author: Hubbs, J.

text:
    In the Matter of John W. Stuart, an Infant. Frank A. McNamee, Jr., et al., Appellants; Charles M. Stuart, Respondent.

      Argued March 7, 1939;
    decided April 11, 1939.

      Robert E. Whalen for appellants.
    For the purpose of this appeal, the Surrogate’s findings of fact must stand. (Matter of Grossman, 131 Misc. Rep. 526; Matter of Hogan, 147 Misc. Rep. 112; Matter of Zaiac, 279 N. Y. 545.) A surviving parent, not charged with bad character or other unfitness, is not entitled, absolutely and at all events, to the custody of a child over fourteen years of age, who, for good reason, prefers another. (Matter of Gibbs, 96 Misc. Rep. 537; Matter of Wainman v. Richardson, 119 Misc. Rep. 363; People ex rel. Roberts v. Kidder, 137 Misc. Rep. 347; People ex rel. Mahoff v. Matsoui, 139 Misc. Rep. 21; Matter of Lee, 220 N. Y. 532; Ledwith v. Ledwith, 1 Dem. 154; Matter of Gustow, 220 N. Y. 373.) The Appellate Division has overridden the infant’s expressed preference and has substituted its own judgment for that of the Surrogate. (1 Black. Comm. p. 462; 2 Kent Comm, p. 227; Sherman v. Ballou, 8 Cow. 304; People ex rel. Pascale v. Lanza, 166 Misc. Rep. 370; Matter of Shonts, 229 N. Y. 374; Gang v. Gang, 253 N. Y. 356; Matter of Superintendent of Banks, 207 N. Y. 11; Halfmoon Bridge Co. v. Canal Board, 213 N. Y. 160; Forstmann v. Joray Holding Co., 244 N. Y. 22; Rudiger v. Coleman, 228 N. Y. 225; Matter of Vandewater, 115 N. Y. 669; Matter of Lee, 220 N. Y. 532.)

      George B. Brooks for respondent.
    The father as natural guardian of his son is entitled to letters of guardianship of the person, there being no showing of unfitness. (Matter of Decker, 252 N. Y. 1; Matter of Thorne, 240 N. Y. 444; Matter of Reynolds, 11 Hun, 41; Ledwith v. Ledwith, 1 Dem. 154; Matter of Barre, 5 Redf. 64; People ex rel. Boulware v. Martens, 232 App. Div. 258; affd., 258 N. Y. 534; People ex rel. Woolston v. Woolston, 135 Misc. Rep. 320; Matter of Metzger, 114 Misc. Rep. 313; Matter of Tully, 54 Misc. Rep. 184; Matter of Munn, 101 Misc. Rep. 171.) The right given to an infant over fourteen years of age to nominate a guardian of the person does not exist where there is a natural guardian unless the latter is unfit. (Foley v. Mutual Life Ins. Co., 138 N. Y. 333; Ledwith v. Ledwith, 1 Dem. 134; Matter of Barre, 5 Redf. 64; Matter of Reynolds, 11 Hun, 41; Jordan v. Jordan, 4 Tex. Civ. App. 559: Beard v. Dean, 64 Ga. 258; Newton v. Javrin, 62 N. H. 440; Bracket v. Bracket, 77 N. H. 68.)
   Hubbs, J.

John Walker Stuart, the petitioner, an infant nearly seventeen years of age, instituted this proceeding for the appointment of a guardian. He sought the appointment of the appellant Frank A. McNamee, Jr., as guardian of his person. The National Commercial Bank and Trust Company of Albany had been appointed guardian of his property in a proceeding on a previous application made by the respondent Charles M. Stuart, father of the infant, for his own appointment as guardian of both the person and property of the infant. It appears that the respondent and the mother of the infant were divorced on December 30, 1929, custody of the petitioner and his sister, twenty-one years of age when this proceeding was instituted, being awarded to the parents jointly. On July 1, 1930, the mother married Frank A. McNamee, Jr., an attorney at law. Thereafter the sister resided with the mother and Mr. McNamee at Loudonville, Albany county, and the petitioner spent his school vacations there with his mother and sister. The respondent’s duties required him to travel extensively, and he saw very little of the children. In 1933 the respondent obtained a position in New York city, since which time both children have resided exclusively with their mother and stepfather, Mr. McNamee. Since September, 1933, petitioner has attended St. Mark’s School at Southborough, Mass. From the early part of 1933 to the time of her death on January 26, 1936, the mother supported the petitioner. Subsequently, and pending judicial settlement of an estate in which petitioner has an interest valued at approximately $375,000, the stepfather, Mr. McNamee, has advanced all money for petitioner’s education and support. It appears that petitioner and respondent, his father, are on friendly terms, and there is no indication that "the father is not a proper person to act as guardian of the infant. The petitioner states, and the Surrogate has found, however, that the petitioner desires to continue to make his home in Albany county, where he and Iris sister were born, because he wishes to continue his close relationship with his sister, because his estate is located there, and because of his many friends in and about Albany. The Surrogate found that the sister has a good influence on the petitioner.

Upon the foregoing state of facts the Surrogate made a decree appointing the appellant Frank A. McNamee, Jr., guardian of the person of the infant appellant. The Appellate Division modified the decree upon the law by striking out the name of Frank A. McNamee, Jr., appellant, as guardian and substituting the name of Charles M. Stuart, the respondent, and by inserting a provision that the infant remain at the school which he now attends.

It appears from the memorandum of the Appellate Division that the modification was made upon the theory that the law is that in the absence of proof showing that a surviving parent is of bad character or otherwise unfit to have the custody of his minor child, his right to custody is paramount to that of any stranger or other relative. In support of such rule the court cites section 81 of the Domestic Eolations Law (Cons. Laws, ch. 14), which provides that a surviving father or mother may, by deed or will, dispose of the custody of a child, and various decisions, particularly Matter of Thorne (240 N. Y. 444), in which case custody of infants under the age of fourteen years was awarded to their parents. We believe the Appellate Division has accorded to the decisions upon which it relied an effect unwarranted by what has been said in those opinions and not intended when those opinions were written. All of the cases cited by the Appellate Division were cases involving infants under fourteen years of age. Quite different basic principles are involved in the appointment of guardians of infants of tender years than are applicable in the appointment of guardians of infants of more mature age. Nevertheless, each case depends upon its own facts.

Our present statutory proceeding for the appointment of guardians of infants over the age of fourteen years had its origin in the common law rule that if there be no testamentary guardian the Surrogate or Judge of Probate is authorized to appoint guardians who shall be chosen by infants of the age of fourteen years. (2 Kent’s Comm, p. 227.) Originally an heir above the age of fourteen years might supersede his guardian in socage by one of his own choice under a deed of appointment. The right of sole appointment has in this country been superseded by a requirement of judicial approval. The right of nomination remains, however, subject to judicial approval. (Schouler on The Law of Domestic Relations [4th ed.], § 301.) Under our present statute such an application must be made by the infant except where the infant is of unsound mind or refuses to make such petition. (Surr..Ct. Act, § 175.) The petition is required to state: “ If either parent is living and there are reasons why the parent should not be appointed such guardian, the reasons therefor.” (§ 176, subd. 6.) The Surrogate is required to make inquiry as to the facts and circumstances regarding the infant, his condition in life and surroundings. (§ 178.) The Surrogate must make a decree appointing a guardian if satisfied that the allegations of the petitioner are true and that the interests of the infant will be promoted and may “ in his discretion, appoint a person other than the father or mother of the infant, or other than the person nominated by the petitioner.” (§ 179.) The Legislature has granted to Surrogates a wide discretion, and they are not required to appoint the person nominated by the infant or the father or mother. In all cases involving the appointment of a guardian for an infant the paramount question is whether the interest of the infant will be promoted by the appointment to be made. The decisions are uniform in so deciding, even in cases where the infant was under fourteen years of age. (Matter of Gustow, 220 N. Y. 373.)

