author: Desmond, J.

text:
    William M. Condon, Appellant, v. Associated Hospital Service of New York et al., Respondents.

      Argued January 7, 1942;
    decided March 5, 1942.

      Walter E. Warner and John O. Driscoll for appellant.
    The state courts have jurisdiction. The mere fact that a copyright is incidentally or collaterally related to the controversy does not oust the state courts of jurisdiction. (Wise v. Tube Bending Machine Co., 194 N. Y. 272; Couch Patents Co. v. Berman, 137 App. Div. 297; Outcault v. Lamar, 135 App. Div. 110; Roberts v. Petrova, 126 Misc. Rep. 86; 219 App. Div. 772; 245 N. Y. 572; Continental Store Service Co. v. Clark, 100 N. Y. 365; Underhill v. Schenck, 238 N. Y. 7; Zenie v. Miskend, 245 App. Div. 634; 270 N. Y. 636; Nilsson v. DeHaven, 47 App. Div. 537; Mengis v. Fitzgerald, 108 App. Div. 24.) The federal courts have no jurisdiction to enforce or recover moneys due under a contract relating to the use of a copyright. (Outcault v. Lamar, 135 App. Div. 110; Wade v. Lawder, 165 U. S. 624; Geneva Furniture Mfg. Co. v. Karpen & Bros., 238 U. S. 254; Pearl v. Seventh Ave. Film Co., 262 N. Y. 605;. Briggs v. United Shoe Machinery Co., 239 U. S. 48; Felix v. Scharnweber, 125 U. S. 54.) The action is not predicated upon the piracy of a copyright. ( Underhill v. Schenck, 238 N. Y. 7; 13 Corpus Juris, § 382; Baker v. Selden, 101 U. S. 99; Bobbs, Merrill Co. v. Straus, 210 U. S. 339.)

      William C. Breed, Jr., Charles A. Howard, Jr., and Kendall B. DeBevoise for respondents.
    Neither of the causes of action alleged is to enforce a contract. Rathei do they seek to enforce common law remedies. (De Mille Co. v. Casey, 115 Misc. Rep. 646; Manigault v. Ward & Co., 123 Fed. Rep. 707; Crosby v. Wood, 6 N. Y. 369; Tolhurst v. Powers, 133 N. Y. 460.) The courts below correctly dismissed the action both as to the individual defendants and the corporate defendant on the ground that the New York Supreme Court has no jurisdiction of the subject matter thereof. (Cohan v. Robbins Music Cory., 244 App. Div. 697; O’ Neill v. General Film, Co., 171 App. Div. 854; Jewelers’ Mercantile Agency v. Jewelers’ Pub. Co., 155 N. Y. 241; Palmer v. DeWitt, 47 N. Y. 532; Bobbs-Merrill Co. v. Straus, 147 Fed. Rep. 15; 210 U. S. 339; DeWitt v. Elmira Nobles Mfg. Co., 66 N. Y. 459.)
   Desmond, J.

Defendants, after serving their answer, moved for and were granted judgment on the pleadings dismissing the complaint as to both its causes of action. Special Term, in its brief opinion, cited Cohan v. Robbins Music Cory. (244 App. Div. 697) and O’Neill v. General Film Co. (171 App. Div. 854) as precedents for the dismissal. The Appellate Division, affirming the judgment, described the action as one to recover for the adoption and use of a copyrighted plan ” and upheld the dismissal on the ground that the court lacks jurisdiction of the subject-matter of the action.” (261 App. Div. 1096.) Plaintiff, appealing here, says that he is not suing because of any unauthorized use or piracy of his plan, but for the breach of an express contract to pay for its use. If defendants and the courts below are right in their reading of the complaint, the state courts have no jurisdiction of the case (Cohan v. Robbins Music Corp., suyra); if, however, we can accept plaintiff’s version of the meaning and import of his allegations, then the suit is well within the bounds of the jurisdiction of our state courts, even though the contract pleaded has to do with the use of a written plan copyrighted under the federal statutes. The author who suffers infringement of his copyright at the hands of a licensee, may count upon the infringement as a tort, and seek redress 'under the statute by action in the federal courts. But that is not in all circumstances the only remedy available. If the same act is not merely an invasion of the statutory right of property, but is also the breach of a contract or the abuse of a relation, he may count upon the breach or the abuse, and have relief accordingly.” (Underhill v. Schenck, 238 N. Y. 7, 14. See, also, Danks v. Gordon, 272 Fed. Rep. 821; Wise v. Tube Bending Machine Co., 194 N. Y. 272, 278, and Continemtal Store Service Co. v. Clark, 100 N. Y. 365.)

