 684; People ex rel. Metropolitan Playhouses v. Graves, 275 N. Y. 621; People ex rel. Banner Land Co. v. State Tax Comm., supra, 244 N. Y. 159,163; see, also, People ex rel. Williamsburgh Sav. Bank v. State Tax Comm., 245 N. Y. 414), that result is brought about by explicit legislative direction (Tax Law, §§ 253, 255). If a like result is to be achieved in the field of chattel mortgages, if a filing fee is to be paid only upon the new indebtedness incurred, it is the legislature that must so provide.

We turn, then, to the certificate of stockholders’ consent. The fee is graduated — at the rate of $1.25 for each one hundred thousand dollars or fraction thereof — when the amount involved in “ a chattel mortgage or other instrument affecting chattels ” is $100,000 or more (Administrative Code, § 1052-13.0, subd. 14). The critical phrase is, of course, “ or other instrument affecting chattels ”, and subdivision 5, with its enumeration of specific documents for which a fee other than twenty-five cents is to he paid, points and limits the coverage of that clause. Since the papers listed embrace only those which either create, transfer or extinguish rights and interests in chattels, it follows, under familiar principles of construction, that the phrase, “ other instrument ” must likewise be deemed to refer to a document that alters or otherwise affects rights in chattels. (See Matter of Wurlitzer Co. v. Byrne, 286 N. Y. 569, affg. 261 App. Div. 896, affg. 175 Misc. 81, 83; cf. Matter of Maxson Corp. v. Ralph, 294 N. Y. 880.)

Consideration of section 16 of the Stock Corporation Law — pursuant to which the consent certificate was executed — quickly demonstrates that the certificate is not such an instrument. The certificate simply supplies evidence that a requisite number of stockholders have authorized the mortgage of a chattel. It is the fact of consent that is rendered operative and vital, not the formalities to be observed in establishing it. Phrased somewhat differently, it is the mortgage plus the stockholders’ consent, not the certificate attesting to such consent, that creates rights, for the mortgage is properly executed and constitutes a valid lien even though no certificate is ever filed, as long as the essential consent was actually given. (See Berlin v. Sea Breeze Foundation, 259 N. Y. 659; Black v. Ellis, 197 N. Y. 402, affg. 129 App. Div. 140; Rochester Sav. Bank v. Averell, 96 N. Y. 467, 476; see, also, Matter of Victoria Fusilli Co., 79 F. 2d 611; see, also, Note, 51 Harv. L. Rev. 1074, 1080.) Since a certificate of consent does not, therefore, create, transfer or extinguish rights or interests in chattels, it is not an instrument affecting chattels ” within the purview of the provisions of the Administrative Code. It may accordingly be filed upon payment of a fee of twenty-five cents.

The orders should be modified by reversing so much thereof as denied petitioner’s motion for an order directing the Register to file the certificate of stockholders’ consent for the fee tendered, and, as so modified, affirmed, without costs.

The orders should be modified in accordance with the opinion herein, and, as so modified, affirmed, without costs.

Loughran, Ch. J., Lewis, ConwaY, Desmond, Dye and Froessel, JJ., concur.

Ordered accordingly.


author: Loughrax, Ch. J.

text:
    Franz J. Emmerich, Appellant, v. City Bank Farmers Trust Company, as Executor and Trustee under the Will of Rudolph F. Emmerich, Deceased, Respondent.
    Argued February 22, 1950;
    decided April 13, 1950.

      Charles B. McGroddy, Jr., for appellant.
    I. This action is one to procure a judgment on the ground of fraud and thus is governed as to limitations by subdivision 5 of section 48 of the Civil Practice Act. (Spallholz v. Sheldon, 216 N. Y. 205; Finnegan v. McGuffog, 203 N; Y. 342; Harrison v. Schultz, 240 App. Div. 13; McCaw v. McCaw, 182 Misc. 910, 268 App. Div. 866; Lightfoot v. Davis, 198 N. Y. 261.) II. There is no evidence to support the Appellate Division’s finding that plaintiff had knowledge of the existence of his grandfather’s will or estate, or of the conversion thereof more than six years before commencement of this action.

      Alfred J. L’Heureux and Peter X. McManus for respondent.
    I. The action is for an accounting. (Glover v. National Bank of Commerce, 156 App. Div. 247; Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259; Carr v. Thompson, 87 N. Y. 160; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Spallholz v. Sheldon, 216 N. Y. 205; Finnegan v. McGuffog, 203 N. Y. 342; Harrison v. Schultz, 240 App. Div. 13; McCaw v. McCaw, 182 Misc. 910, 268 App. Div. 866; Vogeler v. Alwyn Improvement Corp., 247 N. Y. 131; Ansorge v. Kane, 244 N. Y. 395.) II. There is ample evidence that plaintiff had knowledge more than six years before he' commenced this action of the existence and termination of the trust. I'll. The action is barred by the ten-year Statute of Limitations. (Chase Securities Corp. v. Donaldson, 325 U. S. 304; Order of R. R. Telegraphers v. Railway Express Agency, 321 U. S. 342; Arnold v. Mayal Bealty Co., 299 N. Y. 57; Bushe v. Wright, 118 App. Div. 320, 195 N. Y. 509; Higgins v. Crouse, 147 N. Y. 411; Dyckman v. Dyckman, 230 App. Div. 288.)
   Loughrax, Ch. J.

Francis J. Emmerich died November 20, 1892. By his will he left a substantial part of his estate to his sons Rudolph and Lewis in trust to pay the income therefrom to his daughter Marie Auguste during her life and at her death to pay the principal to her issue, if any, and, if none, then to pay the principal in equal shares to Rudolph and Lewis if both should survive Marie Auguste, but in the event of the death in her lifetime of either Rudolph or Lewis then to pay one half of the principal to his issue.

The will of Francis J. Emmerich was admitted to probate by the Surrogate’s Court of New York County on January 31, 1893. His sons Rudolph and Lewis, who were named as his executors, qualified as such and took possession of his estate. They failed, however, to earmark any trust for their sister Marie Auguste. Lewis died in 1922. Marie Auguste died in 1925 without issue. Rudolph died in 1926.

The plaintiff herein, the son of Lewis Emmerich, was born in 1892. Upon the death of his aunt Marie Auguste without issue he became entitled (because of the earlier death of his father Lewis) to one half of the principal of the trust from which Rudolph and Lewis undertook to pay income to Marie Auguste during her life. An accounting in respect of the remainder interest of the plaintiff in that trust is demanded in this action. The defendant — a banking institution — is executor and trustee of the estate of Rudolph Emmerich and is sued in that capacity only.

Special Term conceived of the action as one to compel a fiduciary to account. In that view, the cause of action accrued on the death of Marie Auguste Emmerich in 1925, and this action, which was commenced on December 12,1945, was barred by the ten-year Statute of Limitations (Civ. Prac. Act, § 53). So the Special Term held. On appeal by the plaintiff, the Appellate Division took the action to be one to procure a judgment on the ground of fraud. In that view, the cause of action did not accrue until the discovery by the plaintiff of the facts constituting the fraud and this action could have been commenced at any time within six years thereafter (Civ. Prac. Act, § 48, subd. 5). But the Appellate Division said: “We find that the plaintiff had knowledge, more than six years prior to the commencement of this action, of the existence and termination of the trust described in the complaint under which he became the remainder-man of his aunt Marie Auguste Emmerich and of the conversion of that portion of the corpus thereof to which this action relates.” (275 App. Div. 833.) On that basis, the judgment dismissing the complaint was affirmed.

To our minds, the Appellate Division was right in reading the complaint as a statement of a cause of action grounded in fraud. (See Finnegan v. McGuffog, 203 N. Y. 342; Spallholz v. Sheldon, 216 N. Y. 205, 209; Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290, 294.) But we cannot discover in the record any sufficient warrant for imputing to the plaintiff knowledge of the fraud at a date more than six years before his commencement of this action on December 12,1945.