If it appears to be for the best interests of the infant to appoint one other than the father or mother there is no abuse of discretion in making such an appointment, and the appointment is within the power of the Surrogate to make. Surely the Surrogate may consider the ties of family and friendships which the infant has made and which he desires to have continued unbroken. To reach the conclusion that to so decree as to continue established and favorable relationships in a salutary environment, and to refuse to uproot the infant and place him in a new home where he may or may not be happy and contented, even though it be with a father who, while not having supported him, may have failed to do so solely because of not having his custody, would hardly seem to evidence an abuse of discretion. Surely some regard should be had for the expressed preference of the infant when he has exercised his right to petition, has stated sound reasons for the nomination of another, and it is shown that his future will not be jeopardized but rather that the likely result will be a continuance of beneficial relationships, whereas any change might result in less happiness on his part and less favorable progress as a result.

Section 81 of the Domestic Relations Law is not a bar to the appointment by the Surrogate, in a proper case, of one other than a parent as guardian of an infant over fourteen years of age. It merely provides for a testamentary grant by the survivor of the parents, or by one to the other in their lifetime, of the custody and tuition of a child during minority. Its purpose was not to confer rights of guardianship upon parents but to settle as between parents their respective rights. (Matter of Gustow, supra; Goodman v. Alexander, 165 N. Y. 289; Matter of Wagner, 75 Misc. Rep. 419, 427.) That section must be considered in the light of section 173 of the Surrogate’s Court Act, which specifically confers on the Surrogate’s Court power to appoint a general guardian of the person or property, or both, of an infant whose father or mother are living, subject to the limitation that such power and authority must be exercised in like manner as they were exercised by the Court of Chancery, subject to the provisions of the Surrogate’s Court Act.

We reach the conclusion, therefore, that the Surrogate was not without power to appoint appellant Frank A. McNamee, Jr., even though no moral turpitude or other fault on the part of the father was shown. The Appellate Division has reversed on the law. It has not indicated any disapproval of the Surrogate’s finding of facts as set forth in his decision. No facts appear which indicate an abuse of discretion on the part of the Surrogate. We are, therefore, without authority to review his exercise of discretion. (Matter of Welch, 74 N. Y. 299; People ex rel. Riesner v. N. Y. N. & C. Hospital, 230 N. Y. 119, 125.)

It follows that the order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Rippey, J. Lehman, J.

license: Public Domain

text:
    Robert Davison et al., Doing Business under the Firm Name of Charles Davison’s Sons, Appellants, v. Sybilla Klaess, Respondent.

      Argued March 1, 1939;
    decided April 11, 1939.

      Earl J. Bennett for appellants.
    It was error for the Appellate Division to reverse the findings of fact and conclusions of law of the trial court and to allow the findings of fact and conclusions of law of the defendant. (Bidwell v. Douglas Trading Co., 183 Fed. Rep. 93; Guernsey v. Carver, 8 Wend. 492; Stevens v. Lockwood, 13 Wend. 646; Lennon Co. v. N. Y. Mail Co., 81 Misc. Rep. 251; Darrow v. Clipper

      Mfg. Co., 48 Misc. Rep. 635; Beers v. Reynolds, 11 N. Y. 97; Blackwell v. Finlay, 233 N. Y. 361; Faber v. City of New York, 222 N. Y. 255; Smith v. Shaw, 2 Wash. C. C. 167; Story v. Livingston, 13 Pet. [U. S.] 359; Shepard v. City of N. Y., 216 N. Y. 251.) It was error for the Appellate Division to disallow the request of the plaintiffs to find and its conclusions of law in regard to the last two payments of five hundred dollars each made by the defendant. (American Brake Shoe & Foundry Co. v. N. Y. Rys. Co., 85 Fed. Rep. [2d] 531; Smith v. Taylor, 79 Fed. Rep. [2d] 165.) The application of the payments made by the defendant actually took place when they computed the interest in 1936, when they applied the payments first to interest and any balance to principal, and made a demand for settlement. (Bank of California v. Webb, 94 N. Y. 467; Dairymen’s League Cooperative Assn. v. Hartford Acc. & Ind. Co., 252 App. Div. 527; Camp v. Smith, 136 N. Y. 187; Praeger v. N. J. Fidelity & Plate Glass Ins. Co., 245 N. Y. 1; American Brake Shoe & Foundry Co. v. N. Y. Railways Co., 85 Fed. Rep. [2d] 531; Preston Co. v. Funkhouser, 261 N. Y. 140; Smith v. Taylor, 79 Fed. Rep. [2d] 165; Story v. Livingston, 13 Pet. [U. S.] 359; Smith v. Shaw, 2 Wash. C. C. 167; Ross v. Russell, 31 N. H. 376; Haffey v. Lynch, 193 N. Y. 67; Shepard v. City of New York, 216 N. Y. 251.) Interest is now an incident to recovery on a contract whether liquidated or unliquidated, it is allowable to make a contractor whole and to give him just compensation. (Civ. Prac. Act, § 480; Praeger v. N. J. Fidelity & Plate Glass Ins. Co., 245 N. Y. 1; Woerz v. Schumacher, 161 N. Y. 530; Preston Co. v. Funkhouser, 261 N. Y. 140; Beers v. Reynolds, 11 N. Y. 97; Blackwell v. Finlay, 233 N. Y. 361; White v. Miller, 78 N. Y. 393; Faber v. City of New York, 222 N. Y. 255.) Interest should be computed on the partial payment plan or method. (Shepard v. City of New York, 216 N. Y. 251; Haffey v. Lynch, 193 N. Y. 67; Clift v. Moses, 75 Hun, 517; Merchants Bank v. Freeman, 15 Hun, 359; Story v. Livingston, 13 Pet. [U. S.] 359; Smith v. Shaw, 2 Wash. C. C. 167; Ross
      v. Russell, 31 N. H. 376.) Interest was not waived. Part payment on account did not cancel the principal pro tanto. (Balfour & Koch Co. v. Ranow, 127 Misc. Rep. 21; Erie R. R. Co. v. Hilton, 171 App. Div. 545; Lennon Co. v. New York Mail Co., 81 Misc. Rep. 251; Guernsey v. Carver, 8 Wend. 492; Barrow v. Clipper Mfg. Co., 48 Misc. Rep. 635; Secor v. Sturgis, 16 N. Y. 548.)