We must then examine the complaint to see whether it sufficiently pleads any causes of action at all, and, if it does, whether the causes so pleaded are for copyright infringement or for breach of contract. Settled rules of construction are to be applied. “ If in any aspect upon the facts stated the plaintiff is entitled to a recovery, the motion should be denied.” (Dyer v. Broadway Central Bank, 252 N. Y. 430, 432.) The whole of the pleading must be considered. (Calvo v. Davies, 73 N. Y. 211, 218.) However imperfectly, informally or even illogically the facts may be stated, a complaint, attacked for insufficiency, is deemed to allege whatever can be implied from its statements by fair and reasonable intendment.” (Kain v. Larkin, 141 N. Y. 144, 151.) The question for us is whether the requisite allegations of any valid cause of action cognizable by the state courts “ can be fairly gathered from all the averments.” (Moss v. Cohen, 158 N. Y. 240, 247; Zabriskie v. Smith, 13 N. Y. 322, 330.) Usually recourse is had to these rules because there is doubt as to whether the pleading states any cause of action at all. But, obeying the command of section 275 of the Civil Practice Act, that pleadings be liberally construed with a view to substantial justice,” we should use the same rules to give this complaint, if possible, such a construction as will bring its demands within the scope of the state court’s jurisdiction. (See Newman v. Robins Dry Dock & Repair Co., 201 App. Div. 861.) Particularly is this true as to actions in the Supreme Court which, as a court of general jurisdiction, is presumed to have jurisdiction of a cause unless the contrary plainly appears. (Gilbert v. York, 111 N. Y. 544, 548.)

Summarized as briefly as possible, the first cause of action says these things as to the individual defendants only: that plaintiff conceived a plan for furnishing hospital care to the public on an annual subscription basis; that he obtained a copyright thereon; that he delivered a copy of this plan and supporting statistics to the individual defendants at their request; that they promised plaintiff that, if they adopted the plan, they would pay him for its use at a rate unspecified, and that if they did not adopt it they would make no use of it, directly or indirectly, but would return to him all the papers and data. Plaintiff swears that, relying on these promises, he delivered the papers to the individual defendants who familiarized themselves with the plan but failed to adopt it. The chief difficulty with this cause of action is that, at this point, plaintiff goes on to allege that the individual defendants “ adopted the substance of his plan, without his “ knowledge, authority or consent.” It is this allegation to which defendants point, principally, as bearing out their charge that this cause of action involves nothing more than an accusation of unauthorized use. But plaintiff pleads also in this cause of action, that “ the conduct of said defendants constituted a breach of the agreement between plaintiff and the defendants.” Of course, defendants on this motion are entitled to have all the allegations considered and if there are mutually contradictory allegations, or if plaintiff, after pleading the existence of a requisite fact, goes on to plead its non-existence, then his complaint is insufficient. (See Calvo v. Davies, swpra, and Graham, v. Buffalo General Laundries Corp., 261 N. Y. 165, 168.) Our view is, however, that the two allegations as to failure to adopt and as to unauthorized adoption of the substance of the plan, are not irreconcilable. They can be read to mean that the individual defendants, while they gave plaintiff no notice of adoption and did not use the plan in its exact form or completely, used the substance of the plan without paying plaintiff anything, all in violation of their contract with him. Such a claim, even if not set out in so many words, can be implied by fair and reasonable intendment.” (Kain v. Larkin, supra. See Brown v. Tregoe, 236 N. Y. 497, 499.) So read, the first cause of action sufficiently sets forth a breach of an express contract, and plaintiff is entitled to produce in proof thereof such evidence as he may have. (Coatsworth v. Lehigh Valley Ry. Co., 156 N. Y. 451, 457.)

