author: Conway, Ch. J. Fulo, J.

text:
    Town of Somers, Appellant, v. Joseph M. Camarco et al., Respondents.
    Argued March 1, 1955;
    decided June 2, 1955.

      Marry M. Chambers and Chester A. Slocum for appellant.
    I. The burden is upon defendants to show conclusively and beyond all reasonable doubt that the enactments are unconstitutional. (Shepard v. Village of Skaneateles, 300 N. Y. 115; Matter of Kings Co. Lighting Co. v. Maltbie, 244 App. Div. 475; Johnson v. City of New York, 274 N. Y. 411.) II. Defendants have failed to assume their burden of showing unconstitutionality. (Town of Ramapo v. Bockar, 151 Misc. 613; People v. Kesbec, Inc., 281 N. Y. 785; People v. Wolfe, 272 N. Y. 608; Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Matter of S. B. Garage Corp. v. Murdock, 185 Misc. 55; Matter of Chandler v. Corbett, 274 App. Div. 1073; Burroughs Landscape Constr. Co. v. Town of Oyster Bay, 186 Misc. 930; People ex rel. Ventres v. Walsh, 121 Misc. 494; Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339.) III. Regardless of the existence of vested rights, subdivision U merely provides for the reasonable regulation of a commercial operation of a type which, otherwise, could permanently and adversely affect the health, safety and general welfare of the community. (Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250, 261 N. Y. 506; Krantz v. Town of Amherst, 192 Misc. 912; Matter of Concordia Collegiate Inst. v. Miller, 301 N. Y. 189; Matter of Epstein v. Weisser, 278 App. Div. 668; Prentice v. Weston, 111 N. Y. 460; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534; City of Rochester v. Simpson, 134 N. Y. 414; People v. Sessano, 176 Misc. 723; Burroughs Landscape Constr. Co. v. Town of Oyster Bay, 186 Misc. 930; Matter of Bayley v. Adams, 278 App. Div. 962.) IV. The court possesses inherent power to grant a •motion on the ground of newly discovered evidence where the ends of justice require it, even though a technical compliance with the rule of exercise of ordinary diligence is not shown. This is particularly true where there is involved the enforcement of an ordinance enacted to promote the health, safety and general welfare of the community.

      Arthur F. Gaynor and Frederick P. Close for respondents.
    I. The zoning ordinance by its very terms abrogates defendants’ strict legal right to the continuance of their nonconforming use and deprives them of their vested rights. (Matter of 440 East 102nd St. Corp. v. Murdock, 285 N. Y. 298; Matter of Gscheidle v. Murdock, 280 App. Div. 74; People v. Miller, 304 N. Y. 105; Dowsey v. Village of Kensington, 257 N. Y. 221; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493.) II. In view of the position and theory adopted by the parties on the trial of the action which formed the predicate of the court’s decision, there was no failure on the part of defendants to prove the existence of legally vested rights. (Huston v. County of Chenango, 253 App. Div. 56; People v. Kesbec, Inc., 281 N. Y. 785; People v. Wolfe, 272 N. Y. 608; Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Matter of S. B. Garage Corp. v. Murdock, 185 Misc. 55; Matter of McCory v. Langdon, 269 App. Div. 701; People v. Calvar Corp., 286 N. Y. 419; Village of Terrace Park v. Errett, 12 F. 2d 240; Hadacheck v. Los Angeles, 239 U. S. 394; De Felice v. Zoning Bd. of Appeals of Town of East Haven, 130 Conn. 156.) III. Plaintiff’s motion for a new trial on the ground of newly discovered evidence was properly denied by the Trial Justice and the Appellate Division’s affirmance thereof is not reviewable by this court. (Collins v. Central Trust Co. of Rochester, N. Y., 229 App. Div. 363; Stoddard v. Stoddard, 264 App. Div. 980; Lawrence v. Ely, 38 N. Y. 42.)
   Conway, Ch. J.

The plaintiff Town of Somers seeks an injunction preventing the defendants from continuing their sand and gravel business unless they comply with the provisions of the zoning ordinance. The defendants seek to have the zoning ordinance declared unconstitutional insofar as it applies to them.

The property herein involved consists of two tracts of land because they are separated by a road running in a north-south direction. The westerly parcel consists of 27 acres: the easterly one of 28 acres. The individual defendant acquired title to those lands by deeds recorded in the months of July and August, 1943. In 1944 substantial improvements were made on the westerly parcel for the handling of sand and gravel. Special Term found that both the easterly and westerly parcels were used and continued to be used for the removal of sand and gravel as a business since a time prior to 1945 and those findings have been affirmed. Together they presently reflect an investment by defendants of substantial value in lands, plant and structures. In 1945, the Town of Somers adopted a zoning ordinance placing the property here involved in a residential zone and article II (§5, subd. B) of that ordinance provided for the continuance of nonconforming uses and structures as follows:

B. Continuing Non-Conforming Uses or Structures.
Any building, structure or actual bona fide use, involving a substantial monetary investment, which shall exist at the time of the enactment of this ordinance may be continued, even though such building, structure or use shall not conform with the provisions of this ordinance for the district in which it is located, provided such existing building, structure or use shall have been constructed, altered or used in conformity with law and which shall be in conformity with other existing law. No change of use, however, shall be made in any building or land or part thereof unless such changed use shall be in conformity with the provisions of this ordinance.”

In 1952 and 1953 the zoning ordinance was amended and subdivision U of section 10 of article II was added, and in addition, article II (§ 5, subd. B) was amended so that the protection afforded to nonconforming uses no longer applied- to any Natural Products Uses ” set forth in article II (§ 10, subd. U).

The residents who testified were six in number. Two, husband and wife, became' residents five years after the adoption of the zoning ordinance of 1945 and live approximately 700 feet from the subject property; two, husband and wife, became residents four years after the adoption of the zoning ordinance of 1945 and they are in sight of the subject premises with a bird’s eye view ” of it; óné became a resident six years after the enactment of the 1945 zoning ordinance and resides approximately 600 feet from the Camarco property. The remaining-resident of the six who testified has resided one mile south of the Camarco property since 1940.

The courts, in order to afford stability to property owners who do have existing nonconforming uses, have imposed the test of reasonableness upon such exercise of the police powers. Therefore broad general rules and tests, such as expressed in People v. Miller (304 N. Y. 105), must always be considered in this context. In addition, the extent of the reasonable exercise of the police powers varies directly with the degree of the density of the population in the city, town or village involved. An ordinance which might be considered as reasonable if enacted in New York City, could be considered as unreasonable if enacted in a smaller political subdivision (see Tenement House Dept. v. Moeschen, 179 N. Y. 325, 335). A definition of reasonableness can not be made for all occasions, and must, of necessity, be considered anew in the light of each problem presented.

Under the facts and circumstances revealed by the record in this action, subdivision B of section 5 and subdivision U of section 10 of the zoning ordinance are unconstitutional insofar as they apply to the defendants. The over-all effect of the changes in subdivision B of section 5 and the introduction of and changes in subdivision U of section 10 of the ordinance in the years 1952 and 1953, is to unreasonably deprive the defendants of a “ vested ” right and to relegate them to the position of seeking permission to do that which they had a legal right to do. Generally, nonconforming uses and structures are constitutionally protected and permitted to continue, notwithstanding the attempted contrary provisions of a new or amended zoning ordinance, unless the resulting loss to the owner is relatively slight and insubstantial (People v. Miller, 304 N. Y. 105, supra). We do not pass upon the question of what may be a proper exercise of the town’s police powers so as to prevent the creation or maintenance of a nuisance on the premises of the defendants, or to otherwise lawfully regulate the defendants’ business.

The judgment should be affirmed, with costs.

Fulo, J.

(dissenting). While the effect of the court’s decision will not, of course, toll the death knell of zoning, it certainly ushers in a sad day for sound, wise and adequate municipal planning.

The record does not disclose the exact dimension of defendants ’ gravel pit on either the west or the east side of the road, but each one would seem to have comprised but a small portion of the total acreage. The mere intention to excavate the remainder of the land did not amount to an existing use so as to entitle defendants to a nonconforming use encompassing and protecting their entire tract of 55 acres. (See, e.g., Burlington v. Dunn, 318 Mass. 216, 223-224; cf. Matter of Cordes v. Moore, 308 N. Y. 761; Chayt v. Zoning Appeals Bd., 177 Md. 426.) To permit them to extend and enlarge the comparatively small area, in which they have already extracted gravel, to the whole tract would radically alter the residential character of the neighborhood and afford defendants a benefit far beyond that constitutionally required for the protection of their vested rights.

If the law were otherwise, if a single excavation in a given area of a large parcel of land were to create vested rights in the entire tract, a special privilege would be conferred upon sand and gravel operators, which is not recognized even in the case of substantial buildings and structures. Indeed, if the rationale of the court’s decision were sound, a dog kennel run, a mink farm or a piggery, existing on one acre of ground at the time of the passage of a zoning law prohibiting such use, could be extended without limit over the owner’s entire tract, no matter how large its acreage. Yet such an expansion of a nonconforming use would, I venture, never be sanctioned, any more than would be the extension or an enlargement of a nonconforming building which might have involved an original investment of hundreds of thousands of dollars. (Cf., e.g., Thayer v. Board of Appeals, 114 Conn. 15, 24; De Vito v. Pearsall, 115 N. J. L. 323, 325.) Sand and gravel pits should not be accorded a different, and preferred, treatment; as with other properties, the existing uses should be preserved, not extended. (See Matter of Cordes v. Moore, supra, 308 N. Y. 761; Chayt v. Zoning Appeals Bd., supra, 117 Md. 426.)