      Joseph S. Robinson and Edgar T. Beamish for respondent.
    The acceptance of principal, without interest, bars a later action for interest on the amount already paid where interest is not an inherent part of the contract itself. (Matter of Crane v. Craig, 230 N. Y. 452; Forschirm v. Mechanics & Traders’ Bank, 137 App. Div. 149; Ledyard v. Bull, 119 N. Y. 62; Knickerbocker Portland Cement v. Rukeyser, 169 App. Div. 168; Hamilton v. Van Rensselaer, 43 N. Y. 244; Jacot v. Emmett, 11 Paige, 142; Esterly v. Cole, 3 N. Y. 502; Balfour & Koch Co. v. Ranow, 127 Misc. Rep. 21; Bronx Gas & Electric Co. v. City of New York, 29 Misc. Rep. 402; Rodkinson v. Haecker, 248 N. Y. 480; Cutter v. Mayor, 92 N. Y. 166; Grate v. City of New York, 117 App. Div. 768; Shepard v. City of New York, 216 N. Y. 251. Middaugh v. Elmira, 23 Hun, 79; Bavis v. Harrington, 160 Mass. 278; Bradford v. Grover, 55 Vt. 462; Matter of Hodgman, 140 N. Y. 421; Smith v. Velie, 60 N. Y. 106; Hamilton v. Van Rensselaer, 43 N. Y. 244; Wood v. Hecker, 2 Wend. 501.)
   Rippey, J.

Plaintiffs allege in their complaint, defendant admits in her answer or has conceded on the trial, and the lower courts have found that, between October 14, 1925, and August 18, 1926, plaintiffs delivered to defendant at her special instance and request certain lumber and building materials of the reasonable value and reasonably worth $7,686.54; that there was credited thereon $38.80, leaving a $7,647.74 balance due, for which plaintiffs rendered an itemized statement and bill to defendant on August 18, 1926, upon terms of payment stated in the bill to be “ Cash — Accounts Overdue Subject To Interest.” Throughout all the transactions, defendant’s son, a building contractor, was acting as her agent. Defendant paid to plaintiffs on account $162.99 on September 24, 1926. In July, 1931, plaintiffs pressed for payment of the balance due. On July 22, 1931, the son wrote plaintiffs that he had spoken to his mother and that “ she was doing everything possible to settle the matter as soon as she could,” and later wrote that “ two thousand is all that she can have by the tenth, but she assures you that the balance will follow right along without delay.” The $2,000 referred to was paid on October 12, 1931. Five hundred dollars was paid on January 22, 1932, and another $500 was paid on May 3, 1932. The payments as made were credited to defendant on plaintiffs’ books. Interest was not from time to time computed and entered on the account by plaintiffs. On December 14, 1932, plaintiffs sent to defendant a statement of account without any specific computation of interest in any specified amount thereon, but the bill contained, as did the bill of August 18, 1926, the statement Terms: Cash — Accounts Overdue Subject To Interest.” This statement appears to be merely a list of debits and credits as appeared in the account on the books. On January 10, 1933, the son of defendant wrote plaintiffs: Enclosed please find check as promised for $500.00 on my Mother’s account. She will pay $500.00 or more every 6 months until debt is liquidated.” That promise, in terms, was not kept, although there were paid the plaintiffs three additional sums during 1933 and 1934 of $500 each. On May 15, 1935, plaintiffs rendered a further statement containing an itemized list of debits and credits as shown by the books indicating a balance due on the original items of $2,484.75, with the statement “ Accounts Overdue Subject To Interest.” Defendant paid $500 on account on May 20, 1935, and another $500 on March 24, 1936. In July, 1936, defendant requested a statement of the balance due, whereupon, on July 24, 1936, plaintiffs rendered a statement showing a balance -unpaid of $4,573.01, which included interest figured from August 18, 1926, on the partial-payment plan. Defendant refused to pay any interest except on $1,484.75 from August 18, 1926, which she claimed was the sole amount due on the unpaid balance of the original bill. The issue here centers around the amount of interest to which plaintiffs are entitled.

There was no express agreement to pay interest. On August 18, 1926, the indebtedness was liquidated, the account stated and the amount due and owing definitely determined and agreed to be paid at that time in cash, but, if not then paid in cash, with interest to the dates of payment. The mere presenting of the bill, if there were nothing more, constituted a sufficient demand to start interest running (Blackwell v. Finlay, 233 N. Y. 361). The statement of account as rendered upon the terms stated was accepted by defendant and conceded by her to be correct and has never been disputed as to the amount then alleged to be due and never challenged as to interest thereon until ten years later when plaintiffs finally computed the balance of principal and interest due in compliance with defendant's request for a statement of the balance due for the purpose of finally settling the account. Upon the conceded.facts, when the bill was rendered and accepted on the terms stated, there arose an implied contract to pay interest from August 18, 1926, upon each and every part of the account until paid as part of the original debt and interest became an integral part of the creditors’ claim. (Braun v. Hess & Co., 187 Ill. 283; Lambeth Rope Co. v. Brigham, 170 Mass. 518; approved, 172 Mass. 581, 583; Carson v. Alexander, 34 Miss. 528; Matter of Crane v. Craig, 230 N. Y. 452; Prager v. N. J. Fidelity & Plate Glass Ins. Co., 245 N. Y. 1.) “ The debt by operation of law necessarily grew in amount as the duty of paying it was delayed, and cannot be legally satisfied except by the payment of the sum due upon it when it is attempted to be discharged ” (Chester v. Jumel, 125 N. Y. 237, 254). Recovery of interest herein so far as allowed may properly have been based upon the proposition that interest was reserved in the statement rendered by plaintiffs and accepted by defendant on August 18,1926, whereby it was mutually agreed that interest should be payable on any unpaid portion of the account as part of the original contract and debt.

Such being the contract between the parties and the applicable law, the agreement continued to remain as made unless it was changed or abrogated by mutual assent or plaintiffs were barred from recovering interest on the partial payments through waiver or estoppel. The defense to the payment of interest thereon was based exclusively on the ;pleaded defense that agreements were made between the parties on January 10, 1933, and on May 15, 1935, that no interest should be required to be paid on the partial payments. When, in an action at law, an interested party has adopted a theory for his case and the case is tried and disposed of by the trial court upon the theory advanced and that theory is adopted by the Appellate Division, it is too late to advance some different theory in this court. Plaintiffs produced oral evidence that no such agreements were made. The defendant produced no oral evidence at all on the trial. She relies exclusively as to the alleged agreement of January 10, 1933, upon a letter written on that date by the son of the defendant referred to above in which he says: “ Enclosed please find check as promised for $500.00 on my Mother’s account. She will pay $500.00 or more every 6 months until debt is liquidated.” Upon that statement alone the Appellate Division has found, contrary to the finding of the trial judge, the undisputed testimony of one of the plaintiffs and the uncontradicted evidence that no such an agreement was carried out, that such an agreement was made and was valid and binding upon the plaintiffs and indicated mutual assent to the proposition that the original agreement should be modified, abrogated or rescinded as to that portion by which the parties mutually agreed that interest should be paid upon all unpaid balances on and after August 18, 1926, as part of the original debt. There is nothing in that transaction to indicate anything of the kind. Standing as it does alone and as pleaded, it indicates nothing further than what is said, to wit, that partial payments will be made at stated times upon the account. The defense based upon the proposition that there was an agreement of modification on May 15, 1935, stems exclusively from the statement rendered by plaintiffs on that day. That statement is a summary statement of the bill of August 18, 1926, and of credits and payments made thereon with a statement at the bottom: “ Bal. due $2484.75,” but this statement contains the same reservation as the original statement of August 18,1926, in these words: “Terms: Cash — Accounts Overdue Subject To Interest.” The statement on the bill, “ Bah due,” after which was indicated the balance unpaid on principal without including a statement of accrued interest, has no effect unless it led to the conclusion that the former contract for the payment of interest had been rescinded and a new one substituted by mutual assent. No inference can be drawn from that statement that the parties then mutually agreed to accept the balance due on the principal account without interest on previous or subsequent partial payments (Lambeth Rope Co. v. Brigham, supra; Braun v. Hess & Co., supra). The trial court found that no such agreements were made and that the original contract had not been varied or changed by the parties. That finding, although reversed by the Appellate Division, was in accord with the facts and the law. There was no evidence to the contrary. No offer or request was made by defendant to vary or modify the original contract nor did plaintiffs ever offer so to do. There is no evidence that either party ever had such a thing in mind.