The second cause of action in the complaint may be dealt with summarily. It runs against the corporate defendant alone, alleging that this membership corporation was organized by the individual defendants to place plaintiff’s said plan in operation,” and that it did adopt and use that plan, or its substance. But it appears from plaintiff’s own allegations that this corporation was not organized until many years after plaintiff swears he disclosed his plan to the individual defendants, and that at no time did this corporation have any contractual relations with plaintiff. Thus plaintiff’s charge against the corporate defendant is one of unauthorized use and this kind of suit the state courts cannot entertain. Plaintiff’s prayer for judgment against this corporate defendant, wherein he asks for an accounting and for the impressing of a trust on its earnings, etc., makes it plain that in this part of his complaint he is urging no more than an infringement action, not cognizable by the state courts.

The judgments in so far as they dismiss the first cause of action should be reversed as to the individual defendants and the motion to dismiss that cause of action denied as to the individual defendants; otherwise judgments affirmed, without costs.

Finch and Conway, JJ., concur; Lehman, Ch. J., Loughran and Lewis, JJ., dissent as to the reversal of the dismissal of the first cause of action, and Rippey, J., dissents as to the affirmance of the judgments dismissing the second cause of action.

Judgment accordingly.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of Paul H. Wasmund et al., Respondents, against Fiorello H. LaGuardia, as Mayor of the City of New York et al., Appellants.
    Argued January 9, 1942;
    decided March 5, 1942.

      William C. Chanler, Corporation Counsel (Paxton Blair and Nicholas Bucci of counsel), for appellants.
    Section 1143 of the Education Law (Cons. Laws, ch. 16) makes it the duty of the Board of Higher Education to furnish collegiate education only; it does not perpetuate preparatory institutions connected with colleges. (People ex rel. Brown v. Woodruff, 32 N. Y. 355; Matter of Becker v. Eisner, 277 N. Y. 143; Matter of College of the City of New York v. Hylan, 205 App. Div. 372; 236 N. Y. 594.) The development of the public high schools maintained by the Board of Education renders it no longer necessary for the Board of Higher Education to maintain the Townsend Harris High School, and the Board’s determination to this effect was not an abuse of discretion. (Matter of Divisich v. Marshall, 281 N. Y. 170.)

      Joseph Lorenz and John F. X. Finn for respondents.
    The action of the Board of Estimate in refusing to appropriate the sum originally estimated and reported by the Board of Higher Education as the required appropriation for Townsend Harris High School and in ordering its abolition, was invalid and beyond its power. (Matter of College of the City of New York v. Hylan, 205 App. Div. 372; People ex rel. College of the City of New York v. Hylan, 116 Misc. Rep. 334; 198 App. Div. 998; Matter of Wingate v. McGoldrick, 279 N. Y. 246; Matter of McAneny v. Board of Estimate,
      232 N. Y. 377; Forbes v. Cohen, 254 App. Div. 548; People ex rel. O’Loughlin v. Prendergast, 219 N. Y. 377.) The courts below correctly held, as a matter of law, that the Board of Higher Education has no power under the statute to abolish Townsend Harris High School. (Matter of Talbot v. Board of Education, 171 Misc. Rep. 974; Peace v. McAdoo, 110 App. Div. 13; Thousand Island Park Assn. v. Tucker, 173 N. Y. 203; State v. McNonies, 75 Neb. 443; Johnson v. Philadelphia, 94 Miss. 34; People v. Pearson, 234 Ill. App. 313; Wright v. Board of Education, 295 Mo. 466; Smith v. Board of Education, 264 Ky. 150.)
   Lewis, J.

In a proceeding under article 78 of the Civil Practice Act an appeal by our permission brings up for review an order of the Appellate Division unanimously affirming an order of Special Term which directs the defendant-appellant, Board of Higher Education of the City of New York, to rescind certain formal action taken to effect the discontinuance of Townsend Harris High School. The order also directs the appellants, the Board of Estimate, the Council and the Budget Director of the city of New York, to restore to the city budget for the fiscal year 1941-1942, and to appropriate, the sum of $100,000 which has been eliminated from an estimate originally submitted by the Board of Higher Education for the maintenance of Townsend Harris High School.

The Board-of Higher Education of the city of New York — to be distinguished from the Board of Education — is empowered by statute (Education Law, § 1142; Cons. Laws, ch. 16) to administer that part of the public school system within the city which is of collegiate grade. Among other powers — some of which are presently to be considered— the Board is also authorized to prepare annual budgetary estimates for institutions under its control and to submit the same to the Board of Estimate. Thereafter agencies charged by law with such functions are authorized and directed to insert in the annual budget and to appropriate to the Board’s use the sum so estimated. (Id. § 1143.)