In 1923, the plaintiff delivered releases to the executors of the estate of his father Lewis Emmerich on the strength of a written account of the assets of that estate. Among the entries appearing in that account was the following: “ Estate of Franz J. Emmerich____P. 846.00 ”. This entry, as we appraise it, was no evidence of discovery by the plaintiff of the fraud in question. The Franz J. Emmerich so referred to was, we suppose, the plaintiff’s grandfather. Hence the entry may have notified the plaintiff of the existence of Mg grandfather’s estate, but so blind an item could not have put him on notice of his interest in that estate.

In 1925, after the death of Marie Auguste Emmerich, her brother Rudolph delivered to the plaintiff (his nephew) bonds of the United States Steel Corporation of the face value of $10,000. In respect of that transaction, we cannot do better than repeat the following analysis made by the court at Special Term: The evidence perhaps warrants the inference that those $10,000 of bonds were one-half of $20,000 of bonds which had come into the possession of Rudolph as executor or trustee of the will of plaintiff’s grandfather, and had been held as a part of the trust for the benefit of Marie Auguste Emmerich; and if that be so the delivery thereof by Rudolph to plaintiff will constitute a credit upon any amount to which plaintiff may be found to be otherwise entitled; but there is nothing to support the idea that plaintiff received the bonds as payment or in satisfaction of his interest in his grandfather’s estate, or even that he knew that they came from or were a part of his grandfather’s estate.”

On May 17, 1943, the plaintiff wrote to the attorneys for the defendant bank a letter in which he thanked them for informing him of the absence from the files of the bank of any receipt or release relating to the United States Steel Corporation bonds that his uncle Rudolph had delivered to him. In that letter there was also the following sentence: “ I will probably spend the rest of my life trying to figure out someway of getting around the New York statute of limitations in connection with my claim against my uncle’s estate.” This assertion, we repeat, was made on May 17, 1943, and hence was not evidence that the plaintiff had knowledge of the fraud in question more than six years before he commenced this action on December 12, 1945.

All the circumstances relied upon to establish such knowledge have now been stated. They are insufficient as evidence thereof. Consequently the judgments should be reversed and a new trial granted, with costs to abide the event.

Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ., concur.

Judgments reversed, etc.


author: Lotjghraít, Ch. J.

text:
    The People of the State of New York, Appellant, v. Leonard Peter Lee, Respondent.
    Argued February 27, 1950;
    decided April 13, 1950.

      Edwin G. O’Connor, District Attorney (Sidney T. Hewes of counsel), for appellant.
    The guilt of defendant was established beyond a reasonable doubt. (State v. Knoll, 72 Kan. 237.)

      Willard W. Gass for respondent.
    The judgment convicting defendant of manslaughter in the first degree was properly reversed by the Appellate Division. The homicide was not committed in a cruel and unusual manner. (People v. Vollmer, 299 N. Y. 347.)
   Lotjghraít, Ch. J.

After a trial in the Supreme Court of Chautauqua County, a jury on April 3, 1947, convicted the defendant of having killed Dorothy Ware in the heat of passion, but in a cruel and unusual manner. Such a homicide is manslaughter in the first degree (Penal Law, § 1050). On an appeal by the defendant, the conviction was reversed by the Appellate Division on the law, since in the opinion of that court, the People had failed to prove the defendant guilty of the crime charged. The order of reversal had the unanimous assent of the Appellate Division, but one of the justices gave the People a certificate upon which they brought the order here for review. (See Code Crim. Pro., § 520, subd. 3.)

A sufficient statement of the case appears in the brief of counsel for the defendant in these words: “ The strongest facts and inferences against the defendant might show that the defendant and deceased began and continued drinking alcoholic intoxicants several hours before her death; that defendant slapped deceased several times before her death; that he knocked her down several times in and near the house where she died; that she might have fallen on any of several articles after defendant hit her including stove and sink; that she had three wounds, any one of which might have caused her death; that defendant weighed about one hundred pounds more than deceased; that the altercation lasted one half to three quarters of an hour; that indications of blood were found outside and inside the farm house.”

Whether the evidence thus outlined warranted a finding by the jury of a homicide committed “ in a cruel and unusual manner ’ ’ is the single question that we are called upon to decide. In support of its declaration of the failure of the People to prove a homicide of that kind, the Appellate Division cited People v. Vollmer (299 N. Y. 347).

In the Vollmer case (supra) the defendant was convicted of manslaughter in the first degree for having with his bare fist struck and thereby killed a customer in his tavern. The Trial Judge left to the jury these questions: (1) whether at the time of the homicide the defendant Vollmer was engaged in committing or attempting to commit a misdemeanor, affecting the person or property, either of the person killed or of another; (2) whether the killing was done in the heat of passion, but in a cruel and unusual manner; and (3) whether the killing was accomplished by means of a dangerous weapon. (See again Penal Law, § 1050.) In the Vollmer case, we reversed the conviction, because there was no proof of a killing done “ in a cruel and unusual manner ”, no proof of a killing “ by means of a dangerous weapon ”, nor any proof of the commission of any misdemeanor apart from the assault which had coalesced with the homicide. Our opinion in the Vollmer case reads in part as follows: (1) “When the Legislature talks of a ‘dangerous weapon ’, it means something quite different from the bare fist of an ordinary man”. (2) “To be ‘ cruel and unusual ’ the manner of commission of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric (see State v. Knoll, 72 Kan. 237). Whatever be the limits of the phrase, it cannot be applied * * * to a case like this [the Vollmer case] where a flurry of blows from defendant’s fist sent the other man to the floor and to death.” (299 N. Y. 347, 350.)

The struggle between the present defendant and Dorothy Ware was neither hasty nor brief; it was no mere flurry of blows. Indeed, the fatal beating he inflicted upon her might well be found by a jury to have been cruel and inhuman in fact. Hence the submission of that phase of the issue to the jury was right. (See People v. De Garmo, 73 App. Div. 46, 52-53; State v. Linney, 52 Mo. 40; cf. Commonwealth v. Devlin, 126 Mass. 253; Commonwealth v. Knowlton, 265 Mass. 382.) No exception to the charge which the Trial Judge gave to the jury was noted in behalf of the defendant and, that being so, the charge must be assumed by us to have been adequate (Code Crim. Pro., § 420-a). Of course, the voluntary intoxication of the defendant was no defense (Penal Law, § 1220). On the whole, then, we decide, as we are bound to do, that the jury’s verdict did not blame the defendant unduly in any legal aspect.

The order of the Appellate Division should be reversed and the case remitted to that court for its determination of the facts in accordance with section 543-a of the Code of Criminal Procedure (see People v. Kaye, 295 N. Y. 9).

Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ., concur.

Order reversed, etc.


author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Albert Tassiello, Appellant.
    Argued January 13, 1950;
    decided April 13, 1950.

      Peter L. F. Babbatino, Thomas J. Toclarelli and Edtoard J. Fontana for appellant.
    The assistant district attorney’s statements in summation that he personally believed defendant guilty, that defendant and his counsel also knew that defendant was guilty, and other improper statements, over objection and exception, deprived defendant of a fair trial and of an impartial consideration by the jury of the evidence. (People v. Robinson, 273 N. Y. 438; People v. Esposito, 224 N. Y. 370; People v. Teiper, 186 App. Div. 830; People v. Reimann, 266 App. Div. 505; Berger v. United States, 295 U. S. 78; People v. Gerdvine. 210 N. Y. 184; People v. Fowler, 269 App. Div. 797; People v. Fielding, 158 N. Y. 542; People v. Sheldon, 156 N. Y. 268; People v. Minsky, 227 N. Y. 94; People v. Manganaro, 218 N. Y. 9; People v. Millard, 247 App. Div. 253; People v. Maestry, 167 App. Div. 266; People v. Conrow, 200 N. Y. 356.)

