author:
Fuld, J.
      Froessel, J.

text:
    Thomas J. Harris, Respondent, v. Allstate Insurance Co., Appellant, et al., Defendants.
    Argued March 10, 1955;
    decided July 8, 1955.

      Asher Marcus for appellant.
    I. “ Water ”, in the sense used in the policy, was not the “ originating cause ” of the incident in issue. (Matter of Stradar v. Stern Bros., 184 App. Div. 700; Tonkin v. California Ins. Co. of San Francisco, 294 N. Y. 326.) II. The Appellate Division’s construction of defendant’s comprehensive policy was an unreasonable one which ought not be approved by this court. (Schoellkopf v. Coatsworth, 166 N. Y. 77; Moeller v. Associated Hosp. Service of Capital Dist., 304 N. Y. 73; Russell v. Allerton, 108 N. Y. 288.) III. Plaintiff’s loss was not an “ accidental loss ” as defined in the policy. (Borneman v. John Hancock Mut. Life Ins. Co., 289 N. Y. 295.) IV. Assuming that the impact of the automobile with the water caused sufficient damage to the automobile so as to result in Its eventual destruction, the impact itself constituted a collision, damages for which are expressly excluded by the policy. (Freiberger v. Globe Ind. Co., 205 App. Div. 116; Polstein v. Pacific Fire Ins. Co., 122 Misc. 194; Harris v. American Cas. Co., 33 N. J. L. 641; Southern Cas. Co. v. Johnson, 24 Ariz. 221;
      Haller & Co. v. International Ind. Co., 238 Ill. App. 361; Fireman’s Ins. Co. of Newark v. Savery, 88 Ind. App. 296; Power Motor Co. v. United States Fire Ins. Co., 69 Mont. 563.) V. The water damages contemplated by the comprehensive coverage of the policy sued upon were not the damages for which plaintiff brought the action herein. (Tonkin v. California Ins. Co. of San Francisco, 294 N. Y. 326.)

      Sydney H. Harris for respondent.
    I. The court properly refused to charge defendant’s request that if the jury finds that the accident between the car and the water was a collision, then they should find for defendant. II. Plaintiff’s loss was within the scope of the policy issued to him. (Tonkin v. California Ins. Co. of San Francisco, 294 N. Y. 326; Wheeler v. Phenix Ins. Co., 203 N. Y. 283; Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47; Bolling v. Northern Ins. Co. of N. Y., 280 N. Y. 510; Block v. Standard Ins. Co. of N. Y., 292 N. Y. 270.) III. Wording in the policy must be construed most strongly against the insurer. (Liverpool etc. Ins. Co. v. Kearney, 180 U. S. 132; Hartol Products Corp. v. Prudential Ins. Co. of America, 290 N. Y. 44; Gillet v. Bank of America, 160 N. Y. 549; Moran v. Standard Oil Co., 211 N. Y. 187.)
   Fuld, J.

Driving in a heavy rainstorm, in a section where there were signs, “ Flood area, caution,” plaintiff ran into a puddle of water some 50 feet long and 8 inches deep. The right side of his car hit the water, traveling at a speed of about 45 miles an hour, and he felt the car pull to the right. He tried to steer to the left in order to stay on the highway, but the car kept pulling to the right, then mounted an embankment, turned over, and was substantially demolished.

In this action, plaintiff seeks to recover for the damage under an automobile insurance policy issued by defendant, which embraced “ loss caused by * * * water,” but excluded damage caused by “ collision ” or “ upset ” of the vehicle. More precisely, the policy proper provided — in Coverage H ” — that defendant insurance company would “ pay for loss to the owned automobile * * * caused by missiles, falling objects, fire, theft, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion ” explicitly excluding loss occasioned by collision between it and another object or by its upset. A rider to the policy —1 ‘ Coverage E ’ ’— similarly recited that defendant would ‘ pay for all other loss to the owned automobile, except loss caused by collision between it and another object or by its upset, and except that $50 shall be deducted from the amount of each loss. Loss caused by missiles, falling objects, explosion, earthquake, windstorm, hail, water, flood, vandalism, riot or civil commotion shall not be deemed loss caused by collision or upset.” The term “ loss ” was defined as “ each direct and accidental loss of or damage to the automobile.”

An automobile mechanic, who examined the car after the accident, found that the tie rod controlling the steering mechanism had been bent, and he testified that such damage to the rod could have been caused by the impact of plaintiff’s speeding car with the puddle of water. The trial court denied defendant’s motion to dismiss the complaint, and instructed the jury to find for the plaintiff if it concluded that the tie rod was bent as a result of its ‘ ‘ coming in contact ’ ’ with the water and that the accident was occasioned by “ the damage to the tie rod.” Following a verdict for plaintiff for the value of the car, and successive affirmances by the Appellate Term and the Appellate Division, defendant has appealed to this court by leave of the Appellate Division.

There can be no doubt, under the evidence and the theory on which the case was submitted to the jury, that any damage to the tie rod of plaintiff’s car resulting from contact with the puddle of water was caused, not by any destructive action of the water as such, but solely by reason of the impact or collision of the fast-moving car with the body of water. There was no claim or suggestion that the water itself, as water, could have bent the tie rod. Bather, it was the force of the collision with the puddle of water, as just another tangible body or object, that brought about the accident.

The question for decision is, of course, the meaning of the policy terms embracing loss caused by * * * water,” in their interrelation with the provisions excluding damage resulting from ‘ collision ” or ‘ ‘ upset. ’ ’ In approaching that inquiry, account must he taken of the reasonable expectation and purpose of the ordinary business man ” in making the contract. (Bird v. St. Paul Fire & Marine Ins. Co., 224 N. Y. 47, 51.) The words of the policy are to be read in context, the language construed fairly and reasonably, with an eye to the object and purpose sought to be accomplished by the writing. Wise is the caution that courts are “ not to make a fortress out of the dictionary ” (Cabell v. Markham, 148 F. 2d 737, 739), for, to cull from an opinion of Mr. Justice Holmes, “ A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content ” according to the circumstances in which it is used. (Towne v. Eisner, 245 U. S. 418, 425.)

To ascribe to the concept of “ water ” damage the broad content urged by plaintiff, embracing any accident in any way traceable to water, would not only extend the coverage far beyond that contemplated by the policy, but would nullify the specific exclusion of the hazards of “ collision ” and “ upset.” In view of the much lower premium payable because of such exclusion, the insured could not reasonably have expected the coverage of the policy to extend, nevertheless,'to the peril of “ collision” with a body of water or any other body or object. It might just as well be contended that the policy protects against a collision or upset occasioned by skidding on a wet or watery road. There could, of course, be no possible basis for any such claim, and the difference between a skid and what here occurred is one simply of degree, not of kind. The only fair and reasonable interpretation is that “ loss caused by * * * water ” within the sense of this policy covers only hazards naturally associated with water’s distinctive and peculiar properties and engendered by the destructive power of water as such, as in cases of submersion, inundation or leakage.

Nor is plaintiff’s broad construction warranted by the language of “ Coverage R,” reciting that loss caused by water or any of the other specified risks 11 shall not be deemed loss caused by collision or upset.” Quite apart from the considerations noted above, the word “ water ” in that clause must be read and considered in relation to the other hazards with which it is there grouped, under the familiar principle of noscitur a sociis. (See, e. g., Aikin v. Wasson, 24 N. Y. 482, 484; Maryland Cas. Co. v. Finch, 147 F. 388, 395.) All of the other risks listed with "water ” — namely, "missiles,” falling objects,” “ explosion,” "earthquake,” “ windstorm,” "hail,” "flood,” "vandalism,” "riot ” and “civil commotion - represent forces that would produce damage by being propelled against, or by actively operating upon, the insured automobile. The vehicle encountering one of these hazards would thus be the object of the destructive action insured against, rather than itself an operative agency or instrumentality. In this context, then, regardless of whether it might have a broader scope in some other context, the term loss caused by * * * water ” must be taken to comprehend only the damaging effect of “ water ” when it operates, as an active agent, in moving against or falling upon the automobile, and not, as in the present case, when its role is merely that of an object which the vehicle itself moves against or strikes. It is in the former situation alone that the policy provision in question assumes meaning and purpose.

Our decision in Tonkin v. California Ins. Co. (294 N. Y. 326) does not call for any different result; its resemblance to the present situation is purely superficial. In that case, as plaintiff was driving along, a gust of smoke from a fire that had broken out under the dashboard of his car obscured his vision and caused him to lose control and to collide with another vehicle. Plaintiff brought suit under a policy which covered loss by fire, but excluded the hazard of collision. We held that the damage resulting from both the collision and the fire was brought about by the fire and, accordingly, came within the fire coverage of the policy.

The collision in Tonkin, though not in itself an insured peril, was, nevertheless, within the policy’s compass, since it was the proximate consequence of the precise hazard, i.e., fire, designated in the policy. Here, on the other hand, the upset of plaintiff’s car and the ensuing demolition stemmed, not from an eventuality covered by the policy, but, primarily and exclusively, from the specifically excepted peril of impact with an object which happened to be liquid. The loss is, therefore, not one for which recovery may be had under this policy. As Presiding Justice Peck, also eschewing an overly literal interpretation of the terms of the policy, aptly wrote in his dissent below, There was no water damage in the sense that anyone would think of water damage.”

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Froessel, J.

(dissenting). Plaintiff secured from defendant-appellant its insurance policy, which contained the following paragraph: “ COVERAGE H — COMPREHENSIVE INSURANCE To pay for loss to the owned automobile [except for collision with another object or upset] but including * * * loss caused by * * * water, flood ” (emphasis supplied). An indorsement was added to said policy, and in a paragraph entitled “ COVERAGE R— $50 DEDUCTIBLE COMPREHENSIVE ”, the insurer in subdivision 3 thereof expressly agreed to pay for all other loss to the owned automobile [except for collision with another object or upset, and a $50 .deduction] * * * Loss caused by * * * water, flood * * * shall not be deemed loss caused by collision or upset ”. An additional premium was charged for this coverage, the total premium paid having been $94.07.

