author: Loughran, Ch. J. Conway, J.

text:
    Erie County Water Authority, Respondent, v. Western New York Water Company et al., Appellants, et al., Defendants.
    Argued April 9, 1952;
    decided July 15, 1952.

      Reid 8. Moule and Milton 8. Gould for appellants.
    I. The Erie County Court had authority to rule on the propriety of Olmsted’s appearance before it. (Brown v. Miller, 286 F. 994; Porter v. Huber, 68 F. Supp. 132; Watson v. Watson, 171 Misc. 175; Packer v. Rappoport, 88 N. Y. S. 2d 118; People ex rel. Karlin v. Culkin, 248 N. Y. 465; Matter of Ropiecki, 246 App. Div. 80; Matter of H-, 87 N. Y. 521; Leviten v. Sandbank, 291 N. Y. 352.) II. Olmsted’s appearance is a violation of Canon 36 of the Canons of Professional Ethics. (Porter v. Huber, 68 F. Supp. 132.) III. Olmsted’s appearance is in violation of section 15 of the Public Service Law.

      Laurence J. Olmsted and Melvin L. Bong for respondent.
    I. The right and power to regulate the practice of law is vested in the Legislature, and only to the extent that such power has been delegated to the courts do the courts have the right to act. (People ex rel. Karlin v. Culkin, 248 N. Y. 465; Matter of Bercu, 188 Misc. 406; Matter of Donegan, 282 N. Y. 285; Matter of Ellis, 258 App. Div. 558, 282 N. Y. 435; Matter of Tuck, 180 App. Div. 924; Matter of Branch, 178 App. Div. 585; Post v. Louis, 184 App. Div. 533; Dollard v. Koronsky, 67 Misc. 90, 138 App. Div. 213, 199 N. Y. 558; People ex rel. Munsell v. Court of Oyer & Terminer, 101 N. Y. 245; King v. Barnes, 113 N. Y. 476; People ex rel. Platt v. Rice, 144 N. Y. 249; Johnson v. Ackerman, 192 App. Div. 890; Goldie v. Goldie, 77 App. Div. 12; Landry v. Landry, 215 App. Div. 316; West Hudson Co. Trust Co. v. Waldron, 119 App. Div. 294.) II. The power of the court to inquire, upon its own motion, or to pass upon the validity of objections raised to the propriety of the appearance of any attorney in litigation before the court is a quasi-administrative remedy whereby the court is given information that nmy move it to other acts thereafter. (People ex rel. Karlin v. Culkin, 248 N. Y. 465; Matter of Eldridge, 82 N. Y. 161.) III. The decision of the County Court is fully supported by the evidence.
   Loughran, Ch. J.

This condemnation proceeding was instituted in the County Court of Erie County by the plaintiff Erie County Water Authority to acquire property rights of the defendants Western New York Water Company and New York Water Service Corporation. When the issues came on to be heard, counsel for the defendant companies orally moved the County Court for an order prohibiting Laurence J. Olmsted, a member of the profession of the Bar in this State, from appearing in the proceeding as counsel for the plaintiff water authority.

In 1936, Mr. Olmsted had entered the employ of the Public Service Commission of this State as an attorney at law and several years later had been advanced to the rank of Assistant Counsel to the commission, a position which he occupied until May 16, 1951, when he resigned and accepted employment as counsel for the plaintiff water authority. When the defendant companies challenged the propriety of the appearance of Mr. Olmsted herein, he entered a special appearance, denied the power of the County Court to determine the charge made against him by the defendant companies and insisted that exclusive jurisdiction to dispose of such an accusation was conferred by section 90 of the Judiciary Law upon the Appellate Division of the New York Supreme Court. The County Court, however, assumed jurisdiction of the motion made against Mr. Olmsted by the defendant companies and, after a hearing, denied that motion in an opinion which reads in part as follows:

“ Did Olmsted investigate or pass upon this matter while acting as attorney for the Public Service Commission?

The facts disclose that he had appeared for the Commission in 1941 in hearings relative to the Western New York Water Company’s compliance with orders of the Commission, and from 1947 to 1949 in connection with a rate case involving the Water Company. He also appeared as a spectator in various hearings of like nature involving the Water Company. * * *

Olmsted had never appeared in this proceeding or any other related thereto prior to his employment by the plaintiff. He has never appeared for or on behalf of the Western New York Water Company in any manner. His former employer the Public Service Commission, is not a party to and is not interested in this condemnation action.”

In accordance with its views as so expressed, the County Court made an order which (1) denied the oral motion whereby the defendant companies sought to bar appearance herein by Mr. Olmsted as counsel for the plaintiff water authority, and (2) granted leave to Mr. Olmsted to appear herein as trial counsel and as attorney for the plaintiff water authority.

From that order of the County Court the defendant companies appealed to the Appellate Division where that order was affirmed on the sole ground that the County Court had no jurisdiction to grant the motion made by the defendant companies against Mr. Olmsted. All the Justices of the Appellate Division were of opinion that the County Court was without jurisdiction of that motion. One Justice, however, dissented and voted for reversal of the order of the County Court and dismissal of the motion upon these grounds: (1) The County Court was without jurisdiction to entertain the motion or to grant the relief therein sought; (2) the order of the County Court was a nullity; (3) the objection made by Mr. Olmsted to the jurisdiction of the County Court should have been sustained.

On an appeal by the defendant companies from the order of the Appellate Division, the case is now properly here (Erie Co. Water Authority v. Western N. Y. Water Co., 303 N. Y. 908. See Cohen and Karger, Powers of the New York Court of Appeals, § 45, pp. 181-183).

In the brief submitted to us in behalf of the defendant companies, their counsel says: “ The issue in this proceeding involves neither censure or suspension * * *. The issue involves disqualification in a particular matter, or more particularly, the inherent authority of all courts * * * to bar the appearance of an attorney-at-law in a pending cause where the facts so warrant or demand.” This assertion, we think, has no warrant in the record.

In the County Court counsel for the defendant companies accused Mr. Olmsted of violating Canon 36 of the Canons of Professional Ethics of the American Bar Association by accepting employment with the plaintiff water authority in connection with matters which he had investigated or passed upon in the course of his employment as an attorney at law for the New York Public Service Commission. At the same time, counsel for the defendant companies also accused Mr. Olmsted of a violation of section 15 of the New York Public Service Law by making unauthorized disclosures of information which had come to his knowledge when, as an employee of the New York Public Service Commission, he was examining records of the defendant companies.

In short, counsel for the defendant companies at the hearing herein charged Mr. Olmsted with professional misconduct and conduct that was prejudicial to the administration of justice. If the County Court had disqualified ’ ’ Mr. Olmsted upon the basis of that charge, as the defendant companies requested, then the action of the County Court would have been nothing more than a futile attempt to exercise a jurisdiction which had not been committed to that court.

The members of the profession of the Bar in this State are officers of the New York Supreme Court and the Appellate Division of that court has exclusive jurisdiction to say what constitutes professional misconduct on their part (Judiciary Law, § 90, subd. 2; see People ex rel. Karlin v. Culkin, 248 N. Y. 465). Moreover, the punishment that is to follow must be determined by the Appellate Division and is not subject to revision even in this court (Matter of Axtell, 257 N. Y. 210).

The order of the Appellate Division should be affirmed, with costs.

Conway, J.

(dissenting). The defendants-appellants, Western New York Water Company, and its-parent company, New York Water Service Corporation, moved in the Erie County Court to bar the appearance of one Olmsted as trial counsel for plaintiff, Erie County Water Authority (hereinafter called the Authority), in a proceeding to condemn the water plant and property of the Western New York Water Company (hereinafter called the Company). The proceeding was instituted by the Authority to acquire the properties of the Company and Olmsted was engaged as trial counsel on May 16, 1951, the same day on which he resigned as Assistant Counsel to the Public Service Commission. He had been employed continuously as an attorney with the Public Service Commission from the year 1936 to May 16, 1951. During the period from 1947 until his resignation from the Public Service Commission, he had handled proceedings for the commission in which the Company was a party. The commission had investigated and passed upon the propriety of the Company’s rates and charges and the adequacy of the Company’s facilities and service during that period. In February, 1951, prior to the commencement of the condemnation proceeding the attorney for the Authority inquired of Olmsted whether he would be available to accept a retainer from the Authority in connection with the trial of the condemnation proceeding and whether he could obtain a leave of absence from the commission for that purpose. That conversation was reported to the chairman of the commission and thereafter on April 6, 1951, the Authority made an application requesting that Olmsted be granted leave of absence. The application was accompanied by a resolution adopted by the authority which recited that it would be highly desirable ” for the Authority to engage the services of Olmsted as trial counsel provided a leave of absence were granted by the commission, and that ‘ ‘ it would be highly desirable, and in the public interest, for the Authority to obtain any and all available knowledge and information with respect to the system, plants, properties, operations and financial condition of the Western New York Water Company in the possession of the Public Service Commission.” The resolution further provided that in view of section 15 of the Public Service Law, the Authority requested the commission to direct Olmsted “ to divulge and disclose to the Water Authority, and to any court or commission having jurisdiction of such condemnation proceeding, any facts or information which may have come to [his] knowledge during the course of any inspection or examination of the property, accounts, records or memoranda of the Western New York Water Company, while in the employ of the Public Service Commissmn ”. The commission denied the Authority’s request that Olmsted be granted an extended- leave of absence and refused to waive section 15 of the Public Service Law on the ground that “ a blanket order granting access to all working papers in all pending and closed cases relating to said utility would cause serious administrative difficulties. It believes that the more desirable procedure would be for the Authority to request such specific working papers as it deems necessary for its use ”.

Subsequently, on May 16, 1951, Olmsted resigned his position with the commission and commenced his employment with the Authority on the same day. Under the terms of the agreement Olmsted’s employment was to be for a period of six months, at a salary of $2,000 a month, during which period he was to devote his full time to the condemnation proceeding. The agreement also provided that “ should said Special Counsel [Olmsted] become disqualified to act as an employee of the Water Authority by reason of the provisions of the Public Service Law, then this contract shall be immediately terminated without further liability or responsibility to either of the parties hereto. ’ ’

The Authority on August 7, 1951, filed with the Erie County Court its petition to condemn the property at which time the Company challenged Olmsted’s right to appear for the Authority. The proceeding before the County Court was adjourned until August 15, 1951, when counsel for the Company again raised objections to Olmsted’s appearance. The Company contended that the Authority employed Olmsted as counsel in order to obtain the benefits of his special knowledge and privileged information concerning the Company while in the employ of the Public Service Commission. The Company urged that Olmsted should be barred from appearing in the proceeding because of Canon 36 of the Canons of Professional Ethics of the American Bar Association and section 15 of the Public Service Law (supra, n. 1).