      Frank.S. Ho.gcm, District Attorney (Charles W. Harming and Whitman Knapp of counsel), for respondent.
    I. Defendant .received a, fair trial. (People v. Yui Kui Chu, 273 N. Y. 191; People v. Ohanian, 245 N. Y. 227; People v. Hartigan, 210 N. Y. 144; People v. Pindar., 210 N. Y. 191.) II. Most of the prosecutor’s remarks of which defendant complains were provoked by and made in answer to the intemperate statements of defendant’s counsel. In the heat of argument, each side used strong language. (People v. Gillette, 191 N. Y. 107; People v. Smith, 180 N. Y. 125.) III. Viewing the summation of the assistant district attorney as a whole, and in the light of the closing comments by the defense, it is hardly likely that defendant was thereby prejudiced, particularly since, as already noted, defense counsel allowed most of the remarks to pass unnoticed and without objection or any motion calling for a ruling by the court. (People v. Seidenshner, 210 N. Y. 341; People v. Jackson, 196 N. Y. 357.; People v. Pallister, 138 N. Y. 601.)
   Lewis, J.

1 ‘ Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice.” (People v. Fielding, 158 N. Y. 542, 547.) That pronouncement by this court is declaratory of the simple principle of fairness which was decisive in the cited case and pervades those rules which govern the administration of criminal law. In the case we now review that principle again becomes decisive.

Briefly, as to facts: The homicide here involved occurred on July 20,1945, in New York City on the second floor of a mid-town restaurant. At that time and place the proprietor was accosted by three men who, after forcing him back into his office, took from a shelf $1,200 in paper currency. While making their escape in the midst of excitement caused by an outcry by the proprietor, one of the robbers — who was brandishing a revolver as he backed out of the restaurant — fired a shot which struck and killed a customer. Thereafter the defendant, apprehended in New Jersey, was brought back to New York City where, upon an indictment charging him with murder, first degree, he was tried and convicted of murder, second degree. At the Appellate Division the judgment of conviction was affirmed, one Justice dissenting and voting for a new trial.

At the trial, where his defense was an alibi, and in the Appellate Division, the defendant unsuccessfully attacked the credibility of witnesses called by the prosecution to identify him as the killer. Upon the present appeal, as in the courts below, the defendant challenges rulings by the Trial Judge and asserts that he was not accorded a fair trial due to the following misconduct by the assistant district attorney which, it is claimed, prejudiced his rights before the jury:

Near the close of his summation the assistant district attorney commented upon portions "of the defendant’s testimony bearing upon his alibi which, it was suggested, showed the degree of confusion under which the defendant was laboring on the day of the homicide. In doing so the assistant district attorney made the following statement to the jury: And Mr. Sabbatino [counsel for defendant], I am not going into the alibi, because he conceded in his summation here this morning that it was unbelievable ; that De Lucia would say anything to help him out; that he was confused; that he had to pick somebody out. First it was De Lucia, then Parker, then back to De Lucia from Bender to Tinker to Chance, back and forth. And when we knocked down one story, it was another. When we would knock that down, it was another. Four or five different stories. The man was in. The defendant knows he is in. His lawyer knows he is in, and the only hope of saving his neck is the hope that they get a gullible jury, a soft-hearted jury, a jury that hates to face realities, and jurors who would like to go up dark alleys to find some phony excuse on which to base a reasonable doubt.” (Italics supplied.)

At the close of that statement counsel for the defendant not only objected to “ that kind of summation, as unfair, prejudicial to the defendant ” but also moved for a mistrial. The objection thus taken was overruled and the motion for a mistrial was denied with an exception to the defendant as to each ruling.

Shortly thereafter, while commenting favorably upon the testimony of one of the People’s witnesses who had identified the defendant as a customer he had seen in the restaurant where the homicide occurred, the assistant district attorney stated to the jury: “ What’s phony about that statement? What’s phony about identifying a man who has been a customer of yours and whom the defendant admits knowing. There is nothing phony about that at all. He picked out the right man, and you know it and the defendant knows it, Sabbatino knows it. That’s why he squeals so.” (Italics supplied.)

Following that statement counsel for the defendant again moved for a mistrial “ on the ground he is seeking to mislead the jury.” That motion was also denied with an exception to the defendant.

On the following morning when the court reconvened and before the Trial Judge charged the jury, an attempt was made to neutralize the statements quoted above which had been made by the assistant district attorney in the course of his summation. The record describes the incident as follows:

‘ ‘ Mr. Sabbatino: Your Honor, I ask the privilege of addressing the Court.

“ The Court: Proceed.

“ Mr. Sabbatino: Yesterday in his summation Mr. Monaghan [the assistant district attorney] said that I knew my client was guilty. I want the privilege of taking the stand and testifying that from the very first time that Mr. Monaghan had the case I have always urged the defendant’s innocence. I have had frequent interviews with him and argued the facts with him without the knowledge of the existence of the police reports. I even asked —

Mr. Monaghan: Your Honor, I object to further summation at this time.

“ The Court: Do you withdraw any remark which you may have made which may have intended to convey the fact that —

“ Mr. Monaghan: Yes, I do. If there is any remark which conveyed the idea to the jury that I thought Mr. Sabbatino knew that his man was guilty, I withdraw it because it is not what he thinks or what I think; it is what the jury think.”

The recantation contained in the last sentence quoted above, when closely read, is somewhat limited by the reason expressly given for it. However, if it be regarded as a complete retraction by the assistant district attorney of statements made by him to the jury shortly before adjournment on the preceding day, viz., the statement that the defendant’s “ lawyer knows he is in ” with an innuendo in those words which speaks for itself; and, on a subject— important to .the defense — of identifying the defendant, the further statement, that >the defendemos lawyer “ -knows ” that a witness called by the prosecution “ picked out the right man ”, we cannot gay with the assurance to be desired that such retraction afforded full protection to the defendant’s rights.

Knowing, as we do, that statements, such as those-now challenged, addressed to a jury by a prosecuting officer in the trial of a criminal case “ * * * are apt to carry much weight against the accused when they should properly carry none” (Berger v. United States, 295 U. S. 78, 88.; People v. Conrow, 200 N. Y. 356,369,), we cannot say, in the circumstances-disclosed by this record, that there was erased from the jurors’ minds what the prosecutor had said with earnestness «on the previous day. Here, as in People v. Levan ,(295 N. Y. 26, 36) ‘ ‘ The virus thus implanted in the minds of the jury is not -so easily extracted.”

The statements now challenged were not warranted by law, nor by the facts of record upon which ¡alone a verdict was to be rendered. Assuming, as we must, -that those ¡statements, made during summation, were intended to have some influence upon the verdict, the jury might reasonably have inferred that -the prosecuting officer intended thereby to make known his personal -knowledge, gained from undisclosed sources, that defendant’s counsel — who had then conducted the defense throughout nine trial days- — had become convinced of his client’s guilt. It is difficult to conceive of any statement by a prosecuting ¡attorney which would have been more -indelibly impressed upon a juror’s mind.

The assertion by a prosecuting attorney of his personal knowledge of matters which may influence the jury’s verdict should have no place in the record of a criminal trial. (Berger v. United States, supra, p. 88.) An -offense against that rule is aggravated when, as in the present ease, the prosecuting -attarney, in his summation and without supporting evidence in the record, ascribes to counsel for the defendant knowledge of his •client’s guilt.

The defendant was entitled to a trial upon.evidence proving or .tending to prove the crime with which he was charged “ *. * * uninfluenced by irrelevant facts and circumstances which tend to prejudice or mislead the jury. ’ ’ (People v. Posner, 273 N. Y. 184, 190; and see People v. Robinson, 273 N. Y. 438, 446; People v. Fielding, supra, pp. 546-553; People v. Conrow, supra, p. 369; People v. Malkin, 250 N. Y. 185, 201-202; People v. Wolf, 183 N. Y. 464, 472; People v. Davey, 179 N. Y. 345, 347-348.)

Our conclusion is that in moving for a mistrial in the circumstances outlined above the defendant was vindicating a right, not asldng a favor. (People v. Robinson, supra, p. 446.) His exception to the denial of that motion was well taken and has enabled us to review that ruling as one of law. (People v. Malkin, supra, p. 199.)

The judgments should be reversed and a new trial ordered.

Loughran, Ch. J., Conway, Desmond, Dye, Ftjld and Froessel, JJ., concur.

Judgments reversed, etc.


author: Loughbae, Ch. J.

text:
    The People of the State of New York ex rel. Frank Blumke, Appellant, against John F. Foster, as Warden of Auburn State Prison, Respondent.
    Submitted January 11, 1950;
    decided April 13, 1950.