So much of the zoning ordinance as regulates the method of excavation and limits the area of such excavation to five acres is a reasonable exercise of the town’s powers under section 130 of the Town Law and violates no constitutional provision. I am, however,, inclined to agree — and, in view of the court’s conclusion, it is not necessary to do more than state — that the provisions of the ordinance requiring the removal of all structures at the end of each licensed period are unconstitutional insofar as defendants are concerned since it deprives them of their nonconforming use entirely.

Accordingly, I would modify the judgment of the Appellate Division by striking therefrom so much of it as declares unconstitutional that portion of the zoning ordinance which restricts the extent and method of excavation.

Fboessel, Van Voobhis and Burke, JJ., concur with Conway, Ch. J.; Fuld, J., dissents in an opinion in which Desmond and Dye, JJ., concur.

Judgment affirmed.

      . I have a serious doubt whether defendants met the burden, imposed upon them (see Shepard v. Village of Skaneateles, 300 N. Y. 115, 118), of proving a prior nonconforming use as to the parcel on the east side of the road. It is my conclusion that there is no substantial proof in the record before us of any use prior to the enactment of the zoning ordinance here in question, but, in the view taken by the majority, little is to be gained by debating this issue and, accordingly, I refrain from discussing it further.


source: Caselaw Access Project

author: Conway, Ch. J.

license: Public Domain

text:
    Louis D. Robins, Appellant, v. Edward O. Finestone, Respondent.
    Argued April 18, 1955;
    decided June 2, 1955.

      Henry G. Littau, Julius Ilallheimer and Abraham Heller for appellant.
    The complaint alleges a special contract between plaintiff and defendant, his physician, whereby for a specific consideration, paid by plaintiff, said defendant unqualifiedly agreed to "cure” plaintiff in one or two days. Since that result was not attained as alleged, the complaint states a good cause of action for breach of contract which is not barred for six years from the date of breach. (Colvin v. Smith, 276 App. Div. 9; Keating v. Perkins, 250 App. Div. 9; Conklin v. Draper, 229 App. Div. 227, 254 N. Y. 620; Monahan v. Devinny, 223 App. Div. 547; Seanor v. Browne, 154 Okla. 222; Hickey v. Slattery,
      103 Conn. 716; Burns v. Barenfield, 84 Ind. 43; Frankel v. Wolper, 181 App. Div. 485, 228 N. Y. 582; Blessington v. McCrory Stores Corp., 305 N. Y. 140; McGrath v. Helena Rubinstein, Inc., 29 F. Supp. 822.)

      Robert C. Heidell for respondent.
    The complaint alleges a cause of action the gravamen of which is a tort, malpractice. The gravamen of this action is determinative of the statute of limitations to be applied and this statute cannot be obviated by pleading allegations purporting a contract. (Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Webber v. Herkimer & Mohawk St. R. R. Co., 109 N. Y. 311; Loehr v. East Side Omnibus Corp., 259 App. Div. 200, 287 N. Y. 670; Hermes v. Westchester Racing Assn., 213 App. Div. 147; Schlick v. New York Dugan Bros., 175 Misc. 182; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259; Pike v. Honsinger, 155 N. Y. 201; Gerber v. Thron, 262 App. Div. 839; Frankel v. Wolper, 181 App. Div. 485.)
   Conway, Ch. J.

The question presented is whether the complaint states a cause of action in contract. If it does, the action is not barred by the Statute of Limitations. If it states a cause of action in tort for malpractice, it is barred by the two-year Statute of Limitations. (Civ. Prac. Act, § 50, subd. 1.) On that ground defendant has moved to dismiss the complaint and we accept plaintiff’s allegations as true. Those allegations are in substance as follows: Plaintiff employed defendant, a licensed physician and surgeon, for a compensation not to exceed $150 — to operate upon him for the purpose of removing a growth by fulguration — a procedure which would not involve entry through the abdominal wall by incision. He duly performed all the terms and conditions of the contract. Defendant agreed, as his part of the contract, to perform the operation in a good and workmanlike manner and promised to cure the plaintiff by removing the growth by the method indicated and, as part of the contract, promised that plaintiff would be cured in one or two days, could leave the hospital in that time and could immediately resume his occupation. Instead, in breach of the contract, defendant attempted in an unworkmanlike, unprofessional and unskilled manner to perform the operation by fulguration but as a result of his unskillfulness and his unworkmanlike procedure he twice punctured one of plaintiff’s organs and thus necessitated a major operation including the opening of the abdominal wall by incision. As a result plaintiff was hospitalized for approximately a month for postoperative treatment and the cure of the infirmity from which he suffered as well as of the punctures inflicted. By reason of the breach of contract by defendant, the plaintiff was compelled to pay large sums of money for medical and surgical treatment, for medicine and X rays, for journeys to health resorts while, convalescing and was prevented from engaging in gainful employment for a considerable period of time to his damage in a large sum of money.

When the complaint is read in its entirety, the conclusion is inescapable that a cause of action for breach of contract is stated. While it may be unusual for a physician to enter into a special contract to cure rather than to undertake only to render his best judgment and skill, since the practice of medicine is not an exact science, it cannot be doubted that there are occasions when such contracts are made (see Colvin v. Smith, 276 App. Div. 9, 10; Safian v. Ætna Life Ins. Co., 260 App. Div. 765, affd. 286 N. Y. 649). As was recently indicated, a doctor and his patient are at liberty to contract for a particular result and, if that result be not attained, a cause of action for breach of contract results which is entirely separate from one for malpractice although both may arise from the same transaction. (Colvin v. Smith, 276 App. Div. 9, 10, supra, and cases therein cited.) There it was said: “ The two causes of action are dissimilar as to theory, proof and damages recoverable. Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement. Negligence, the basis of the one, is foreign to the other. The damages recoverable in malpractice are for personal injuries, including the pain and suffering which naturally flow from the tortious act. In the contract action they are restricted to the payments made and to the expenditures for nurses and medicines or other damages that flow from the breach thereof (Colvin v. Smith, supra, pp. 9-10; see, also, Safian v. Ætna Life Ins. Co., 260 App. Div. 765, affd. 286 N. Y. 649, supra, where it was pointed out at page 768 that it should be obvious that insurance coverage for claims arising out of ‘ malpractice, error or mistake, ’ is clearly legally distinguishable from coverage for breach of contract. The legal duty, the breach of which is covered, is wholly different. If a doctor makes a contract to effect a cure and fails to do so, he is liable for breach of contract even though he use the highest possible professional skill.”)

The gist of the action here is defendant’s failure to perform his promise to cure plaintiff within a specified time by a specified method. Nowhere in the complaint is there any statement that the plaintiff seeks to recover for his pain and suffering, which would be a relevant and material allegation if it were an action in malpractice. The damages sought are those suited to an action on contract, and help to characterize the complaint as one based upon a contract and not one based upon malpractice and negligence. The fact that the plaintiff alleges that the defendant performed his part of the contract in an “ unworkmanlike ” and unskillful ” manner does not serve to label the complaint as one stating a cause in malpractice only, since it is frequent in breach of contract actions involving the rendition of services for a plaintiff to allege that the services were unworkmanlike and unskillful. The allegation that plaintiff was physically disfigured and also prevented from following his occupation completely for a long time thereafter ” may be, as defendant contends, an allegation which is peculiar to a tort action rather than a contract action, but, by itself, that allegation cannot overcome the effect of the various allegations which, taken together, state a cause of action for breach of a special contract to cure.

The determination dismissing the complaint is a final determination (see Cohen and Karger, Powers of the New York Court of Appeals, p. 160, n. 16). In view of that and the fact that a judgment was entered upon the order of the Appellate Division, the certified questions need not be answered (see Weintraub v. Weintraub, 302 N. Y. 104, 110; Cohen and Karger, Powers of the New York Court of Appeals, pp. 358-362).

The judgment of the Appellate Division and the order of Special Term should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein. The questions certified are not answered.

Desmond, Dye, Froessel and Burke, JJ., concur with Conway, Ch. J.; Fuld and Van Voorhis, JJ., dissent and vote to aErm the determination made by the courts below upon the ground that the gravamen of the complaint is in malpractice, a cause of action concededly barred by the Statute of Limitations.

Judgment accordingly.


author: Feoessel, J.

text:
    Bessie D. Williams, as Executrix of Albert Williams, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 30880.)
    Argued February 28, 1955;

    decided June 2, 1955.