There is no qualification in the policy that the water had to be in the form of rain or in any other form; that it had to operate “ as an active agent, in moving against or falling upon the automobile ”, that the coverage embraces “ only hazards naturally associated with water’s distinctive and peculiar properties and engendered by the destructive power of water as such, as in cases of submersion, inundation or leakage ” as stated in the prevailing opinion; or that the damage had to be a “ water damage ” as stated in the dissenting opinion of the Appellate Division. There was no qualification whatever.

Courts have no right to make contracts for people, nor ivrite provisions into them. We concern ourselves “ with what the parties intended, but only to the extent that they evidenced what they intended by what they wrote ” (Raleigh Associates v. Henry, 302 N. Y. 467, 473). Here the insurance company, in the clearest language, wrote that it would pay for loss * * * caused by * * * water, flood ”, but, recognizing that collision could occur between this insured automobile and water, it additionally provided so as to remove all ambiguity, and without any qualification, Loss caused by * * * water * * * shall not be deemed loss caused by collision or upset ”. How much more plainly can language be written?

In the instant case, plaintiff, accompanied by his wife and daughter, was driving his comparatively new car from Montauk, Long Island, during a heavy rain. He was traveling on the right or outside lane of Eoute 39, a three-lane highway, at between 40 and 45 miles per hour and approached Southampton at about 2:30 p.m. Since it had been raining heavily all day, there was sufficient water to create a flooded condition. He saw a sign reading “ Flood area, caution.” As he turned a bend in the road, in the right lane, the right side of his car came into contact with a sheet of water 50 feet long and two thirds of a foot deep. Plaintiff tried to turn to the left, away from the flood waters, but his car pulled to the right, turned over and ended up on an embankment. It was established below that the water damaged the tie rod of plaintiff’s car, as a result of which he lost control. Plaintiff was rightfully on the highway traveling in the proper lane, well within the speed limit permitted by law, and were it not for the water which flooded the highway, he would not have suffered the damage to his automobile. Thus, since the policy expressly provides unequivocally that ‘ ‘ Loss caused by * * * water, flood * * * shall not be deemed loss caused by collision- or upset ”, I agree with the three courts below that plaintiff was entitled to recover.

Tonkin v. California Ins. Co. (294 N. Y. 326) is definitely controlling here. There plaintiff had a comprehensive insurance policy virtually identical with that in the case before us. A gust of smoke from fire under the dashboard of plaintiff’s auto caused him to lose control of the vehicle so that it collided with another car. The defendant conceded the fire damage amounting to $38, but disclaimed liability for the damage attributable to the subsequent collision in the sum of $477.30, on the ground that the latter was expressly excluded from the policy coverage. We rejected that contention, saying (p. 329): “The policy language is definite enough to exclude loss when collision is the primary and exclusive cause, and it would do so here except for the fact that fire — the hazard insured against — was the factor causing the driver to lose control of the vehicle and was so closely associated with it in point of time and character as to constitute the proximate producing cause of the collision.” (Emphasis supplied.) The proximate consequence of the precise hazard insured against was within the policy’s compass in both cases, except that it was fire in the Tonkin case (supra) and water in this case; both hazards caused the drivers to lose control of their cars after doing nominal damage initially — $38 in the Tonkin case, a bent tie rod in this case.

Finally, even assuming that the language employed by defendant in its insurance policy were doubtful or uncertain in its meaning (which I do not concede), the law is firmly established that all ambiguity must be resolved in favor of the policyholder and against the insurer. (Tonkin v. California Ins. Co., supra, 294 N. Y., at pp. 328-329; Hartol Products Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49 [and cases therein cited]; Lachs v. Fidelity & Cas. Co. of N. Y., 306 N. Y. 357, 365-366; Royal Ins. Co. v. Martin, 192 U. S. 149, 162; Liverpool etc. Ins. Co. v. Kearney, 180 U. S. 132, 136.)

The judgment appealed from should be affirmed, with costs.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Van Voorhis, J. Fuld, J.

license: Public Domain

text:
    In the Matter of Martin Seiferth, Jr., an Infant, et al., Appellants. William E. Mosher, as Deputy Commissioner of Health for Erie County Health Department, Respondent.
    Argued May 23, 1955;
    decided July 8, 1955.

      William G. Condble and Whitney W. Gilbert for appellants.
    I. New findings of fact by the Appellate Division are unsupported by the evidence. (Matter of Vasko, 238 App. Div. 128; Matter of Rotkowitz, 175 Misc. 948; Matter of Sisson, 152 Misc. 806; Pierce v. Society of Sisters, 268 U. S. 510; Houghtaling v. Stoothoff, 259 App. Div. 854; Braisted v. Brooklyn & Rockaway Beach R. R. Co., 46 App. Div. 204; Haber v. Paramount Ice Corp., 264 N. Y. 98; Martin v. Martin, 308 N. Y. 136.) II. The Appellate Division exceeded its constitutional authority in ordering an operation over the protests of the parents. (Matter of Vasko, 238 App. Div. 128; People v. Pierson, 176 N. Y. 201.)

      Elmer R. Weil, County Attorney (George M. Nelson of counsel), for respondent.
    I. The new findings of fact by the Appellate Division are fully supported by the evidence. (Matter of Vasko, 238 App. Div. 128; Matter of Rotkowitz, 175 Misc. 948; Matter of Sisson, 152 Misc. 806; Pierce v. Society of Sisters, 268 U. S. 510; Houghtaling v. Stoothoff, 259 App. Div. 854; Braisted v. Brooklyn & Rockaway Beach R. R. Co., 46 App. Div. 204; Haber v. Paramount Ice Corp., 264 N. Y. 98; Martin v. Martin, 308 N. Y. 136; Locklin v. Fisher, 264 App. Div. 452.) II. The Appellate Division of the Supreme Court, in granting petitioner’s order, exercised its constitutional powers despite the protests of the parents of the infant. (Finlay v. Finlay, 240 N. Y. 429; People v. Pierson, 176 N. Y. 201; People ex rel. Herzog v. Morgan, 287 N. Y. 317; Prince v. Massachusetts, 321 U. S. 158; Jacobson v. Massachusetts, 197 U. S. 11; Buck v. Bell, 274 U. S. 200.)
   Van Voorhis, J.

This is a case involving a fourteen-year-old boy with cleft palate and harelip, whose father holds strong convictions with which the boy has become imbued against medicine and surgery. This proceeding has been instituted by the deputy commissioner of the Erie County Health Department on petition to the Children’s Court to have Martin declared a neglected child, and to have his custody transferred from his parents to the Commissioner of Social Welfare of Erie County for the purpose of consenting to such medical, surgical and dental services as may be necessary to rectify his condition. The medical testimony is to the effect that such cases are almost always given surgical treatment at an earlier age, and the older the patient is the less favorable are likely to be the results according to experience. The surgery recommended by the plastic surgeon called for petitioner consists of three operations: (1) repair of the harelip by bringing the split together; (2) closing the cleft or split in the rear of the palate, the boy being already too late in life to have the front part mended by surgery; and (3) repairing the front part of the palate by dental appliances. The only risk of mortality is the negligible one due to the use of anesthesia. These operations would be spaced a few months apart and six months would be expected to complete the work, two years at the outside in case of difficulty. Petitioner’s plastic surgeon declined to be precise about how detrimental it would be to the prognosis to defer this work for several years. He said: “ I do not think it is emergent, that it has to be done this month or next month, but every year that goes is important to this child, yes.” A year and a half has already elapsed since this testimony was taken in December, 1953.

Even after the operation, Martin will not be able to talk normally, at least not without going to a school for an extended period for concentrated speech therapy. There are certain phases of a child’s life when the importance of these defects becomes of greater significance. The first is past, when children enter grade school, the next is the period of adolescence, particularly toward the close of adolescence when social interests arise in secondary school. Concerning this last, petitioner’s plastic surgeon stated: That is an extremely important period of time. That child is approaching that age where it is very important that correction, that it is very significant that correction made at this time could probably put him in a great deal better position to enter that period of life than would otherwise. Another thing which is difficult is that we have very excellent speech facilities at the Buffalo Public Schools through grade level. At secondary school level and in higher age groups speech training facilities are less satisfactory, so that it is important that it be done at this age. However, the most important thing of all is this gradually progressive with time. The earlier done, the better results. Normally the lip is repaired in early infancy, one to three years of age. Speech training would begin at school or earlier. Every year lost has been that much more lost to the boy. Each year lost continues to be lost. The time to repair is not too early.” He testified that in twenty years of plastic surgery he had never encountered a child with this boy’s defects who had not been operated upon at his age. Nevertheless, he testified that such an operation can be performed ‘ ‘ from the time the child is born until he dies. ’ ’ In this doctor’s view, the consideration bulked larger than the quality of postoperative results, that the boy’s increasing social contacts required that he be made to look and to speak normally as he approached adolescence.

Everyone testified that the boy is likeable, he has a newspaper route, and his marks in school were all over 90 during the last year. However, his father did testify that recently the boy had withdrawn a little more from his fellows, although he said that “ As soon as anyone contacts Martin, he is so likeable nobody is tempted to ridicule him. * * * Through his pleasantness he overcomes it.”

The father testified that “ If the child decides on an operation, I shall not be opposed ”, and that “ I want to say in a few years the child should decide for himself * * # whether to have the operation or not.” The father believes in mental healing by letting “ the forces of the universe work on the body ”, although he denied that this is an established religion of any kind stating that it is purely his own philosophy and that it is not classified as religion.” There is no doubt, however, that the father is strong minded about this, and has inculcated a distrust and dread of surgery in the boy since childhood.