The position of Townsend Harris High School in the educational system of New York is unique. For many years it has been connected with one of the colleges of The College of the City .of New York, and although denominated as a high school it is conceded to be under the jurisdiction and control of the Board of Higher Education.

On June 16, 1941, the Board of Higher Education by resolution stated that it favored the discontinuance of Townsend Harris High School. Any doubt as to the position of the Board of Higher Education on that subject was removed by a resolution by the Board adopted September 4,1941, in which it declared its “ independent judgment to be that Townsend Harris High School should be discontinued at the close of the school year in June, 1941, and that no new students should be enrolled for the school year commencing in September, 1941, or thereafter. To that end, and by the same resolution, the Board of Higher Education modified its budget estimate previously submitted to the Board of Estimate for 1941-1942 by reducing from $295,297 to $195,297 the appropriation requested for the maintenance of Townsend Harris High School. ■ It is thus seen that the order before us directs the restoration to the city budget for 1941-1942 of the excised sum of $100,000 for which, according to the resolution of the Board of Higher Education, no necessity exists.

The petitioners-respondents assert that as matter of law the Board of Higher Education has no power to take action looking toward the discontinuance of Townsend Harris High School and that accordingly the action of the Board of Estimate, the Director of the Budget and the Council, in refusing to appropriate the sum originally estimated by the Board of Higher Education as required for the maintenance of Townsend Harris High School for the fiscal year 1941-1942, was without legal sanction.

If the applicable statutes grant to the Board of Higher Education, acting in conjunction with the budgetary agencies, an administrative discretion in the matter of discontinuing Townsend Harris High School, the courts may interfere with such action only in the event the record discloses circumstances which leave no scope for the exercise of that discretion in the manner of which the petitioners-respondents complain. (Matter of Durr v. Paragon Trading Carp., 270 N. Y. 464, 469; Matter of Stracquadanio v. Dept, of Health, 285 N. Y. 93, 96.)

The history of Townsend Harris High School relates itself to the history of The College of the City of New York, which was chartered in 1847 (L. 1847, ch. 206, as amd. by L. 1866, ch. 264). It now comprises four colleges — The City College, Hunter College, Brooklyn College and Queens College. Originally it comprised only The City College — hereinafter referred to as City College — which until 1900 was divided into five classes: the usual senior, junior, sophomore and freshman classes and a fifth class known as the sub-freshman class. In 1901 two classes were added known as sub-freshman classes B and C and thereafter until 1930 the three sub-freshman classes were conducted in one of the college buildings, known as Townsend Harris Hall, on Amsterdam avenue at One Hundred and Thirty-eighth street, in the borough of Manhattan. Since 1930 the three sub-freshman classes have been known as Townsend Harris High School, and have been conducted at 17 Lexington avenue in the borough of Manhattan. The teaching staff of the school, although separate from the four classes of City College, is 'under the administrative supervision of the latter institution. The student body is comprised of graduates from elementary schools and junior high schools of the city who have attained an average grade of “A” or “ B plus.” The curriculum and method of instruction have been designed primarily to meet the needs of unusually gifted students and to prepare them to enter City College where all graduates of Townsend Harris High School are entitled to enter the freshman class without condition and without the necessity of competitive or preliminary examination. Such graduates are thus afforded a slight advantage in eligibility for entrance into City College over graduates from other city high schools who, under existing regulations, may enter City College only upon condition that they have attained specified grades in their respective high schools and, if such grades have not been attained, then upon competitive examinations.

We learn further from the record that there are now established and maintained in the city of New York fifty-four academic high schools. These institutions are the result of a studied effort by the Board of Education to make effective an educational program which will provide academic high schools which are adequate in number, facilities and character of instruction to meet the city’s requirements according to the standard fixed by the State Board of Regents.

It thus appears that although Townsend Harris High School was founded at a time when few, if any, high schools existed in the city and although the curriculum and method of instruction in Townsend Harris High School have since been designed primarily to prepare its students to enter City College, the Board of Education, as a part of its educational program, has now completed and is maintaining in the city a large number of academic high schools where students are afforded instruction of a high standard in preparation for college entrance including admission to City College.

In view of these facts it is important to note that in the resolution of September 4, 1941, adopted by the Board of Higher Education, one of the reasons stated as a basis for its decision to discontinue Townsend Harris High School was that the high schools now established and maintained in the city are affording instruction of such a standard that “ the original purposes for which Townsend Harris High School was founded have ceased to be operative.”