      Jacob K. Javits, Attorney-General (John JR. Davison and Henry S. Manley of counsel), for appellant.
    I. Nothing the State did or did not do was the proximate cause of decedent’s death. (Flaherty v. State of New York, 296 N. Y. 342; Excelsior Ins. Co. of N. Y. v. State of New York, 296 N. Y. 40; St. George v. State of New York, 283 App. Div. 245, 308 N. Y. 681; Weihs v. State of New York, 267 App. Div. 233; Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Ragone v. State of New York, 123 Misc. 48, 211 App. Div. 573, 243 N. Y. 607; Mars v. Delaware & Hudson Canal Co., 54 Hun 625; Scolavino v. State of New York, 297 N. Y. 460; Jones v. State of New York, 267 App. Div. 254; Mitchell v. Rochester Ry. Co., 151 N. Y. 107.) II. The law of Mitchell v. Rochester Ry. Co. (151 N. Y. 107) that “ plaintiff cannot recover for injuries occasioned by fright, if there was no immediate personal injury ” has never before been overruled, and the considerations of public policy that prompted that holding are as pertinent and sound today as they were then. (Comstock v. Wilson, 257 N. Y. 231; Beck v. Libraro, 220 App. Div. 547; Balestrero v. Prudential Ins. Co. of America, 307 N. Y. 709.) III. There is no legally acceptable proof that decedent was assaulted. (Wank v. Ambrosino, 307 N. Y. 321; Cox v. State of New York, 282 App. Div. 815.) IV. The findings of negligence on the part of the State are contrary to the evidence.

      Louis Young and Alan J. Flattery for respondent.
    I. The State of New York, its agents and servants, were negligent in the operation and management of Auburn State Prison farm. (Starling Realty Corp. v. State of New York, 286 N. Y. 272.) II. The State of New York is responsible for the consequences of Kennedy’s escape. (Excelsior Ins. Co. of N. Y. v. State of New York, 296 N. Y. 40; Flaherty v. State of New York, 296 N. Y. 342; Scolavino v. State of New York, 297 N. Y. 460; Jones v. State of New York, 267 App. Div. 254; Weihs v. State of New York, 267 App. Div. 233; Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339; Hogan v. Comac Sales, 245 App. Div. 216, 271 N. Y. 562; Daly v. State of New York, 226 App. Div. 154; Foley v. State of New York, 294 N. Y. 275; O’Neill v. City of Port Jervis, 253 N. Y. 423.) III. Albert Williams’ death was caused by the convict Kennedy’s force and threats in attempting to perfect his escape. (Tortora v. State of New York, 269 N. Y. 167; Moller v. Pickard, 232 N. Y. 271; Aerated Products Co. v. Godfrey, 290 N. Y. 92; Emigrant Ind. Bank v. Willow Builders, 290 N. Y. 133; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Rosenberg v. Schwartz, 260 N. Y. 162; White v. Lehigh Valley R. R. Co., 220 N. Y. 131.) IV. Dr. Dolan’s evidence as to the history obtained from the deceased was properly received. (Davidson v. Cornell, 132 N. Y. 228; Meany v. United States, 112 F. 2d 538; People v. Del Vermo, 192 N. Y. 470; Greener v. General Elec. Co., 209 N. Y. 135; People v. Sprague, 217 N. Y. 373; People v. Curtis, 225 N. Y. 519; Handel v. New York R. T. Corp., 252 App. Div. 142; Noseworthy v. City of New York, 298 N. Y. 76; Brott v. Auburn & Syracuse Elec. R. R. Co., 220 N. Y. 92; Sackheim v. Pigueron, 215 N. Y. 62; Trimble v. City of New York, 275 App. Div. 169; Bailey v. Bethlehem Steel Co., 277 App. Div. 798, 302 N. Y. 717.) V. The law of Mitchell v. Rochester Ry. Co. (151 N. Y. 107) should not bar recovery here. (Hack v. Dady, 142 App. Div. 510; Williams v. Underhill, 63 App. Div. 223; Beck v. Libraro, 220 App. Div. 547; Stahl v. William Necker, Inc., 184 App. Div. 85; Spade v. Lynn & Boston R. R. Co., 168 Mass. 285; Homans v. Boston El. Ry., 180 Mass. 456; Hickey v. Welch, 91 Mo. App. 4; Comstock v. Wilson, 257 N. Y. 231.)
   Feoessel, J.

A judgment of $16,826.30 has been awarded to the respondent, executrix of one Albert Williams, who died of a brain hemorrhage brought on by fright when one William Kennedy, a convict, escaped from the Auburn prison farm and induced Williams to drive him to Syracuse in Williams’ truck. The Appellate Division has affirmed by a divided court.

Kennedy, prior to the time in question, had been convicted of attempted robbery, third degree, the charge specifying that he “ with armed accomplice robbed taxi driver of money and watch at night ”. The accomplice was his brother, the amount taken $12, and the armed weapon was a toy pistol. ' He was received at Elmira Reformatory in December, 1948, and paroled in July, 1950. One month later he was returned to prison for violating his parole, and was then transferred to Auburn State Prison late in August. He would have been eligible for parole board consideration again nearly two years later, in July, 1952. In the ensuing eight months at Auburn, he was punished four times (with forfeitures of good time ”) for violations of prison discipline. These violations, however, were found to be of a “ minor nature ”, involving horseplay in the dining room, splashing water, wasting four slices of bread, and refusing to co-operate with the guard assigned to awaken prisoners in the morning.

On April 21,1951, Kennedy, having previously been declared eligible for outside work in accordance with the administrative rules of the prison ”, was assigned to the State prison farm at Sennett, about four miles east of Auburn Prison, with a group of other prisoners and guards. The prison farm system is authorized by section 182 of the Correction Law. At the prison farm, prisoners are supervised under conditions of “ minimum security ”. This practice of relaxing security restrictions at prison farms is proper and approved ” in this State, and eligibility for such work is determined by the principal keeper of the prison.

As afore-mentioned, on April 21, 1951, a little over a year before he would again become eligible for parole, Kennedy was among twenty-five prisoners assigned to the farm and was, with seven other prisoners, working under the supervision of one of the two guards on duty there that day. Both guards were unarmed. The prison farm is not fenced and there are no pickets, towers or lookouts. At times the prisoners were allowed to work out of the view of the guards. At about 12:30 p.m. that day, the guard in charge of Kennedy’s group went to another part of the farm and remained out of sight for fifteen minutes. When he returned, Kennedy was missing.

The farm is located on a road leading to Route 20, the highway between Auburn and Skaneateles. There was a siren on the farm which, on occasions of previous escapes, had been sounded there and heard in Skaneateles. There was also a prison escape plan for the staff of Auburn Prison, which included the establishment of certain designated road blocks in the area, one of which was at the junction of County Line Road and Route 20, a point three miles east of the prison farm. The prison farm’s siren was not sounded, but the main prison siren was blown with reasonable promptness. One hour and fifteen minutes after the escape, a man later identified as Kennedy was observed at the afore-mentioned intersection, but no road block was seen there at that time.

The trial court found that, at about 2:00 p.m., the escaped prisoner, “by use of force, threats and duress ”, compelled Albert Williams, a local farmer, to “ drive and transport ” him “in attempting to perfect his escape ”. At about 2:20 p.m., Williams and a man later identified as Kennedy were seen driving easterly in Williams’ truck on Route 20 betweeen Williams’ home and Skaneateles. They halted for ‘ ‘ 10, 20 or 30 seconds ’ ’ in front of a gas station, where a witness, one Donald Clark, could see that Williams ‘‘ was sort of gesturing with his hands ’ ’ before they drove on.

At about 2:30 p.m., some ten minutes later, another witness who had known Williams for twenty-five years and had personal knowledge of Williams’ ordinary manner of driving his truck, saw that truck going easterly toward Syracuse from Marcellus at a “fast rate of speed” — “ probably 45 or 50” — with Williams “ hanging onto the wheel ”. A man was seated beside him whom the witness did not recognize.

At 3:15 p.m., Williams was found in Marcellus sitting on the running board of his truck which was headed in the direction of Skaneateles. He had been vomiting and was apparently very ill. An ambulance was called and he was taken to the hospital. The afore-mentioned “ force, threats and duress ’’ and “ emotional stress ” which Kennedy caused Williams to endure “ caused a Hemorrhage of his brain ” from which he died the next day.

Kennedy was apprehended by a police officer in Syracuse at about 5:30 p.m., the same day of the escape. He was carrying a sweater which Williams had been wearing earlier in the day and a sharp blade, six inches long, which had been part of a farm implement of a type that could have been taken from any of several machines or junk piles on the prison farm.

An autopsy revealed no bruises or other signs of trauma upon Williams’ body, and there was no proof that Kennedy had committed any battery upon Williams. The trial court so found, and noted that “ the record is devoid of a showing of physical impact contributing to the fright which resulted in Williams’ death.” It also concluded that “ the negligence of the State of New York in permitting Kennedy to escape and in failing diligently to search for him was the proximate cause of the conscious pain and suffering and of the death of Albert Williams.”

The courts below have thus found that the State was negligent in guarding and apprehending Kennedy, and that the latter, by forcing Williams to drive him to Syracuse, frightened Williams. and caused his fatal brain hemorrhage. Both the findings of negligence on the part of the State and of Kennedy’s responsibility for Williams’ death have support in the record before us. Nevertheless, the judgment below must be reversed and the claim dismissed, for, even where negligence and injury aré both properly found, the negligent party can be liable only where the negligence charged was the proximate cause of the injury received. The Court of Claims has found proximate causation here, but this, we hold, was error.