The Erie County Children’s Court Judge caused the various surgical procedures to be explained to Martin by competent and qualified practitioners in the field of plastic surgery and orthodontia. Photographs of other children who had undergone similar remedial surgery were exhibited to him showing their condition both before and after treatment. He was also taken to the speech correction school where he heard the reproduction of his own voice and speech, as well as records depicting-various stages of progress of other children. He met other children of his own age, talked to them and attended class in speech correction. Both the boy and the father were given opportunity to ask questions, which they did freely not only of the professional staff but of the different children.

On February 11, 1954, Martin, his father and attorney met after these demonstrations in Judge Wylegala’s chambers. Judge Wylegala wrote in his opinion that Martin “ was very much pleased with what was shown him, but had come to the conclusion that he should try for some time longer to close the cleft palate and the split lip himself through ‘ natural forces.’” After stating that an order for surgery would have been granted without hesitation if this proceeding had been instituted before this child acquired convictions of- his own, Judge Wylegala summed up his conclusions as follows: ‘ After duly deliberating upon the psychological effect of surgery upon this mature, intelligent boy, schooled as he has been for all of his young years in the existence of ‘ forces of nature ’ and his fear of surgery upon the human body, I have come to the conclusion that no order should be made at this time compelling the child to submit to surgery. His condition is not emergent and there is no serious threat to his health or life. He has time until he becomes 21 years of age to apply for financial assistance under County and State aid to physically handicapped children to have the corrections made. This has also been explained to him after he made known his decision to me.” The petition accordingly was dismissed.

The Appellate Division, Fourth Department, reversed by a divided court, and granted the petition requiring Martin" Seiferth to submit to surgery.

As everyone agrees, there are important considerations both ways. The Children’s Court has power in drastic situations to direct the operation over the objection of parents (Matter of Vasko, 238 App. Div. 128, 129). Nevertheless, there is no present emergency, time is less of the essence than it was a few years ago insofar as concerns the physical prognosis, and we are impressed by the circumstance that in order to benefit from the operation upon the cleft palate, it will almost certainly be necessary to enlist Martin’s co-operation in developing normal speech patterns through a lengthy course in concentrated speech therapy. It will be almost impossible to secure his co-operation if he continues to believe, as he does now, that it will be necessary “ to remedy the surgeon’s distortion first and then go back to the primary task of healing the body. ’ ’ This is an aspect of the problem with which petitioner’s plastic surgeon did not especially concern himself, for he did not attempt to view the case from the psychological viewpoint of this misguided youth. Upon the other hand, the Children’s Court Judge, who saw and heard the witnesses, and arranged the conferences for the boy and his father which have been mentioned, appears to have been keenly aware of this aspect of the situation, and to have concluded that less would be lost by permitting the lapse of several more years, when the boy may make his own decision to submit to plastic surgery, than might be sacrificed if he were compelled to undergo it now against his sincere and frightened antagonism. One cannot be certain of being right under these circumstances, but this appears to be a situation where the discretion of the trier of the facts should be preferred to that of the Appellate Division (Harrington v. Harrington, 290 N. Y. 126).

The order of the Appellate Division should be reversed and that of the Children’s Court reinstated dismissing the petition, without prejudice to renew the application if circumstances warrant.

Fuld, J.

(dissenting). Every child has a right, so far as is possible, to lead a normal life and, if his parents, through viciousness or ignorance, act in such a way as to endanger that right, the courts should, as the legislature has provided, act on his behalf. Such is the case before us.

The boy Martin, twelve years old when this proceeding was begun, fourteen now, has been neglected in the most egregious way. He is afflicted with a massive harelip and cleft palate which not only grievously detract from his appearance but seriously impede his chances for a useful and productive life. Although medical opinion is agreed that the condition can be remedied by surgery, that it should be performed as soon as possible and that the risk involved is negligible, the father has refused to consent to the essential operation. His reason — which is, as the Appellate Division found, entirely unsubstantial— was that he relies on “ forces in the universe ” which will enable the child to cure himself of his own accord. He might consent to the operation, he said, if the boy “ in a few years ’ ’ should favor one.

It is quite true that the child’s physical life is not at peril — as would be the situation if he had an infected appendix or a growth on the brain — but it may not be questioned, to quote from the opinion below, “ What is in danger is his chance for a normal, useful life.” Judge Van Voorhis does not, I am sure, take issue with that, but he feels that the boy will benefit, to a greater extent, from the operation if he enters the hospital with a mind favorably disposed to surgery. Therefore he counsels delay, on the chance — and that is all it is — on the chance that at some future time the boy may make his own decision to submit to plastic surgery.

It would, of course, be preferable if the boy were to accede to the operation, and I am willing to assume that, if he acquiesees, he will the more easily and quickly react to the postoperative speech therapy. However, there is no assurance that he will, either next year, in five years or six, give his consent. Quite obviously, he is greatly influenced by his father, quite plainly a victim of the latter’s unfortunate delusions. And, beyond that, it must be borne in mind that there is little if any risk involved in the surgery and that, as time goes on, the operation becomes more difficult.

Be that as it may, though, it is the court which has a duty to perform (Children’s Court Act, § 24), and it should not seek to avoid that duty by foisting upon the boy the ultimate decision to be made. Neither by statute nor decision is the child’s consent necessary or material, and we should not permit his refusal to agree, his failure to co-operate, to ruin his life and any chance for a normal, happy existence; normalcy and happiness, difficult of attainment under the most propitious conditions, will unquestionably be impossible if the disfigurement is not corrected.

Moreover, it is the fact, and a vital one, that this is a proceeding brought to determine whether the parents are neglecting the child by refusing and failing to provide him with necessary surgical, medical and dental service (Children’s Court Act, § 2, subd. 4, cl. e). Whether the child condones the neglect, whether he is willing to let his parents do as they choose, surely cannot be operative on the question as to whether or not they are guilty of neglect. They are not interested or concerned with whether he does or does not want the essential operation. They have arbitrarily taken the position that there is to be no surgery. What these parents are doing, by their failure to provide for an operation, however well-intentioned, is far worse than beating the child or denying him food or clothing. To the boy, and his future, it makes no difference that it may be ignorance rather than viciousness that will perpetuate his unfortunate condition. If parents are actually mistreating or neglecting a child, the circumstance that he may not mind it cannot alter the fact that they are guilty of neglect and it cannot render their conduct permissible.

The welfare and interests of a child are at stake. A court should not place upon his shoulders one of the most momentous and far-reaching decisions of his life. The court should make the decision, as the statute contemplates, and leave to the good sense and sound judgment of the public authorities the job of preparing the boy for the operation and of getting him as adjusted to it as possible. We should not put off decision in the hope and on the chance that the child may change his mind and submit at some future time to the operation.

The order of the Appellate Division should be affirmed.

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

Order reversed, etc.

      . A “ Neglected child ”, the Children’s Court Act (§2, subd. 4) recites, “ means a child * * * (e) whose parent, guardian or custodian neglects or refuses, when able to do so, to provide necessary medical, surgical, institutional or hospital care for such child ”.


author: Conway, Ch. J.

text:
    Sandra Levine, an Infant, by Morris Levine, Her Guardian ad Litem, et al., Appellants, v. City of New York, Respondent.
    Argued June 1, 1955;
    decided July 8, 1955.

      Sol Pottish and Morris Pottish for appellants.
    I. The Appellate Division’s first reason for reversal (“ Going needlessly on a portion of the structure that was no part of the public thoroughfare, where no one was invited or had a right to be ”) is invalid. (Boylhart v. Di Marco & Reimann, 270 N. Y. 217; New York Central R. R. Co. v. County of Erie, 197 Misc. 801, 278 App. Div. 521, 304 N. Y. 565; Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339; Parnell v. Holland Furnace Co., 234 App. Div. 567, 260 N. Y. 604; Bowers v. City Bank Farmers Trust Co., 282 N. Y. 442; Reilly v. Gristede Bros., 243 App. Div. 505, 268 N. Y. 564; Earl v. Crouch, 57 Hun 586, opinion in 10 N. Y. S. 882, 61 Hun 624, opinion in 16 N. Y. S. 770, 131 N. Y. 613; Kunz v. City of Troy, 104 N. Y. 344; Sarapin v. S. & S. Corrugated Paper Mach. Co., 209 App. Div. 377; Lee v. Van Buren & N. Y. Bill Posting Co., 190 App. Div. 742.) II. The Appellate Division’s second reason for reversal (contributory negligence) is invalid. (Zwack v. New York, L. E. & W. R. R. Co., 160 N. Y. 362; Tucker v. New York Central & H. R. R. R. Co., 124 N. Y. 308; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Byrne v. New York Central & H. R. R. R. Co., 83 N. Y. 620; Collentine v. City of New York, 279 N. Y. 119; Palmer v. Dearing, 93 N. Y. 7; Moshier v. City of New York, 190 App. Div. 111, 228 N. Y. 612; Williams v. City of New York, 214 N. Y. 259; Hogan v. New York Central & H. R. R. R. Co., 208 N. Y. 445; Kettle v. Turl, 162 N. Y. 255; Ramirez v. Perlman, 284 App. Div. 82.)