The Appellate Division was further of the opinion that upon the statements rendered and the assumption that payments were made by defendant and voluntarily applied by plaintiffs on principal, the plaintiffs waived interest. A complete answer to the assertion of waiver is that it was not available as a defense since it was not pleaded. Aside from the fact, however, that waiver was neither pleaded nor relied upon by defendant and assuming that voluntary application by plaintiffs of partial payments was made to principal alone, waiver was not established as a fact. Waiver is “ voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed ” (67 C. J. 289; Masons’ Supplies Co. v. Jones, 58 App. Div. 231; affd., 172 N. Y. 598). Mere acceptance of partial payments and application thereof to principal with nothing more constituted no waiver of interest (Purdy v. Philips, 11 N. Y. 406). It is asserted that there was an implied waiver by sending the statement with the words Bal. due without including a computation of interest in the final amount stated. Whether an alleged waiver is express or implied, it must be intentional. There is no evidence that plaintiffs ever had such intent and intentional waiver of interest is completely negatived as the bills themselves all said Accounts Overdue Subject To Interest.” The last statement, like others sent, was merely a demand for payment showing the balance due on the principal items subject to interest and must have been so understood by defendant. Defendant was in no manner prejudiced by the statements and thus there could be no estoppel.

There was no agreement or understanding between the parties nor direction by the defendant as to how the partial payments should be applied. Plaintiffs might then apply them to principal or to interest or to both as and when they elected so to do. The original agreement as to payment of interest being such as indicated, it became immaterial whether plaintiffs accepted the partial payments and applied them exclusively on the principal indebtedness, for when interest is due by the terms of the contract the payment of the principal is no bar to its subsequent recovery (People v. County of New York, 5 Cow. 331; Purdy v. Philips, 11 N. Y. 406; Shepard v. City of New York, 216 N. Y. 251; Matter of Crane v. Craig, 230 N. Y. 452; Nelson v. Chicago Mill & Lumber Corp., 76 Fed. Rep. [2d] 17; 100 A. L. R. 87, with annotation of cases from all jurisdictions to the same effect; 22 Cyc. p. 1572). In Matter of Crane v. Craig (230 N. Y. 452) Crane, J., laid down the rule for an unanimous court at page 461 that when the interest is reserved as an integral part of the debt the acceptance of the principal without the interest does not extinguish the debt, and the mere acceptance of part, either of principal or interest, does not bar a subsequent claim for the whole, whether with or without protest, for the payment of part is not generally a satisfaction of the whole, unless there is an agreement of some kind that the payment made should be a satisfaction of the whole ” (citing cases). In the Appellate Division the effect of that rule was confused with the rule applicable only where there is no original contract for the payment of interest. In the latter case recovery of interest is by way of damages or a penalty for breach of the contract to pay on a fixed date (Ledyard v. Bull, 119 N. Y. 62; Matter of Trustees of N. Y. & Brooklyn Bridge, 137 N. Y. 95, 98; Matter of Crane v. Craig, 230 N. Y. 452, 461), where the acceptance of a payment on the principal without charging interest extinguishes the interest on such payment to the extent thereof (Bronner Brick Co. v. Canda Co., 18 Misc. Rep. 681; Froment v. Oltarsh, 60 Misc. Rep. 89; Jacot v. Emmett, 11 Paige Ch. 142; Cutter v. Mayor, 92 N. Y. 166, 171), but even then there must be affirmative acceptance of the payments as applicable to the principal of the debt only and the actual exercise by the creditor of the option. It is only in such a case that the form of the statements might have a bearing, if any at all, upon the right to recover interest by way of damages. The case of Bank of California v. Webb (94 N. Y. 467) is not in point and decides nothing to the contrary. In that case there was no agreement express or implied to pay interest.

It follows that nothing has transpired in the case at bar to abrogate or change the implied agreement to paylnterest as part of the original debt which grew out of the rendering and acceptance of the statement of August 18, 1926. As matter of law, no such change resulted from the rendering of the bills or the dealings between the parties. No offer or request in any form was made by defendant to modify or vary the original contract and there is no evidence that she ever had such a thing in mind, nor is there evidence that plaintiffs voluntarily offered to waive interest or had such a thing in mind. No consideration has been shown or exists as a basis for any alleged agreement by the plaintiffs to give up their legal contract right to recover interest upon the partial payments nor is there any evidence of a meeting of the minds of the parties upon any change or modification of the original contract.

If there ever was a case where the rule of " just compensation ” and that interest should be added to make plaintiffs whole should be applied (Prager v. N. J. Fidelity & Plate Glass Ins. Co., 245 N. Y. 1), this is one, for while defendant failed to pay an agreed balance due, she has had the advantage and use of plaintiffs’ building materials since 1926 and plaintiffs have been without the use of their money concededly justly due. Citing Van Rensselaer v. Jewett (2 N. Y. 135), Judge Cabdozo, writing for an unanimous court in Prager v. N. J. Fidelity & Plate Glass Ins. Co. (supra, p. 5), says: “ While the dispute as to value was going on, the defendant had the benefit of the money, and the plaintiff was without it. Interest must be added if we are to make the plaintiff whole. * * * If it chose to keep the money, it should pay for what it kept. There would be obvious injustice if interest were to be lost as the result of a slight discrepancy between the claim and the award. * * * More and more the courts are coming over to the view that in actions on implied contracts to recover for services or property, interest is a concomitant very nearly automatic, and this though the value has been honestly disputed. Interest is now held to be an incident to 1 just compensation ’ where property has been taken in the exercise of the power of the government (U. S. v. Rogers, 255 U. S. 163; Seaboard Airline Ry. Co. v. U. S., 261 U. S. 299). It is no less such an incident where liability has its origin in the obligation of a contract.” And Judge Pound, writing for the court in Preston Co. v. Funkhouser (261 N. Y. 140), after citing the Prager case, at page 145 says: The party not performing should not deprive the party not in fault of the use of his money without paying therefor.” These considerations of equity and justice are of equal force where the obligation to pay interest arises in contract (though not vital to the decision, here) and where interest is recoverable solely as damages for non-payment of the debt.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Lehman, J.