Olmsted contended that all the information he possessed was a matter of public record, and that the Supreme Court and the Appellate Division had exclusive jurisdiction, by virtue of the provisions contained in subdivision 2 of section 90 of the Judiciary Law, to determine whether or not he should be permitted to appear in the matter.

Whether or not the information possessed by Olmsted is a matter of public record has no relevancy when Canon 36 is under consideration. (The Canons of Professional Ethics and Judicial Ethics of the American Bar Association, including Canon 36, have been adopted in this State as rules of conduct for attorneys in our courts. [McKinney’s Cons. Laws of N. Y., Book 29, Judiciary Law, p. 764 et seq.].) He was requested by counsel for Company to take the witness stand so that he might be interrogated and he refused to do so. The County Judge refused-a request of Company for a direction that he do so saying: “I cannot request him to take the stand.”

The Trial Judge ruled that the County Court has jurisdiction to decide who is qualified to appear and who is disqualified to appear before the Court, and I so hold. ’ ’ After a hearing the County Court denied the motion to bar Olmsted’s appearance for the reason that Canon 36 of the Canons of Professional Ethics was not applicable since there was no identity of facts or subject matter in the matters handled by Olmsted for the commission and to be presented by him in the condemnation proceeding. The Appellate Division, Fourth Department, affirmed the order of the County Court ‘ on the sole ground that the Erie County Court had no jurisdiction to grant the relief sought.” (279 App. Div. 712, 713.) One Justice dissented and voted for a reversal of the order and dismissal of the proceeding ‘ ‘ upon the ground that the court was without jurisdiction to entertain the matter or to grant the relief therein sought and upon the further ground that the order was a nullity.” The majority of the Appellate Division has apparently held that the County Court had jurisdiction to inquire into the propriety of the appearance of Olmsted before it but was without power to bar his appearance.

Whether or not the County Court possessed jurisdiction to bar the appearance of Olmsted as attorney for the Authority in this litigation turns on whether or not the disqualification of an attorney in a particular matter is a disciplinary proceeding cognizable only by the Appellate Division under subdivision 2 of section 90 of the Judiciary Law. That section authorizes the Appellate Division in each department to censure, suspend from practice or remove from office ” any attorney guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any other conduct prejudicial to the administration of justice”.

Clearly, the disqualification of an attorney in a particular matter does not constitute a censure for a censure is a formal and direct reprimand. Disqualification is not to be characterized as a censure or as an action of a disciplinary nature and hence within the jurisdiction solely of the Appellate Division for the reason that it may be regarded by some persons as reflecting upon the professional behavior of the attorney whose appearance has been barred. The reproval, if any there be, is indirect and incidental. At times, courts, in the discharge of their duty to assure to parties before them a fair and orderly hearing, are compelled to direct remarks to attorneys which may reflect indirectly upon their professional conduct. It could not be seriously urged that the courts exceed their power in so doing.

Neither does a disqualification amount to a suspension or removal for in the event of a suspension or removal the order of the Appellate Division contains a direction to the attorney to refrain from the practice of law “ in any form ” and forbids his appearance as an attorney before “ any court, judge, justice, board, commission or other public authority.” Thus the suspension or removal of an attorney pursuant to subdivision 2 of section 90 operates as a suspension or removal in every court in this State and the attorney is barred from' practicing law anywhere in any form either for the period of time that he is suspended or permanently if he be removed. Thus it is evident that a proceeding brought under section 90 is directly and not incidentally concerned with the fitness of an attorney to practice his profession. No question is raised here as to the fitness of Olmsted to continue to practice his profession — neither censure, suspension nor disbarment is sought. All that respondent seeks here is disqualification in this one case.

The distinction between a formal disciplinary proceeding and the action of a court in the exercise of its inherent authority to regulate the activities of its officers and to forbid the appearance of an attorney in an action pending before a court of record has been recognized in Brown v. Miller (286 F. 994, 997) where it was sought to bar an attorney from appearing in a particular matter.

Courts in this State and other States have acted upon the basis of their inherent authority to forbid the appearance of an attorney in a particular case where the facts warranted it. (Watson v. Watson, 171 Misc. 175; Brown v. Miller, supra: Porter v. Huber, 68 F. Supp. 132; see, also, Packer v. Rapoport, 88 N. Y. S. 2d 118, revd. on other grounds 275 App. Div. 820; Weidekind v. Tuolumne Co. Water Co., 74 Cal. 386.)

In the absence of statute, there could be no question of the power of the County Court to bar an attorney from appearing in the matter at hand. The rule is set forth in Corpus Juris Secundum (Yol. 7, Attorney and Client, pp. 730-731) as follows: ■“ Generally, all courts of record have power in a proper case to suspend or annul the license of an attorney practicing in the particular court pronouncing sentence, but the power to go further and make the suspension or revocation effective in all other courts * # * must be conferred by statute.”

The statute here, subdivision 2 of section 90, is concerned with the disciplining of an attorney who has already committed an act of misconduct. As yet Olmsted has not been charged with committing misconduct or impropriety. In barring him from appearing in this litigation the County Court might be preventing him from committing an act of misconduct for which he could be punished. Unless he has acted as attorney for the Authority there may be no basis for a disciplinary proceeding. Once the condemnation proceeding goes to trial the appellants may lose their right to a fair trial if confidential, privileged information and special knowledge which Olmsted was in a position to acquire while in public employment, is used on behalf of his new client. Hence, the only proper way to insure a fair trial may be to disqualify an attorney who had opportunity to obtain special and privileged information through sanction of a statute while representing another client. No case has been called to our attention in this State where the question of whether an attorney should be barred from appearing in the litigation at hand was treated as a disciplinary matter solely to be dealt with by an appropriate petition to the Appellate Division. That brings us to the next point. The procedure provided for implementing subdivision 2 of section 90 is cumbersome and is aimed at investigation and punishment of an attorney for past conduct. By rule V of the Rules Relating to Attorneys óf the Appellate Division, Fourth Department, a petition for investigation of the conduct of an attorney may be presented to the Appellate Division by any person claiming to be aggrieved. This is done through a notice of motion and provision is made in the statute for the service of a copy of the charge upon the attorney involved. The petitioner may have to wait until the commencement of a term of the Appellate Division in order to bring on a hearing as to the propriety of an appearance of an attorney in pending litigation. As we view it the disciplinary procedure set forth in section 90 is a means of disciplining or punishing an attorney for acts of misconduct already committed, such as conversion of funds, ambulance chasing, fraud, bribery and the like. Where an attorney is disqualified in a particular case no charges are thereby preferred against him. Such action is taken to insure a fair trial without necessarily subjecting the attorney to the stigma of disciplinary action. The conduct of an attorney may be ill advised and inconsistent with public policy and the ethics of his profession but may not be of such a character as to necessitate the institution of disciplinary proceedings against him. (See Porter v. Huber, 68 F. Supp. 132, supra.)

The disqualification of an attorney in a particular proceeding has to do with the proper conduct of litigation before the court and is a matter over which the court has inherent power. It is similar to the power to pass upon the qualification of a witness to take the stand or the power to punish for contempt committed in the presence of the court which power was inherent in our judicial system and possessed by courts prior to and apart from statute.

Likewise, “ the courts by virtue of their inherent power and control over their own officers, and quite independent of specific statutory provision, will under proper circumstances exercise jurisdiction and summarily compel an attorney to fulfill his obligations toward his client by paying money or delivering documents which belong to him * * (Matter of Niagara, Lockport & Ontario Power Co., 203 N. Y. 493, 496-497, and cases cited therein. See Matter of Long, 287 N. Y. 449.) Such action by the court is not disciplinary in nature even though the conduct of the attorney may be such as to warrant the institution of a disciplinary proceeding against him.

The case should be remitted to the Appellate Division to pass upon the question of whether Olmsted should be barred from appearing in this litigation.

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

Order affirmed.

       Section 15 of the Public Service Law insofar as pertinent provides: “ Any employee or agent of the commission who divulges any fact or information which may come to his knowledge during the course of any inspection or examination of the property, accounts, records or memoranda of any person, corporation or municipality subject to the jurisdiction of the commission, except in so far as he may be directed by the commission, or by a court or judge, or authorized by law, shall be guilty of a misdemeanor.”

       Canon 36 provides: “ A lawyer, having once held public office or having been in the public employment, should not after his retirement accept employment in connection with any matter which he had investigated or passed upon while in such office or employ.”

       Subdivision 2 of section 90 of the Judiciary Law reads as follows:

        “2. The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and eounsellor-at-law admitted to practice -who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice.

        “ It shall be the duty of the appellate division to insert in each order of suspension or removal hereafter rendered a provision which shall command the attorney and eounsellor-at-law thereafter to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another In addition it shall forbid the performance of any of the following acts, to wit:
      “a. The appearance as an attorney or■ counsellor-at-Iaw before any court, judge, justice, board, commission or other public authority. * * * ”


source: Caselaw Access Project

author: Feoessel, J. Desmond, J.

license: Public Domain

text:
    Arsene Gautier, Appellant, v. Pro-Football, Inc., Defendant, and American Broadcasting Co., Inc., et al., Respondents.
    Argued April 8, 1952;
    decided July 15, 1952.