      Peter Campbell Brown, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for respondent.
    I. The city’s duty to maintain the stairway and guardrails in good repair extended only to persons using them for their normal and intended purpose. (Halpin v. New York Rys. Corp., 250 App. Div. 613, 276 N. Y. 545; Levy v. City of New York, 255 App. Div. 857, 280 N. Y. 637; McCann v. City of New York, 270 App. Div. 1040, 296 N. Y. 886; Collins v. Noss, 258 App. Div. 101, 283 N. Y. 595; Lefkowitz v. Greenwich Sav. Bank, 266 App. Div. 995, 293 N. Y. 711.) II. Plaintiff was guilty of contributory negligence in attempting to step down onto and to walk along the top of the tubular railing. (Johnson v. City of New York, 208 N. Y. 77; O’Callaghan v. Commonwealth Engineering Corp., 247 N. Y. 127; Bergman v. Feitelowitz, 253 App. Div. 323, 278 N. Y. 620; Foley v. Equitable Life Assur. Soc., 290 N. Y. 424; Earley v. New York Tel. Co., 263 N. Y. 424, 264 N. Y. 528.) III. The failure of the Appellate Division to refer to its opinion in the order of reversal cannot alter the fact that the determination of the Appellate Division was not a dismissal on the law alone hut a direction, as well, of judgment in favor of defendant based on findings of the Appellate Division with respect to the questions of fact.
   Conway, Ch. J.

Across the street from the house in which the infant plaintiff lived in a residential section of a crowded city there was a stairway which formed a part of a connecting public thoroughfare. Along at least one side of this stairway there was a handrail composed of two tubular iron pipes set one above the other about two feet apart and running parallel to the ground. At the foot of this stairway there was a concrete post or pillar to which this railing had originally been fastened; but over the course of time the top bar of the railing apparently had been broken off so that there was an open space between the jagged end of the pipe railing and its fastening on the concrete post. There was evidence that the railing had been in this defective and dangerous condition for some six years prior to this accident. In addition, an examination of the photographs which were introduced into evidence at the trial clearly shows that not only had the railing been broken off, but it had become twisted out of its original line.

On the day of the accident, October 21, 1947, the plaintiff — ■ then about ten years of age — and several of her companions were playing a game of ‘1 follow-the-leader ’ ’ in the area of the above-described stairway. When it came plaintiff’s turn to be “ leader ”, she ascended a few steps of the stairway and then, using the railing as a ladder, she climbed up onto the concrete post at the foot of the stairs. She then started to step down onto the top bar or pipe of the railing, but she missed her footing due to the broken and twisted condition of the end of that rail. Her foot went into the open space between the jagged end of the railing and the concrete post, and the plaintiff’s left thigh was impaled upon the end of the pipe, seriously injuring her and causing a large and permanent scar which troubles her when there is a change in the weather.

The infant plaintiff sued for damages for the injuries she sustained, and her father commenced a derivative action for the loss of services, companionship and prospective earnings of his daughter as well as the expenses incurred for hospital, surgical and medical charges. Although the defendant city admits that it may be liable to pedestrians who may be injured while using this railing, it contends that it was under no duty to this plaintiff when she used the railing as she was doing. The Appellate Division, agreeing with this contention, reversed a judgment in favor of the plaintiffs and dismissed the complaint. The order of reversal, however, failed to comply with the requirements of section 602 of the Civil Practice Act, and hence we must deem ft to have been a reversal upon the law alone (McLean v. McKinley, 307 N. Y. 661). Furthermore, inasmuch as the complaint has been dismissed, the plaintiffs must be given the benefit of every reasonable inference which can be drawn from the evidence.

Returning to that evidence, a further examination of the above-mentioned photographs of the scene of the accident shows that this railing enclosed a rectangular plot of ground, on at least two sides of which there were benches set against the railing. Whether or not there were also benches on the side where the plaintiff was injured does not appear, but it is apparent that people were expected to congregate around this small enclosed piece of ground to rest and talk. Any child could clamber on these benches, and climb over the railing into the enclosed piece of ground. The railing itself could be expected to attract them, under' these circumstances, for use as a variety of monkey bars.” Evidence of children having played in this area was given in a deposition before the trial by a witness who had seen the accident. He stated that he had witnessed ‘ children in the vicinity of the railing prior to the occurrence of the accident ”, and that they played on the railing itself. This whole area, therefore, took on many of the characteristics of a public park or playground to which entire families are invited to come and enjoy themselves. Under such conditions, the city is under a greater duty of care than would be the case if there were no benches here, and if people were not expected and invited to congregate in this area with their children (cf. Collentine v. City of New York, 279 N. Y. 119, 124-125; Lessin v. Board of Educ. of City of N. Y., 247 N. Y. 503, 511-512; Jewhurst v. City of Syracuse, 108 N. Y. 303, 310- 312). For some six years prior to the plaintiff’s accident, however, the city had allowed this dangerous, and defective condition to remain a hazard to those who came here to obtain respite from the heat and congestion of the city.

Negligence is not a stereotyped thing, but, as courts have wisely said, it is a matter of time, place and circumstance; and the same act of a defendant may be a breach of duty toward one person while not a breach of duty toward another. Thus in Larmore v. Grown Point Iron Co. (101 N. Y. 391), this court wrote, (per Andrews, J.), that66 there is no negligence in a legal sense which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances (101 N. Y., p. 394; to the same effect, see Bailey v. Central Vermont Ry., 319 U. S. 350, 353; Sadowski v. Long Is. R. R. Co., 292 N. Y. 448, 454; Mink v. Keim, 291 N. Y. 300, 304; Connell v. New York Central & H. R. R. R. Co., 144 App. Div. 664, 667-668).

It may be that if there had been no benches here and if parents and their children were not expected and invited to come here to rest, talk and relax, there might be no duty to children who played on the railing. That, however, is not this case. Any jury of reasonable men and women, perceiving the nature of this area, would immediately realize that youngsters whose propensities to play are known to all could be expected to play and climb around and over not only the benches and the stairs but also the railing. It cannot be said as a matter of law, therefore, that no jury could reasonably find that the city, under these circumstances, could or should have known of the dangerous condition of the railing and the hazard it posed, particularly to young children, and that by neglecting for some six years to repair this menace the city breached a duty to those children and to this plaintiff. Accordingly, it was error to reverse and to dismiss the complaint on the law alone, since a prima facie case of negligence had been established.

The judgment of the Appellate Division should be reversed and the case remitted to that court for determination of the questions of fact, without costs to either party (Civ. Prac. Act, § 602).

Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur; Bierke, J., taking no part.

Judgment reversed, etc.


author: Per Curiam.

text:
    City of New York, Respondent, v. Gerald D. Nelson et al., as Successor Trustees under the Will of William Nelson, Deceased, et al., Appellants.
    Argued March 3, 1955;
    decided July 8, 1955.

      William P. Jones and Watson Washburn for appellants.
    I. The court without limitation of time has inherent power to relieve from default judgments in deserving cases. (Ladd v. Stevenson, 112 N. Y. 325; White v. Sebring, 133 Misc. 784; Knowles v. Lichtenstein, 33 App. Div. 605; Baldwin v. Yellow Taxi Corp., 221 App. Div. 717.) II. A default judgment suffered in a foreclosure in rem action is no more conclusive than a default taken in any other action. (City of Peekskill v. Perry, 272 App. Div. 940; People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51; Matter of Harbeck, 161 N. Y. 211; American Locker Co. v. City of New York, 283 App. Div. 924; Miller v. Nut Margarine Co., 284 U. S. 498; Shell Development Co. v. Universal Oil Products Co., 157 F. 2d 421; City of New York v. Lynch, 306 N. Y. 809.) III. Even if title D of chapter 17-6.0 of the Administrative Code could properly be interpreted to contain a statute of limitations, the city should be estopped to assert it or to assert defendants’ default to which the city wrongfully contributed. (City of New York v. Idlewild Beach Co., 182 Misc. 205.) IV. The city failed to comply with title D of chapter 17 of the Administrative Code. V. The use of the in rem statute in this particular case was unconstitutional. (City of New York v. Feit, 200 Misc. 998; City of New Rochelle v. Echo Bay Waterfront Corp., 182 Misc. 176, 268 App. Div. 182, 294 N. Y. 678, 326 U. S. 720; Realty Revenue Corp. v. Wilson, 181 Misc. 802; Matter of Bergerman v. Murphy, 199 Misc. 1008, 278 App. Div. 388, 303 N. Y. 762; Matter of Zorach v. Clauson, 303 N. Y. 161; Snowden v. Hughes, 321 U. S. 1; Yick Wo v. Hopkins, 118 U. S. 356.)

      Peter Campbell Brown, Corporation Counsel (Meyer Scheps, Harry E. O’Donnell, Benjamin Offner and Joseph Brandwen of counsel), for respondent.
    I. Once there has been compliance by the city with the jurisdictional requirements of title D of chapter 17 of the Administrative Code, the court is without authority to permit defaults in redemption or pleading to be opened. (City of Peekskill v. Perry, 272 App. Div. 940; City of New York v. Jackson-140 Realty Corp., 279 App. Div. 668; Matter of City of New York [Levy], 278 App. Div. 1008; Matter of City of New York [Flushop Realty Corp.], 278 App. Div. 1008; Keely v. Sanders, 99 U. S., 441; Levy v. Newman, 130 N. Y. 11; People ex rel. Quaranto v. Moynahan, 148 App. Div. 744, 205 N. Y. 590; McCoun v. Pierpont, 232 N. Y. 66; Cameron Estates v. Deering, 308 N. Y. 24.) II. The list of delinquent taxes was filed by the treasurer in compliance with title D of chapter 17 of the Administrative Code. The statute does not contain any prohibition against the filing of a composite list, nor is there any requirement that the treasurer file a separate list and bring a separate action for each section. (City of New Rochelle v. Echo Bay Waterfront Corp., 268 App. Div. 182, 294 N. Y. 678, 326 U. S. 720; Blum v. Nassau Purchasing & Bldg. Corp., 256 N. Y. 232; McCoun v. Pierpont, 232 N. Y. 66; City of New York v. Appleby, 219 N. Y. 76; Downes v. Wenninger, 207 N. Y. 286; People ex rel. Andrews v. McGuire, 126 N. Y. 419; People v. Dedrick, 184 App. Div. 915, 227 N. Y. 608; People ex rel. National Park Bank v. Metz, 141 App. Div. 600; Marsh v. Ne-ha-se-ne Park Assn., 25 App. Div. 34; County of Nassau v. Lincer, 254 App. Div. 760.) III. When the treasurer selected section 12 in the borough of Brooklyn and section 1 in the borough of Queens for foreclosure by action in rem, it was mandatory under the statute that he include in such foreclosure actions the properties here involved. The in rem foreclosure statute does not give the treasurer power to distinguish between improved and vacant properties. (Matter of Hardecker v. Board of Educ. of City of N. Y., 180 Misc. 1008, 266 App. Div. 980, 292 N. Y. 584; Matter of Rutherford Estates [Dorman Products], 277 App. Div. 1, 301 N. Y. 767.)
   Per Curiam.