(dissenting). Plaintiffs are dealers in building materials. Between October 14, 1925, and August 16, 1926, plaintiffs sold and delivered to the defendant building materials of the aggregate value of $7,686.54. In August, 1926, after the last delivery was made, plaintiffs rendered to the defendant an itemized account. The account rendered was upon a printed form which stated: “ Terms cash — Accounts overdue subject to interest.” The account showed that material of the value of $2,286.50 was delivered “ as per contract October 14 /1925 / ” denominated job No. 8; merchandise of the value of $1,995.83.was delivered as per contract Dec. 2, 1925,” denominated job No. 9, and merchandise of the value of $3,404.21 delivered as “ per contract Jan. 18, 1926,” denominated job No. 10. Credit was allowed for a small amount of material returned on job No. 10. The defendant did not challenge then, and does not challenge now, the correctness of the account rendered. Through her son as agent she paid $162.99 on account in September, 1926. She paid another $2,000 in October, 1931, and made eight payments of $500 each between January, 1931, and March, 1936. The defendant gave no express direction that payments on account should be applied upon the principal debt. Interest was running upon that debt from the date when the account was rendered. Application of payments made on account in reduction of the principal debt would correspondingly reduce interest thereafter accruing upon the unpaid debt. The plaintiffs •vere free to apply all payments made on account in reduction of the principal debt, or they might, if they chose, apply such payments first upon interest which had accrued, and apply only the balance in reduction of the principal debt. The choice might be made at any time. (Bank of California v. Webb, 94 N. Y. 467.) The problem in this case is whether the plaintiffs exercised the choice and irrevocably applied, in reduction of the principal debt, all payments made by the defendant on account. If so applied, the principal debt was reduced to the sum of $1,484 and the defendant has tendered that amount with interest from August 18, 1926, the date when the account was first rendered.

The Appellate Division, reversing findings to the contrary made by the trial justice, has held that the plaintiffs did irrevocably apply upon the principal debt all payments on account. There is no controversy in regard to the evidentiary facts upon which the Appellate Division based its conclusions. The plaintiffs concede that no express agreement was ever made by the defendant to pay interest. They concede that at no time prior to October, 1936, was interest referred to in any conversation or in any written communication, except that each account rendered by the plaintiffs was upon a form or billhead upon which, under the name and description of the plaintiffs, the words “ Terms cash — Accounts overdue subject to interest ” were printed. Their claim rests largely, perhaps entirely, upon these words.

It is said that, by accepting the account rendered in 1926 without objection and making payments on account, the defendant impliedly agreed to pay interest upon the account. Undoubtedly the parties agreed that the account rendered correctly states the amount due from the defendant, and the defendant impliedly agreed to pay that amount. The law as an incident to a debt imposes an obligation to pay interest from the time of default. The statement upon the bill is merely a notice by the creditor that from failure to pay the accoimt when due an obligation to pay interest will arise. It is difficult to understand how an agreement to pay interest can be implied from failure to object to an account rendered which correctly states the amount due and the incidental obligation imposed by law in case of failure to pay that amount. Denial of the incidental obligation would not have served to free the defendant from it nor would acknowledgment of the obligation give to it any added force. The obligation to pay interest indisputably existed. It is unimportant whether it is created solely by law or based also on consent and agreement. The defendant does not deny the obligation. She maintains that she has satisfied it.

After the defendant paid $2,000 on account in 1931 and had made two payments of $500 each in 1932, the plaintiffs rendered a statement of the account as it then stood. The same notice that accounts not paid when due were subject to interest was printed upon the billhead. The account rendered stated that the $2,000 check received in 1931 was applied in payment of the sum of $1,995.83, the entire amount due for materials furnished on job No. 9, and that the remainder of the payments which had been received were applied on the amounts due for materials furnished on job No. 8, leaving a Bal. due of 1119.34/100 ” ón that job and a balance of $3,365.41 still due for materials delivered on job No. 10. There is no room for dispute that this account was rendered and accepted as a correct statement of the account as it then stood. The parties agreed that the balances stated in the account were correct and had been arrived at by application of all payments, made on account, upon the principal debt as stated therein. It is an unequivocal statement by the plaintiffs that they had made such application; it is an unequivocal statement that as a result of such application the balance remaining due upon the original account is reduced to the sum of $4,484.75. Though the defendant had given no direction as to how such payments should be applied, she accepted the account and agreed to the correctness of the balance. There is no room here for recourse to technical rules as to how moneys paid on account may be applied where the parties have not agreed otherwise. Here application made by the creditor has been agreed to by the debtor, and by agreement the rights of both parties became fixed. In 1932 it appears from incontrovertible evidence that the balance then still due upon the account rendered in 1926 was $4,484.75, and that balance was subject to interest ” in accordance with the law and the notice printed upon the billhead.]

In 1935 after the defendant had made four more payments of $500 each on account, the plaintiffs again sent a statement of the account as it then stood. That account, like the account rendered in 1932, shows that the indebtedness of $1,995.83 for materials delivered on job No. 9 was extinguished by application of the first payment made on account, and that other payments on account were applied on jobs Nos. 8 and 10, leaving a Bal. due of $2484.75.” Again there was agreement by both parties in regard to the application of moneys paid on account and agreement that through such application the balance still remaining due on the original account rendered in 1926 has been reduced to $2,484,75. When shortly thereafter the defendant made two more payments of $500 each she could properly assume that even without directions from her the payments would be applied in accordance with the earlier practice of the parties established by agreement.

Only after such payments were made did the plaintiffs claim the right to apply payments on account in satisfaction of accrued interest. They had made their choice when the payments were received; they had notified the defendant of the choice made, and the defendant acquiesced; they had rendered accounts based upon that choice; they had stated the balance due, and the defendant accepted the account rendered and made payments thereon. It is too late to claim that no choice was made, after the plaintiffs reported the choice in an account upon which they intended the defendant to act.' It is too late to repudiate the choice and change the account when the parties have acted upon it.

Judgment should be affirmed, with costs.

O’Brien, Hubbs and Finch, JJ., concur with Rippey, J.; Lehman, J., dissents in opinion, in which Crane, Ch. J., and Loughran, J., concur.

Judgment accordingly.


author: Lehman, J.

text:
    In the Matter of Frederick H. Roge, Respondent, against Lewis J. Valentine, as Commissioner of the Police Department of the City of New York, Appellant.

      Argued March 1, 1939;
    decided April 11, 1939.

      William C. Chanler, Corporation Counsel (Paxton Blair and Charles C. Weinstein of counsel), for appellant.
    The petitioner’s guilt of the charges contained in specification seven was clearly and convincingly established by competent evidence without the aid of section 374-a of the Civil Practice Act and without resort to former testimony read into the record. (People ex rel. Niebuhr v. McAdoo, 184 N. Y. 304; People ex rel. Weston v. McClave, 123 N. Y. 512; People ex rel. Carney v. Scannell, 80 App. Div. 320; People ex rel. Powers v. Welles, 18 App. Div. 132; People ex rel.

      Gurney v. Valentine, 274 N. Y. 331; People ex rel. Hargrave v. Johnson, 10 N. Y. St. Repr. 404; People ex rel. Morrissey v. Waldo, 212 N. Y. 174; People ex rel. McAleer v. French, 119 N. Y. 502.) The petitioner’s guilt of the charges contained in specification ten was established by bis admissions and he cannot complain of the reception in evidence of photostatic copies of a check and check stub since he did not object to their introduction. (People ex rel. Hirschberg v. Board, of Supervisors, 251 N. Y. 156; People ex rel. Weston v. McClave, 123 N. Y. 512; People ex rel. Doherty v. Martin, 84 Hun, 64; 148 N. Y. 757; Matter of Yates v. Mulrooney, 245 App. Div. 146; People ex rel. Hansen v. McClave, 31 N. Y. St. Repr. 246; People ex rel. Gilson v. Gibbons, 231 N. Y. 171; Matter of Stowell v. Santoro, 278 N. Y. 427.) The petitioner’s guilt of the charges contained in specifications one to six, eight, nine and eleven was sufficiently established by competent evidence. The documentary evidence of the recommendation of cases by the petitioner to Sanders and of payments by Sanders to the petitioner was rightly admitted under section 374-a of the Civil Practice Act. The testimony given in the inquiry and in the disciplinary proceeding which was read into the record at the departmental trial was competent proof against the petitioner of the matters contained in such former testimony. (People ex rel. Hirschberg v. Board of Supervisors, 251 N. Y. 156; People ex rel. Weston v. McClave, 123 N. Y. 512; People ex rel. Doherty v. Martin, 84 Hun, 64; 148 N. Y. 757; Matter of Yates v. Mulrooney, 245 App. Div. 146; Bullard v. Pearsall, 53 N. Y. 230; People v. Romano, 279 N. Y. 392; United States ex rel. Ng Kee Wong v. Corsi, 65 Fed. Rep. [2d] 564; Moy Said Ching v. Tillinghast, 21 Fed. Rep. [2d] 810.)