      Harold M. Goldblatt and Louis P. Bandell for appellant.
    I. The use of plaintiff’s name and picture for advertising purposes was a violation of sections 50 and 51 of the Civil Rights Law for ivhich defendants are answerable in damages. (Franklin v. Columbia Pictures Corp., 246 App. Div. 35, 271 N. Y. 554; Binns v. Vitagraph Co., 210 N. Y. 51; Redmond v. Columbia Pictures Corp., 277 N. Y. 707; Blumenthal v. Picture Classics, 235 App. Div. 570, 261 N. Y. 504; Feeney v. Young, 191 App. Div. 501; Jackson v. Consumer Publications, 169 Misc. 1022, 256 App. Div. 965; Lane v. Woolworth Co., 171 Misc. 66, 256 App. Div. 1065; Lahiri v. Daily Mirror, 162 Misc. 776; Koussevitzky v. Allen, Towne & Heath, 188 Misc. 479, 272 App. Div. 759; Witmark & Sons v. Bamberger & Co., 291 F. 776.) II. Plaintiff, as a public performer, did not waive his right of privacy under the Civil Rights Law. (Franklin v. Columbia Pictures Corp., 246 App. Div. 35, 271 N. Y. 554; Redmond v. Columbia Pictures Corp., 253 App. Div. 708, 277 N. Y. 707; Lane v. Woolworth Co., 171 Misc. 66, 256 App. Div. 1065; Fisher v. Murray M. Rosenberg, Inc., 175 Misc. 370.) III. The acts and conduct of which plaintiff complains occurred not in Washington, D. C., as respondents’ counsel erroneously states, but in New York. (Ford v. Heaney, N. Y. L. J., Aug. 3, 1915, p. 1639.)

      Jonas T. Silverstone and Michael Rechler for American G-uild of Variety Artists, amicus curios, in support of appellant’s position.
    I. The trial court properly found that although appellant had objected, he was televised for <£ advertising purposes ”. (Witmark & Sons v. Bamberger & Co., 291 F. 776.) II. The trial court properly found that the telecast of plaintiff did not constitute a public event or news. (Redmond v. Columbia Pictures Corp., 277 N. Y. 707; Franklin v. Columbia Pictures Corp., 271 N. Y. 554; Binns v. Vitagraph Co., 210 N. Y. 51.) III. The trial court properly found that appellant did not waive his rights to privacy. (Redmond v. Columbia Pictures Corp., 277 N. Y. 707; Waring v. WDAS, 327 Pa. 433.)

      Walter B. Barry and Carleton G. Eldridge, Jr., for respondents.
    I. Televising plaintiff’s act did not constitute a violation of sections 50 and 51 of the Civil Bights Law. (Roberson v. Rochester Folding Box Co., 171 N. Y. 538; Humiston v. Universal Film Mfg. Co., 189 App. Div. 467; Jeffries v. New York Evening Journal Pub. Co., 67 Misc. 570; Colyer v. Fox Pub. Co., 162 App. Div. 297; Sidis v. F-R Pub. Corp., 113 F. 2d 806; Koussevitzky v. Allen, Towne & Heath, 188 Misc. 479, 272 App. Div. 759; Lahiri v. Daily Mirror, 162 Misc. 776; King v. Winchell, 248 App. Div. 809; Wallach v. Bacharach, 192 Misc. 979, 84 N. Y. S. 2d 894; Damron v. Doubleday, Doran Book Shops, 133 Misc. 302, 226 App. Div. 796.) II. Plaintiff as a public performer waived his right of privacy. (Sweenek v. Pathe News, 16 F. Supp. 746; O’Brien v. Pabst Sales Co., 124 F. 2d 167, 315 U. S. 823; Cohen v. Marx, 211 P. 2d 320 [Cal.]; Wilson v. Brown, 189 Misc. 79; Levey v. Warner Bros. Pictures, 57 F. Supp. 40; Toscani v. Hersey, 271 App. Div. 445.) III. A nonfictionalized use of plaintiff’s name and picture in a sponsored telecast does not ipso facto violate sections 50 and 51 of the Civil Rights Law. (King v. Winchell, 248 App. Div. 809; Wallach v. Bacharach, 192 Misc. 979; Witmark & Sons v. Bamberger & Co., 291 F. 776; Associated Music Publishers v. Debs Memorial Radio Fund, 141 F. 2d 852.) IY. The acts and conduct of which plaintiff complains occurred in Washington, D. C. (Banks v. King Features Syndicate, 30 F. Supp. 352; United States v. Smith, 173 F. 227; Fried, Mendelson & Co. v. Halstead, Ltd., 203 App. Div. 113; Campbell v. Willmark Service System, 123 F. 2d 204; Haskell v. Bailey, 63 F. 873; Hull v. Vreeland, 42 Barb. 543; Vitolo v. Bee Pub. Co., 66 App. Div. 582; Paxson v. Davis, 62 D. C. App. 146; Scheer v. Rockne Motors Corp., 68 F. 2d 942.)
   Feoessel, J.

Plaintiff, alleging a violation of his right of privacy, brought this action in the City Court of New York City pursuant to the provisions of section 51 of the Civil Rights Law, which provides: “ Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without [such person’s] written consent * * * may * * * sue and recover damages for any injuries sustained by reason of such use ”. Under section 50, such violation is a misdemeanor.

Plaintiff is a well-known trainer of animals. On December 5, 1948, he performed before an audience of 35,000 persons in Griffith Stadium, Washington, D. C., between the halves of a professional football game, pursuant to contract with Pro-Football, Inc., which owns the Washington Redskins football team. The contract was on the standard form of the American Guild of Variety Artists (AGVA), and provided that plaintiff’s act should not be televised without the written consent and approval of AGVA. It does not appear that such consent was ever sought or obtained, prior to the televising of plaintiff’s performance, although the performance in question was telecast in New York by defendant American Broadcasting Co., Inc., with the permission of the Washington television station, Pro-Football, Inc., and the commissioner of the National Football League. The trial court found that plaintiff made formal objection to being televised, and this finding was expressly approved by the Appellate Division.

The picture was sent by coaxial cable from Washington to New York and there transmitted to viewers from American’s television station, WJZ-TV, while the audio portions were carried by direct wire, American’s own announcer being employed. In the course of the program, paid commercial announcements were made in respect of defendant Liggett & Myers Tobacco Co.’s product, Chesterfield cigarettes, the same having been arranged by defendant Newell-Emmett Co. The telecast was viewed via an estimated 17,000 of the 370,000 sets then in use in the New York area. While defendants claim that any alleged wrong was committed in Washington and not in New York, we deem it self-evident on the foregoing facts that plaintiff’s picture was used within this state ” (Civil Rights Law, § 51). So the courts below have held.

The manner in which plaintiff’s act was presented was as follows: After the first half of the game, and immediately before plaintiff’s act, a one-minute interim commercial announcement was made. Plaintiff’s act was then presented for a period of seven or eight minutes, with a description by the announcer, but without any commercial reference; the announcer merely described to the audience the conduct of the act following a preliminary interview with plaintiff before the start of the game. There were other acts following plaintiff’s. Thereafter, and just before the start of the second half of the game, there was another interim commercial announcement.

The trial court accepted plaintiff’s contentions that the foregoing use of his name and picture constituted a use for advertising purposes, and that the program was not of news or a public event. The Appellate Division held (278 App. Div. 431, 435, 439) that such mere use on a sponsored program, absent ‘ ‘ exploitation of a name or picture in the commercial announcement or in direct connection with the product itself, ’ ’ does not constitute a violation of the statute as ‘ ‘ advertising purposes ’ ’. It was also held that plaintiff’s name and picture were not used for “ purposes of trade ” under the well-recognized exception to the statute applied to media for the dissemination of news and information. That court took note of the fact that the only issues presented here pertain to the Civil Rights Law, and expressly left open the question whether plaintiff might recover “ upon a proper record ” under any other legal theory.”

In this State, the right of privacy rests solely in statute (Roberson v. Rochester Folding Box Co., 171 N. Y. 538; Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223, affd. sub nom. Sperry & Hutchinson Co. v. Rhodes, 220 U. S. 502; Civil Rights Law, §§ 50, 51). As the Roberson and Rhodes cases show, the statute was born of the need to protect the individual from selfish, commercial exploitation of his personality. Nevertheless, in construing the act, it should be borne in mind that it is partly penal in effect (Binns v. Vitagraph Co., 210 N. Y. 51, 55; see Civil Rights Law, § 50). With these principles before us, can it be said that plaintiff’s picture was used for advertising purposes?

Although the telecast was paid for by defendant Liggett & Myers Tobacco Co., the entire program was not thereby constituted a solicitation for patronage. In return for such payment, said defendant secured the right to solicit patronage on that program by means of commercial announcements. Unless plaintiff’s name or picture were in some way connected with the “ commercial ”, the mere fact of sponsorship of the telecast would not, in our opinion, suffice to violate the statute in this respect. Here no such connection was shown, for the commercial announcements were presented at usual and appropriate intervals; it was nothing more than coincidence that one such announcement, made at the close of the first half, occurred immediately prior to his act. He was not connected with the product either by visual, oral or other reference, nor was any issue of fact created by the physical juxtaposition of the single announcement prior to his performance. We conclude, therefore, as did the Appellate Division, that there was no use of plaintiff’s name or picture for advertising purposes, within the meaning of section 51 of the Civil Rights Law.

Like other media of communication, television may have either a trade aspect or an informative or news aspect. In the latter situation, it should be entitled to the same privilege accorded other such media where the statutory right to privacy is drawn in issue. It has long been recognized that the use of name or picture in a newspaper, magazine, or newsreel, in connection with an item of news or one that is newsworthy, is not a use for purposes of trade within the meaning of the Civil Rights Law (Sidis v. F-R Pub. Corp., 113 F. 2d 806 [C. A. 2d], certiorari denied 311 U. S. 711; Molony v. Boy Comics Publishers, 277 App. Div. 166 [a comic book]; Humiston v. Universal Film Mfg. Co., 189 App. Div. 467; Lahiri v. Daily Mirror, 162 Misc. 776; see d’Altomonte v. New York Herald Co., 208 N. Y. 596, modfg. 154 App. Div. 453; see, also, Callas v. Whisper, Inc., 303 N. Y. 759; Warren and Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193, 214). The connection must, of course, be a legitimate one; the individual may not be singled out and unduly featured merely because he is on the scene (Blumenthal v. Picture Classics, 235 App. Div. 570, affd. 261 N. Y. 504).