Despite this declaration by the Board of Higher Education, the respondents have thus far successfully maintained in this proceeding that the statutes which are the source of power exercised by the Board impose upon that agency the mandatory duty to continue Townsend Harris High School and that accordingly the resolutions adopted by the Board on June 16 and September 4, 1941 — in which was declared its intention to discontinue Townsend Harris High School — and the action taken by the Board of Estimate and other budgetary authorities, were without authority of law. The respondents rely upon section 1143 of the Education Law with special reference to the following portion of that statute: “ * * * The board shall furnish the benefits of collegiate education gratuitously to citizens who are actual residents of the city and who are qualified for admission to any regular undergraduate course of study leading to a baccalaureate degree and to any course of study in any preparatory, training or model school connected with any institution under their control; * * *. ”

We do not find expressed in the statute quoted, nor in other portions of section 1143, an intent by the Legislature to make mandatory the continuation of a non-collegiate institution such as Townsend Harris High School. The quoted portion of section 1143, and indeed article 44-A in its entirety, must be interpreted with reference to the fundamental purpose sought to be accomplished. (People ex rel. Wood v. Lacombe, 99 N. Y. 43, 49, 50.) That purpose was to bring within the administrative control of a single agency the supervision of public institutions of higher learning. To that end the Legislature established a Board of Higher Education in each city of the state having a population in excess of one million and in which “ there are maintained public institutions of higher learning which confers (sic) degrees, which are supported out of public funds * * (§ 1142; L. 1926, ch. 407.) Then follows a declaration by the Legislature of the purpose which it intended to accomplish — The said board of higher education of the said city shall govern and administer that part of the public school system within the city which is of colle'giate grade and which leads to academic, technical and professional degrees(Emphasis supplied.)

We may assume, without deciding, that by language to be found in section 1143 (Id.) the Board was given jurisdiction to govern and to administer the affairs of preparatory schools (including Townsend Harris High School) and any training or model school connected with institutions wherein the Board is required to furnish gratuitously the benefits of collegiate education. But we find nothing in sections 1143, 1144 or 1145 (Id.) declaratory of an intention by the Legislature to impose upon the Board the mandatory duty to continue any preparatory, training or model school. The statute makes clear the purpose to provide an agency to administer and control that part of the public school system “ which is of collegiate grade ” which gradation was further defined — as if for emphasis — as that which leads to academic, technical and professional degrees.” Having created the Board of Higher Education as an administrative agency to govern and administer ” that part of the public school system which is of collegiate grade (Id. § 1142), we may not ascribe to the Legislature, in the absence of clear language to that effect, an intent to require that Board to perpetuate a preparatory school — such as Townsend Harris High School — which the Board, for reasons clearly stated and in the exercise of administrative discretion delegated to it, has determined to be a non-essential educational unit.

The orders should be reversed and the petition dismissed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Orders reversed, etc.


text:
    Harvey P. Cannon, Jr., an Infant, by Salvador J. Capecelatro, His Guardian ad Litem, Appellant, v. Harvey P. Cannon, Individually and as Administrator of the Estate of Grace B. Cannon, Deceased, Respondent.
    Argued January 6, 1942;
    decided March 5, 1942.

      Salvador J. Capecelatro for appellant.
    An unemancipated child may bring suit against his parents for the recovery of damages for injuries sustained by him through their negligence. (LoGalbo v. LoGalbo, 138 Misc. Rep. 485; Rozell v. Rozell, 281 N. Y. 106; Young v. Rankin, Sessions Cases, 499-520; Fidelity & Casualty Co. v. Marchand, 4 Dominion Law Reports, p. 165; Lusk v. Lusk, 166 S. E. Rep. 538; Matter of Losee, 46 Misc. Rep. 363; 119 App. Div. 107; Roughan v. Chenango Valley Sav. Bank, 158 App. Div. 786.) An unemancipated minor can maintain suit against the estate of a deceased parent for the recovery of damages for personal injuries sustained by the minor on account of the negligence of such parent, also resulting in the latter’s death. (Lasecki v. Kabara, 235 Wis. 645; Wick v. Wick, 192 Wis. 260; Lavender v. Lavender, 261 N. Y. 574.)