      Lawrence Kovalsky and David Goldstein for respondent.
    The charges filed against petitioner are insufficient to warrant his dismissal. (Sicklick v. Schasseur, 221 App. Div. 742; People ex rel. Cohen v. Waldo, 164 App. Div. 563; People ex rel. Langan v. Hayden, 80 Hun, 397; People ex rel. Rudd v. Cropsey, 173 App. Div. 714; People ex rel. Packwood v. Riley,
      232 N. Y. 283; People ex rel. Brennan v. Bingham, 130 App. Div. 710.) Petitioner was dismissed without a hearing as required by section 22 of the Civil Service Law (Cons. Laws, ch. 7). (Matter of Blount v. Forbes, 250 App. Div. 15; Matter of McMahon v. Devlin, 254 N. Y. 397; Morgan v. United States, 304 U. S. 1; People ex rel. Weston v. McClave, 123 N. Y. 512; People ex rel. Packwood v. Riley, 232 N. Y. 283; People ex rel. Hayes v. Waldo, 212 N. Y. 156; Matter of Reger v. Mulrooney, 241 App. Div. 38.) Petitioner’s dismissal was illegal because the evidence adduced was insufficient to prove the charges filed against him. (People ex rel. Shuster v. Humphrey, 156 N. Y. 231; Matter of Everson v. Order of Eastern Star, 265 N. Y. 112; Matter of Bolin, 136 N. Y. 177; People v. Robinson, 273 N. Y. 438; Leask v. Hoagland, 205 N. Y. 171; Matter of Greenebaum v. Bingham, 201 N. Y. 343; People v. Manganaro, 218 N. Y. 9; People v. Russell, 266 N. Y. 147; Woolley v. Stewart, 222 N. Y. 347; Maloney v. Hearst Hotels Corp., 274 N. Y. 106; Bowlby v. McQuail, 240 N. Y. 684; People ex rel. Gilson v. Gibbons, 231 N. Y. 171.) Petitioner was deprived of a fair hearing because prejudicial hearsay evidence was permitted to be introduced as proof of the charges. (People ex rel. Shiels v. Greene, 179 N. Y. 195; People ex rel. Moynihan v. Greene, 179 N. Y. 253; Matter of Greenebaum v. Bingham, 201 N. Y. 343; McCabe v. Brayton, 38 N. Y. 196; Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 276; Fink v. Thirty-seven West Thirty-sixth Street Co., 244 App. Div. 622; People v. Robinson, 273 N. Y. 438; Leask v. Hoagland, 205 N. Y. 171; Johnson v. Lutz, 253 N. Y. 124; Rudd v. Robinson, 126 N. Y. 113.) The check stubs and record cards of the attorney were not competent evidence as bearing upon the credibility of the testimony of the persons who made the entries. (Blaschko v. Wurster, 156 N. Y. 437; Gray v. Vought, 243 N. Y. 585.)
   Lehman, J.

The petitioner was appointed a patrolman in the Police Department of the city of New York in July, 1928. In 1937 charges in writing were preferred against him of conduct unbecoming an officer; conduct prejudicial to good order, efficiency and discipline; conduct prejudicial to public peace and welfare; neglect of duty ” and violations of the rules and regulations. The charges contain twelve specifications. After a trial he was found “ guilty as charged ” and dismissed from the police force. Upon review of the determination of the Police Commissioner the Appellate Division annulled the determination “ on questions of law and fact ” and granted a new trial. Leave to appeal to this court was granted by the Appellate Division and five questions were certified.

The charges arise out of financial transactions between the patrolman and one Scott Sanders. They became acquainted in 1931 while the patrolman was assigned to the 102d Precinct. Scott Sanders was, at that time, an attorney. He had offices opposite the Magistrates’ Court in the precinct to which the petitioner was attached. The greater part of Sanders’ practice was as attorney for defendants in that court. In proceedings subsequently brought for his disbarment, evidence was introduced which tended to show that he had paid to the petitioner a share of fees received by him in certain cases as attorney. The charges against the petitioner followed upon Sanders’ disbarment.

As amplified by the specifications, the charges may be summarized or classified as follows: (1) That the petitioner recommended or suggested to Scott Sanders, as a prospective client, the name of a man who had been arrested on a charge of burglary where the petitioner .was one of the arresting officers; (2) that the petitioner at times accepted and received from Scott Sanders sums of money for services rendered in connection with that case and divided these sums with another patrolman with whom he was acting in concert; (3) that on dates set forth in the specifications, the petitioner accepted and received from Scott Sanders checks for various amounts, as gratuities, without the consent or approval of the Police Commissioner and during the period of time when the petitioner “ was representing the People of the State of New York in various courts in the Borough of Queens where the said attorney [Scott Sanders] practiced law.”

The sufficiency of the charges is challenged, and it is said that the petitioner was dismissed without a hearing as required by section 22, subdivision 1, of the Civil Service Law (Cons. Laws, ch. 7). We have considered the contentions of the petitioner on these points and have rejected them. They are ignored in the opinion of the Appellate Division, and extended discussion in this opinion would serve no useful purpose. The integrity of those charged with the duty of enforcing the law should be beyond suspicion. Rules of the Police Department provide that a police officer shall not accept gratuities for “ police services without the consent of the Police Commissioner ” nor shall he “ recommend or suggest to anyone the employment or name of any person, firm, or corporation, as attorney, counsel, or bondsman.” We are told that the facts alleged in the specifications of the charges filed show no violation of these rules. Distinction is drawn between recommending to any one a person as attorney, which is prohibited by the rules of the department, and recommending or suggesting the name of a client to an attorney, which it is alleged the petitioner did. It is said too that it does not appear in the charges that the gratuities which it is alleged that the petitioner received and accepted, were paid for “police services.” The prohibitions contained in the rules are directed against acts which may be innocent, if done with innocent intent, but which tend to demoralize the police force, facilitating temptation and covering corruption. Such acts are stamped as wrongful at all times, regardless of whether in particular instance they may be innocent in purpose or in effect. The prohibition of the acts specified in the rules may not be regarded as a license or a grant of immunity for other acts where purpose or effect is not innocent. It is plain that any patrolman who receives and accepts from an attorney practicing in the police court in the precinct to which the patrolman is attached, money as a gratuity or in payment for services, past or future, rendered or hoped for, voluntarily places himself in an equivocal position, destroys his usefulness as a police officer and is guilty of misconduct which justifies, if, indeed, it does not dictate, dismissal from the force. The specifications gave notice to the relator of very serious charges of misconduct. He has been found guilty after a hearing conducted in conformity with due process of law and pursuant to statutory directions “ in the mode required by law.” The only questions which require serious consideration in this court are (1) whether in making the determination of guilt, any rule of law affecting the petitioner’s rights has been violated to his prejudice; (2) whether there is any competent proof of guilt; and (3) if there was such proof, whether upon all the evidence there was such a preponderance of proof against the finding of guilt that if the finding had been made by a jury it could be set aside by the court as against the weight of evidence." (Civ. Prac. Act, § 1296.)