While one who is a public figure or is presently newsworthy may be the proper subject of news or informative presentation, the privilege does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information (Redmond v. Columbia Pictures Corp., 277 N. Y. 707; Franklin v. Columbia Pictures Corp., 246 App. Div. 35, affd. 271 N. Y. 554; Binns v. Vitagraph Co., supra; Sutton v. Hearst Corp., 277 App. Div. 155). Thus, in the Redmond and Franklin cases, the plaintiffs had been photographed for newsreel purposes, to which no objection was made. The films were later sold and used as part of short feature pictures dealing in a humorous manner with the sports involved, which were distributed for profit in numerous moving picture theatres. This, we said, was a use for purposes of trade. Similarly, in the Binns case, we held that one acclaimed as a hero for his feats in connection with a rescue at sea was entitled to protection against fictionalization of his exploit, and the use of his name and personality for mere commercial, as distinguished from news, purposes. Again, in the Sutton case, although the story of a woman who was bequeathed one perfect rose a week by a secret admirer was newsworthy, the defendant was held liable because the story as presented to the reader was so embellished in the telling that it was no longer a factual report of the events which actually took place. In the Blumenthal case, a motion picture company filmed a picture purporting to portray picturesque parts of the city of New York, which it sold, distributed and displayed for trade purposes to local motion picture theatres. Included, however, was a closeup, full-sized picture of plaintiff' vending bread and rolls on the street, shown for a period of some six seconds.

The Blumenthal case (supra) illustrates the area of privacy which may not be invaded even in this modern era of television. One traveling upon the public highway may expect to be televised, but only as an incidental part of the general scene. So, one attending a public event such as a professional football game may expect to be televised in the status in which he attends. If a mere spectator, he may be taken as part of the general audience, but may not be picked out of a crowd alone, thrust upon the screen and unduly featured for public view. Where, however, one is a public personage, an actual participant in a public event, or where some newsworthy incident affecting him is taking place, the right of privacy is not absolute, but limited. Here plaintiff, unlike Mrs. Blumenthal, consented to perform before 35,000 spectators in a professional football game that had wide and legitimate public interest. While not a part of the game proper, he' did become a part of the spectacle as a whole by appearing between the halves, and voluntarily occupying the very center of attraction for several minutes. Under these circumstances, it can hardly be said that his right of privacy was invaded.

While plaintiff’s contract with Pro-Football, Inc., providing that he be not televised, may well give rise to an action for breach of contract as between them, we hold here that any such breach of contract would not, of itself, also give rise to a cause of action under section 51 of the Civil Rights Law. Nor need we pause to consider what effect any other treatment would have had on plaintiff’s rights under the statute (see, e.g., Redmond v. Columbia Pictures Corp., supra; Franklin v. Columbia Pictures Corp., supra). In the circumstances here present, he was not shown for purposes of trade, within the meaning of the statute.

The judgment of the Appellate Division should be affirmed, with costs.

Desmond, J.

(concurring). I concur for affirmance, but for reasons differing somewhat from those stated in Judge Froessel’s able and comprehensive opinion. It seems to me that the televising of plaintiff’s act was, in undisputable fact, a use thereof “ for advertising purposes ”, without plaintiff’s consent. The performance of plaintiff’s trained animals became part of a long televised show sponsored by, and advertising the product of, a manufacturer of cigarettes. But that does not end this case. My difficulty is that there was no invasion of any “ right of privacy ”. Plaintiff, a professional entertainer, gave his show before a vast audience in an athletic stadium. His grievance here is not the invasion of his privacy ” — privacy is the one thing he did not want, or need, in his occupation. Plis real complaint, and perhaps a justified one, but one we cannot redress in this suit brought under the New York Right of Privacy ” statutes, is that he was not paid for the telecasting of his show. The decision (Roberson v. Rochester Folding Box Co., 171 N. Y. 538) that led to the enactment of article 5 of the Civil Rights Law, the language of that article itself, and a long-series of construing decisions (many of them mentioned in Judge Froessel’s opinion), all show that the intent of the Privacy ” statutes was to forbid and punish the exploitation, for gain, of a man’s individual personality, that is, invasions of his right to be let alone. Enacted to fill a gap in existing law, article 5 should not be held to apply to a violation of a contract right to be compensated for public or semipublic theatrical, or similar, exhibitions. In no real sense was plaintiff’s “ privacy ” infringed upon.- These statutes have always been narrowly construed, and what plaintiff is asking for is the broadest kind of application.

Lewis, Conway and Dye, JJ., concur with Froessel, J.; Desmond, J., concurs for affirmance in separate opinion: Loughran, Ch. J., and Fuld, J., dissent.

Judgment affirmed.


author: Froessel, J.

text:
    The People of the State of New York, Appellant, v. Stanley S. Corwin, Respondent.
    Argued July 14, 1952;
    decided July 15, 1952.

      Frank A. Gulotta, District Attorney (Philip Huntington, of counsel), for appellant.
    I. It was error to rule that the ordinance in question is unenforcible, because of a supposed defect in the statute, in the absence of any factual showing that the alleged defect had resulted in injury to defendant. It was further error for the County Court to make this ruling xon the appeal, when the objection of the supposed defect in the statute had not been raised at the trial and the facts showing absence of any injury were consequently not in the record. (Stockholders v. Sterling, 300 U. S. 175; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531; Aikins v. Kingsbury, 247 U. S. 484; Hendrick v. Maryland, 235 U. S. 610.) II. The County Judge misconstrued the “ pattern ” of speed regulation that the Legislature has adopted for large cities and State agencies in one category, and small cities and villages in another category. (People v. City of New York, 245 App. Div. 77, 272 N. Y. 608; Commonwealth v. Croninshield, 187 Mass. 221; People v. Untermyer, 153 App. Div. 176; People v. County of Westchester, 282 N. Y. 224.) III. The claim that the provisions of section 775 of the Conservation Law are unreasonable and discriminatory, even if true, would not be a valid ground for reversing the conviction in this case, because the section does not violate any provision of the State or Federal Constitution. (Jones Beach Blvd. Estate v. Moses, 268 N. Y. 362; Commissioners of Palisades Interstate Park v. Lent, 240 N. Y. 1; Pearce v. Stephens, 18 App. Div. 101, 153 N. Y. 673; Bogart v. County of Westchester, 185 Misc. 561, 270 App. Div. 274.)

      Hugo E. Rogers for Traffic Department of City of New York, amicus curios,

    in support of appellant’s position. The lower court has misinterpreted existing statutes and ignored the intent of the Legislature as well as the many decisions and interpretations heretofore rendered. (People v. City of New York, 245 App. Div. 77, 272 N. Y. 608; People v. President & Trustees of Vil. of Ossining, 238 App. Div. 684, 264 N. Y. 574; People v. Resciniti, 191 Misc. 719.)

      Stanley Skiimer Corwin, in person, and Edward T. Costello for respondent.
    I. The commission lacked authority to enact a valid speed ordinance. The ordinance under which defendant was convicted is invalid. (Jones Beach Blvd. Estate v. Moses, 268 N. Y. 362.) II. The commission’s speed ordinance is affirmatively prohibited by section 54 of the Vehicle and Traffic Law. (People v. Schrader, 172 Misc. 246; Great Atlantic & Pacific Tea Co. v. City of New York, 173 Misc. 470; Bogart v. County of Westchester, 185 Misc. 561, 270 App. Div. 274.) III. The People failed to plead and prove the erection of speed signs. (People v. County of Westchester, 282 N. Y. 224; People v. Wadsworth, 200 Misc. 1049.)
   Froessel, J.

On April 6, 1949, defendant was convicted of a violation of section 6 of ordinance 6 of the Long Island State Park Commission, and fined $10, in the Third District Court of Nassau County, sitting as a Court of Special Sessions without a jury. Said section 6 provides: “ Speed limit, a. A rate of speed by a motor vehicle in excess of 40 miles an hour is prohibited ” (as amd. May 2, 1946; eff. June 1, 1946; filed June 5, 1947; see N. Y. Official Compilation of Codes, Rules & Regulations [3d Official Cum. Supp., 1948], pp. 452, 453). On appeal from such conviction, the County Court reversed on the law, dismissed the information and remitted the fine, holding invalid the statute under which said ordinance is said to have been enacted.

Defendant offered no proof whatsoever. After the People had rested, he moved for a dismissal on the ground that' the People- had failed to make out a prima facie case in that they failed to show compliance with section 54 of the Vehicle and Traffic Law. Clearly the motion was properly denied, since said section 54 relates only to ‘ ‘ local authorities ’ ’. The Long Island State Park Commission is a State agency and not a local authority (Vehicle and Traffic Law, § 2, subd. 19; Conservation Law, §§ 672, 770). So the County Court correctly held.

It also found the power of the commission to regulate the speed limit on parkways to reside in section 775 of the ConservationLaw (see, also, § 676, derived from L. 1940, eh. 412; §§ 672, 777, subd. 1; § 778; Vehicle and Traffic Law, § 56, subd. 4 [renum. 5 by L. 1952, ch. 209, § 2, e£f. July 1, 1952]). Upon the assumption, however, that section 775 of the Conservation Law does not require the posting of speed signs, and is thus unreasonable and discriminatory in relation to other statutes which do contain that requirement (Vehicle and Traffic Law, §§ 54, 95-c), the court held that the ordinance must fall with the statute, reversed the conviction, and added that the erection of warning signs ‘ was neither pleaded or proven ’ ’ in the instant case. In this respect the court erred.

The general purpose and the underlying reason for the enactment of section 54 of the Vehicle and Traffic Law resulted from the legislative recognition “ of the unfair practices resorted to in some of the smaller communities in the State ” (People v. City of New York, 245 App. Div. 77, 78, affd. 272 N. Y. 608). For that reason, section 54 is limited to local authorities only, and they are defined in subdivision 19 of section 2 of the Vehicle and Traffic Law. It may be noted that even among local authorities, the Legislature in said section 54 has distinguished between cities of the first class and cities of the second class in a county adjoining a city of the first class on the one hand, and other cities and incorporated villages on the other. It may also make reasonable distinctions with respect to State agencies.