At the outset, it might be noted that this is not the case of an escaped convict being sued for the consequences of his willful assault upon another. Were this such a case, a valid cause of action would lie (Preiser v. Wielandt, 48 App. Div. 569; Williams v. Underhill, 63 App. Div. 223; see Garrison v. Sun Print. & Pub. Assn., 207 N. Y. 1, 8). Neither is this the case of the State being sued on the theory of respondeat superior for the injuries inflicted by Kennedy, since the relationship of jailer and prisoner can hardly be analyzed in agency terms. Indeed, the trial court found that ‘ ‘ Respondeat superior does not apply as between Kennedy and this defendant ”. Here the State as jailer was at most negligent, and the escaped convict wanton and assaultive, each apart from the other. Having these two separate concepts in mind, and lacking any agency or other relationship permitting vicarious liability, it follows that proximate cause must stem from the State’s acts rather than Kennedy’s, if liability is to run against the State. Stated otherwise, if a plaintiff proves negligence by a defendant and injury to himself, but fails to prove that the former was the legal, or proximate, cause of the latter, he simply fails to establish his case. Even though the defendant were negligent, it is, at best,‘ ‘ negligence in the air ’ ’, and thus the State may not be held accountable for claimant’s damage (Martin v. Herzog, 228 N. Y. 164, 170).

Palsgraf v. Long Is. R. R. Co. (248 N. Y. 339) lends guidance in evaluating the proximate causal factor in a given fact situation. While it illustrates the difficulty of applying any general rule to a unique set of circumstances, it does suggest the only available co-ordinates — duty and foreseeability. As Judge Crane put it in O’Neill v. City of Port Jervis (253 N. Y. 423, 433), there can be no liability for a negligent ” act unless there existed ‘ ‘ a reasonable likelihood of danger as a consequence of the act complained of ”. It is this likelihood of danger, or, as Chief Judge Cardozo declared in the Palsgraf case (supra, at p. 344), this “ risk reasonably to be perceived ”, which defines the duty “ to be obeyed ” in each situation.

With the above construct before us, did the State, qua jailer, owe to Williams, as a private citizen, the particular duty of preventing the escapee here involved from committing the assault which frightened Williams to death? To begin with, it will be helpful to compare the duty to guard the public from escaped prisoners with that of protecting it from the inmates of mental hospitals.

The State has frequently been held liable for the consequences of its breach of duty to protect others from the acts of the mentally ill confined to State institutions (Scolavino v. State of New York, 297 N. Y. 460; Weihs v. State of New York, 267 App. Div. 233; Jones v. State of New York, 267 App. Div. 254; Joachim v. State of New York, 180 Misc. 963; Curley v. State of New York, 148 Misc. 336, affd. sub nom. Luke v. State of New York, 253 App. Div. 783, and see Martindale v. State of New York, 269 N. Y. 554; Dow v. State of New York. 183 Misc. 674). In such cases, where the confinement is not in the nature of punishment, but rather of restraint and, where possible, cure, there is both a duty to the inmate to provide him with reasonable rehabilitational conditions under the circumstances and to the outside public to restrain the dangerous, or potentially dangerous, so that they may not harm others. Between the two “ contending interests ”, it has been said, A balance must be struck ” (Excelsior Ins. Co. of N. Y. v. State of New York, 296 N. Y. 40, 46). The risks to be perceived with the mentally ill who are irresponsible defines the State’s duty to protect others from them.

Kennedy, by contrast, was not a psychiatric patient; indeed, an examination by the prison psychiatrist in February, 1950, found no indication of psychosis — the worst that could be said of him in that report was that he was socially maladjusted ”. Nor was Auburn Prison in any sense a mental institution or hospital. If the jailer owes a duty to the outside world with regard to the sane persons who have been placed in his custody for a variety of illegal activities, it is to assure the public that such criminals will remain in his care until, by the course of time or a proper legal determination, they have been declared free of their debts to society. Restraint and punishment must be distinguished here. In the instant case, the convict who was allowed to escape had been imprisoned for a toy pistol holdup, and had a relatively tranquil record while in prison. From nothing in the record and exhibits below can we derive any basis for the foreseeability of his conduct toward Williams.

Despite the Court of Claims’ technically accurate description of the original toy pistol robbery as a “ crime of violence ”, it was not, realistically speaking, the act of a desperado inveterately given to assault or violence. At worst, if we study the account of the crime in Kennedy’s “ Pre-Classification Report ” at Elmira Reformatory, it appears to have been the act of an unemployed and homeless ” young man committed after he had been drinking a great deal ”. Although these details do not alter the fact that Kennedy committed a crime for which the State was entitled to impose imprisonment, they do indicate that the so-called “ crime of violence ” for which he was imprisoned could not be said to have foreshadowed Kennedy’s alleged assault upon Williams.

Certainly Kennedy’s violation of parole in August, 1950, fox which he was returned to prison and then transferred to Auburn Prison, gave no indication of future violence — the violation being merely failure to report weekly to the parole officer. Nor can the violations of prison discipline for which Kennedy was punished while in Auburn Prison be said to have provided such foreseeability for, as even the Court of Claims has conceded, they were “ of minor nature ”. All things considered, it can hardly be said that the State owed a duty to members of the public to protect them from the risk of exposure to such a man.

Unlike a mental patient, Kennedy was being punished, and for that reason deprived of his liberty. Thus, if the State negligently permitted Kennedy’s premature return to society, it breached only that public duty to punish, a duty owed to the members of the community collectively but importing no ‘ ‘ crushing burden ” of liability to individuals for the breach thereof (see Steitz v. City of Beacon, 295 N. Y. 51, 54-55). If it was a wrong, it was not a wrong to Williams, for, as to him, the breach of duty or wrong did not carry with it possibilities of danger ” (Palsgraf case, 248 N. Y. 339, supra, p. 345); the assault or threatened force upon him was not The risk reasonably to be perceived” (id., p. 344). As to Williams, the State’s claimed carelessness was “ negligence in the air ” or “ in the abstract ” (Palsgraf v. Long Island R. R. Co., supra, at pp. 341, 345), and was not joined to his death by the element of foreseeability. His death therefore may not be included within the class of consequences of the State’s negligence for which it must answer in damages (see Paglia v. State of New York, 278 App. Div. 281, affd. 303 N. Y. 821).

Of course, to be liable, the State need not have been required to foresee the exact manner in which its negligence will result in injury, but merely that some injury will result therefrom (Lowery v. Manhattan Ry. Co., 99 N. Y. 158, 162-163). Here, nothing in Kennedy’s record, his psychiatric history or his prison experience, gave any indication that he was likely to wander from the prison and assault members of the public. It is of some note that the Court of Claims found no fault or negligence in the fact that a man with Kennedy’s background was assigned to minimum security ” farm work “ in accordance with the administrative rules of the prison ”, an assignment which is regarded by the prisoners as a “ privilege ” accorded only those few [here, 25 out of 1,600] whose records merit the lowered security restrictions of the outside work gangs.

As we said in Flaherty v. State of New York (296 N. Y. 342, at p. 346), where we reversed a holding that the State was liable for the attack of one reformatory inmate upon another, “ The law is clear; it is only in its application that difficulty is encountered. The State — just as any other party (Court of Claims Act, § 8; L. 1939, ch. 860) — is responsible, in the operation of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived.” That rule cannot be reconciled with the judgment below.

That Williams was frightened to death by Kennedy’s willful acts may be conceded. This does not mean, however, that the State is liable for its alleged negligence in the absence of foreseeability, which “ defines the duty to be obeyed ”. Without duty, there can be no breach of duty, and without breach of duty there can be no liability.

But, even beyond the fact that fundamental legal principles will not permit affirmance here, public policy also requires that the State be not held liable. To hold otherwise would impose a heavy responsibility upon the State, or dissuade the wardens and principal keepers of our prison system from continued experimentation with ‘ minimum security ’ ’ work details — which provide a means for encouraging better-risk prisoners to exercise their senses of responsibility and honor and so prepare themselves for their eventual return to society. Since 1917, the Legislature has expressly provided for out-of-prison work (Correction Law, § 182), and its intention should be respected without fostering the reluctance of prison officials to assign eligible men to minimum security work, lest they thereby give rise to costly claims against the State, or indeed inducing the State itself to terminate this ‘ ‘ salutary procedure ’ ’ looking toward rehabilitation (Excelsior Ins. Co. of N. Y. v. State of New York, supra, 296 N. Y., at p. 46). Kennedy was chosen with a small, specially selected group of trusted men, who, in a sense, on the basis of their good records, were given a limited form of liberty, less than parole, under minimum security ”, which the trial court found “ is a proper and approved prison practice in the State of New York ”.

Certainly there is no merit to the contention that prisons will become more carelessly guarded by a holding of nonliability here. In view of the duties which the Legislature has imposed upon jailers to apprehend escaped prisoners (Correction Law, §§ 132, 284, 340) and the disciplinary measures which careless prison guards must face (Employees Rule Book, N. Y. State Dept, of Correction, § 376, adopted pursuant to Correction Law, § 112), such fears are unwarranted.

The State, relying on Mitchell v. Rochester Ry. Co. (151 N. Y. 107), also urges that it cannot be liable for the particular injury here involved — the hemorrhage due to fright — and resulting in death, where, as the courts below have found, there was no showing that Kennedy committed a battery, or otherwise produced an impact, upon the person of Williams. In the absence of any proximate causation between the State’s act and Williams’ death, we do not reach this question.

The judgment of the Appellate Division and that of the Court of Claims should be reversed and the claim dismissed, without costs.