      Fremit Blumke, appellant in person.
    I. There being no specific offense of an attempt to possess burglar’s instruments under the laws of this State, the Kings County Court, on the prior conviction, exceeded its jurisdiction in accepting the plea and rendering the judgment. (People v. Knapp, 206 N. Y. 373; People v. Conti, 127 Misc. 244; People ex rel. Curtis v. Kidney, 225 N. Y. 299; People v. Werblow, 241 N. Y. 55; People v. Mills, 178 N. Y. 274; People v. Sullivan, 173 N. Y. 122; People v. Moran, 123 N. Y. 254; People v. Gardner, 144 N. Y. 119; People v. Hislop, 77 N. Y. 331; People v. Bigley, 178 Misc. 552; People v. Guidici, 100 N. Y. 503; Hughes v. Cuming, 165 N. Y. 91; Hunt v. Hunt, 72 N. Y. 217.) II. The prior judgment, having been obtained without due process of law, contrary to section 6 of article I of the New York Constitution and the Fourteenth Amendment of the United States Constitution, is absolutely void. (Mooney v. Holohan, 294 U. S. 103; Chambers v. Florida, 309 U. S. 227; Patterson v. Alabama, 294 U. S. 600; Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101; Norris v. Alabama, 294 U. S. 587; Valz v. Sheepshead Bay Bitngalow Corp., 249 N. Y. 122.)

      Nathaniel L, Goldstein, Attorney-General {Wendell P. Brown, Herman N. Harcourt and William S. Elder, Jr., of counsel), for respondent.
   Loughbae, Ch. J.

In this habeas corpus proceeding, Special Term dismissed the writ. The Appellate Division affirmed and the case is now here by our leave. We shall refer to the relator-appellant as the defendant.

In December, 1937, a grand jury sitting with the County Court of Kings County returned an indictment charging him with having possessed burglar’s instruments as a felony. Such possession without more is a misdemeanor but is a felony when the defendant has been previously convicted of any crime (Penal Law, §§ 2, 408). As a basis for the present felony charge, this indictment alleged a prior conviction and sentence of the defendant for petit larceny.

To the felony charge, he first entered a plea of not guilty. Later, however, he withdrew that plea and pleaded guilty to an attempt to possess burglar’s instruments as a felony. In 1942, again upon a plea of guilty, he was convicted of robbery in the second• degree (see Penal Law, § 2126), and, because of his prior conviction of an attempt to possess burglar’s instruments as a felony, he was then sentenced as a second felony offender to imprisonment in a State prison for not less than fifteen nor more than thirty years (see Penal Law, § 1941).

He now challenges the validity of his prior felony conviction. “ There is [he says] no specific offense of an Attempt to commit the crime of Possession of Burglars’ Instruments on our statute.” (The emphasis is firsthand.) If he is right in that contention, his conviction as a second felony offender in 1942 was wrong, and he may attack that conviction in this habeas corpus proceeding (see People ex rel. Carollo v. Brophy, 294 N. Y. 540, 542).

In this State, no act or omission is a crime unless some statute of the State makes it so (Penal Law, § 22). Section 2 of the Penal Law defines an “ attempt to commit a crime ” in these words: “ An act, done with intent to commit a crime, and tending but failing to effect its commission, is ‘ an attempt to commit that crime In this State also, a defendant may be convicted of an attempt to commit a crime charged as a complete offense or of an attempt to commit a lesser degree of a crime so charged. (Penal Law, § 610; cf. Code Crim. Pro., § 444.)

Section 408 of the Penal Law says: “ A person who * * * has in his possession in the day or night time, any engine, machine, tool, false key, pick-lock, bit, nippers or. implements adapted, designed or commonly used "for the commission of burglary, larceny or other crime, under circumstances evincing an intent to use or employ, or allow the same to be used or employed, in the commission of a crime, or knowing that the same are intended to be so used, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime, he is guilty of a felony.” In short, the crime so defined by section 408 has two elements: (1) possession of any burglar’s instrument plus (2) an intent to make a criminal use thereof.

Conceding the possibility of his having attempted to possess himself of burglar’s instruments, the defendant nevertheless insists that he could not have attempted to intend any criminal use of them, because (so he says) nobody can attempt to have an intent. This idea strikes us as being no more than specious. Surely it is possible to try to get possession of burglar’s instruments for the purpose of subsequently committing an additional and independent criminal offense and in this instance the existence of such a purpose has been confessed by the defendant’s plea of guilty (see People ex rel. Kondrk v. Foster, 299 N. Y. 329, 332).

The foregoing considerations dispose of the case. The order should be affirmed, without costs.

Lewis, Conway, Desmond, Dye, Fuld and Feoessbl, JJ., concur.

Order affirmed.


author: Froessel, J.

text:
    Mary Leighton, Respondent, v. Joseph A. Roper, as Administrator of the Estate of J. V. Allen, Deceased, Appellant, et al., Defendants.
    Argued January 5, 1950;
    decided April 13, 1950.

      Melvin II. Zurett for appellant.
    Special Term erred in holding that the service of process on the nonresident administrator was valid. (Pennoyer v. Neff, 95 U. S. 714; Helme v. Buckelew, 229 N. Y. 363; McMaster v. Gould, 240 N. Y. 379; Rogers v. Gould, 210 App. Div. 15, 240 N. Y. 564; Thorburn v. Gates, 225 F. 613; Hess v. Pawloski, 274 U. S. 352; Hendrick v. Maryland, 235 U. S. 610; Kane v. New Jersey, 242 U. S. 160; Thompson v. Whitman, 18 Wall. [U. S.] 457; Williams v. North Carolina, 325 U. S. 226; Toronto Gen. Trust Co. v. Chicago, B. & Q. R. R. Co., 123 N. Y. 37; Vecchione v. Palmer, 249 App. Div. 661; Home Ins. Co. v. Dick, 281 U. S. 397.)

      Willard E. Perlee for respondent.
    Section 52 of the New York Vehicle and Traffic Law is a constitutional exercise of the police power of New York State. (Hess v. Pawloski, 274 U. S. 352; Wuchter v. Pizutti, 276 U. S. 13; Shushereba v. Ames, 255 N. Y. 490; Thorburn v. Gates, 103 Misc. 292, 184 App. Div. 443; Blake v. McClung, 172 U. S. 239; Morris v. Jones, 329 U. S. 545; Milliken v. Meyer, 311 U. S. 457; Fauntleroy v. Lum, 210 U. S. 230.)
   Froessel, J.

This appeal presents for our consideration the validity of chapter 719 of the Laws of 1945, amending section 52 of the Vehicle and Traffic Law of this State and authorizing service of process on, and the continuation of a pending action against, the legal representative of a deceased nonresident motorist, when the action arises out of an accident occurring in this State, based on the nonresident’s implied consent to the irrevocable appointment of the Secretary of State as his agent for the receipt of service of process.

On February 16,1946, two automobiles collided on Route 104, a New York State highway. Plaintiff, a resident of this State, was a passenger in one of the motor vehicles and was seriously injured. The operator and owner of the other automobile, to which a trailer was attached, was one J. V. Allen, a resident of Indiana. Allen died, and defendant Joseph A. Roper was appointed administrator of his estate by a probate court of Indiana. Thereafter, plaintiff instituted this action for damages, charging Allen with negligence in said action. Such are the allegations in plaintiff’s amended complaint.

The summons and complaint herein were served on defendant Roper, as administrator, in the manner authorized by section 52 of the Vehicle and Traffic Law, as amended. The defendant administrator thereupon appeared specially, and moved to vacate such service and to dismiss the complaint. It was stipulated by the attorneys that the estate had no assets in our State except such, if any, as may be represented by a policy of liability insurance covering intestate’s automobile, issued by a foreign insurance company not licensed to do business in this State. No personal representative of decedent’s estate has been appointed in this State.

The service on the administrator has been held valid in the courts below, and the question certified to us on this appeal is: “Was the order of the Special Term properly made?”