The order appealed from should be affirmed, without costs.

This is indeed a hard case. Defendants acquired title to the Powell Street property in 1934 and to the 45th Avenue property in 1938, and paid the real estate taxes due thereon. For the nonpayment of water charges, the city acquired title to these properties in an in rem tax foreclosure sale under title D of chapter 17 of the Administrative Code of the City of New York, as follows:

Thus, for total arrears of $887, the city acquired properties assessed at $52,000, one of which parcels was resold in excess of its assessed valuation.

The nonpayment of the water charges was due to the default of a trusted bookkeeper, and was discovered when he attempted suicide. The city continued to bill the estate of which plaintiffs are trustees for the real estate taxes on the 45th Avenue property for two years after it had acquired title.

Unfortunately, the power to afford relief here is not confided to the courts. The result suggests the need of legislation liberalizing the right of redemption, or giving to city officials the power to ameliorate such extreme hardships in appropriate cases.

Conway, Ch. J., Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur; Bubke, J., taking no part.

Order affirmed.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Roger C. Dales, Appellant.
    Argued May 25, 1955;
    decided July 8, 1955.

      Joseph P. Leary and Francis H. Anderson for appellant.
    I. Admission of other incompetent transactions was prejudicial and constitutes reversible error. (People v. Molineux, 168 N. Y. 264; People v. Richardson, 222 N. Y. 103; People v. Horie, 258 App. Div. 246; People v. Weaver, 177 N. Y. 434; People v. Corbin, 56 N. Y. 363; People v. Altman, 147 N. Y. 473; Coleman v. People, 55 N. Y. 81; People v. Zackowitz, 254 N. Y. 192; People v. Dolan, 186 N. Y. 4; People v. Rutman, 260 App. Div. 784; People v. Gerks, 243 N. Y. 166; People v. Marrin, 205 N. Y. 275; People v. Everhardt, 104 N. Y. 591.) II. The court erroneously failed to require the production of papers for inspection and use during the trial. (People v. Pauley, 281 App. Div. 223; People ex rel. Heller v. Heller, 184 Misc. 75; Thomas v. Morris, 286 N. Y. 266.) III. Defendant was denied a fair trial. (People v. Weaver, 177
      N. Y. 434; People v. Robinson, 273 N. Y. 438; People v. Levan, 295 N. Y. 26; People v. Tassiello, 300 N. Y. 425; People v. Dixon, 118 App. Div. 593; People v. Becker, 210 N. Y. 274.)

      Richard J. Bookhout, District Attorney, for respondent.
    I. Evidence of other dealings between this defendant and the bank involving financing of car sales was properly received on the question of defendant’s intent. (People v. Gerks, 243 N. Y. 166; People v. Marrin, 205 N. Y. 275; People v. Dolan, 186 N. Y. 4; People v. Everhardt, 104 N. Y. 591; People v. Rutman, 260 App. Div. 784; People v. Hudson Valley Constr. Co., 217 N. Y. 172; People v. Katz, 209 N. Y. 311; People v. Goldstein, 295 N. Y. 61; People v. Molineux, 168 N. Y. 264; People v. Weaver, 177 N. Y. 434.) II. There was no error in the court’s rulings on production of various papers during the trial. (People v. Pauley, 281 App. Div. 223; People v. Miller, 257 N. Y. 54; People v. Walsh, 262 N. Y. 140.) III. If there be any error in the lengthy trial, it was technical only and did not affect the substantial rights of defendant. (People v. Gerks, 243 N. Y. 166; Davis v. Bickle, 230 App. Div. 580; People v. Sheldon, 156 N. Y. 268; People ex rel. Stabile v. Warden of City Prison, 202 N. Y. 138.)
   Fuld, J.

On this appeal from a judgment convicting defendant of the crime of uttering a forged instrument with intent to defraud (Penal Law, § 887), the primary question posed concerns the admissibility of evidence of similar crimes.

Defendant was in the business of buying and selling used cars in Oneonta, New York, and, in connection with that business, had almost daily dealings with the Citizens ’ National Bank. The transaction of which he stands convicted involved a promissory note for $700; it purported to be signed by an employee, Utter, as maker, and carried defendant’s own signature as indorser. The note, delivered to the bank in renewal of a previous note of Utter’s, recited that it was given as part of the purchase price on a 1944 Chevrolet truck, and provided that the holder could sell the truck in the event of a default. It appeared that defendant had not sold the truck to Utter, that neither he nor Utter had title to it, and that it was defendant who had signed Utter’s name to the note. His claim that he was authorized to do so was denied by Utter.

During the course of the extensive trial, the defense elicited considerable testimony concerning the course of dealings between defendant and the bank, the purpose being, apparently, to show that the bank had not been defrauded and that defendant had not intended it to be; that defendant was considered one of its best accounts; and that the bank was trying to conceal in some way its own laxness and negligence in the handling of the account. The greater portion of the Appellate Division’s opinion was devoted to the question whether defendant had acted ‘ ‘ with intent to defraud ’ ’; thus, it considered whether the bank was adversely affected by accepting the note and whether it relied upon the forged signature and the recital of the fictitious truck as security. The Appellate Division concluded that “ the record sufficiently establishes * * * intent to defraud ”, and these matters are not now urged upon us.

The major ground advanced for reversal has to do with the admission of evidence concerning three other documents, consisting of conditional sales contracts, which defendant had negotiated to the bank, each involving either a spurious signature or a fictitious vehicle described as collateral. These transactions, all having occurred shortly before the delivery of the Utter note, were received in evidence on the question of defendant’s intent in uttering the latter instrument.

The purported purchaser named in the first of these three contracts, one Travis, denied that he had ever signed it or authorized defendant to do so. The second transaction involved a conditional sales contract purportedly conveying a 1950 Chevrolet station wagon; the buyer ”, Harkenreader, also in defendant’s employ, testified that, although his signature was genuine, he had never purchased any station wagon, but had simply signed the paper for defendant at a time when he 11 was quite busy ’ ’. The ostensible purchaser involved in the third transaction, another of defendant’s employees, named Grilmore, refused on constitutional grounds to answer whether the signature of his name was genuine; there was proof, however, that Grilmore never owned the car which was described as the collateral and that defendant had sold that car to another person many months earlier.

Evidence of such transactions, even if they spell out independent crimes, is ordinarily admissible on the question of intent, and defendant does not dispute this. He argues, however, that such proof was incompetent in this case, because one of his defenses was that he had acted with the authority of the person whose name he was charged with forging.

It requires no more than a brief consideration of the rules governing the admissibility of other crimes to demonstrate the propriety of the trial court’s admission of the challenged evidence. The principles that have been evolved represent a balance between the probative value of such proof and the danger of prejudice it presents to an accused. When evidence of other crimes has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged, it is excluded. Where, however, it is relevant to negative the existence of accident or mistake, or to show the intent or motive with which the defendant acted, or a common scheme or plan, its probative value is deemed to outweigh the danger of prejudice, and the rules dictating exclusion will yield. (See, e. g., People v. Molineux, 168 N. Y. 264, 291-293; People v. Gaffey, 182 N. Y. 257; see, also, McCormick on Evidence [1954], § 157, p. 327 et seq.; 2 Wigmore on Evidence [1940], §§ 300-307, pp. 192-207.) Particularly in the instance of such crimes as uttering forged or counterfeit papers — where, in contrast to assault, robbery and the like, the act is equivocal, and the underlying intent not easily to be inferred — “ Such evidence has been sanctioned for time out of mind ”. (People v. Marrin, 205 N. Y. 275, 283; see, also, People v. Gerks, 243 N. Y. 166; People v. Dolan, 186 N. Y. 4; People v. Molineux, supra, 168 N. Y. 264, 297-298; People v. Everhardt, 104 N. Y. 591; Note, 62 L. R. A. 193, 249, 257; 2 Wigmore, op. cit., §§ 309-317, pp. 208-218.) In truth, it is recognized that ‘1 proof of intent is often unobtainable except by evidence of successive repetitions of the act. ’ ’ (People v. Molineux, supra, 168 N. Y. 264, 298.) Beyond that, to quote from Wigmore, “ the oftener a like act has been done, the less probable it is that it could have been done innocently ” (op. cit., p. 215).

There can be no doubt, then, that the evidence of the other transactions admitted during the course of the trial below had an important bearing on the vital issue whether the defendant uttered the forged note with intent to defraud, separate and apart from any question bearing upon his defense of authority. As already observed, the major part of the Appellate Division’s opinion was devoted, not to defendant’s asserted authority, but to the somewhat closer question * * * whether the uttering of a forged note with intent to defraud ’ as pleaded in the indictment has been established sufficiently to support the jury’s finding in this respect.” Furthermore, it was the defendant himself who elicited considerable testimony concerning his past-dealings with the bank, as well as evidence of other notes and contracts covering used car sales. Since that was so, since defendant introduced evidence of these matters to negative fraudulent intent, the prosecution was certainly privileged to attempt to establish the existence of such intent by showing that, in still other dealings with the bank, defendant had committed other forgeries, of a pattern almost identical with that here disclosed.