Conway, Ch. J., Desmond, Dye, Fuld, Van Voorhis and Burke, JJ., concur.

Judgments reversed, etc.


author: Fuld, J. Fboessel, J.

text:
    The People of the State of New York, Respondent, v. Gerard Mussenden, Appellant.
    Argued January 18, 1955;
    decided June 2, 1955.

      Jack B. Weinstein for appellant.
    I. The court’s error in requiring the jury either to find appellant guilty of attempted robbery in the first degree or to acquit him was highly prejudicial. II. Refusing to permit the jury to find defendants guilty of crimes less heinous than attempted robbery in the first degree was erroneous. (People v. Cummings, 274 N. Y. 336; People v. Walsh, 262 N. Y. 140; People v. Van Norman, 231 N. Y. 454; People v. Miller, 143 App. Div. 251, 202 N. Y. 618; Murphy v. People, 3 Hun 114; People ex rel. Poulos v. McDonnell, 302 N. Y. 89; People v. Weiss, 252 App. Div. 463, 276 N. Y. 384; People v. Schleiman, 197 N. Y. 383; People v. Harris, 306 N. Y. 345; People v. Rytel, 284 N. Y. 242; People v. Seiler, 246 N. Y. 262; People v. Ryan, 263 N. Y. 298; People v. Rizzo, 246 N. Y. 334.) III. Refusing to instruct the jury with respect to all the crimes of which defendants might have been found guilty was highly prejudicial. (People v. Rytel, 284 N. Y. 242; People v. Marendi, 213 N. Y. 600.)

      Daniel V. Sullivan, District Attorney (John B. Lee, Walter E. Dillon and Louis Feldman of counsel), for respondent.
    I. The court did not err in refusing to submit the lesser included crimes of attempted grand larceny in the first degree and assault in the second degree with intent to commit the crimes of robbery and larceny, because upon the facts of this case appellant was either guilty of attempted robbery in the first degree, as charged, or was entitled to an acquittal. (People v. Schleiman, 197 N. Y. 383; People v. Seiler, 246 N. Y. 262; People v. Chapman, 224 N. Y. 463; People v. Martone, 256 N. Y. 395; People v. Weiss, 252 App. Div. 463; People v. Meegan, 104 N. Y. 529; People v. Travis, 172 App. Div. 959.) II. In view of the clear, convincing and uncontroverted evidence of guilt, the alleged error should be disregarded as unsubstantial and harmless. (People v. Buchalter, 289 N. Y. 181; People v. Swersky, 216 N. Y. 471; People v. De Maio, 243 N. Y. 588; People v. Wagner, 245 N. Y. 143; People v. Crumble, 286 N. Y. 24.)
   Fuld, J.

Four defendants, including appellant Mussenden, were charged, in three separate counts of an indictment, with the crimes of attempted robbery in the first degree, attempted grand larceny in the first degree and assault in the second degree with intent to commit robbery and grand larceny. In brief, the first count, of attempted robbery, alleged that the defendants, acting in concert, attempted to steal certain property from one James Gilligan by means of force and fear; the second count, of attempted larceny, recited that the defendants attempted to steal property from Gilligan’s person; and the third count charged that the defendants assaulted their victim with intent to commit the crimes of robbery and grand larceny.

At the conclusion of the taking of the evidence, the trial judge submitted only the first count of attempted robbery, instructing the jury that its verdict was to be either guilty of that crime or not guilty. The defense took exception to the court’s refusal to submit the “ remaining counts in the indictment ”, but gave no indication as to the theory or theories upon which it would like to have them considered by the jury. All of the defendants were found guilty on the submitted count of attempted robbery, and the ensuing judgment has been affirmed by the Appellate Division.

Sections 444 and 445 of the Code of Criminal Procedure provide, in substance, that the jury may find a defendant guilty of a crime of “ any degree inferior ” to, or “ necessarily included ” in, the crime ‘‘ charged in the indictment. ’’ While the case before us is not strictly within the terms of either of thosi statutes — since both of the offenses involved were charged in the indictment itself — it is plain that it must be governed by the same principles. If the crimes set out in the remaining counts are included in that of attempted robbery, the provisions of section 445 cannot be denied application, if otherwise applicable, merely because the prosecution chose to charge the included crimes as additional counts. The rights of an accused may not be made to depend on the happenstance of draftsmanship.

It has been repeatedly written that if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense. (See, e.g., People v. La Polte, 253 N. Y. 573; People v. Seiler, 246 N. Y. 262; People v. Van Norman, 231 N. Y. 454; People v. Thompson, 198 N. Y. 396, 401; People v. Schleiman, 197 N. Y. 383; People v. Meegan, 104 N. Y. 529; People v. McCallam, 103 N. Y. 587; Dedieu v. People, 22 N. Y. 178, 185; People v. Miller, 143 App. Div. 251, 255-256, affd. 202 N. Y. 618; People v. Adam, 72 App. Div. 166, 167-168; Murphy v. People, 3 Hun 114; see, also, 1937 Report of N. Y. Law Revision Commission, p. 683 et seq.; N. Y. Legis. Doc., 1937, No. 65 [P], p. 169 et seq.) And it does not matter how strongly the evidence points to guilt of the crime charged in the indictment, or how unreasonable it would be, as a court may appraise the weight of the evidence, to acquit of that crime and convict of the less serious. (See, e.g., People v. Seiler, supra, 246 N. Y. 262, 267; Murphy v. People, supra, 3 Hun 114, 115; cf. People v. Rytel, 284 N. Y. 242, 245.) Consequently, although originally “ intended merely to prevent the prosecution from failing where some element of the crime charged was not made out ” (People v. Murch, 263 N. Y. 285, 291; see, also, People v. Miller, supra, 143 App. Div. 251, affd. 202 N. Y. 618), the doctrine, given expression in sections 444 and 445, redounds to the benefit of defendants as well, since its effect actually is to empower the jury “ to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence ”. (People v. Rytel, supra, 284 N. Y. 242, 245.)

That does not mean, however, that trial courts must instruct on lesser degrees or included crimes and submit them in every case, for it is recognized that this mercy-dispensing power is a thing apart from the true duty imposed upon a jury; that it is, rather, an inevitable consequence of the jury system. (See People v. Rytel, supra, 284 N. Y. 242, 245; People v. Randazzo, 127 App. Div. 824, 825.) As to the jury’s proper function or duty, that consists solely of applying the legal definitions of crime, as laid down by the trial court, to the evidence and of convicting of the crime charged, if that is established beyond a reasonable doubt. (See People v. Willson, 109 N. Y. 345, 356-357; Sparf v. United States, 156 U. S. 51, 103; cf. People v. Seiler, supra, 246 N. Y. 262, 266; 1937 Report of N. Y. Law Revision Commission, op. cit., pp. 689-690; N. Y. Legis. Doc., 1937, op. cit., pp. 175-176.)

It follows, from what has been said, that, while the jury has the power to refuse to find any fact regardless of how clearly it may appear to a judge to have been proved, the jury does not, so to speak, have the right to find a fact and then refuse to render the verdict which such a finding necessarily requires. As is manifest, merciful or weak jurors may disregard even overwhelming proof of culpability and acquit entirely or convict of a lower crime than the evidence reflects. But that, it has been correctly observed, is “ their responsibility and not the court’s.” (People v. Randazzo, supra, 127 App. Div. 824, 825.) There is probably no way to prevent or guard against this, but certainly a court should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict. Or, to express the matter in somewhat different terms, the jury’s power to dispense mercy, by favoring the defendant despite the evidence, should not be allowed so to dominate the trial proceedings as to impede or interfere with the jury’s primary fact-finding function.

The principle has, accordingly, evolved that the submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one. (See, e.g., People v. Moran, 246 N. Y. 100, 102-103; People v. Schleiman, supra, 197 N. Y. 383, 390; People v. Meegan, supra, 104 N. Y. 529, 531; Murphy v. People, supra, 3 Hun 114, 115; see, also, People v. Fiorenza, 272 N. Y. 642.) The submission in such a case performs a function useful to the defendant and intelligible to the jury. The trial court may not, however, permit the jury to choose between the crime charged and some lesser offense where the evidence essential to support a verdict of guilt of the latter necessarily proves guilt of the greater crime as well. With the record in that state, there is no basis in the evidence for differentiating between the several offenses and no warrant for submitting any but that charged in the indictment.

Such is the case before us. The evidence offered on behalf of the People made out a clear case of attempted robbery; that adduced by defendants, a simple and cohesive defense which, had it been accepted by the jury, would have resulted in their complete exoneration.

It was the testimony of Gilligan that, as he was walking along a quiet residential street in the Bronx at four o’clock one morning in May of 1951, an automobile, driven by appellant, passed and double parked some twenty feet beyond him. Three of the defendants got out of the car and came toward him, appellant remaining at the wheel. Arroyo, one of the defendants, asked him, “ Is this house 64? ” As Gilligan, after replying that he did not know, began to walk off, the other two defendants grasped him from behind and twisted his arms; one of them seized him around the throat. Arroyo “ put ” his hand in Gilligan’s hip pocket and managed to get his wallet “ half way out.” As he was struggling, Gilligan managed to strike Arroyo and the wallet slipped back into the pocket. It was at that point that the police appeared.