The specific powers of the Long Island State Park Commission to make suitable rules and regulations for the proper exercise ” of its powers and duties (see §§ 777, 778), including the direction of traffic ”, are contained in section 775 of the Conservation Law. These powers are sufficiently broad to authorize the enactment of section 6 of ordinance 6. Surely is this so when read in the light of section 676 of the Conservation Law, derived from chapter 412 of the Laws of 1940. Moreover, section 775 provides for the posting and publication of ordinances and continues: “A copy of any such ordinance, certified by any member of said commission, or by its secretary, whose signature shall be acknowledged before an officer authorized to take acknowledgments, to be a true copy of such ordinance and to have been so posted and published, shall be prima facie evidence of such ordinance and of its legal adoption, and due posting and publishing ” (emphasis supplied).

It would follow that, in relation to the parkway system, the posting must be done in such manner as will advise the passing motorist of the speed limit contained in the ordinance. So viewed, the statute is shown to be reasonable in operation and effect in any event (see Jones Beach Blvd. Estate v. Moses, 268 N. Y. 362).

In this case, the information expressly alleged that the ordinance in question was duly and legally adopted, enacted, published and posted by the Long Island State Park Commission prior to the ” date of the offense here charged (emphasis supplied). At the very outset of the trial, when the court was asked to take judicial notice of the said ordinance, it replied:

The Court: Yes, if there is any question about it, we have a copy of it right here. Mr. Costello, have you any question to raise on the propriety or publications of the ordinance, we have it right here. In other words, Ordinance 6, Section 6 of the Long Island State Park Commission Ordinances has been promulgated and published according to Law, we have that certificate right here in Court, if you want to loch at it.

Mr. Costello: No, Tour Honor, toe’ll waive that.” (Emphasis supplied.) In the light of this waiver and the statutory presumption that the duly certified copy shall be prima facie evidence of * * * due posting and publishing ” of the ordinance, the proof clearly supports defendant’s conviction.

The order of the County Court should be reversed and the judgment of the Third District Court of Nassau County, sitting as a Court of Special Sessions, affirmed.

Loughran, Ch. J., Lewis, Desmond, Dye and Fuld, JJ., concur; Conway, J., not sitting.

Judgment accordingly. [See 304 N. Y. 740.]


author: Fuld, J.

text:
    In the Matter of the Construction of the Will of Frederick L. Upjohn, Deceased. Alice E. C. Lake et al., Appellants; Carleton B. Riker et al., Respondents.
    Argued May 22, 1952;
    decided July 15, 1952.

      Charles Andrews Ellis, Reginald C. Smith and Syrena S. Stachpole for appellants.
    I. Testator unquestionably had a definite intention respecting appellant’s substitution and, in doubly providing, in three substitutionary provisions, for substitution of Mrs. Childs’ “ lawful issue ” and “ or descendants,” manifested his intention not to exclude but to substitute appellant. (Munie v. Gruenewald, 289 Ill. 468; Matter of Horn, 256 N. Y. 294; Bourne v. Dorney, 227 N. Y. 641; Johnson v. Brasington, 156 N. Y. 181; Soper v. Brown, 136 N. Y. 244; Matter of Farmers Loan & Trust Co., 213 N. Y. 168; Lavery v. Egan, 143 Mass. 389; Matter of Cook, 187 N. Y. 253; Pross v. Anson, 273 App. Div. 860, 298 N. Y. 718; Hill v. Crook, L. R. 6 H. L. 265; Holt v. Sindrey, L. R. 7 Eq. 170; Gelston v. Shields, 78 N. Y. 275.) II. The “ separate and distinct ” trust under paragraph Seventh (B), and the provisions of paragraph Seventh (D), are inconsistent with exclusion of appellant, and conclusively establish her right to substitution. (Gwyer v. Gwyer, 5 App. Div. 156, 160 N. Y. 659; Staples v. Mead, 152 App. Div. 745, 159 App. Div. 922, 214 N. Y. 625; Bowditch v. Ayrault, 138 N. Y. 222; Matter of Walter, 270 N. Y. 201; Matter of Foster, 108 Misc. 604; Matter of Barker, 230 N. Y. 364; Matter of Lawrence, 238 N. Y. 116; Weeks v. Cornwell, 104 N. Y. 325; McLean v. McLean, 207 N. Y. 365; Roosa v. Harrington, 171 N. Y. 341.) III. The explanation carefully made in paragraph Seventh (C) that testator intended that substitutionary provision for the benefit primarily of the “ lawful issue or descendants ” of the named beneficiary, is inconsistent with the exclusion of appellant and further conclusively establishes her right to substitution. (Matter of Trevor, 239 N. Y. 6; Matter of Gorham, 283 N. Y. 399; Matter of Horner, 237 N. Y. 489.) IV. To determine “ whether or not” appellant’s substitution was intended requires a judicial ascertainment of testator’s intent from .the whole will and surrounding circumstances; and the holding below that the proceeding was “ exclusively concerned with ” one subparagraph has precluded this. (Matter of Title Guar. & Trust Co., 195 N. Y. 339; Matter of Evans, 234 N. Y. 42; Matter of Farmers Loan & Trust Co., 213 N. Y. 168; Matter of Durant, 231 N. Y. 41; New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11; Matter of Burrows, 259 N. Y. 449; Matter of Neil, 238 N. Y. 138.) V. Instead of judicially ascertaining “ whether or not ” testator intended appellant to be substituted, both Surrogates and the Appellate Division have erroneously avoided and defeated this by holding that “ Section 115 * # * prohibits ” appellant “ from taking ”. (Colton v. Fox, 67 N. Y. 348; Herzog v. Title Guar. & Trust Co., 177 N. Y. 86; Central Trust Co. v. Egleston, 185 N. Y. 23; Morton v. Woodbury, 153 N. Y. 243; Matter of Horn, 256 N. Y. 294; Holmer v. Holmer, 253 N. Y. 498; Fowle v. Common Council of Alexandria, 11 Wheat. [U. S.] 320; Slocum v. New York Life Ins. Co., 228 U. S. 364; Panama Mail S. S. Co. v. Vargas, 281 U. S. 670.) VI. At the times both of appellant’s adoption (1905) and when testator made his will (1917), testator was full owner of his property, entitled to dispose of it as he pleased; there were no “ rights of remaindermen ” for either a birth or an adoption to “ defeat ”; and the statute does not “ prohibit ” the bequest nor “ prohibit ” appellant “ from taking ”. (Matter of Hoyt, 223 N. Y. 617; United States Trust Co. v. Wheeler, 73 App. Div. 289, 173 N. Y. 631; Losey v. Stanley, 147 N. Y. 560; Matter of Holden, 207 Minn. 211; Hartwell v. Tefft, 19 R. I. 644; Matter of Leask, 197 N. Y. 193; Matter of Watson, 262 N. Y. 284; Dodin v. Dodin, 16 App. Div. 42, 162 N. Y. 635; Matter of Horn, 256 N. Y. 294.)

      Robert W. Maloney, Jr., for John S. Eedpath, respondent.
    I. The Surrogate has correctly construed paragraph Seventh (C) of the will, on the pleadings and record before him, to exclude appellants as secondary income beneficiaries of the trusts created by paragraphs Seventh (A) and (B) of the will, under the general rules for the construction of wills. The intention of the testator governs and the Surrogate has here found an intention that the adopted child, Alice Elizabeth Childs Lake, was not included in the descriptive class of “ lawful issue or descendant ” of the named beneficiary Alice A. Childs. (Matter

      of Barrett, 141 Misc. 637; New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11; Central Trust Co. v. Skillin, 154 App. Div. 227; Matter of Battell, 286 N. Y. 97; Matter of Ellis, 178 Misc. 491, 264 App. Div. 846.) II. The Seventh (C) substitution formula applies equally to income beneficiaries of the Seventh (A) and (B) trusts and to beneficiaries of the Seventh (B) trust principal. Analysis of the pattern of both trusts demonstrates testator’s intention that survivorship is required for participants in the (B) trust remainders. (Matter of McCombs, 261 App. Div. 449, 287 N. Y. 557; Matter of Burdsall, 128 Misc. 582, 221 App. Div. 756; Matter of Cuddeback, 174 Misc. 322; Vanderzee v. Slingerland, 103 N. Y. 47; Matter of Crane, 164 N. Y. 71; Dickerson v. Sheehy, 209 N. Y. 592; Matter of Baer v. Hendricks, 147 N. Y. 348; Hunt v. Tuller, 244 App. Div. 363.) III. The Surrogate correctly interpreted the effect of section 115 (formerly §§ 114, 64) of the Domestic Relations Law to prohibit the adopted child from taking. (Purinton v. Jawrock, 195 Mass. 187; Saragin v. Union Ry. Co., 153 Mo. 479; Matter of Bamber, 147 Misc. 712; Murphy v. Brooks, 120 Misc. 704; Matter of Monroe, 132 Misc. 279; New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11; Matter of Hopkins, 102 App. Div. 458; Matter of Walter, 270 N. Y. 201; Matter of Horn, 256 N. Y. 294.)

      Benjamin Heller and Saul Wolf, in person, for Saul Wolf, respondent.
    Alice, the adopted daughter of Mrs. Childs, is not included in the class of “ lawful issue or descendants ” designated by testator in paragraph Seventh (C) of his will. She is excluded by virtue of section 115 of the Domestic Relations Law, and by reason of the fact that in providing for limitations over of income conditioned upon the beneficiary dying before termination of the trusts without “ lawful issue or descendants ”, testator used the quoted words in their primary sense, signifying lineal descendants. (Matter of Cook, 187 N. Y. 253; Matter of Hodges, 294 N. Y. 58; New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11; Matter of Hopkins, 102 App. Div. 458; Matter of Leask, 197 N. Y. 193; Trowbridge v. Trowbridge, 182 Misc. 191, 269 App. Div. 826; Matter of Hoyt, 120 Misc. 188; Matter of Cotheal, 121 Misc. 665; Matter of Cuddeback, 174 Misc. 322; Matter of Denton, 195 Misc. 938; Matter of Reeb, 198 Misc. 1081; Matter of Marsh, 143 Misc. 609; Matter of

      Dudley, 168 Misc. 695; Dodin v. Dodin, 16 App. Div. 42, 162 N. Y. 635; Pross v. Anson, 273 App. Div. 860, 298 N. Y. 718; Matter of Krooss, 302 N. Y. 424; Matter of Battell, 286 N. Y. 97; Overheiser v. Lackey, 207 N. Y. 229; Matter of Corlies, 150 Misc. 596, 242 App. Div. 703.)