Nor is the competence of such evidence affected by the circumstance that defendant’s authority to sign may also happen to be in issue. Were the rule otherwise, the accused could render evidence of that sort inadmissible in every case — no matter how vital it might be on the question of intent or motive or common scheme and plan — by the simple expedient of advancing a claim of authority. In such a situation as the present, the decision in People v. Weaver (177 N. Y. 434) — upon which defendant strongly relies — requires no more than that the court limit the evidence of other transactions to the question of intent to defraud, directing the jury not to consider it insofar as the defense of authority is concerned. And that is precisely what the court did in the case before us, and in most plain and forceful fashion.

Of defendant’s remaining points, the only ones that warrant any discussion at all relate to the court’s failure to order the production of (1) a written statement given by Utter to the police sometime before the trial and (2) the minutes of the testimony given by several witnesses before the grand jury concerning the Gilmore transaction.

Since the district attorney made no use at the trial of the grand jury minutes or Utter’s statement, the defendant was, of course, not entitled to either of them under the rule announced in People v. Miller (257 N. Y. 54, 57). However, if defense counsel desired Utter’s statement or the grand jury testimony of other witnesses for the purpose of cross-examining them, then, defendant would have been entitled to examine the statement or minutes if — to state the rule broadly — the court, upon inspection, had found that they contained material at variance with the testimony given by the particular witness on the stand. (See, e. g., People v. Boniello, 303 N. Y. 619; People v. Schainuck, 286 N. Y. 161, 165-166; People v. Walsh, 262 N. Y. 140, 149-150.) The trial judge below, so far as appears, did not examine either Utter’s statement or the grand jury minutes. They were, however, left with us, and examination of them reveals no contradictions or inconsistencies with any testimony given at the trial. Since that is so, the defense was not privileged to use or inspect the items in question, and the trial court committed no error in refusing the defense request. (See People v. Boniello, supra, 303 N. Y. 619; People v. Walsh, supra, 262 N. Y. 140, 149; People v. Miller, supra, 257 N. Y. 54, 57-58, 60.)

The judgment of the Appellate Division should be affirmed.

Conwat, Ch. J., Desmond, Dte, Froessel, Van Voorhis and Burke, JJ., concur.

Judgment affirmed.

      . The Weaver case (supra, 177 N. Y. 434) was not intended to, and did not, effect any change in rules long settled (see People v. Marrin, supra, 205 N. Y. 275, 287; People v. Dolan, supra, 186 N. Y. 4, 9); its holding must be limited to its peculiar facts.


author: Froessel, J. Van Voorhis, J.

text:
    Newton D. Bartle, as Trustee in Bankruptcy of Westerlea Builders, Inc., Appellant, v. Home Owners Cooperative, Inc., Respondent.
    Argued June 9, 1955;
    decided July 8, 1955.

      Vincent A. O’Neil and Paul J. Shea for appellant.
    I. The bankrupt is the alter ego of defendant. (Long Park, Inc., v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 31 F. 2d 265; Chelrob, Inc., v. Barrett, 293 N. Y. 442; Geddes v. Anaconda Min. Co., 254 U. S. 590; Albright v. Jefferson Co. Nat. Bank, 292 N. Y. 31; Berkey v. Third Ave. Ry. Co., 244 N. Y. 84; Consolidated Rock Co. v. Du Bois, 312 U. S. 510; Lowendahl v. Baltimore & Ohio R. R. Co., 247 App. Div. 144, 272 N. Y. 360; Rapid Tr. Subway Constr. Co. v. City of New York, 259 N. Y. 472; International Aircraft Trading Co. v. Manufacturers Trust Co., 297 N. Y. 285.) II. Defendant is liable on the ground that the bankrupt operated solely for defendant’s members. (Matter of Muncie Pulp Co., 139 F. 546; Mangan v. Terminal Transp. System, 157 Misc. 627, 247 App. Div. 853; Steele v. Meaker Co., 131 Misc. 675, 226 App. Div. 717; Rapid Tr. Subway Constr. Co. v. City of New York, 259 N. Y. 472; New York Trust Co. v.
      Carpenter, 250 F. 668; Geiler v. Littlefield, 148 N. Y. 603; Trustees of Freeholders & Commonalty of Town of Brookhaven v. Smith, 118 N. Y. 634.) III. In equity the title of the real property of defendant should be held by plaintiff as trustee in bankruptcy. (Matter of Heim, 166 Misc. 931, 255 App. Div. 1007; Strong v. Dutcher, 186 App. Div. 307.) IV. The theory of unjust enrichment applies. (Gordon v. Elliman, 280 App. Div. 655; Pink v. Title Guar. & Trust Co., 274 N. Y. 167.) V. The trustee in bankruptcy is the logical party to bring this action and the State court is a proper forum for a plenary suit. The question of priority of claims as betAveen the creditors of defendant and the creditors of the bankrupt is not before this court. (Manufacturers Trust Co. v. Becker, 338 U. S. 304; Pepper v. Litton, 308 U. S. 295; Matter of Burch, 89 F. Supp. 249.)

      Richard T. Mosher for respondent.
    I. Appellant has not proved the degree of control, the improper purpose and the proximate causation necessary to pierce the corporate veil. (Lowendahl v. Baltimore & Ohio R. R. Co., 247 App. Div. 144, 272 N. Y. 360; Berkey v. Third Ave. Ry. Co., 242 N. Y. 84; Rapid Tr. Subway Constr. Co. v. City of New York, 259 N. Y. 472; Erie R. R. Co. v. Tompkins, 304 U. S. 64; Pagel, Horton & Co. v. Harmon Paper Co., 236 App. Div. 47; Jenkins v. Moyse, 254 N. Y. 319; Albright v. Jefferson Co. Nat. Bank, 292 N. Y. 31; Quaid v. Ratkowsky, 183 App. Div. 428, 224 N. Y. 624.) II. The extension agreement created no trust in favor of plaintiff. III. There Avas no unjust enrichment. IV. On either theory, plaintiff has established no cause of action or legal injury. (Hirschfeld v. McKinley, 78 F. 2d 124; Quintal v. Kellner, 238 App. Div. 651, 264 N. Y. 32; Barnes v. Hirsch, 215 App. Div. 10, 242 N. Y. 555.) V. Plaintiff has not been Avaived into a cause of action by defendant’s failure to move.
   Froessel, J.

Plaintiff, as trustee in bankruptcy of Westerlea Builders, Inc., has by means of this litigation attempted to hold defendant liable for the contract debts of Westerlea, defendant’s Avholly OAvned subsidiary. Defendant, as a co-operative corporation composed mostly of veterans, Avas organized in July, 1947, for the purpose of providing low-cost housing for its members. Unable to secure a contractor to undertake construction of the housing planned, Westerlea was organized for that purpose on June 5, 1948. With building costs running considerably higher than anticipated, Westerlea, as it proceeded with construction on some 26 houses, found itself in a difficult financial situation. On January 24,1949, the creditors, pursuant to an extension agreement, took over the construction responsibilities. Nearly four years later, in October, 1952, Westerlea was adjudicated a bankrupt. Meanwhile, defendant had contributed to Westerlea not only its original capital of $25,000 but additional sums amounting to $25,639.38.

Plaintiff’s principal contention on this appeal is that the courts below erred in refusing to “ pierce the corporate veil ” of Westerlea’s corporate existence; as subordinate grounds for recovery he urged that the defendant equitably pledged its assets toward the satisfaction of the debts of the bankrupt’s creditors, and that the doctrine of unjust enrichment should apply.

The trial court made detailed findings of fact which have been unanimously affirmed by the Appellate Division, which are clearly supported by the evidence, and by which we are bound. It found that while the defendant, as owner of the stock of Westerlea, controlled its affairs, the outward indicia of these two separate corporations were at all times maintained during the period in which the creditors extended credit; that the creditors were in no wise misled; that there was no fraud; and that the defendant performed no act causing injury to the creditors of Westerlea by depletion of assets or otherwise.. The trial court also held that the creditors were estopped by the extension agreement from disputing the separate corporate identities.

We agree with the courts below. The law permits the incorporation of a business for the very purpose of escaping personal liability (Natelson v. A. B. L. Holding Co., 260 N. Y. 233, 238; Rapid Tr. Subway Constr. Co. v. City of New York, 259 N. Y. 472, 488). Generally speaking, the doctrine of “piercing the corporate veil ” is invoked “ to prevent fraud or to achieve equity ” (International Aircraft Trading Co. v. Manufacturers Trust Co., 297 N. Y. 285, 292; see Halsted v. Globe Ind. Co., 258 N. Y. 176, 179; Jenkins v. Moyse, 254 N. Y. 319, 324; Quaid v. Ratkowsky, 183 App. Div. 428, affd. 224 N. Y. 624). But in the instant case there has been neither fraud, misrepresentation nor illegality. Defendant’s purpose in placing its construction operation into a separate corporation was clearly within the limits of our public policy.

The judgment appealed from should be affirmed, without costs.

Van Voorhis, J.

(dissenting). The judgment of the Appellate Division should be reversed on the law, as it seems to me, and plaintiff should have judgment declaring defendant to be liable for the debts of the bankrupt, Westerlea Builders, Inc., and that defendant holds its real property subject to the claims of creditors of Westerlea. Not only is Westerlea a wholly owned subsidiary of defendant Home Owners, having the same directors and management, but also and of primary importance, business was done on such a basis that Westerlea could not make a profit. Home Owners owned a residential subdivision; Westerlea was organized as a building corporation to erect homes for stockholders of Home Owners upon lots in this tract. Home Owners arranged with Westerlea for the construction of houses and then would sell the lots on which such houses had been erected to Home Owners’ stockholders — at prices fixed by Home Owners’ price policy committee in such amounts as to make no allowance for profit by Westerlea. The object was to benefit Home Owners ’ stockholders by enabling them to obtain their houses at cost, with no builder’s profit.