The defense was a complete denial of any wrongdoing. Appellant did not take the stand, but the two defendants who did testified that they had been out drinking all evening and had stopped the car to ask Gilligan the location of “ 64 — 108th Street ” — which, we note, was an address, many miles distant, where one of the defendants lived. According to their story, there was some language difficulty; Gilligan did not seem to understand them, acted “ very surprised,” became excited and began “ to shout ” and to “ wave his arms.” Both defendants denied that anyone touched Gilligan or that they intended to assault or steal from him, and appellant’s pretrial statement was, in general, roughly consistent with this testimony.

Presumably, defendants’ trial counsel presented this defense in good faith, in the hope that it would be accepted by the jury. It was in their then interest to have the trial judge place this theory before the jury in a succinct and understandable fashion, and that is precisely what he did. Now that the issue has been resolved against the defense, appellate counsel — who represents Mussenden by assignment of this court and who has undertaken his task with ability and imagination — may, with complete safety to appellant, speculate at length upon a whole series of hypotheses, each proceeding upon the premise that one or more of the defendants had deliberately lied in one or more material particulars. It is, of course, understandable why trial counsel did not argue in that way upon the trial before the case was submitted to the jury. And we suspect that the defendants would have been quite dismayed, while the verdict was still in doubt, to have had the trial court divert attention from the exculpatory defense actually interposed by giving a series of instructions based upon the possibility of the defendants’ perjury. We do not, of course, believe that trial counsel had this in mind when he made his pro forma objection to the failure to submit the “ remaining counts,” but that would have been the necessary consequence of any conscientious attempt by the court to meet that objection.

Be that as it may, however, the trial judge was fully justified in refusing to submit the count charging attempted grand larceny, since upon no view of the facts could apjjellant have been guilty of that crime, and yet not of attempted robbery. An attempt to commit larceny, as distinguished from an attempt to commit robbery, could here have been made out only by proof of an endeavor to steal from Gilligan’s person without the use of force or fear, and the record cannot possibly be read to support such a finding. It was, as already noted, the defense position that no one of the defendants intended to steal and that no one of them attempted to remove the wallet. If that were so, then, neither appellant nor any other defendant could have been guilty of more than assault in the third degree — concerning which a word later. Contrariwise, if a theft hac" been attempted, but had represented the independent venture of one or more of the other defendants, appellant was either entirely innocent or, at most, guilty, again, of simple assault. And, on the assumption that he was fully involved with the others in whatever occurred, as testified to by Grilligan, any attempt to steal could only have amounted to attempted robbery, since force and fear were an integral part of the transaction. Nor is it of any consequence that the plan may have been, as urged by appellant, for one defendant to remove the wallet surreptitiously, and wit bout Gilligan’s knowledge, while he was engaged in defending himself against the others; the attempted offense is and remains robbery when it appears that although the taking was fully completed without [the victim’s] knowledge, such knowledge was prevented by the use of force or fear. ’ ’ (Penal Law, § 2153; see People v. Glynn, 54 Hun 332, 334, affd. 123 N. Y. 631; Mahoney v. People, 3 Hun 202, affd. 59 N. Y. 659.) In the face of such record evidence, it is impossible to say that the alleged theft was attempted without the use of force or fear.

With regard to the remaining count in the indictment charging assault with intent to commit robbery and larceny (Penal Law, § 242, subd. 5), the court was likewise justified in denying the request to submit it, for the reason that it was not an offense “ included ” in the crime of attempted robbery. Such an assault is made up of precisely the same elements that constitute attempted robbery. If defendants attempted to rob Gilligan, they assaulted him with intent to steal; and, conversely, if they assaulted him with intent to steal, the act of necessity amounted to an attempted robbery. (See, e.g., People v. Rizzo, 246 N. Y. 334, 337-339.) Since, therefore, the same acts that spell out the one crime necessarily establish its twin, it would have been highly improper for the court to have submitted both of those counts with instructions that there might be a verdict of guilt as to one and of acquittal as to the other. In other words, had both counts been submitted, the only permissible verdict would have been guilty of both or innocent of both —- the court being privileged, if there had been a conviction, to impose sentence under the highest count. (Penal Law, § 1938; see, e.g., People v. Murphy, 256 App. Div. 995, affd. sub nom. People v. Goggin, 281 N. Y. 611; Matter of Zovick v. Eaton, 259 App. Div. 585; People ex rel. Thornwell v. Heacox, 231 App. Div. 617.)

And, for his final argument, appellant contends that the trial judge should also have submitted assault in the third degree (Penal Law, § 244), a crime not charged in the indictment. It may well be, as already intimated, that appellant could have been found guilty of that offense on the theory that he and his companions had merely intended to assault and beat Gilligan, but not to steal from him. We need not, though, concern ourselves with that possibility, since no request was made to submit that crime to the jury. (See People v. Monat, 200 N. Y. 308, 311-312; People v. Thompson, 41 N. Y. 1, 6-7; see, also, People v. Cummins, 209 N. Y. 283, 297-298.)

The trial judge’s decision not to submit the indictment’s larceny and assault counts was tantamount to a dismissal of those charges and, as already demonstrated, section 445 of the code did not require him to instruct upon the one or the other as a crime “ included ” in that of attempted robbery.

The judgment should be affirmed.

Fboessel, J.

(dissenting). This appellant and three others were indicted for three separate crimes: (1) attempted robbery in the first degree, (2) attempted grand larceny in the first degree, and (3) assault in the second degree with intent to commit the crimes of robbery and grand larceny, perpetrated in the nighttime of May 10,1951 (at 4:00 a.m.).

It is undisputed that the defendants had been drinking considerably that night; this, the trial court charged, the jury may consider if you wish ”. On the sentence, it might be noted, one of the defendants was committed to Bellevue Hospital “ for a mental examination ”. It is also undisputed that appellant remained in the automobile, while the other three defendants approached complainant Gilligan and asked: “ Is this house here 64? ” Two of them lived at 64 — 108th Street. There is ample evidence that the three defendants other than appellant assaulted Gilligan. Whether or not there was attempted robbery or grand larceny is not so clear. In this respect, the jury might well have found that complainant’s testimony in the Magistrate’s Court conflicted with his testimony at the trial, thus affecting his credibility. The police, who claim to have observed much of what happened, saw the three defendants assaulting Gilligan, but did not corroborate the latter’s trial testimony as to the attempt to extract the wallet from his pocket. Gilligan conceded that no threat and no demand for money was made.

After a lengthy trial, the court submitted to the jury only the crime of attempted robbery, without dismissing the other counts. In our judgment, this was error, and contrary to a settled practice that has prevailed in our criminal courts for a great many years. Counsel for defendants duly, clearly and unequivocally excepted.

We disagree with the conclusion of the majority that the crime of assault, second degree (here, assault with intent to rob and steal), is identical with the attempted robbery charge. In our view, the assault and grand larceny charges are lesser crimes included in the attempted robbery charge, within the meaning of section 445 of the Code of Criminal Procedure.

Beduced to its simplest terms, and leaving out all elements not here pertinent, attempted robbery embraces (1) an attempted “ unlawful taking ” [attempted grand larceny] (2) by force ” [assault]. Without the force or assault, we have merely attempted grand larceny. Without an attempted unlawful taking, we have only assault [with intent].

Thus, upon the whole case, the jury would have been clearly warranted in convicting defendants of assault with intent to commit robbery. This, however, is not necessarily tantamount to an attempt to commit robbery. Attempt to commit a crime ” is defined in section 2 of the Penal Law thus: “ An act, done with intent to commit a crime, and tending but failing to effect its commission ” (emphasis supplied). It necessarily follows that more than mere intent ” to commit a crime is necessary to constitute an attempt ” to do so (People v. Rizzo, 246 N. Y. 334; People v. Werblow, 241 N. Y. 55; People v. Sullivan, 173 N. Y. 122; People v. Ditchik, 288 N. Y. 95; People v. Kane, 161 N. Y. 380, 389; People v. Conrad, 102 App. Div. 566, affd. 182 N. Y. 529).

Since there is a difference between intent and attempt, its resolution was for the jury, which could conceivably have found, on this record, that the defendants assaulted Gilligan with “ intent ” to rob him, but that since their acts did not “ carry the project forward within dangerous proximity to the criminal end to be attained ” (People v. Werblow, supra, 241 N. Y., at p. 61), they did not reach the stage of an “ attempt ” to rob. Indeed, the District Attorney, on appellant’s motion for reargument in the Appellate Division, frankly “ conceded that the evidence would have warranted the jury in finding the defendant guilty solely on the Assault count, if they had been permitted by the trial court to render such a verdict ”. However, the Appellate Division erroneously held that ‘ ‘ here there was no possible view of the facts that would justify any other verdict except a conviction or acquittal of attempted robbery, first degree ”,

The jury was not obliged to believe all that G-illigan said. Their power of rejection is exceedingly broad. In People v. Rytel (284 N. Y. 242, 245) Chief Judge Lehman, writing for the court, said: The power of a jury in a criminal case to reject, though unreasonably, evidence which is uncontradicted and unimpeached, and to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence, cannot be challenged in an appellate court.” (See, also, People v. Seiler, 246 N. Y. 262, 267.) Every essential element of a crime presents a question of fact for the jury. “ No matter how conclusive the evidence * * * and assuming that it was wholly uncontradicted and that the inferences all pointed one way, each of the three fundamental facts was for the jury to pass upon, for if the court could take away one from them it could take away all, and thus direct a verdict, which is never allowed in a criminal case.” (People v. Walker, 198 N. Y. 329, 334.) (Code Crim. Pro., §§ 419, 420.) And, as noted by the majority, we have repeatedly held that if, upon any aspect of the facts, a defendant may properly be found guilty of an included crime, the trial judge must submit such lesser offense, no matter how strongly the evidence points to guilt as to the greater offense.