      Abram G. Senior and Morgan F. Bisselle for respondent.
    An unemancipated minor child may. not maintain an action in negligence against his parent for unintended personal injuries. (Sorrentino v. Sorrentino, 248 N. Y. 626; Carter v. Carter, 235 App. Div. 654; Ciani v. Ciani, 127 Misc. Rep. 304; Owens v. Auto Mut. Ind. Co., 235 Ala. 9; Rambo v. Rambo, 195 Ark. 832; Trudell v. Leatherby, 212 Cal. 678; Mesite v. Kirchenstein, 109 Conn. 77; Matarese v. Matarese, 47 R. I. 131; Kelly v. Kelly, 158 S. C. 517; McKelvey v. McKelvey, 111 Tenn. 388; Norfolk Southern R. Co. v. Gretakis, 162 Va. 597; Roller v. Roller, 37 Wash. 242.) An unemancipated minor child may not maintain an action in negligence against his deceased parent’s estate for unintended injuries. (Ciani v. Ciani, 127 Misc. Rep. 304; Matarese v. Matarese, 47 R. I. 131; Lasecki v. Kabara, 235 Wis. 645.)

      Francis J. MacIntyre for American Mutual Alliance, amicus curiæ.

    An unemancipated minor may not maintain an action against its parents for personal injuries due to the tortious act of the latter. (Ciani v. Ciani, 127 Misc. Rep. 304; Sorrentino v. Sorrentino, 248 N. Y. 626; Lento v. Hajik, 16 N. Y. Supp. [2d] 776; Carter v. Carter, 235 App. Div. 654; Rozell v. Rozell, 281 N. Y. 106; Owens v. Auto

      Mut. Ind. Co., 235 Ala. 9; Rambo v. Rambo, 195 Ark. 832; Trudell v. Leatherby, 212 Cal. 678; Yost v. Yost, 172 Md. 128; Hewlett v. George, 68 Misc. Rep. 703; Reingold v. Reingold, 115 N. J. L. 532; Mertz v. Mertz, 271 N. Y. 466.)
   Lewis, J.

May an unemancipated minor child maintain an action against his parents for personal injuries alleged to have been caused by their negligence?

That question was considered in Sorrentino v. Sorrentino (248 N. Y. 626), when the court denied the existence of such a right of action. The question is again presented by the defendant’s challenge to the sufficiency of a complaint now before us wherein the plaintiff, an unemancipated minor, demands from his father and the estate of his deceased mother damages for personal injuries which are said to have been sustained through the mother’s fault. It is alleged that while the infant plaintiff was a passenger in an automobile owned by his father and driven by his mother with his father’s consent, he sustained personal injuries due to his mother’s negligence. There are also allegations that the death of the plaintiff’s mother, which occurred three days after the plaintiff was injured, was due to injuries suffered by her in the accident which befell them both.

The appellant recognizes the rule of the Sorrentino case (supra). He suggests, however, that our more recent ruling in Rozell v. Rozell (281 N. Y. 106, 108) — where a recovery for tortious injuries suffered by an unemancipated minor was upheld against his unemancipated sister — may have foreshadowed such a change in the policy of the court as will validate the complaint now before us.

In the Rozell case (supra) it was said (Rippey, J., p. 109): Persons who are not members of the family when injured through the tortious negligence of minors may recover damages against them by way of compensation for injuries sustained. * * * No logical reason nor reported authority exists to indicate that the rule of liability should be changed when brothers and sisters are involved.”

In the case now before us, unlike the problem in the Rozell case, we deal with that natural kinship between parent and child which involves legal duties peculiar to that relationship, and as to which both reason and authority dictate our adherence to the rule of the Sorrentino case (supra).

The law requires of parents that they provide care, maintenance and guidance for their unemancipated minor child. To that end they are entitled to his custody. Such duties and rights may be enforced by legal process. Thus has the law recognized in the family something more than a social unit, something more practical than a spiritual concept. It has sanctioned the family relationship — particularly the relationship of parent and child — as the basis for regulating those reciprocal obligations between parent and child which may be the subject of legal enforcement. ■