The consequence is that described by Latty, Subsidiaries and Affiliated Corporations at pages 138-139: * ‘ The subsidiaries had, to begin with, nothing, made nothing, and could only end up with nothing. It is not surprising that the parent was held liable in each case.” And again: “ This set-up is often, though not necessarily, found in combination with a scheme whereby the corporation cannot possibly make profits (or can at the most make only nominal profits), and whereby all the net income in the course of the corporation’s business is drained off as operating charges of one sort or another. The presence of this additional factor should remove any doubt that may remain as to the right of the creditor of the corporation not to be limited to the corporate assets for the satisfaction of his debt.”

In the present instance, Westerlea was organized with a small capital supplied by Home Owners, which soon became exhausted. Thereafter, it had no funds and could acquire none over and beyond the actual cost of the houses which it was building for stockholders of Home Owners. Those stockholders obtained the entire benefit of Westerlea’s operations by obtaining these houses at cost. Not only was Westerlea allowed no opportunity to make money, but it was placed in a position such that if its business were successful and times remained good, it would break even, otherwise it would inevitably become insolvent. The stockholders of Home Owners became the beneficiaries of its insolvency. This benefit to the stockholders of Home Owners was analogous to dividends, at least it was something of value which was obtained by them from Home Owners by virtue of their stock ownership. Under the circumstances, this benefit to its stockholders was a benefit to Home Owners as a corporation.

It follows that Westerlea was merely an agent of Home Owners to construct houses at cost for Home Owners’ stockholders, and therefore Home Owners is rendered liable for Westerlea’s indebtedness.

Conway, Ch. J., Desmond, Dye, Fuld and Burke, JJ., concur with Froessel, J.; Van Voorhis, J., dissents in an opinion.

Judgment affirmed.


author: Froessel, J.

text:
    In the Matter of the Probate of the Will of Gabriel Pascal, Deceased. Marianne Z. Speelman, Appellant; Valerie Pascal et al., Respondents.
    Argued April 26, 1955;
    decided July 8, 1955.

      Francis X. Stephens, Jr., and William B. McKeown for appellant.
    I. The Appellate Division erred in granting summary judgment dismissing appellant’s petition for probate. (Curry v. Mackenzie, 239 N. Y. 267.) II. The Appellate Division erred in refusing to allow appellant to show by evidence that the language used by testator was an expression of motive and that the testator did not intend such language to create a condition precedent. (Matter of Kipp, 140 Misc. 195; Matter of Niles, 164 Misc. 328; Lamb v. Lamb, 131 N. Y. 227; Matter of Gallien, 247 N. Y. 195; Close v. Farmers’ Loan & Trust Co., 195 N. Y. 92; Matter of Dialogue, 159 Misc. 18.) III. The language of the holograph presents an ambiguity and extraneous evidence otherwise relevant is admissible on the issue of motive and intent. (Matter of Corlies, 150 Misc. 596, 242 App. Div. 703; Matter of Hardie, 176 Misc. 21; Matter of Webb, 122 Misc. 129; Ex Parte Lindsay, 2 Bradf. 204.) IV. The Poonarian case, upon which the Appellate Division relied in granting summary judgment, was itself a case where a full hearing was allowed. Appellant contends that the facts are distinguishable from the case at bar. (Matter of Poonarian, 234 N. Y. 329; Matter of Lang, 156 Misc. 448.) V. Decedent did not cancel his proposed trip. His efforts during the period from February 22, 1954, until the date of his death were in furtherance thereof. His ticket money was left on deposit with the airline and is now an asset of the estate. Appellant contends, therefore, that it is reasonable to assume that decedent died on his trip to India and that the condition, if any, as expressed in his will was fulfilled.

      Harry Merwin for Valerie Pascal, respondent.
    There are no triable issues of fact. The holographic paper writing dated February 22,1954, offered for probate, was in simple, clear and specific language to take effect as the last will and testament of Gabriel Pascal only “ if ” he died ‘ ‘ on this my trip to india ’ ’, scheduled to commence the next day — February 23d. As that trip was never taken and decedent died in New York four and one-half months later, the condition was never met or fulfilled and the paper writing was not decedent’s will at the time of his death. (Matter of Poonarian, 234 N. Y. 329; Dwight v. Fancher, 245 N. Y. 71.)

      Harry F. Mela and Lionel S. Popkin for Eugenio Lehel, respondent.
    I. The instrument offered for probate was to take effect only on the condition that decedent died on “ this my trip to india ”, The condition never having occurred, the instrument never became effective as a will. (Matter of Poonarian, 234 N. Y. 329; Matter of Bittner, 104 Misc. 112.) II. The record shows no issue of fact. III. None of the generalities and arguments in petitioner’s opposing affidavits or unsupported statements in her brief show the existence of any evidence which would be admissible if there were a trial. (Dwight v. Fancher, 245 N. Y. 71; Matter of Kearney, 258 App. Div. 39; Matter of Watson, 262 N. Y. 284.)
   Froessel, J.

Petitioner, Marianne Speelman, offered for probate in the Surrogates’ Court, New York County, as the last will of decedent, Gabriel Pascal, a handwritten document which reads as follows:

“To Zaya Kingman-Speelman
470 Park Avenue N. Y.
This is my will if I should die on this my trip to india You are my sol heiress.
Signed the 22 february 1954
Witnesses
[signatures] [signature] Gabriel Pascal
Daisy Haang in New-York City
Y. T. KAN
[oriental calligraphy] ”

The petition for probate alleged that Gabriel Pascal died on July 6, 1954, less than four and one-half months after the date of said alleged will, leaving personal property worth over $20,000; that his only next of kin were a widow, and a brother residing in Venezuela; there were no children. Letters of administration c.t.a. to petitioner were prayed for.

Formal answers and objections to probate were filed by decedent’s brother, Eugenio, and his widow, Valerie. The latter, it appears, obtained an interlocutory judgment of divorce against decedent in California on June 5, 1954, less than three weeks before his death. Valerie Pascal also applied to the same court for letters of administration in said estate. Both contestants assert, among other things, that the paper offered for proof by petitioner ‘ ‘ is not a will and never became effective as such ’ ’.

Following the service of the answers, the widow moved for “ a decree as summary relief ” under rule 113 of the Buies of Civil Practice, adjudging that the paper offered by petitioner was subject to a condition precedent which never occurred ” and therefore never became effective as the will of decedent; she also asked for a dismissal of the petition. In an accompanying affidavit, she states that Gabriel Pascal did not make the trip to India, “ did not die on any such trip ”, but died in Roosevelt Hospital in New York City “ after a prolonged illness ”. A death certificate annexed to the affidavit showed the decedent to have been a sixty-three-year-old film producer, of Hungarian birth and British citizenship, and death was there certified as due to “ natural causes ”.

Petitioner’s first affidavit in opposition, sworn to September 28, 1954, asserted only that said motion was “ premature ”, and should await disposition of the pending probate proceeding. However, an amended affidavit, sworn to October 5,1954, further stated that petitioner was prepared to establish, among other things, the following facts: that decedent’s reference to the “ trip ” was included only because he was to fly to Bombay for an extended business trip on February 23d, the day following the execution of the document in question, and his thoughts were then very much occupied with the prospect of the trip; that decedent, though holding tickets for that flight, was advised by cable on February 22d or 23d that the person he was to visit in India would not be available until May, 1954; that the trip was never cancelled by decedent, but merely postponed; that the will offered by petitioner was never cancelled; that decedent was not living with Valerie Pascal when he executed the will nor for some time prior thereto, his said wife having obtained an interlocutory decree of divorce in California on June 15,1954, based upon her sworn statement that she had been separated from decedent since January 1, .1953; and, finally, that she can demonstrate that the conditional language in the said instrument was not in fact intended to be a condition precedent to its probate but that it was only included in his Will as a statement of inducement — the reasons why he was drawing that will at that time ”.

The Surrogate denied summary relief upon the ground that rule 113 of the Rules of Civil Practice, “ is not applicable to this proceeding ”, and in any event the question of law presented depends upon the resolution of triable issues of fact The Appellate Division reversed, granted summary judgment and dismissed the petition for probate.

We agree with the Appellate Division that a contestant in a surrogate’s proceeding may invoke the provisions of rule 113 of the Rules of Civil Practice, wherever otherwise appropriate (Surrogate’s Ct. Act, § 316; Rules Civ. Prac., rule 3; rule 113, subd. 4; Lederer v. Wise Shoe Co., 276 N. Y. 459; Riley v. Southern Transp. Co., 278 App. Div. 605; Matter of Fishkind, 271 App. Div. 1013; see, also, People ex rel. Lewis v. Fowler, 229 N. Y. 84), although occasion for granting such relief may be rare in a probate proceeding.

However, we do not agree that summary judgment should have been granted here. A will is properly admitted to probate when the Surrogate is ‘1 satisfied with the genuineness of the will, and the validity of its execution ” (Surrogate’s Ct. Act, § 144, subds. 1, 2; emphasis supplied). Formerly, it was provided that the surrogate be satisfied with the “ genuineness and validity ” of the will, a change not without significance (L. 1837, ch. 460, § 17; Matter of Davis, 182 N. Y. 468, 474-475). The provisions of section 144 “look only to the formal validity of the will’s execution and it is immaterial * * * that the will, if probated, maybe wholly inoperative by reason of the invalidity of its provisions or of subsequent events making it ineffective ’ ’ (Matter of Riggins, 264 N. Y. 226, 229; Matter of Davis, supra, p. 475; Matter of Crounse, 168 Misc. 359, 361; see, also, Ex Parte Lindsay, 2 Bradf. 204, 208-209).