Consequently, the trial court should have granted appellant’s request to charge on assault, second degree, as well as attempted grand larceny in the first degree. His stated reason for charging attempted robbery only was in order that you may deliberate upon this [case] more easily ”. A jury’s duty may not be made easier by prejudicing a defendant’s rights. By this rather unusual ruling, he unwittingly made the jury’s path easy to conviction for the only crime submitted to them. He also instructed them that it is for them “ to determine what is the truth in this case; what is possible; what is likely ”; he later charged that the law “ has placed in your hands as jurors in a criminal case the exclusive right to determine the innocence or guilt of the defendants on trial ” (emphasis supplied). Yet, because he was convinced of the defendants’ guilt of attempted robbery, he declined to permit them to pass on the lesser included crimes. Moreover, had the request as to the assault count been granted, a further charge would then have been required on assault, third degree (simple assault), which offense, even the majority concede, should have been charged here if appellant’s attorney had requested it.

A realistic view of the situation created by the trial court’s refusal to charge all three counts, thereby requiring the jury either to convict of attempted robbery, first degree, or to acquit, compels us to conclude that the rights of this defendant, who never left the automobile in which he was sitting, were seriously prejudiced. Although the jury might have had doubts as to his guilt of the attempted robbery charge, their reluctance to acquit him altogether may nevertheless have led to an improper conviction.

The Appellate Division, by Bastow, J., who granted permission to appeal, held that while the trial court should have made a clearcut disposition of the matter, the refusal to submit the two counts did not constitute reversible error ”, and that the substantial rights of the appellant were not affected ” (emphasis supplied). The District Attorney asks us to affirm under section 542 of the Code of Criminal Procedure. In our view, substantial and reversible error was committed, which may not be overlooked.

The judgment appealed from should be reversed and a new trial ordered.

Desmond, Dye and Van Voobhis, JJ., concur with Fuld, J.; Fboessel, J., dissents in an opinion in which Conway, Ch. J., and Bubke, J., concur.

Judgment affirmed.

      . Section 444 reads, in part, as follows: “ Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto And section 445 recites that, “In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.”

      . At one point — in an "additional” brief filed in the Appellate Division — the district attorney voiced the opinion that the evidence would have warranted the jury in finding appellant guilty solely on the assault count. The opinion as to the law is in no sense a concession binding on the courts, and, in the light of our analysis, the view expressed may not be accepted.


author: Bubke, J.

text:
    Maflo Holding Corp., Appellant, v. S. J. Blume, Inc., Respondent.
    Argued April 12, 1955;
    decided June 9, 1955.

      Harry Lesser and Samuel Lesser for appellant.
    I. Neither the allegations of the complaint in the former action for an injunction nor the provisions of the judgment entered therein in anywise show that the issues tendered in the present action were determined in the prior action. II. This court may take judicial notice of the proceedings in the prior action. (Devine v. Melton, 170 App. Div. 280; Slater v. Slater, 208 App. Div. 567.) III. To sustain a plea of res judicata, the second action must be essentially the same as the first action and it must be shown that the issue in question was there determined. (Lynch v. Bailey, 198 Misc. 685, 279 App. Div. 650, 304 N. Y. 669; Walsh v. Judge, 223 App. Div. 423; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Stannard v. Hubbell, 123 N. Y. 520; Reynold v. Ætna Life Ins. Co., 160 N. Y. 635; Griffen v. Keese, 187 N. Y. 454.) IV. Attorneys’ fees are a proper item of damage if the agreement between the parties so provides. (Mohr v. Weinstein, 218 App. Div. 234.) V. When a party to a contract is prevented from performing his contract by the other contracting party, he is entitled as a matter of law to recover his damage. (J. Harry McNally, Inc., v. State of New York, 170 Misc. 914; Satta v. City of New York, 272 App. Div. 782.)

      Jacob W. Friedman for respondent.
    I. The claim for damages which is the basis of the present action was included in the prior action, so that the first judgment constitutes a bar. II. A decree granting an injunction but not awarding damages is res judicata in a separate action for damages in relation to the matter concerning which the injunction was asked in the first suit. (Schmidt v. Weyell, 60 Misc. 370; Sklarsky v. Great Atlantic & Pacific Tea Co., 47 F. 2d 662; Orloff v. Hollywood Turf Club, 110 Cal. App. 2d 340; Crawford v. Baker, 86 Ga. App. 855; Bayer v. Bloch, 246 Ill. App. 416; State ex rel. Hitchcock v. Farris, 197 Ind. 128; Holbrook v. Griffis, 127 Iowa 505; Crider v. Melvin, 235 Ky. 523; Gilbert v. Boak Fish Co., 86 Minn. 365; Currier v. Perry, 181 Wash. 565; Lynch v. Bailey, 198 Misc. 685, 279 App. Div. 650, 304 N. Y. 669.)
   Bubke, J.

The complaint states two causes of action, one for damages and the other for additional rent. In the first the plaintiff charges that the defendant by refusing to permit access pursuant to a provision of a lease, which provided that the defendant as tenant would afford the plaintiff as landlord and its contractor every facility to enter upon the premises, caused the plaintiff to suffer substantial damages. In the second cause of action the plaintiff charges that the defendant in violation of the provisions of paragraph 24th of the lease refused to pay as additional rents certain expenses and attorneys’ fees. By paragraph “ 24 ” the defendant agreed that “ If Landlord at any time is compelled to pay or elects to pay any sum of money * * * by reason of the failure of Tenant to comply with any provision hereof, or, if Landlord be compelled to incur any expense including reasonable attorney’s fees in instituting * * * any action * * * by reason of any default of Tenant hereunder, the sum or sums so paid by Landlord with all interest, costs and damages, shall be deemed to be additional rent hereunder and shall be due from Tenant to Landlord on the first day of the month following the incurring of such respective expenses. ’ ’

The motion of the defendant to dismiss the complaint pursuant to rule 113 of the Buies of Civil Practice on the ground that there is in existence a prior final judgment adjudicating the same issues was granted. The plaintiff’s cross motion for summary judgment, pursuant to section 117 of the Civil Practice Act, was denied. The Appellate Division affirmed. The question is whether the first judgment bars both causes of action set forth in the present complaint.

The plaintiff owns a tenant factory building, in which the defendant operates a store for the manufacture- and sale of artificial flowers. In 1948 the department of housing and buildings filed a violation against the premises under section 271 of the Labor Law on the ground that the cellar and subcellar were not provided with two separate means of egress to the street. The defendant used the cellar as factory space and the subcellar as storage space. On March 27, 1952, the plaintiff and defendant entered into a new lease of the store and basement for a period in excess of ten years. Under paragraph 38 of the lease the existence of the violation was made known to the tenant with the information that plans to perform the necessary work had been approved by the department of housing and buildings. The lease further recited the work to be done and the method by which it was to be done, setting forth approximately how much space would be taken from the defendant’s premises by the repairs. The lease further stated that the “ tenant * * * agrees to afford the Landlord and its contractor every facility to enter upon the premises to perform said work ”. The plaintiff made several attempts to begin the work but was prevented from doing so by the defendant. Plaintiff then instituted an action in the Supreme Court for damages and a mandatory injunction to direct the defendant to afford access to the store and cellar and to restrain it from interfering with the construction work necessary to comply with the violation. The plaintiff pleaded in that action its inability to state the exact amount of damages and refrained from offering proof as to damages.

An injunction pendente lite was granted by Special Term and upon appeal was affirmed by the Appellate Division. The defendant persisted in its refusal to permit the construction work in spite of the temporary injunction, whereupon plaintiff moved to have the defendant and its officers adjudged in contempt of court. The motion was granted and the defendants were fined $250 each. Subsequently, after a trial on the merits, judgment was granted permanently enjoining the defendant from interfering with the plaintiff and its contractor in the performance of the necessary construction work required to remove the violation. The plaintiff’s request for an additional allowance and costs was denied. No appeal was taken from this judgment.

Thereafter, plaintiff commenced the present action. The answer set forth an affirmative defense to both causes of action on the ground that the matters alleged in the complaint by reason of a prior judgment now are res judicata.