Defendant-appellant takes the position that as a nonresident administrator he has constitutional immunity from suit in the courts of this State. Since there is no contention that the service as made was not in accordance with the statutory procedure, he is obliged to contend that this amendment to the statute is invalid in order to obtain a dismissal of the action.

The applicable statute, section 52 of the Vehicle and Traffic Law, as amended in 1945 (L. 1945, ch. 719), so far as pertinent here, provides as follows: “ A nonresident operator or owner of a motor vehicle or motor cycle which is involved in an accident or collision in this state shall he deemed to have consented that the appointment of the secretary of state as his true and lawful attorney for the receipt of service of process pursuant to the provisions of this section shall be irrevocable and binding upon his executor or administrator. Where the nonresident motorist has died prior to the commencement of an action brought pursuant to this section, service of process shall be made on the executor or administrator of such nonresident motorist in the same manner and on the same notice as is provided in the case of a nonresident motorist. Where an action has been duly commenced under the provisions of this section by service upon a defendant who dies thereafter, the court must allow the action to be continued against his executor or administrator upon motion with such notice as the court deems proper.”

It is well settled, by the common law of New York, that a foreign representative generally has no standing in our courts, as such, and may neither sue nor be sued (Wiener v. Specific Pharmaceuticals, Inc., 298 N. Y. 346; McMaster v. Gould, 240 N. Y. 379; Rogers v. Gould, 210 App. Div. 15, affd. 240 N. Y. 564; Helme v. Buckelew, 229 N. Y. 363; Hopper v. Hopper, 125 N. Y. 400). The rule has its exceptions, under which our courts have taken jurisdiction over foreign representatives (Kirkbride v. Van Note, 275 N. Y. 244; Helme v. Buckelew, supra, p. 367; Holmes v. Camp, 219 N. Y. 359, 372; Logan v. Greenwich Trust Co., 144 App. Div. 372, affd. on opinion below 203 N. Y. 611; De Coppet v. Cone, 199 N. Y. 56; Bergmann v. Lord, 194 N. Y. 70; Hopper v. Hopper, supra; Lisle v. Palmer, 29 N. Y. S. 2d 975, affd. 263 App. Div. 720; Thorburn v. Gates, 103 Misc. 292, affd. 184 App. Div. 443).

It has been said that the common-law exceptions were limited to cases where a failure of justice would follow if equity withheld relief; either the foreign representative, by a devastavit or other tort, had put himself in the position of an individual wrongdoer, or there was a res within the jurisdiction to be disposed of or preserved (Helme v. Buchelew, supra, p. 368). It should be noted, however, that there are other exceptional cases, such as Kirkbride v. Van Note (supra) and cases cited therein. Thus, in the Kirkbride ease a foreign administrator was allowed to be substituted as a defendant in a matrimonial action in New York, in order that he might obtain a modification of the alimony provisions of the decree. There were no assets of the decedent in New York, nor was there any statutory authorization for this procedure, but the court allowed it solely “ as a matter of comity ”. (P. 250.)

A previous statutory effort was made to render foreign representatives amenable to our jurisdiction, without any limitation, however. That was contained in section 1836-a of the Code of Civil Procedure (later Decedent Estate Law, § 160), and endured from 1911 to 1926, when the statute was repealed. It was there provided that a foreign executor or administrator “ may sue or be sued in any court in this state in his capacity of executor or administrator in like manner and under like restrictions as a nonresident ”. That statute was held by us to remove disabilities, but not immunities, and to authorize service on the foreign representative, as theretofore, only where there were assets in this State subject to administration or distribution here (Helme v. Buckelew, supra). We pointed out (p, 373) that to hold foreign representatives “ subject generally [emphasis supplied] to actions in personam, would involve us ” in problems of constitutional power.

Thereafter we had before us the-1925 amendment to section 160 of the Decedent Estate Law, which purported to authorize the continuance of suits against the foreign executor or administrator of deceased defendants. We noted that the statute had for its purpose the revival of suits for a judgment in personam “ without restriction or qualification ” and, on the authority of Pennoyer v. Neff (95 U. S. 714, 733) held, such attempt invalid, saying (McMaster v. Gould, supra, at p. 388): “ the constitutional requirement of due process of law precludes the Legislature from providing generally [emphasis supplied] for continuing actions for judgments in personam against the foreign executors or administrators of deceased defendants.”

The above-mentioned eases simply stand for the general proposition that service on a foreign executor or administrator within this State does not confer jurisdiction unless there are assets of the estate within this State subject to our control, and a statute which seeks to subject a foreign representative “ generally ” or “ without restriction or qualification ” to a judgment in personam is bad. This is so because the mere physical presence of the foreign representative does not mean that he is within this State in his official capacity. If we take into account this dual personality, we find that the rule set forth in these cases as to foreign executors and administrators is really no different from the rule applicable to ordinary nonresidents (Pennoyer v. Neff, supra).

It is particularly significant that the question of waiver or consent by the foreign executor or administrator of the decedent was not actually involved in those cases. Indeed, Judge Cardozo, writing for the court in the Helme case {supra) noted in passing (at p. 367): According to some decisions, an executor or administrator might submit to the jurisdiction of the foreign courts, and the judgment would then bind him everywhere (Lawrence v. Nelson, 143 U. S. 215, 222; Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 29 * * *).” It is also clear from the foregoing cases, as well as those cited by appellant, that it has never been the law of this State that a foreign executor or administrator is constitutionally immune from suit here, where jurisdiction over such executor or administrator has been obtained, predicated upon a valid consent.

The argument against the validity of jurisdiction by waiver or consent is that a foreign- court which attempts to take jurisdiction over the representative, without having in its control some res on which to act, is necessarily exceeding its lawful power, and is attempting to interfere with the home State’s administration of the estate. Yet it has been recognized that consent jurisdiction is good in the Federal courts (Helme v. Buckelew, supra, p. 367, citing Lawrence v. Nelson, 143 U. S. 215; see, also, 3 Beale, Conflict of Laws, § 513.1). Furthermore, the Supreme Court of the United States has .often reaffirmed the power of the Federal courts to take jurisdiction over executors and administrators without regard to the provisions of State statutes (Markham v. Allen, 326 U. S. 490, 494; Blacker v. Thatcher, 145 F. 2d 255, certiorari denied 324 U. S. 848; Pufahl v. Parks, 299 U. S. 217; Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33; Security Trust Co. v. Black Riv. Nat. Bank, 187 U. S. 211; Lawrence v. Nelson, supra). At the same time, it has been conceded that any judgment obtained is merely an adjudication of a right, enforcible only in the State court having control over the administration, as the Federal courts have no power to interfere with the State court’s posses sion or control over the res. These decisions have been based upon the constitutional grant of equity jurisdiction to the Federal courts, and its exercise in diversity cases, but the conclusion is inescapable that the exercise of such jurisdiction, in the admitted absence of jurisdiction of the res, imports recognition of the executor or administrator in an in personam sense. That the adjudication of a right in a res not in the possession of the court does not constitute interference therewith is a principle also applied in other classes of cases (United States v. Klein, 303 U. S. 276, 281).

Granting, then, that an action against an executor or administrator is not one purely in rem, and may therefore be founded on consent jurisdiction, we arrive at the question, has the appellant consented to be sued here? Of course he has not, but, by virtue of the statute now before us, his intestate has consented to the statutory agency for the receipt of process, and has made that consent binding upon this administrator. He signified that consent when he drove his automobile into this State, and it was indisputably binding upon him, personally (Hess v. Pawloski, 274 U. S. 352; Wuchter v. Pizzutti, 276 U. S. 13,18; Shushereba v. Ames, 255 N. Y. 490). In the Hess case (supra), after reasserting the rule set forth in Pennoyer v. Neff (supra), the court said (pp. 356-357): In the public interest the State may make and enforce regulations reasonably calculated to promote care on the part of all, residents and non-residents alike, who use its highways. * * * The State’s power to regulate the use of its highways extends to their use by non-residents as well as by residents. Hendrick v. Maryland, 235 U. S. 610, 622. And, in advance of the operation of a motor vehicle on its highway by a non-resident, the State may require him to appoint one of its officials as his agent on whom process may be served in proceedings growing out of such use. Kane v. New Jersey, 242 U. S. 160, 167. That case recognizes power of the State to exclude a non-resident until the formal appointment is made. And, having the power so to exclude, the State may declare that the use of the highway by the non-resident is the equivalent of the appointment of the registrar as agent on whom process may be served. Cf. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., [243 U. S. 93] supra, 96; Lafayette Ins. Co. v. French, 18 How. 404, 407-408. The difference between the formal and implied appointment is not substantial so far as concerns the application of the due process clause pf the Fourteenth Amendment.”