The petitioner admits that he received from Scott Sanders on or about August 31, 1936, a check for the sum of forty-three dollars and that at various times he received other checks or money in small amounts. They represented temporary loans, he testified, promptly repaid. He denies receipt of any moneys as gratuities or in payment of any services rendered or as reward in advance for anticipated favors. If his explanation is accepted as true, there was nothing sinister in the payments made and received; Scott Sanders and the petitioner were, it is said, friends, and temporary loans for small amounts made by one friend to another and promptly repaid would ordinarily raise no inference of wrong even where the loan is made to a police officer. The petitioner’s story is not contradicted by any witness; indeed it is corroborated by the testimony in this proceeding of Scott Sanders, and a former clerk of Scott Sanders. It is argued that under such circumstances guilt has not been established.

Scott Sanders and his former clerk were called as witnesses for the prosecution. The testimony which they gave was certainly not calculated to assist the prosecution. It was in substantial respects inconsistent with testimony they had previously given in the disciplinary proceedings brought against Scott Sanders. It was inconsistent too with notations on record cards and check stubs which formed part of the office records of Scott Sanders. The prior statements made by the witnesses in the disciplinary proceedings and the office records were admitted in evidence upon the hearing of the charges against the petitioner. The statements and records indicate that moneys and checks were given by Sanders and received by the petitioner not as temporary loans promptly repaid, but, as alleged in the specifications of the charges, as gratuities or as rewards in connection with cases where Sanders was retained as attorney and where the petitioner as a member of the police force owed undivided loyalty to the People of the State, not to be undermined by traffic with counsel for the accused. The first question we are called upon to answer is whether the testimony given by the witnesses in the disciplinary proceeding is “ competent, as substantive proof, on the departmental trial, of the petitioner’s guilt without being reaffirmed on such trial ” and whether it was " proper to receive in evidence generally upon the departmental trial, over petitioner’s objections, the exhibits consisting of check stubs and record cards made by Scott Sanders or his clerk.” If these questions are answered in the affirmative, then there can be no doubt that there is ample evidence to sustain the finding of petitioner’s guilt.

The rule has long been established that prior contradictory statements, whether made in court under oath or outside of court orally or in writing, may in proper case be introduced to impeach the credibility of a witness, but do not constitute affirmative evidence or evidence in chief ” of the facts stated. (McCabe v. Brayton, 38 N. Y. 196; Grattan v. Metropolitan Life Ins. Co., 92 N. Y. 274.) By section 343-a of the Civil Practice Act the Legislature has provided that in addition to impeachment in the manner now permitted by law, any party may introduce proof that a witness has made a prior statement inconsistent with Ms testimony, irrespective of the fact that the party has called the witness or made the witness Ms own, provided that such prior inconsistent statement was made in any writing by him subscribed or was made under oath.” In unambiguous terms the statute enlarges the field in wMch impeachment of a witness by proof of prior inconsistent statements is permitted, but the statute does not in express terms or by fair implication provide that such proof may be introduced for purposes other than impeachment of a witness. The question was left open in People v. Romano (279 N. Y. 392). Legal scholars have at times contended that except for contrary judicial decision “ there is nothing to prevent the tribunal from giving such testimonial credit to the extra-judicial statement as it may seem to deserve,” but admit that “ the contrary view, however, is the orthodox one. It is universally maintained by the courts that prior self-contradictions are not to be treated as having any substantive or independent testimonial value.” (2 Wigmore on Evidence [2d ed.], § 1018.) No sufficient reason appears why the court should reconsider now a rule of evidence so firmly established by the courts.

Notations upon record cards and check stubs are merely extra-judicial statements of facts. They might in proper case be introduced in evidence, like other extra-judicial statements, to impeach a witness, or as admissions when made by a party to the action. They had at common law no substantive or independent testimonial value ” against third parties. The common law rule has been changed to some extent by section 374-a of the Civil Practice Act, so that now “ any writing or record * * * made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter.” Argument is now made that the record cards and check stubs were made by the statute admissible evidence in proof of the acts recorded therein.

It does not sufficiently appear in this case that the notations on the record cards and check stubs were made in the regular course of business and at the time of the transaction noted or within -a reasonable time, thereafter. Technical defects might be disregarded, but here the defects are more than technical. Notations made by third persons, records of past transactions have probative force only when made under conditions that at least provisional confidence can be placed in them. The statute defines the conditions which in the opinion of the Legislature would give to the notation of records sufficient assurance of verity that they might be accepted provisionally as proof of the facts stated. In this case there is a complete lack of proven basis for such assurance of verity. The persons who made the notations, testifying as witnesses for the prosecution to establish the reliability of notations they have made, have in fact completely demonstrated their lack of probative force as independent affirmative evidence. (Cf. Johnson v. Lutz, 253 N. Y. 124; People v. Robinson, 273 N. Y. 438.) It follows that the Appellate Division correctly held that no finding of guilt can be based on such evidence.

That does not mean that the trier of the facts was bound to reject such evidence completely. In the disciplinary proceedings against Sanders they were competent as admissions made by him and were sufficient to prove his misconduct. In the proceeding before the Police Commissioner, such evidence was admissible as bearing upon the credibility of the witnesses who had made prior statements and notations, and when admitted that evidence destroyed completely their credibility. The trier of the fact was justified, perhaps constrained, to reject completely their testimony before him. We are not now concerned with technical rules of evidence. In disciplinary proceedings before a Police Commissioner or other administrative officer, rules of evidence or proof devised for trials in court may prove impractical and unsuitable, We have said that then some latitude must be allowed “as to rules of evidence, methods of examination and the like, but no essential element of a fair trial can be dispensed with unless waived, and no vital safeguard violated without rendering the judgment of conviction subject to reversal upon review.” (Matter of Greenebaum v. Bingham, 201 N. Y. 343, 347.) “ Administrative boards, though acting in a quasi-judicial capacity, may employ a yardstick devised by the use of reason and fairness to meet their particular problems. In the review of their determinations, the courts must apply a similar measure.” (People ex rel. Hirschberg v. Board of Supervisors, 251 N. Y. 156, 161.) The ultimate question here presented is whether so measured, the evidence properly received and given its logical probative force, demonstrates misconduct by the petitioner meriting his dismissal, though the prior statement and notations in business records of the witnesses are given only the limited effect which we have indicated.

When the problem which the Police Commissioner was called upon to solve is stated in simple form its answer seems clear. A police officer admittedly has at times received moneys from an attorney whose practice is for the most part as attorney for defendants arraigned in the court to which persons arrested in the precinct to which the police officer is attached are brought. Unexplained, any financial transactions between police officer and lawyer so situated justify at least grave suspicion, if not, indeed, an inference of grievous misconduct. Certainly in such circumstances a police officer may properly be called upon by bis superior for explanation. Two persons are in a position to furnish that explanation, the lawyer and the police officer. The lawyer furnishes an explanation proven to be false by his own prior statements and by his office records. The police officer essays an explanation which, under the circumstances, was of such dubious quality that a trier of the facts, weighing the probabilities, perhaps could not in reason accept, and, certainly, was justified reasonably in rejecting. We think that then the only course open to the Police Commissioner was to find the petitioner guilty of misconduct at least_as set forth in the twelfth specification, and probably also as set forth in some other specifications, and to order his dismissal.