The two causes of action involved different rights ” and ‘ ‘ wrongs ’ ’. The first cause of action is based on the failure to allow access to the premises. It is the same cause of action which has been litigated on the merits to a final adjudication. Therefore, it is final as to all things which might have been litigated as well as those actually litigated. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.) The plaintiff is precluded from suing for damages upon the first cause of action of the complaint herein. In Inderlied v. Whaley (85 Hun 63, affd. 156 N. Y. 658), it was held that since a plaintiff could have demanded damages in the injunction action and did not do so, he was precluded from suing for them in a later action. This is the rule in this State. (Hahl v. Sugo, 169 N. Y. 109; Schmidt v. Weyell, 60 Misc. 370.) In New York there is only one form of civil action. The distinction between actions at law and suits in equity and the forms of those actions and suits have been abolished. (Civ. Prac. Act, § 8.) Therefore, the merger of legal and equitable remedies compels a plaintiff to seek in the equity proceeding whatever damages he may be entitled to and, if he made no demand for damages or failed to introduce proof as to damages, he is precluded from thereafter maintaining an action at law to recover damages. The appellant claims that the case of Lynch v. Bailey (304 N. Y. 669, affg. 279 App. Div. 650) has modified the rule. Such is not the fact. The Appellate Division was careful to point out that special rules apply to the preclusive effect of declaratory judgment proceedings, as a court may in its discretion refuse to award all the relief sought and relegate the parties to an independent action for such other relief. Here, the evidence needed to sustain the first cause of action in its second action would have sustained the first action and the violation was a “ ‘ violation of but one right by a single legal wrong ’ ”. (De Coss v. Turner & Blanchard, 267 N. Y. 207, 211.) The final judgment in the prior injunction suit now bars the subsequent suit based on the first cause of action in the complaint herein.

As to the second cause of action. The second cause of action arises out of the breach of a separate and distinct right ” — the right to assess as additional rent expenses and attorney’s fees incurred as a result of the tenant’s failure to comply with provisions of the lease. The right supporting the second cause of action did not accrue until after the termination of the suit for an injunction and the completion of the alterations necessary to remove the municipal violation. The extent of the damages comprising the claim for additional rent could not be ascertained earlier. The cause of action is founded on the refusal of the tenant to pay the additional rent. This court has held that no suit can be brought for future rent in the absence of a clause permitting acceleration. (McCready v. Lindenborn, 172 N. Y. 400; 5 Williston on Contracts [Rev. ed.], §§ 1329, 1403.) Consequently, the plaintiff could not have sued for additional future rent in the prior action. Since then, the additional rent came due. It follows that an action to recover such rent is not barred by the judgment in the previous action. (Smith v. Kirkpatrick, 305 N. Y. 66.) Although the evidence, which proves the breach of the lease as to failure to allow access, would be the same in both causes of action, evidence of the defendant’s refusal to pay the additional rent provided for by the lease would demonstrate that there was a violation of two rights by two distinct legal wrongs. In the second cause of action the covenant of right of access and the breach thereof is subsidiary to the right to assess the expenses and attorney’s fees as additional rent and the violation of the latter right did not occur and could not occur until the determination and enforcement of the right of access. The plaintiff properly pleaded in the first action its inability to state the exact amount of damages. The plaintiff likewise properly refrained from adducing proof as to the damages because the lease provided a method and means for the collection of the expenses incurred in enforcing the right of access. The request for an additional allowance and costs does not bear upon the issue of expenses as defined in the lease. The application for the allowance and costs was made pursuant to provisions of section 1513 of the Civil Practice Act and rule 200 of the Rules of Civil Practice and such allowances and costs are not a part of or related to the cause of action itself. We conclude that the affirmative defense that the judgment in the prior action acts as a bar to the present action is sufficient to defeat the first cause of action, but is inadequate as a defense to the second cause of action.

Since it appears that the defendant’s motion for summary judgment seeking dismissal may be granted as to only one cause of action (Rules Civ. Prae., rule 114), the judgment of the Appellate Division should be affirmed to the extent that it dismisses the first cause of action set forth in the complaint and denies plaintiff’s motion for summary judgment, and reversed as to that part of the judgment which dismisses the second cause of action. The first cause of action should be severed.

The judgment of the Appellate Division should be modified, and, as -so modified, affirmed, and the case remitted to Special Term for further proceedings in accordance with the opinion herein.

Conway, Ch. J., Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ., concur.

Judgment accordingly.


author: Dye, J.

text:
    In the Matter of the Arbitration between American Rail & Steel Co., Appellant, and India Supply Mission (Government of India), Respondent.
    Argued February 22,1955;
    decided June 9, 1955.

      Louis Urow, Milton E. Canter and Irving Galt for appellant.
    I. There is no agreement to arbitrate enforcible against appellant. II. The contract does not by its terms incorporate the form. (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288; Matter of General Silk Importing Co. v. Gerseta Corp., 234 N. Y. 513.) III. The parties did not intend the form to be incorporated in the contract. (Matter of James Talcott, Inc. [Wertheimer], 284 App. Div. 248; Matter of Pavia & Co. v. Fulton Co. Silk Mills, 284 App. Div. 391.) IV. Respondent is estopped from contending that the form is part of the contract. V. The case of Matter of Level Export Corp. (Wolz, Aiken & Co.) (305 N. Y. 82) is distinguishable. (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288.) VI. The case of Matter of Riverdale Fabrics Corp. (Tillinghast-Stiles Co.) (306 N. Y. 288) governs. (Weiner v. Mercury Artists Corp., 284 App. Div. 108.) VII. The claim set forth in the demand for arbitration does not present an arbitrable dispute. VIII. There is no arbitrable dispute since the warranty clause whose alleged breach constitutes the dispute did not apply to the contract. IX. There is no arbitrable dispute since the warranty clause upon which the alleged dispute is founded expired prior to its invocation by respondent. (Matter of Kallus [Ideal Novelty & Toy Co.], 292 N. Y. 459; Alpert v. Admiration Knitwear Co., 304 N. Y. 1; Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 271 App. Div. 917, 297 N. Y. 519; Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 202; Matter of Essenson v. Upper Queens Med. Group, 307 N. Y. 68; Matter of Brookside Mills [Raybrook Textile Corp.], 276 App. Div. 357; Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36; Jessel v. Lockwood Textile Corp., 276 App. Div. 378; South & Central Amer. Commercial Co. v. Panama R. R. Co., 237 N. Y. 287; Matter of Kramer & Uchitelle, 288 N. Y. 467; Matter of Broadway-40th St. Corp. [Manhattan Co.], 296 N. Y. 165.) X. Respondent’s claim is barred by loches. XI. Matter of Unsinn v. Republique Francaise (281 App. Div. 738) is distinguishable.

      Howard Hilton Spellman and Daniel R. Pino for respondent.
    I. Appellant’s contention that an enforcible arbitration agreement between the parties does not exist is untenable as a matter of law and is not supported by the facts. (Matter of Level Export Corp. [Wolz, Aiken & Co.], 280 App. Div. 211, 305 N. Y. 82; Matter of Riverdale Fabrics Corp [Tillinghast-Stiles Co.], 306 N. Y. 288; Metzger v. Ætna Ins. Co., 227 N. Y. 411; Madawick Contr. Co. v. Travelers Ins. Co., 307 N. Y. 111.) II. Appellant’s contention that expiration of the warranty deprived respondent of the contract right of arbitration is contrary to law and fact. (Matter of Unsinn v. Republique Francaise, 281 App. Div. 738.)
   Dye, J.

The issue here is whether a contract for the purchase and sale of a quantity of used steel rails and angle bars bound the parties to settle disputes arising therefrom exclusively by arbitration. Whether it did or not depends on purchase order language providing viz.: ‘‘ This Contract is placed in accordance with the conditions of contract Form ISM 826 Bev. Copy attached and can be modified or supplemented only in writing and signed by both parties hereto.”

Paragraph 25 of the afore-mentioned form provided: ‘ ‘ Arbitration: All questions and controversies arising in connection with this contract shall be submitted to arbitration in New York, N. Y., in accordance with the rules of arbitration of the American Arbitration Association.”

When a dispute arose as to whether the used rails delivered corresponded in quantity and quality to those called for in the purchase order, the purchaser demanded that it be settled by arbitration. The seller then made the within motion for a stay claiming that arbitration was not called for by the contract documents since the purchase order did not mention it and that Form ISM 826 Rev., on which the purchaser relies, was not attached or that its contents were otherwise brought to the seller’s attention, While respondent attempts to deny this assertion by saying that it was their practice to attach said form, it, nonetheless, takes the position that its omission “ does not change the situation ”. The motion for stay was denied in Special Term on authority of Matter of Level Export Corp. (Wolz, Aiken & Co.) (305 N. Y. 82, revg. 280 App. Div. 211). Upon appeal, such denial was unanimously affirmed in the Appellate Division, First Department, and the parties were directed to proceed to arbitration. We granted leave in order that the controversy might be examined in light of our subsequent decision in Matter of Riverdale Fabrics Corp. (Tillinghast-Stiles Co.) (306 N. Y. 288). That case dealt with a salesnote for cotton yarn containing a clause reading “ This contract is also subject to the Cotton Yarn Buies of 1938 as amended ”. Buie 31 of those rules contained an arbitration clause. We deemed such reference was ineffective “ to render arbitration the exclusive remedy ’ ’, because the intention to do so was not clearly expressed. This distinguished the holding in the Level case (supra) for there the verbatim reference in the main contract to the salesnote provision did not, as a matter of law, raise any substantial issue as to the making of the agreement to arbitrate (Civ. Prac. Act, § 1458, subd. 2). In our view this case more closely resembles Biverdale (supra) than Level and, accordingly, a court cannot say that the intent to arbitrate was so clearly expressed as to warrant a direction that parties proceed to settle their dispute by arbitration.

The order should be reversed and the motion to stay arbitration granted, with costs.

The order of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Conway, Ch. J., Desmond, Fuld, Froessel, Van Voorhis and Burke, JJ., concur.

Orders reversed, etc.