In McMaster v. Gould (supra), the general rule was followed on the authority of Pennoyer v. Neff (supra, p. 733), which held that “ proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of .law. ’ ’ The fiduciary, whose estate had no res in our jurisdiction, was in the same position as a nonresident who had no property to be attached in this State, and could not be personally served herein. But under Hess v. Pawloski (supra), such a defendant may now be served in the particular situation and in the manner provided in section 52 of the Vehicle and Traffic Law. It would seem to follow logically that his representative may likewise be served as provided by statute, without violating the rule of due process.

It is urged that the decedent’s designation of the Secretary of State was not binding because the agency created by the statute terminates on the death ,of the principal. But this is to ignore not only the fact that it was an agency created, not for the benefit of the principal, but for the benefit of third persons (Restatement, Agency, §§ 120,139), as well as the State, in the orderly regulation of its highways, and the additional fact that fhe Legislature has seen fit to make the agency irrevocable, thus annulling any common-law rule fo the contrary (Oviatt v. Garretson, 205 Ark. 792, upholding a similar statute). The Legislature has enacted the statute under .consideration in the exercise of its police power, utilized for a purpose and in an area most appropriate for sucfi legislation (Hess v. Pawloski, supra). Moreover, it was limited to a delictual action arising out of defendant’s entry upon ¡the State’s highways and operating his motor vehicle thereon, and, “ since the more serious the accident in which the nonresident was involved, the more likely it will be that .death will have resulted,” i,t is obvious that section .52 of the Vehicle and Traffic Law (prior to the 1945 amendment) authorizing service of process on the nonresident would be rendered ineffective by his subsequent death. (See Tenth Annual Report of N. Y. .Judicial Council, 1944, p. 253.)

A State may not exercise jurisdiction and authority over persons without its territory (Pennoyer v. Neff, supra), but every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory, and has unquestioned poEce power with respect to its highways. When decedent came upon the highways of this State with his automobile, he subjected himself to our jurisdiction, and consented, while here, irrevocably to bind his legal representative in an action arising out of any accident in this State in which his automobile was involved.

The statute is narrowly drawn to fit the need, provides all the procedural safeguards required for due process of law, and is applicable only to a cause of action arising in this State. Whatever may be said about the use of such a procedure in other situations, or “ generally, without restriction or qualification ” where it might be argued that it would constitute an unjustifiable impingement upon the sovereignty of other States, is therefore inappficable here.

Much has been said in favor of the immunity of foreign representatives in order to provide a system of orderly administration of estates, but the concept of jurisdiction over a decedent’s estate in the field of estate law must yield in this case to the exercise by New York of its poEce power in a field undeniably its own, in the Emited respect provided by section 52.

What effect the Indiana courts will be required to give any judgment rendered in this action under the “ full faith and credit ” clause of the Federal Constitution, we need not now consider. In this State, a judgment against an executor or administrator is “ not a judgment in the ordinary connotation of the term ”. (Matter of Van Nostrand, Yll Misc. 1, 7; 2 Butler on New York Surrogate Law and Practice, § 1636; see, also, Matter of Kvetkoff, 277 N. Y. 289.) And so, in enforcing any right adjudicated here against the estate, the plaintiff must employ the procedure made appropriate by the law of Indiana (Pufahl v. Parks, supra, p. 226). Even at common law, we held that a judgment obtained by a nonresident against an ancillary executrix, unenforcible here for lack of assets available to satisfy it, might nevertheless be effective for some purposes as, for example, the Statute of Limitations (Hopper v. Hopper, supra, pp. 405-406); and where the EabiEty of the decedent is payable by an insurer or an indemnitor, an estate may never be called upon to pay the judgment that may be rendered.

With the cause of action arising here; an irrevocable consent made expressly binding by statute on the decedent’s legal representative for the benefit of third persons, whose interests are adverse to decedent, in consideration of the privilege, without requiring a license, of using our highways, which privilege the State might otherwise have denied him; with procedural safeguards required for due process, and limited to such a situation only; we conclude that the statute challenged is a valid exercise of police power, and is not in conflict with the requirements of due process.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

Lottghban, Ch. J., Lewis, Conway, Desmond and Ftjld, JJ., concur; Dye, J., taking no part.

Order affirmed, etc.


author: Per Curiam.

text:
    Edith Heinzelman et al., Respondents, v. Union News Company, a Domestic Corporation, Appellant.
    Argued February 23, 1950;
    decided April 13, 1950.

      Richards W. Hannah and William C. Morris for appellant.
    I. The New Jersey court has held that the appointment of an agent in its jurisdiction by a foreign corporation makes it a “ resident ” for the purpose of suit. (Randolph Laboratories v. Specialties Development Corp., 62 F. Supp. 897; Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165; Grace v. United Elec. Co., 69 N. J. Eq. 397; Plaut v. Pennsylvania R. R. Co., 103 N. J. L. 40.) II. The “ resident ” provisions of the tolling statute can only relate to situations where the person or corporation is not “ within the state.” (Mack v. Mendels, 249 N. Y. 356; Plaut v. Pennsylvania R. R. Co., 103 N. J. L. 40.) III. The Statute of Limitations is not tolled where the corporation sought to be charged has an agent in the jurisdiction where liability arose. (Huss v. Central R. & Banking Co., 66 Ala. 472; Lawrence v. Balloa, 50 Cal. 258; Waterman v. A. & W. Sprague

      Mfg. Co., 55 Conn. 554; Red Men’s Fraternal Accident Assn. v. Merritt, 32 Del. 1; Roess v. Malsby Co., 69 Fla. 15; Dahlstrom v. Walker, 33 Idaho 374; Wall v. Chicago & N. W. R. R. Co., 69 Iowa 98; McLaughlin v. Aetna Life Ins. Co., 221 Mich. 479; Sidway v. Missouri Lard & Live Stock Co., 187 Mo. 649; King v. National Mining & Exp. Co., 4 Mont. 1; Vol v. Richmond Cedar Works, 152 N. C. 656; Bagdon v. Philadelphia Reading Coal & Iron Co., 217 N. Y. 432; Louisville & Nashville R. R. Co. v. Chatters, 279 U. S. 320.)

      Harry Chashin and William W. Heiberger for respondents.
    Prior to the 1949 amendment of the statute involved (N. J. Stat. Ann., § 2:24 — 7), there was no limitation of the time in which this action could have been brought in New Jersey. The order should be affirmed. (Cramer v. Borden’s Farm Products Co., 58 F. 2d 1028; Kuboosh v. Allied Stores Corp., 79 F. Supp. 205; Gotheiner v. Lenihan, 20 N. J. Mis. Rep. 119; Tioga R. R. v. Blossburg & Corning R. R., 20 Wall. [U. S.] 137; Olcott v. Tioga R. R. Co., 20 N. Y. 210; Comey v. United Sur. Co., 217 N. Y. 268; Wehrenberg v. New York, N. H. & H. R. R. Co., 124 App. Div. 205.)
   Per Curiam.

A husband’s action for loss of his wife’s services and for medical expenses incurred by reason of her injuries is, under New Jersey law, based upon a violation of his property rights and is not governed by New Jersey’s two-year Statute of Limitations (N. J. Stat. Ann., § 2:24-2) covering “ actions for injuries to the person ”. (See Fryer v. Mount Holly Water Co., 87 N. J. L. 57.) Accordingly, the husband’s action for loss of services was timely brought (N. J. Stat. Ann., § 2:24-1; Civ. Prac. Act, § 49, subd. 6; § 13). Since defendant’s motion “ for judgment dismissing the complaint ” under rule 112 and rule 113 of the Rules of Civil Practice is directed at the complaint as a whole and seeks dismissal of the complaint in its entirety, the motion was properly denied. (See Imperatrice v. Imperatrice, 298 N. Y. 549, 550; Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79, 84; Eidlitz v. Fischbach & Moore, Inc., 239 App. Div. 483, 486; Heaman v. Rowell Co., 233 App. Div. 335, 336; cf. Demuth v. Griffin, 253 App. Div. 399, 402-403.) We do not decide whether the first cause of action by the wife for personal injuries was begun within the time limited by law.