The succeeding section 145 of the Surrogate’s Court Act provides for the construction of a will, and, so far as pertinent, reads as follows: “ If a party expressly puts in issue in a proceeding for the probate of a will the validity, construction or effect of any disposition of property, contained in such will, the surrogate may determine the question, upon rendering a decree, after notice * * * or * # * may admit the will to probate and reserve the questions so raised for future consideration and decree.” (Emphasis supplied.) The genuineness and validity of execution of the will are not questioned in this proceeding; the contestants here seek an adjudication that the holographic instrument offered for probate ‘ ‘ is not a will and never became effective as such ’ ’.

We think the Surrogate was correct in stating that the question of the effect of the alleged condition upon the validity of the will, as to which we express no opinion, should be determined on the trial of the probate, or subsequently, in accordance with section 145 of the Surrogate’s Court Act (see Matter of Smith, 254 N. Y. 283, 289-290). The alleged will is unartfully drawn, and a literal interpretation of its language is not necessarily determinative. (Ex Parte Lindsay, supra, p. 209.) In Matter of Poonarian (234 N. Y. 329) we took into consideration extrinsic facts developed at the probate hearing. Such hearing may shed light upon the intended effect and meaning of the instrument here offered for probate, and whether or not it was conditional.

The order of the Appellate Division should be reversed, and the order of the Surrogates’ Court, dated November 17, 1954, reinstated, with costs to all parties appearing separately and filing separate briefs payable out of the estate. The appeal from the order of the Surrogates’ Court, dated March 16, 1955, entered on the order of the Appellate Division, should be dismissed (Civ. Prac. Act, § 591, subd. 2).

Conway, Ch. J., Desmond, Dye, Fuld and Burke, JJ., concur with Froessel, J.; Van Voorhis, J., concurs in the following memorandum: In Matter of Poonarian (234 N. Y. 329), the testator died sixteen years after completing the trip; this testator died before the trip was scheduled to begin. The hearing may develop that this instrument had not ceased to be a will at the time of testator’s decease.

Order reversed, etc.


author: Dye, J.

text:
    Amanda Flamer, as Administratrix of the Estate of Thomas F. Wilson, Deceased, Appellant, v. City of Yonkers et al., Respondents.
    Argued April 26, 1955;
    decided July 8, 1955.

      David Avstreih and Howard Rukeyser for appellant.
    I. Since plaintiff’s evidence amounted to a prima facie case, it was error for the trial court to dismiss the cause of action and refuse to submit the question of negligence to the jury. (Cohen v. Consolidated Gas Co. of N. Y., 137 App. Div. 213, 202 N. Y. 578; Rabinowitz v. Solomon, 221 App. Div. 366; Kraus v. Birnbaum, 200 N. Y. 130; Kiernan v. Krauth, 242 App. Div. 772; Fearick v. Lehigh Valley R. R. Co., 210 App. Div. 742; Bagley v. Bowe, 105 N. Y. 171; Kennedy v. McAllaster, 31 App. Div. 453; Keenan v. Sheehan, 205 Misc. 183; Noseworthy v. City of New York, 298 N. Y. 76.) II. On motion to dismiss at the end of plaintiff’s case, defendant must point out the particular material allegation not proven by the evidence, (Ramsay v. Miller, 202 N. Y. 72; Binsse v. Wood, 37 N. Y. 526; Gerding v. Haskin, 141 N. Y. 514; Pratt v. Dwelling House Mut. Fire Ins. Co., 130 N. Y. 206; Weber v. Germania Fire Ins. Co., 16 App. Div. 596; Berkenstat v. Oliver, 275 App. Div. 679; Guenther v. Amsden, 16 App. Div. 607, 162 N. Y. 601; Mackey v. Empire Rollerdrome of Brooklyn, 267 App. Div. 995.) III. Defendant police officer’s killing of plaintiff’s intestate by means of unjustifiable violence constituted gross negligence. (McCarthy v. City of New York, 273 App. Div. 945, 273 App. Div. 1007; Goldman v. City of New York, 278 App. Div. 770; Wilkes v. City of New York, 283 App. Div. 724.) IV. It was error for the trial court to refuse to permit the jury to consider the question of negligence while submitting to it for determination the issue of assault based upon the same evidence. (La Plante v. Johnson, 163 Misc. 96, 255 App. Div. 248; McGovern v. Weis, 265 App. Div. 367, 266 App. Div. 712.)

      J. Raymond Hannon, Corporation Counsel, for respondents.
    I. Defendants were not required to point out the material allegations not proven by the evidence in moving to dismiss the first cause of action. (Byrnes v. New York, Lake Erie & Western R. R. Co., 113 N. Y. 251; Collelli v. Turner, 154 App. Div. 218, 215 N. Y. 675; Fearick v. Lehigh Valley R. R. Co., 210 App. Div. 742.) II. Plaintiff’s third cause of action was properly dismissed.
   Dye, J.

This is an action for the wrongful death of plaintiff’s intestate, Thomas Franklin Wilson, who was shot and killed by a member of the Yonkers police force under circumstances allegedly requiring the City of Yonkers and the two police officers involved to respond in damages.

The complaint sets forth three causes of action, the first for negligence, the second for assault and a third against the city alone which was not prosecuted, for having knowingly and negligently employed unreliable police officers.

The defendants joined issue by filing an answer denying generally all three causes of action and interposed the defense of decedent’s alleged contributory negligence to plaintiff’s cause based on negligence.

Upon the trial and at the close of the plaintiff’s proof, the trial judge granted defendants’ motion to dismiss the plaintiff’s alleged third cause of action and at the close of all the proof granted defendants’ motion to dismiss the plaintiff’s alleged first cause (negligence) for failure of proof, but denied a similar motion addressed to the second cause, assault, and submitted that to the jury which returned a verdict of no cause in favor of defendants.

This appeal deals only with the dismissal of the first cause of the complaint based on negligence. Briefly stated, the issue for our consideration is whether plaintiff’s proof — which, for purposes of the motion, we accept as true — when viewed in the light of the most favorable inference rule — was prima facie sufficient to support a finding of negligence (Cohen v. Consolidated Gas Co., 137 App. Div. 213, affd. 202 N. Y. 578). Likewise, when there is a conflict — and here there was — it is for the jury to determine the issue of credibility and weight (Kraus v. Birnbaum, 200 N. Y. 130, 133; Meiselman v. Crown Heights Hosp., 285 N. Y. 389, 392; Sadowski v. Long Is. R. R. Co., 292 N. Y. 448, 455).

Evidence adduced by witnesses called by the plaintiff shows that on the evening of August 26, 1949, the plaintiff’s intestate, then twenty-eight years of age, and his nephew, Harold Flamer, met at the latter’s home. At about 9:30 p.m. they went on a round of social beer drinking in the course of which they visited several friends and neighborhood taverns, finally winding up at the Columbia Bar and Grill between 12:30 and one o’clock. There they engaged in some friendly horseplay with each other hut stopped when warned to do so by the bouncer ”. Decedent then went to the end of the bar and engaged in a friendly conversation with a former girl friend which, for 'some reason not disclosed, turned into an argument. The barkeeper put in a call for the police. In the meantime the decedent broke off his argument with the girl and rejoined Flamer for a glass of beer.

When the officers entered everything was quiet. Nonetheless, they rushed to where decedent was sitting and grabbed him by the arms and began beating him over the head and shoulders with their night clubs and fists. Decedent struggled to his feet and, in an effort to defend himself, grabbed Officer Porach’s night stick. In the ensuing struggle, they both went against the wall. Officer Hopper in the meantime backed away from the tussle and reached for his gun. Flamer shouted “ Don’t shoot him, he is drunk ”. Hopper nodded his head as if indicating that he understood. By this time decedent and Porach had separated. Decedent was then standing in about the middle of the room shaking his head in a dazed manner, his arms hanging by his sides. Hopper, his gun drawn, backed up to the bar and from a distance of about twelve to fifteen feet from the decedent took aim and without any word of warning shot decedent who at the moment was looking in the other direction.

This testimony was furnished by four eyewitnesses: Flamer, the intestate’s companion, a brother of the intestate who happened to enter the barroom just at the climactic moment, a porter employed in the tavern and a patron — all of whom were subjected to a severe and searching cross-examination which failed to shake their stories as to any material aspect. The police officers, contradicting the unfavorable aspects of the plaintiff’s version of the affair, contended that the plaintiff’s intestate was carrying on in such a threatening and belligerent manner as to require prompt and drastic action to subdue him; in other words, that in shooting the decedent they used no more force than the circumstances warranted.

In such a state of the record it was for the jury and not the court to determine which of the two versions was credible, which preponderated and in whose favor. While the plaintiff did not attempt to prove in so many words that the officers were engaged in making an arrest, we believe such fact was implicit in the circumstances of this case and that the plaintiff’s failure to show such fact by separate proof was not fatal. In any event, such omission is of no consequence on this appeal as whether the officers were or were not making an arrest is a question of fact for the jury.

We have also found it difficult to reconcile the action of the trial court in granting defendants’ motion for dismissal of the plaintiff’s first cause (negligence) and at the same time denying their motion to dismiss the second cause (assault) and letting that issue go to the jury.

In negligence actions, ordinarily the only proof required to establish a prima facie case is lack of care commensurate with the circumstances, while to support an action based on assault, intent is an essential element (La Plante v. Johnson, 163 Misc. 96, affd. 255 App. Div. 248). We believe the court erred as a matter of law when it dismissed the plaintiff’s first cause based on negligence. Having reached this conclusion, other points assigned as error need not detain us. We have purposely omitted discussion of the defense based on intestate’s alleged contributory negligence, as that too raised an issue of fact which should have been left to the jury.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.