      John T. Trimble for Carleton B. Biker and others, respondents.
    I. The Appellate Division correctly held that payments of costs and allowances must he made out of the corpus of the Alice S. Childs’ trust. II. The only trust in issue is the subsidiary trust to which appellants have made claim, and the issue was created by the status of appellant Elizabeth Childs Lake. None of the other subsidiary trusts are involved in any way in the construction proceeding. III. The decree of the Surrogate was correct in directing disposition of the income and principal of the Alice S. Childs ’ trust, and should have been affirmed by the Appellate Division.
   Fuld, J.

Frederick Lawrence Upjohn died in December of 1917. By paragraph Seventh (A) of his will, executed some eleven months before his death, he directed that the income of one half of his residuary estate be paid to his wife during her life, and then, during the life of his grandnephew, Bobert Bed-path, to the beneficiaries named in Seventh (B). By the latter provision, the testator created seventeen separate trusts — in favor of nephews, nieces, grandnephews, grandnieces, and other persons — out of the remaining one half of the residue, and directed that the income of each be paid during Bedpath’s life to the designated beneficiary. Mrs. Alice Childs, the testator’s niece, was one of those beneficiaries. After making provision in Seventh (B) for the disposition of the corpus of the several trusts therein created, the testator provided in Seventh (C) that, if any beneficiary named in (B) was to die before the termination of the trust, the income payable to that beneficiary was to be paid, during the existence of the trust, “ to his or her lawful issue or descendants, if any * * * and in default of such issue or descendants surviving ” to the other designated beneficiaries; and, if any of the latter were then dead, to their “ lawful issue or descendants,” in the same proportions as provided for the original shares.

In 1905, Mrs. Childs and her husband, who never had any children of their own, adopted a two-month-old baby, Alice Elizabeth (now married, she is the appellant Mrs. Lake). The testator knew of the adoption, though with other members of the family he kept it secret. Upon Mrs. Childs’ death in 1950, the trustees petitioned the Surrogate’s Court to “ construe the provisions of Paragraph Seventh (C) e * * and determine ” whether or not Alice Elizabeth is the “ issue ” or “ descendant ” of Mrs. Childs, as such words are contained in said Paragraph Seventh (C) ”. The surrogate held that she is not, and the Appellate Division — though it modified the decree with respect to costs and allowances — agreed with that conclusion.

Embodied in our adoption statute is the fundamental social concept that the relationship of parent and child, with all the personal and property rights incident to it, may be established, independently of blood ties, by operation of law, and that has been part of the public policy of this state since 1887 (Domestic Relations Law, § 115; L. 1887, ch. 703; cf. L. 1873, ch. 830). The statute unequivocally ordains that “ The foster parents or parent and the foster child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from each other.” (Domestic Relations Law, § 115, 3d par.). By reason of that provision, we have held, “ the adopted child, in a legal sense, became the natural child of the adoptive parent.” (Carpenter v. Buffalo Gen. Elec. Co., 213 N. Y. 101, 108.) “ In the eye of the law, therefore, adopted children are lineal descendants of their foster parent. They are in the line of descent from him through the command of the statute, the same as if that line had been established by nature.” (Matter of Cook, 187 N. Y. 253, 261.) In harmony with the legislative policy thus expressed, the adoption statute has been most liberally and beneficently applied. It has been held that, where property is devised or bequeathed to a brother, sister, child .or descendant of the testator, and that person dies in the lifetime of the testator survived by a foster child, the devise or legacy does not lapse, but vests in the foster child — for the latter is a “ child ” or “ descendant ” of the legatee or devisee within the meaning of section 29 of the Decedent Estate Law. (See Matter of Walter, 270 N. Y. 201.) By the same token, a foster child, adopted subsequent to the execution of its foster parent’s will, has a right, as a “ child born after the making of a last will ”, to an intestate share of the parent’s estate if no reference is made to him in the instrument. (Decedent Estate Law, § 26; see Matter of Guilmartin, 277 N. Y. 689; Bourne v. Dorney, 184 App. Div. 476, affd. 227 N. Y. 641.) And an adopted child is entitled to the benefit of section 17 of the Decedent Estate Law, prohibiting devises or bequests of over half the testator’s estate to charity in the event that he is survived by a “ child.” (See Matter of Mawhinney, 146 Misc. 30, affd. 239 App. Div. 874.)

Wills, too, must be read and construed in harmony with the legislative policy of placing adopted children on a level with natural born offspring. (See Gilliam v. Guaranty Trust Co., 186 N. Y. 127, 138; Matter of Ellis, 178 Misc. 491, 492.) It is in that spirit that the question of construction before us — whether Alice Elizabeth is Mrs. Childs’ “ issue ” or “ descendant,” as those terms are used in paragraph Seventh (C) of the will — must be approached.

The limitation under consideration does not, contrary to respondents’ contention, contain “ language that has acquired, through judicial decision, a definite and established significance ”. (Matter of Krooss, 302 N. Y. 424, 428.) Terms such as “issue”, “lawful issue”, “descendants” — and the word ‘ ‘ children ’ ’, as well — may or may not include adopted children ; read alone, and apart from context, those words are ambiguous. If they are viewed in their historical sense, they do not include foster children, because adoption is purely a creature of statute, unknown to the common law. (See 3 Restatement, Property, § 265, comment c; § 287, comment a.) If, though, they are read in light of the adoption statute — as properly they may be (see Munie v. Gruenewald, 289 Ill. 468, 472; Mooney v. Tolles, 111 Conn. 1, 7) — they do include a foster child. As we have seen, the law places an adopted child on a plane of equality with a natural born child and in the line of descent from his foster parent. It has been said that the terms ‘ issue ’ ’ and “ descendants ” “ probably carry a stronger connotation of blood relationship than the word ‘ children ’ ” (Oler, Construction of Private Instruments Where Adopted Children Are Concerned, 43 Mich. L. Rev. 705, 727; see, also, 3 Powell, Real Property [1952], p. 132), but that is not normally a factor of weight, in view of the known frequency with which testators employ “ issue ” and “ descendants ” as essentially synonymous with children ” and, certainly, in a sense no more restrictive or narrow. (See, e.g., Pross v. Anson, 273 App. Div. 860, affd. 298 N. Y. 718; Matter of Fedders, 187 Misc. 207; Mooney v. Tolles, supra, 111 Conn. 1; Kindred v. Anderson, 357 Mo. 564; Matter of McEwan, 128 N. J. Eq. 140; see, also, Oler, loc. cit.)

What the testator meant when he used the words “ issue ” and descendants ” is not to be decided in vacuo. It is impossible for a court to ascertain the meaning with which they were employed in a particular will without considering the context of the entire instrument and the background of facts and circumstances existing when the will was made. (Cf. Matter of Title Guar. & Trust Co., 195 N. Y. 339, 344.) The rule in this state, declared in New York Life Ins. & Trust Co. v. Viele (161 N. Y. 11, 20), is that the limitation will be construed to designate only those related to the named ancestor by blood if there is nothing to the contrary to be found in the context of the instrument or in extraneous facts proper to be considered ”. In other words, in the absence of any indication of the testator’s intent, it will be assumed that the testator did not envisage adopted children taking under the limitation. That, though, is a rule of construction and nothing more. Where the testator’s design to include an adopted child is clear, the limitation will be construed to effectuate that intention. In our view, the present is such a case.

Of surpassing significance is the fact that, when the testator drew the will, he had full knowledge of the adoption that had taken place eleven years earlier when Alice Elizabeth was two months old. Far more often than not, it is recognized, a testator accepts the situation and relationship which the adopting parents have created.” (Matter of McEwan, supra, 128 N. J. Eq. 140, 147.) Where it appears that he knew of the adoption, he is taken, therefore, to have intended inclusion of the adopted child, and his will is so construed, unless other language in the will or other circumstances reflect a different or contrary intention. (See Matter of Horn, 256 N. Y. 294; Dodin v. Dodin, 16 App. Div. 42, 47, affd. 162 N. Y. 635; Matter of Fedders, supra, 187 Misc. 207, 217; Estate of Pierce, 32 Cal. 2d 265, 271; Mooney v. Tolles, supra, 111 Conn. 1, 9-11; Ansonia Nat. Bank v. Kunkel, 105 Conn. 744; Munie v. Gruenewald, supra, 289 Ill. 468, 472; Bray v. Miles, 23 Ind. App. 432; Mesecher v. Leir, 241 Ia. 818; Matter of McEwan, supra, 128 N. J. Eq. 140, 147; Smyth v. McKissick, 222 N. C. 644, 654-655; Matter of Truman, 27 R. I. 209, 212; see, also, 3 Restatement, Property, § 287, subd. [2], cl. [b] and comment g; cf. § 292, comment a; 3 Powell, op cit., pp. 124, 133-134, n. 78; 2 Simes, Law of Future Interests [1936], § 415, p. 223; Oler, Construction of Private Instruments Where Adopted Children Are Concerned, 43 Mich. L. Rev. 901, 909-911.) “ Thus,” writes one commentator, “ if the adoption occurred before the execution of an instrument, such as a will or deed of trust, which made, provision for the adopter’s children or issue, and the testator or settlor knew of the adoption, and particularly if he approved of it, the adoptee has usually been deemed to be within the designation. ’ ’ (Oler, op. cit., 43 Mich. L. Rev. 901, 909.)

In the present case, the testator knew that Alice Elizabeth had, by force of the adoption, become his niece’s child, her issue and descendant. Indeed, in view of Mrs. Childs ’ age — she was over forty years old — and her failure to have any natural born children during twenty years of marriage, the testator must have realized — even assuming that he did not know that his niece was physically incapable of bearing children — that Alice Elizabeth would in all probability be Mrs. Childs’ only descendant. (See Ansonia Nat. Bank v. Kunkel, supra, 105 Conn. 744; Bray v. Miles, supra, 23 Ind. App. 432; Martin v. Aetna Life Ins. Co., 73 Me. 25; see, also, 3 Restatement, Property, § 287, comment g; cf. Matter of Horn, supra, 256 N. Y. 294.) The designation “issue” and “ descendant,” therefore, adequately and sufficiently identified the adopted Alice Elizabeth as a possible beneficiary of his bounty. Had he desired that she be excluded, he could and would have indicated that intention plainly and expressly.