The order should be affirmed, with costs. The second question certified should be answered in the affirmative; the first question certified, not answered.

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

Order affirmed, etc.


text:
    In the Matter of the Claim of Margaret M. Buckley, Respondent, against Gallagher Bros. Sand & Gravel Corp. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued March 1, 1950;
    decided April 13, 1950.

      Charles P. Barre for appellants.
    Contraction of tuberculosis from a fellow employee does not constitute an occupational disease within the meaning of section 28 of the Workmen’s Compensation Law. (Matter of Harman v. Republic Aviation Corp., 298 N. Y. 285; Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313; Matter of Champion v. Gurley, 299 N. Y. 406.)

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    The evidence established that claimant contracted an occupational disease in her employment. (Matter of Schwartz v. Jacobs Bros. Co., 271 N. Y. 640; Matter of Hamilton v. Village of Lynbrook, 284 N. Y. 613; Matter of Mason v. Y. W. C. A. of City of N. Y., 271 App. Div. 1042; Matter of Peloso v. D’Alessio Bros., 298. N. Y. 582; Matter of Wolfe v. Brohman, 285 N. Y. 635; Matter of Eckstein v. Loew’s, Inc., 295 N. Y. 672; Matter of Vanore v. Mary Immaculate Hosp., 285 N. Y. 631; Matter of Foster v. Gillinder Bros., 278 N. Y. 348; Matter of Nayor v. Harwick Trucking Corp., 283 N. Y. 62; Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313; Matter of Moore v. Colonial Sand & Stone Co., 261 App. Div. 857.)
   Per Curiam.

There was no evidence that claimant became disabled as the result of her duties as a telephone operator. The tuberculosis contracted by her while serving as bookkeeper was not an occupational disease within the meaning of subdivision 2 of section 3 of article 1 of the Workmen’s Compensation Law. The disease resulted not as an incident to claimant’s occupation but from the fact that she worked alongside a tubercular coemployee who was also a bookkeeper. It was th,e coemployee and not the occupation which caused the disease. (Matter of Harman v. Republic Aviation Corp., 298 N. Y. 285; Matter of Champion v. Gurley, 299 N. Y. 406.)

The order of the Appellate Division and the award of.the Workmen’s Compensation Board should be reversed, with costs

in this court and in the Appellate Division, and the claim dismissed.

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

Ordered accordingly.


text:
    In the Matter of Edward Rager, Appellant, against William J. Heffernan et al., Constituting the Board of Elections for the City of New York, Respondents. Stanley M. Isaacs, Respondent.
    Argued September 1, 1949;
    decided September 1, 1949.

      Kenneth W. Beesting for appellant.

      Louis J. Lefkowitz and Paxton Blair for Stanley M. Isaacs, respondent.

      John P. McGrath, Corporation Counsel (John J. Dyer of counsel), for William J. Heffernan and others, as Commissioners of Elections for the City of New York, respondents.
   Order affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bbomley, JJ. ‘


text:
    In the Matter of Estelle Aaronson, Appellant and Respondent, against William D. Meisser et al., Constituting the Board of Elections of Nassau County, Respondents. Leonard R. Hanower et al., Respondents and Appellants. In the Matter of Joseph Ross et al., Appellants and Respondents, against William D. Meisser et al., Constituting the Board of Elections of Nassau County, Respondents. Leonard R. Hanower et al., Respondents and Appellants.
    Argued September 1, 1949;
    decided September 1, 1949.

      Abraham, Kaplan and Nelson K. Scherer for Estelle Aaronson and others, appellants and respondents.

      Harold A. Bogin and Irving J. Schultz for Leonard R. Hanower and others, respondents and appellants.

      Ferdinand I. Haber for Democratic County Committee of Nassau County, amicus curiae, in support of affirmance.
   Order affirmed; no opinion.

Concur: Loughban, Ch, J., Lewis, Conway, Desmond, .Dye, Fund and Bromley, JJ.


text:
    In the Matter of Anthony Boschetti et al., Appellants and Respondents, Suing on Behalf of Themselves and Others Similarly Situated, in the Election Districts Enumerated and Set Opposite the Respective Names of the Foregoing Petitioners, against William J. Heffernan et al., Constituting the Board of Elections for the City of New York et al., Respondents. Patsy J. Lanzetta et al., Respondents and Appellants.
    Argued September 1, 1949;
    decided September 1, 1949.

      Allen Goodwin and Emanuel Baetich for petitioners, appellants and respondents.

      Alfred M. Ascione and Jacob Markowitz for Patsy J. Lanzetta and others, respondents and appellants.

      John P. McGrath, Corporation Counsel (John J. Dyer of counsel), for William J. Heffernan and others, as Commissioners of Elections for the City of New York, respondents.
   Order affirmed; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Dye, Fund and Bbomley, JJ.


text:
    In the Matter of Marian H. Zucker, Respondent, against William J. Heffernan et al., Constituting the Board of Elections for the City of New York, Respondents. Harold J. Blackman et al., Appellants.
    Argued September 1, 1949;
    decided September 1, 1949.

      Jacob Markowitz and Louis Grossman for appellants.

      Theodore Diamond, Leonard Cohen, Lester C. Migdal and Carl'Rachlin for petitioner, respondent.
   Order affirmed; no opinion.

Concur: Loughean, Ck. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Accounting of Annie L. Altz, as Executrix of Frank Altz, Deceased, Respondent. Arnold Krimont, Appellant.
    Submitted October 4, 1949;
    decided October 5, 1949.

      Robert E. Dempsey for motion.

      Murray A. Harris for appellant.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless the appeal is ready for argument at the November, 1949, session.


text:
    The People of the State of New York, Respondent, v. Patrick Brennan, Appellant.
    Submitted October 4, 1949;
    decided October 5, 1949.

      Gordon Steele, District Attorney (Leonard Finlcelstein of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Basil McCullough, Appellant.
    Submitted October 4, 1949/
    decided October 5, 1949.

      Julian B. Erway, District Attorney (Harold E. Koreman of counsel), for motion.

      Basil McCullough, in person, opposed.
   Motion denied.


text:
    Eugene T. Singer, Appellant and Respondent, v. Yokohama Specie Bank, Ltd., Defendant, and Elliott V. Bell, Superintendent of Banks of the State of New York, as Liquidator of Yokohama Specie Bank, Ltd., Respondent and Appellant. Banque Mellie Iran, Appellant and Respondent, v. Yokohama Specie Bank, Ltd., et al., Defendants, and Elliott V. Bell, Superintendent of Banks of the State of New York, as Liquidator of Yokohama Specie Bank, Ltd., Respondent and Appellant.
    Submitted July 19, 1949;
    decided October 6, 1949.
   Motions by the Superintendent of Banks for reargument denied, with $10 costs and necessary printing disbursements. [See 299 N. Y. 113, 139.]


text:
    Julius V. Cremonin, Doing Business under the Name of J. V. Cremonin & Company, Appellant, v. Sami A. Wahhab, Defendant, and Resamny Bros., Third-Party Respondent.
    Submitted July 19, 1949;
    decided October 6, 1949.

      Irving Benimowits for motion.