We think that a practical man of affairs would be bound to reach that conclusion and so would a student trained in methods of search for the truth other than the methods embodied in our common law rules of evidence and burden of proof. Doubt arises when common law rules. devised for judicial trials and of proven value there are applied to a disciplinary proceeding before an administrative officer. There we preserve the spirit of the rules, but we reject the letter. There may be room for possibility of injustice in every case where the law places upon an accused the burden of explaining acts which though giving rise to justified suspicion of wrong, are themselves equivocal. A police officer who knowingly receives moneys under circumstances here disclosed should not be heard to complain when his departmental superiors require him to explain his act which without such explanation would destroy his usefulness as a police officer. A police officer is guilty of serious fault when he does an act even without evil intent which tends to destroy confidence in his integrity and honesty.

The order of the Appellate Division should be reversed and the determination of the Police Commissioner confirmed, without costs. (See 280 N. Y. 809.)

Certified questions 1 and 2 are answered in the negative and questions 3, 4 and 5 in the affirmative.

Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Ordered accordingly.


text:
    William H. Olds et al., Respondents, v. City of Jamestown et al., Appellants, Impleaded with Others.
    Argued February 24, 1939;
    decided April 11, 1939.

      Rollin A. Fancher, Corporation Counsel (Carlos C. Alden of counsel), for appellants.
    The tax sale by the city of Jamestown was valid; there was no insufficiency of time in the publication of the notice of sale for respondents’ unpaid taxes. (Smith v. Indiana, 191 U. S. 138; Bullock v. Cooley, 225 N. Y. 566; Smith v. Butler, 215 App. Div. 361; Olcott v. Robinson, 21 N. Y. 150; Wood v. Morehouse, 45 N. Y. 368; Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397; Matter of Wright, 224 N. Y. 293; City of Albany v. Goodman, 203 App. Div. 530.)

      Clarence G. Pickard for respondents.
    The tax sale conducted by the city was void and conveyed no title to the premises. (City of Albany v. Goodman, 203 App. Div. 530; Smith v. Butler, 215 App. Div. 361; Bamonte v. Ocean Beach-Fire Island Co., 130 Misc. Rep. 275; Matter of Wright, 224 N. Y. 293; Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397.)
   Lehman, J.

The plaintiffs in this action challenge titles to real property derived from a tax sale held in the city of Jamestown on the 14th day of December, 1934. Notice of the tax sale was dated November 27th, and was published in a newspaper of that city on Wednesday, November 28, Wednesday, December 5, and Tuesday, December 11, 1934. Thus only sixteen days elapsed from the date of the first advertisement to the date of sale. The plaintiffs contend that the tax sale is void because notice for longer period is required by the statute.

The Legislature provided in the charter of the city of Jamestown (Laws of 1923, ch. 665) that notice of tax sales must be published, once in each week for six successive weeks in the official paper of said city.” (§ 86.) In 1933 the Common Council of the city attempted by local law to amend that section of the charter to provide that such notice shall be published once in each week for three successive weeks in the official paper of said city.” (Local Law No. 2, Local Laws 1933, pp. 53, 54.) The plaintiffs contend that even assuming the validity of the local law, the requirement that notice of sale shall be published once in each week for three successive weeks ” is complied with only where the full period of twenty-one days has expired since the first publication.

In Olcott v. Robinson (21 N. Y. 150, 151) this court construed provisions of the Revised Statutes which, as the court said, “ require that the time and place of holding any sale of real estate pursuant to any execution, shall be publicly advertised previously for six weeks successively, as follows: 1. A written or printed notice thereof shall be fastened up in three public places in the town where such real estate shall be sold. 2. A copy of such notice shall be printed once in each week, in a newspaper of such county if there be one.” There the court held, with three judges dissenting, that though the notice must be posted for six full weeks, i. e., for forty-two days, printing of the notice may begin after posting notice, and notice is complete after it has been posted for forty-two days and has been printed once a week in six successive weeks, though less than forty-two days may have elapsed since the date of the first printing. In Wood v. Morehouse (45 N. Y. 368) this court followed its earlier decision.

The decision was, of course, based upon the court’s construction of the language used by the Legislature in the particular statute under consideration. By careful analysis of particular words, the court read into the statute a meaning otherwise not apparent. There is no indication that the court intended that the same construction should be given to other statutes which used other words, though of similar import. To such statutes the courts gave different, and, at times, conflicting construction. The result was uncertainty and confusion.

In Market Nat. Bank v. Pacific Nat. Bank (89 N. Y. 397) the court was called upon to determine the length of time which must elapse under section 441 of the Code of Civil Procedure before service of a summons by publication is complete. There the court held that service of notice by publication for six weeks is not complete until the full six weeks have elapsed. In its opinion the court pointed out that there had been some conflict in the decisions in regard to the construction to be given to the language of the statute or to words of a similar import” (p. 399). It cited the cases of Wood v. Morehouse and Olcott v. Robinson as instances where a different rule had been announced. The court did not attempt to reconcile these cases or expressly to resolve the conflict. No case was overruled expressly, and perhaps none by necessary implication; but the court in determining the rule in the case there before it used tests which, applied in other cases, would inevitably result in the same construction of all statutes providing for publication of notices a specified number of times for a specified number of weeks, unless the Legislature clearly indicated a different intention. Earlier cases construing similar statutes differently, if not overruled, were limited to their own peculiar facts. That has been the effect which lawyers and students have generally given to that case.

“ It will be perceived,” the court said, that the publication must be made for a specified period of time, and when the statute provides for six weeks it is obvious that this period will not elapse prior to its expiration. It does not provide for a publication six times within six weeks, but for a time not less than once a week for six successive weeks. The publication evidently means rather more than printing the notice. Its object is to give notice by means of the newspapers, and it cannot be claimed that such notice is given for six weeks before that time expires ” (p. 400). What was there said supports the construction placed upon the statute by the courts below. The Legislature can, if it chooses, provide different periods of notice. The courts should not by meticulous analysis of the language of a statute or by finespun distinctions find, in slight differences in words of similar general import, an intent by the Legislature to provide different rules which must confuse and trouble those who at their peril must follow them. Notice by publication once a week for six successive weeks is given when six weeks have expired — not before. (Cf. Valentine v. McCue, 26 Hun, 456; City of Albany v. Goodman, 203 App. Div. 530; Bamonte v. Ocean Beach-Fire Island Co., 222 App. Div. 676; affd., 248 N. Y. 642; Matter of Wright, 224 N. Y. 293.)

Failure to give the notice required by law is a jurisdictional defect, which cannot be overlooked or remedied by curative statute. (Cf. cases cited above; Dunkum v. Maceck Building Corp., 256 N. Y. 275.) Statutes which limit the time for redemption after tax sales are not applicable where the tax sale is void and no title is passed.

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

Crane, Ch. J., O’Brien, Hubbs, Loughean, Finch and Rippey, JJ., concur.

Ordered accordingly.