Moreover, in view of the evidence of the testator’s relationship with Alice Elizabeth and her foster parents, it is manifest that he could not have harbored a design to exclude her. The proof establishes that he was on intimate terms with his niece and her family. They often were house guests for extended periods at his Long Island home, and he was a frequent visitor of theirs. It was actually during a two-week stay with Alice Elizabeth and her parents at their New York City apartment that he drafted and executed the will before us. And the uncontradicted evidence — consisting largely of the testimony, against interest, of a grandniece of the testator, a childhood companion of Alice Elizabeth — reveals numerous instances of the testator’s affection and generosity toward his niece’s foster daughter and demonstrates that he regarded and treated her at least as favorably as the children of his other nieces and nephews. More, he actively sought, in concert with other members of the family, to conceal from her the fact that the Childs were not her natural parents. It casts considerable light on Alice Elizabeth’s place in the family group that, as a result of these efforts of the Upjohn clan, she did not discover that she was an adopted child until 1950, thirty-three years after the execution of the will, when Mrs. Childs’ death occasioned the present litigation.

We are drawn, then, to the conclusion that the only reasonable inference to be educed from the record is that the testator, in making his will, considered Alice Elizabeth to be his niece’s “ issue ” and “ descendant,” and intended that she be substituted as beneficiary of the Childs trust on her foster mother’s death. And the plan of his dispositions supplies still further confirmation. The trust, it will be recalled, was measured, not by Mrs. Childs’ life, but by the life of a third person, Robert Redpath. If the testator’s niece had survived Redpath, the corpus of the trust would have vested in her under Seventh (B) and, on her death, Alice Elizabeth would in all probability have become owner of that portion of the estate by inheritance from her foster mother. The testator, of course, realized that, and there is no reason for assuming that he desired a different disposition of the income if — as actually occurred — Mrs. Childs predeceased the measuring life. (Cf. Munie v. Gruenewald, supra, 289 Ill. 468.) In this respect, the case before us differs materially from the Viele case (supra, 161 N. Y. 11, 20-22), upon which respondents rely; there, as the court observed, the will itself clearly evidenced a design to exclude adopted children. It follows that the courts below erred in concluding that the testator’s design was not to include the adopted child.

Nor may the exclusion of Alice Elizabeth be predicated upon section 115 of the Domestic Relations Law. The fourth paragraph of that section — which follows the clause, quoted above, declaring that foster parent and child “ shall sustain toward each other the legal relation of parent and child ’ ’ — provides : “ As respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the foster child is nor. deemed the child of the foster parent so as to defeat the rights of remaindermen.”

The motivation for this provision and its underlying rationale are clear. Designed to assure that the testator’s intention be effected, it mandates that, where the testator has designated remaindermen to share in his estate in the event that a named individual dies without children or descendants, an adopted child of the latter may not, by force of the adoption law, be held to come within the class and thus defeat the remainders. The legislature was particularly concerned about the perpetration of fraud on the rights of remaindermen through an adoption for the very purpose of cutting out a remainder.” (Matter of Walter, supra, 270 N. Y. 201, 206.) As we wrote in Matter of Horn (supra, 256 N. Y. 294, 297): “ Where the passing by limitation ow r of real or personal property is dependent on a parent dying without heirs or children, it would be very easy for a person having no child or children to adopt one and thus cut off the contingent remainder. The statute was aimed at such a possibility. Such is the reasoning in Matter of Leask [197 N. Y. 193].”

As we have seen, Frederick Lawrence Upjohn’s intent to include Alice Elizabeth as “ lawful issue ” and “ descendant ” of Mrs. Childs is exceedingly clear and, for that reason, the statute — designed “ to safeguard the intention of a testator ”, not to defeat it — does not apply. (Matter of Walter, supra, 270 N. Y. 201, 206.) And the possibility of fraud, it must also be marked, is entirely absent. When he made his will, the testator knew full well of Alice Elizabeth’s adoption years before. The words were at hand to announce that that adoption should not entitle her to share in his estate in preference to the remainder-men if that was really his wish or desire. The danger of fraud arises where the adoption takes place Avithout the testator’s knowledge, especially when it occurs after his death. That was, Ave observe, the situation in Matter of Leask, 197 N. Y. 193, and is one circumstance that thoroughly differentiates that case from the one under consideration.

In modifying the decree of the Surrogate’s Court, the Appellate DÍA7ision provided that costs and allowances be paid out •of the corpus of the Childs trust alone, rather than, as the surrogate had directed, out of the principal of all the Seventh (B) trusts, in the same proportions as each of those trusts bears to the total of the trust estates under said paragraph Seventh (B). In our view, since decision herein will have a practical bearing upon the construction of other provisions of the will, the surrogate properly exercised his discretion in making the direction that he did.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, and the matter remitted to the Surrogate’s Court for further proceedings not inconsistent with this opinion, Avith costs in this court and in the Appellate Division to all parties appearing separately and filing separate briefs, payable out of the principal of all the trusts created and now existing under paragraph Seventh (B) in the same proportions as each trust bears to the total of the trust estates under said Seventh (B).

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

Order reAmrsed, etc.

      . It is perhaps of some significance that, although twelve of the seventeen persons designated by the will as beneficiaries of Seventh (B) trusts are still alive, only one, a grandnephew of the testator, who was a child when the will was executed, contests Alice Elizabeth’s claim. The only other contestant is the special guardian appointed to represent the infants having contingent interests in the other Seventh (B) trusts.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Edward Burns, Appellant.
    Argued May 28, 1952;
    decided July 15, 1952.

      Walter J. Mahoney and George M. Donohue for appellant.
    The trial court erred in denying defendant’s motions to dismiss the indictment. (People v. Shafer, 160 Misc. 174, 273 N. Y. 475; State v. Hundling, 220 Iowa 1369; People v. Cardas, 137 Cal. App. 788.)

      Jack E. Gellman, District Attorney, for respondent.
    The entertainment conducted is nothing more than a subterfuge for “ Bingo ” which is a lottery.
   Per Curiam.

In the record before us requisite proof is lacking that participants in the game upon which the indictment is based were “ persons who have paid * * * consideration for the chance ” so as to constitute a lottery within the meaning of section 1370 of the Penal Law (People v. Shafer, 273 N. Y. 475).

The judgments should be reversed and the indictment dismissed.

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

Judgments reversed, etc.


author: Loughran, Ch. J. Fuld, J.

text:
    Fire Association of Philadelphia, Respondent, v. General Handkerchief Corp., Appellant.
    Argued March 13, 1952;
    decided July 15, 1952.

      Benedict Ginsberg for appellant.
    I. The court is not barred from adjudicating any issue raised by way of counterclaim merely because another action involving that issue was removed to the Federal court. (Steamship Co. v. Tugman, 106 U. S. 118; Traction Company v. Mining Company, 196 U. S. 239; Drainage Dist. No. 17 v. Guardian Trust Co., 52 F. 2d 579.) II. The case at bar is not the case which was removed and is not affected by such removal. III. The objection of the pendency of another action does not relate to an action pending in the courts of other States or in the Federal court. (General Investment Co. v. Interborough R. T. Co., 200 App. Div. 794; Hedger Transp. Corp. v. Bushey, 67 N. Y. S. 2d 664; Oneida Co. Bank v. Bonney, 101 N. Y. 173.)

      Bernard Meyerson and Berman B. Zipser for respondent.
    The action having been properly removed from the State court to the United States District Court, the State court no longer had jurisdiction over same. (Carson v. Dunham, 121 U. S. 421; Steamship Co. v. Tugman, 106 U. S. 118; Traction Company v. Mining Company, 196 U. S. 239; Drainage Dist. No. 17 v. Guardian Trust Co., 52 F. 2d 579; Kirby v. American Soda Fountain Co., 194 U. S. 141.)
   Loughran, Ch. J.

For convenience we abbreviate the names of the parties to this litigation. The plaintiff Fire Association of Philadelphia will be called the insurance company and its insured — the defendant General Handkerchief Corp.— will be called the insured.

The insurance company is a Pennsylvania corporation and the insured is a New York corporation. In 1949, the insured commenced in the New York Supreme Court an action against the insurance company to recover upon a policy issued by it. Upon an application made by the insurance company, that action was removed to the United States District Court for the Southern District of New York where that action is still pending.

Thereafter the insurance company commenced in the New York Supreme Court this action against the insured for the recovery of insurance premiums. In its answer, the insured set up a counterclaim in the words of the complaint it had served in the action that had been removed to the Federal court. The insurance company moved at Special Term for judgment dismissing that counterclaim and the motion was granted on the ground that the New York Supreme Court was without jurisdiction, because the counterclaim alleged the same cause of action that the insured had pleaded in the earlier action that had been removed to the Federal court.

The Appellate Division affirmed, two Justices dissenting, and after judgment was entered upon its order, that court granted to the insured leave to present the case to us upon a question certified. But the judgment dismissing the counterclaim of the insured was here appealable as of right (Civ. Prac. Act, § 588, subd. 1, cl. [b]; see New York Trap Rock Corp. v. Town of Clarkstown, 299 N. Y. 77, 80). Hence the question certified will not be answered (Matter of Wickwire Spencer Steel Co. v. Kemkit Scientific Corp., 292 N. Y. 139, 143). Hence, too, we treat the appeal of the insured as having been taken from the judgment which dismissed its counterclaim even though the notice of that appeal names the order of the Appellate Division as the appealable paper (see Becker v. Wells, 297 N. Y. 275, 277).

There is before us for determination this question: Where a party’s action has been properly removed to a Federal court pursuant to a Federal statute may that party plead the same cause of action as a counterclaim in an action subsequently brought against him in a court of this State? In our judgment, that question should be answered in the negative.