      Nathan Shapiro opposed.
   Motion for a stay dismissed, with $10 costs. Appeal taken as of right dismissed, without costs, upon the' ground that the order does not finally determine a special proceeding' within the meaning of the Constitution. (See Morris Plan Ind. Bank of N. Y. v. Gunning, 295 N. Y. 640; Civ. Prac. Act, § 592, subd. 5, par. b, cl. [i].)


text:
    Henry A. Bull, Appellant, v. Herman T. Stichman et al., Constituting the Emergency Housing Joint Board, et al., Respondents.
    Submitted July 19, 1949;
    decided October 6, 1949.
   Motion for reargument or to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 298 N. Y. 516.]


text:
    The People of the State of New York, Respondent, v. Samuel T. Williams, Appellant.
    Submitted October 10,1949;
    decided October 11, 1949.
   Motion for reargument denied. [See 298 N. Y. 803.]


text:
    In the Matter of the Accounting of First Trust & Deposit Company, as Trustee under the Will of Gertrude W. Belden, Deceased, Respondent. John W. Blagbrough, et al., Infants, by Francis P. Maloney, Their Special Guardian, Appellants.
    Submitted July 19, 1949;
    decided October 13, 1949.

      Francis P. Maloney, special guardian, for motion.

      Henry H. Bruce opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of John R. O’Neill, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Submitted October 4, 1949;
    decided October 13, 1949.
   Motion to amend remittitur insofar as it awards costs to the respondent against the appellant denied. [See 298 N. Y. 777.]


text:
    City Bank Farmers Trust Company, as Trustee for Helen M. Wiegers and Others under the Deeds of Trust Made by Bernarr Macfadden, Respondent, v. Mary Macfadden, Appellant, and Bernarr Macfadden et al., Respondents.
    Submitted October 4, 1949;
    decided October 13, 1949.
   Motion by appellant for reargument denied, with $10 costs and necessary printing disbursements. [See 299 N. Y. 711.]


text:
    In the Matter of the Claim of Joseph Tower, Appellant, against Staten Island Shipbuilding Co., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted October 4, 1949;
    decided October 13, 1949.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Boy Wiedersum of counsel), John M. Cullen and William E. Goldman for motions.
    No one opposed.
   Motions granted and appeal dismissed, with costs and $10 costs of motion, on the ground that no substantial constitutional question is presented.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Brooklyn-Battery Tunnel Plaza and to Permit Distribution of Tunnel Traffic, etc., in the Area Bounded by Battery Place and Other Streets, in the Borough of Manhattan. Chesebrough Building Co. et al., Appellants.
    Submitted October 4, 1949;
    decided October 13, 1949.

      Charles Lamb and Walter L. Hopkins for motion.

      John P. McGrath, Corporation Counsel -(Harry E. O’Donnell, Reuben Levy and Bernard H. Friedman of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Brooklyn-Battery Tunnel Plaza, and to Permit Distribution of Tunnel Traffic, etc., in the Borough of Manhattan. Twenty Five Broadway Corporation, Appellant.
    Submitted October 4, 1949;
    decided October 13, 1949.

      George DeForest Lord, Charles Lamb and Walter L. Hopkins for motion.

      John P. McGrath, Corporation Counsel (Harry E. O’Donnell, Reuben Levy and Bernard H. Friedman of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless, within fifteen days, all papers required by rule 21 (subd. [b]) of the Rules of the Court of Appeals are filed.


text:
    The People of the State of New York, Respondent, v. Leo Coniglio, Appellant.
    Submitted October 4, 1949;
    decided October 13, 1949.
   Motion by appellant for reargument denied. [See 299 N. Y. 744.]


text:
    The People of the State of New York ex rel. Andrew G. Coppinger, Relator, against Milton Klein, as Warden of the Penitentiary of the City of New York, Respondent.
    Submitted October 4, 1949;
    decided October 13, 1949.

      Andrew G. Coppinger, in person, for motion.

      Charles P. Sullivan, District Attorney (Howard B. Lonergan of counsel), opposed.
   ■ Motion denied and appeal dismissed.


text:
    In the Matter of Harry Silberglitt et al., Appellants, against Joseph A. McNamara et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Argued October 5, 1949;
    decided October 20, 1949.

      Matthew Silverman for appellants.

      John P. McGrath, Corporation Counsel (Daniel T. Scannell and Seymour B. Quel of counsel), for Municipal Civil Service Commission, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ. Taking no part: Bromley, J.


text:
    Madison Avenue Coach Company, Inc., Respondent, v. City of New York, Appellant. Eighth Avenue Coach Corporation, Respondent, v. City of New York, Appellant. New York City Omnibus Corporation, Respondent, v. City of New York, Appellant.
    Argued October 7, 1949;
    decided October 29, 1949.

      John P. McGrath, Corporation Counsel (William A. Marks, Seymour B. Quel, James J. Thornton and Stanley Buchsbaum of counsel), for appellant.

      Grayson M-P. Murphy and William P. Hamilton for respondents.
   In each action: Judgment affirmed, with costs. No opinon.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Beomley, JJ.


text:
    Mezey Motors, Inc., Appellant, v. William O’Dwyer et al., Constituting the Board of Estimate of the City of New York, et al., Respondents.
    Argued October 4, 1949;
    decided October 20, 1949.

      Raymond J. McGrover for appellant.

      John P. McGrath, Corporation Counsel (Reuben Levy, Harry E. O’Donnell and Benjamin Offner of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkan Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of Clifford Johnston, Appellant, against Clifford J. Fletcher, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Submitted October 5, 1949;
    decided October 20, 1949.

      Hamilton Lieb for appellant.

      Nathaniel L. Goldstein, Attorney-General (Daniel M. Cohen, Wendell P. Brown and Murray Sylvester of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran Ch.. J., Lewis, Conway,- Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Arbitration between Active Fabrics Corporation, Respondent, and Rosedale Fabrics Incorporated, Appellant.
    Argued October 7, 1949;
    decided October 20, 1949.

      Maurice Danson and Sydney Hut for appellant.

      Isidor Enselman and Paul Abrams for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Joseph Nastasi, Appellant, v. State of New York, Respondent.
    (Claim No. 27825.)
    Argued October 10, 1949;
    decided October 20, 1949.

      Benedict 8. Rosenféld and Albert Jahobson for appellant.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison, Wendell P. Brown and Ronald E. Coleman of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loitghran Ch. J., Lewis, Conway, Desmond, Dye. Fuld and Bromley, JJ.


text:
    In the Matter of the Probate of the Will of Ann E. Nichols, Deceased. George M. Nichols, Appellant; Margaret N. Scott, Respondent.
    Argued October 6, 1949;
    decided October 20, 1949.

      John K. Hawkins for appellant.

      Jack Stanislaw for respondent.
   Order affirmed, with costs payable out of the estate to all parties appearing separately and filing separate briefs. No opinion.

Concur: Loughran Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    In the Matter of the Arbitration between Fabriton Corporation, Respondent; and Lester Martin & Co., Inc., Appellant.
    Argued October 11, 1949;
    decided October 20, 1949.

      A. Albert Minton for appellant.

      Lawrence Brmnstem for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ.


text:
    Charles Miller Coat Company, Inc., Appellant, v. Myron Herbert, Inc., Respondent, et al., Defendants.
    Argued October 10, 1949;
    decided October 20, 1949.

      Coring B. Lecraw, Milton P. Kinsey and Edward M. Kolbell for appellant.

      Charles 8. Port for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Lottghran Oh. J., Lewis, Conway, Desmond, Dye, Fijld and Bromley, JJ.


text:
    In the Matter of James J. Mallen, Respondent, against Ferdinand Q. Morton et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued October 11, 1949;
    decided October 20, 1949.

      JohnP. McGrath, Corporation Counsel (Thomas W. A. Crowe and Seymour B. Quel of counsel), for appellants.

      Leo Brown and Robert E. Schaffer for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ. Taking no part: Bromley, J.


text:
    In the Matter of H. P. Hood & Sons, Inc., Appellant, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
    Reargued October 14, 1949;
    decided October 20, 1949.

      John R. Titus for appellant.

      Robert O. Blábey and Donald L. Brush for respondent.
   Upon reargument: Order of Appellate Division reversed and determination of the Commissioner of Agriculture and Markets annulled and the Commissioner of Agriculture and Markets directed to issue the license applied for by the petitioner, with costs in this court and in the Appellate Division. No opinion.

Concur: Lotighran, Ch. J., Lewis, Conway, Desmond, Dye, Feld and Bromley, JJ.