After removal of an action to a Federal court has been effected, the State court shall proceed no further unless and until the case is remanded.” (U. S. Code, tit. 28, § 1446, subd. [e].) The word case ” as thus used by Congress should, we think, be here taken to include the counterclaim in which the insured set forth the selfsame cause of action that had theretofore been removed to the Federal court by the insurance company (cf. Salem Co. v. Manufacturers’ Co., 264 U. S. 182, 189; Barney v. Latham, 103 U. S. 205, 215). On the removal thereof, the New York Supreme Court lost jurisdiction of that cause of action (cf. Traction Company v. Mining Company, 196 U. S. 239, 244; see Moore’s Commentary on the United States Judicial Code, p. 277).

The judgment should be affirmed, with costs. The question certified is not answered.

Fuld, J.

(dissenting). Defendant, a New York corporation, brought an action in 1949 in the Supreme Court of this state against plaintiff, a Pennsylvania insurance company, to recover for the loss of certain merchandise allegedly covered by an insurance policy issued by plaintiff. At the instance of the insurance company, that action was removed to the United States District Court for the Southern District of New York, where it is now pending. The insurance company thereafter commenced the present suit in the Supreme Court to recover premiums alleged to be due it under the same policy, in the amount of over $5,000, for a period subsequent to the alleged loss. After unsuccessfully attempting to secure the removal of this action to the federal court — to which its suit had been removed — the insured interposed a counterclaim based on the same cause of action as that asserted in the suit pending in the federal court.

The court at Special Term dismissed the counterclaim, on motion by the insurance company, on the ground that the state court lacked jurisdiction of the subject matter thereof by reason of the removal of the prior action to the federal court, and the Appellate Division, two justices dissenting, affirmed. I cannot agree with that disposition. Certainly, the parties are properly before the Supreme Court and, just as clearly, the subject matter, non-federal in nature, is within the cognizance of the state court. That being so, I find no warrant for a holding that the court lacks jurisdiction of the counterclaim.

I merely note at the outset that the insured is not a plaintiff who, following the removal of his action, seeks to flout the authority of the federal court by commencing a second suit on the same claim in the state court. On the contrary, the insured’s purpose' was only to secure the disposition of the claims of both parties in a single court — either the federal court or the state court. The insurance company, on the other hand, has elected to litigate the claims before separate tribunals. Since its claim is in excess of $3,000, and since the requisite diversity of citizenship exists between the parties, the insurance company could have instituted its suit for premiums in the same federal court to which it had had the insured’s claim removed. Instead, it chose to forego that forum and to proceed in the state court on its own claim. Having thus consciously and purposefully invoked the jurisdiction of the state court, the insurance company must be held to be subject to that jurisdiction for all purposes, and with all the consequences that generally flow from institution of a suit.

The objective underlying the development of the diversity jurisdiction of the federal courts, it has been said, “ was to secure a tribunal presumed to fie more impartial than a court of the State in which one of the litigants resides.” (Barrow Steamship Company v. Kane, 170 U. S. 100, 111; see Anaconda Copper Mining Co. v. Butte-Balaklava C. Co., 200 F. 808, 811.) As the United States Supreme Court has observed, “ The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their rights in the federal rather than in the state courts.” (Meredith v. Winter Haven, 320 U. S. 228, 234.)

The remedy of removal, in other words, was designed for the benefit of a nonresident defendant sued in the state court, not for the convenience of a nonresident party who himself resorts to the state court for his own purposes. It is thus established that a defendant, though a nonresident, is not entitled to removal of the action brought against him in a state court if — as by filing a counterclaim and seeking affirmative relief — he “ invoked the jurisdiction of the state court on [his] own account and for [his] own purpose ”. (Texas & Pacific Railway v. Eastin, 214 U. S. 153, 159.)

The same principle is reflected in the limitations embodied in the federal removal statute, confining the remedy of removal to a “ defendant ” and denying it to a plaintiff (U. S. Code, tit. 28, § 1441, subd. [a]; see, also, former U. S. Code, tit. 28 [1946 ed.], § 71). Indeed, the United States Supreme Court has squarely held that a plaintiff who institutes an action in a state court cannot be regarded as a “ defendant ” for the purpose of obtaining the removal of a counterclaim there asserted against him. (See Shamrock Oil Corp. v. Sheets, 313 U. S. 100.) The underlying rationale, as expressed by the Congressional Committee that recommended the limitation in question when it was first adopted some sixty-five years ago, is as follows (see House Report No. 1078, 49th Cong., 1st Sess., pp. 1-2): “In the opinion of the committee it is believed to be just and proper to require the plaintiff to abide his selection of a forum. If he elects to sue in a State court when he might have brought his suit in a Federal court there would seem to be, ordinarily, no good reason to allow him to remove the cause.”

Similarly here, plaintiff insurance company, having voluntarily resorted to the Supreme Court of our state, is not in a position to object to the full exercise of jurisdiction by that court upon all phases of the litigation, including the counterclaim asserted against it.

Nor is there any basis for reading the provisions relating to removal as vesting the federal court with exclusive jurisdiction of the entire subject matter involved in the action, rather than of the particular suit that was removed.

While the removal statute, as revised in 1948 (U. S. Code, tit. 28, § 1446, subd. [e]), provides only in general terms that upon removal “ the State court shall proceed no further unless and until the case is remanded ”, its legislative history makes it clear that Congress intended to foreclose the state court from further proceedings only in the particular action removed to the federal court. Thus, every version of the statute since 1875 provided solely and specifically that upon removal of a suit to the federal court the state court was to “ proceed no further in such suit ” (see former U. S. Code, tit. 28 [1946 ed.], § 72; Judiciary Act of 1875, 18 U. S. Stat. 470, 471, § 3) — and that limitation was emphasized in the cases construing the statute. (See, e.g., Crehore v. Ohio & Mississippi Railway Co., 131 U. S. 240, 243; Anderson v. United Realty Co., 222 U. S. 164, 165.) Although the qualifying words “ in such suit ” were omitted in the revision of 1948, there is no evidence of any design on Congress ’ part to extend the jurisdiction of the federal courts in that respect. On the contrary, it has been observed that “ The Congress, in the [1948] revision, carried out its purpose to abridge the right of removal.” (American Fire & Cas. Co. v. Finn, 341 U. S. 6, 10.)

In point of fact, an extension of the federal jurisdiction in removal cases to the extent suggested would militate against well-settled rules governing the concurrent jurisdiction of state and federal courts in diversity situations. (See Kline v. Burke Constr. Co., 260 U. S. 226, 234, 235.) The general proposition is well established that separate actions of an in personam nature, based on the same cause of action and involving parties of diverse citizenship, and a claim in excess of $3,000, may be prosecuted simultaneously in a federal as well as in a state court, and that ‘ ‘ both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other.” (Princess Lida v. Thompson, 305 U. S. 456, 466; see, also, Penn Co. v. Pennsylvania, 294 U. S. 189, 195; Kline v. Burke Constr. Co., supra, 260 U. S. 226, 234-235; Buck v. Colbath, 3 Wall. [U. S.] 334, 342.) * * * an action brought to enforce such a [personal] liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Bach court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court.” (Kline v. Burke Constr. Co., supra, 260 U. S. 226, 230.)

The basic policy underlying the jurisdiction of the federal courts in cases involving diversity of citizenship would seem to be the same whether their jurisdiction be acquired by suit originally instituted there or by removal from a state court. In each instance, the purpose and objective are to afford a nonresident party — in one case the plaintiff and in the other the defendant — the opportunity to invoke the jurisdiction of the federal courts where the requisite jurisdictional elements are present. (See Meredith v. Winter Haven, supra, 320 U. S. 228, 234; Anaconda Copper Mining Co. v. Butte-Balaklava C. Co., supra, 200 F. 808, 811.) There would, therefore, seem to be no basis for viewing the jurisdiction of the federal courts in removed ” cases as of broader scope than their jurisdiction in cases originally there commenced. And cases are at hand to support that conclusion. Thus, for example, even after his suit has been removed to the federal tribunal, the plaintiff may institute a new suit in the state court on the same cause of action, if he voluntarily discontinues or dismisses the federal court action without prejudice (see Southern Ry. Co. v. Miller, 217 U. S. 209) or if, in that state-instituted suit, he seeks less damages than the amount required for federal jurisdictional purposes. (See El Paso & Southwestern Co. v. Riddle, 287 F. 173, affd. 294 F. 892.) Quite obviously, such results would not be possible if, as is now asserted, the fact of removal served to vest the federal court with exclusive jurisdiction of the subject matter of the action. (Cf. Baltimore & Ohio R. R. Co. v. Fulton, 59 Ohio St. 575.)

There is likewise no merit to plaintiff insurance company’s further contention that the counterclaim should be dismissed because the action removed to the federal court must be regarded as “ another action pending between the same parties for the same cause ” (Rules Civ. Prac., rule 110, subd. 3). It is well settled that the pendency of such other action is cause for dismissal only where the other action is pending in a court of this state, and not where it is pending in a federal court. (See Oneida Co. Bank v. Bonney, 101 N. Y. 173; Dresdner v. Goldman Sachs Trading Corp., 240 App. Div. 242; Continental Record Co. v. Scranton Record Co., 61 N. Y. S. 2d 95, affd. 272 App. Div. 998.) As a matter of fact, a similar practice prevails in the federal courts; the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction ”. (See McClellan v. Carland, 217 U. S. 268, 282; Cole v. Franklin Life Ins. Co., 108 F. 2d 130, 133.)

It may perhaps be urged that the courts of this state should, as a matter of policy, decline to entertain an action based on a cause of action involved in a previously instituted suit which has been removed to a federal court. However, that would be a matter of discretion rather than of lack of jurisdiction. In any event, though, the present case certainly would not be considered a proper one for application of any such policy. Here, as already noted, plaintiff, the party challenging the state court’s jurisdiction, actually invoked that jurisdiction, deliberately selecting the state forum in preference to that of the federal court.

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

Judgment affirmed.

      . With the recognition that there is in fact no real danger of partiality and bias on the part of the state court, there has developed an expressed statutory and judicial policy to limit the diversity jurisdiction of the federal courts. (See, e.g., American Fire & Cas. Co. v. Finn, 341 U. S. 6, 9-10; Shamrock Oil Corp. v. Sheets, 313 U. S. 100, 108-109; see, also, Revisers’ Note to U. S. Code, tit. 28, § 1441.)