In the process of rearing a child and the fulfillment of the legal duties of care, maintenance and guidance, the conduct of the parents toward the child is of necessity affected by the parental relation. We know that family unity is not created by law. But, as we have seen, the law does not fail to recognize family unity as a factor in human conduct and relationship. As to the child- — -what he may expect from his parents and’ what he owes to them as a matter of filial duty differ widely from his rights and duties in his relations to those not in loco parentis. As to the parents — the law which imposes upon them the duty to support and discipline a minor child, and to prescribe a course of conduct designed to promote his health, education and recreation, accords to the parents a wide discretion. In the exercise of that discretion and the performance of duties imposed by law through no choice by the parents, they are held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well-being of their child. Lack of means, physical weakness or mental incapacity may cause parents to tolerate conditions in the family home which are unsafe and which might afford a basis for liability to one coming to the premises as an invitee or licensee. Not yet, however, have our courts granted an unemancipated child — whom the law decrees to be a member of that household — the right to hold his parents in damages for unintended personal injuries resulting from such conditions. Indeed, if within the wide scope of daily experiences common to the upbringing of a child a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk — for each injury caused by inattention, unwise choice or even selfishness — a new and heavy burden will be added to parenthood.

Take for example the instant case: we may assume that the infant plaintiff’s presence in his father’s automobile, then driven by his mother, was not unrelated to the fact that he was the child of the owner and driver of the car; nor was his presence unrelated to the natural and legal duty of his parents to furnish him with care and with opportunities for recreation. True, he was a passenger but he was there, not as an invitee but as a member of the family, entitled to his parents’ care. As in the constant succession of daily experiences which were shared in their family life the child’s position as a passenger in the automobile was inextricably related to his position as a member of that family, so the parents’ duties, as the owner of the car and as the operator, were inextricably related to their natural and legal duties toward their unemancipated child.

In the absence of statutory sanction, we are not prepared, in cases where wilful misconduct by the parent is not a factor, to inject the disruptive risk of tort liability between parents and their unemancipated children, in which relationship both parents and children — by nature and by law — have reciprocal duties to perform which still make for family unity.

There remains for consideration the appellant’s claim that, as to his deceased mother, he is an emancipated minor, and that accordingly there is no legal restriction against a suit in his behalf against her estate. The question whether the infant plaintiff had a cause of action against his parents must be determined as of April 16, 1939, on which date, it is alleged, he suffered the injuries for which he seeks recovery. It was on that date that his cause of action, if any, arose. (Schmidt v. Merchants Despatch Transportation Co., 270 N. Y. 287, 300; Reingold v. Reingold, 115 N. J. L. 532.) However, on that date, according to the complaint herein, both his father and his mother were living — his mother’s death having occurred on April 19, 1939. It follows that on the date when the infant plaintiff’s alleged cause of action arose he was unemancipated. We have already indicated our conclusion to be that an unemancipated minor child has no right of action against his parents for non-wilful injuries caused by their acts which, if done by others, might constitute a breach of legal duty. It follows that the death of the infant plaintiff’s mother subsequent to the date of his injuries will not serve to validate a cause of action in his behalf against her estate. (Cf. Lasecki v. Kalara, 235 Wis. 645.)

The judgment should be affirmed, with costs.'

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Judgment affirmed.


author: Rippey, J.

text:
    Howard R. Sanford, as Trustee in Bankruptcy of St. Lawrence Marine Repair Dock Corporation, Respondent, v. John J. Boland, Appellant, Impleaded with Others.

      Argued January 8, 1942;
    decided March 5, 1942.

      David S. Jackson for appellant.
    The prior mortgage foreclosure proceedings and the judgment therein bar the main-11 tenance of this action. (Stephens v. Perrine, 143 N. Y. 476; Karst v. Gane, 136 N. Y. 316; Kitchen v. Lowery, 127 N. Y. 53; Stephens v. Meriden Britannia Co., 160 N. Y. 178.)

      Louis C. Cohen for respondent.
    The mortgage was required to be filed and refiled as a chattel mortgage, and was invalid as a lien upon the personal property of the corporate mortgagor. (MacDonnell v. Buffalo Loan, T. & S. D. Co., 193 N. Y. 92; Stevens v. Buffalo R. Co., 31 Barb. 590; Hoyle v. Plattsburgh & Montreal R. R. Co., 54, N. Y. 314; Farmers’Loan Co. v. Hendrickson, 25 Barb. 484; Mendelson v. Realty Mortgage Corp., 257 Mich. 442; Matter of Algonquin Electric Co., 36 Fed. Rep. [2d] 603; Adler v. Atlas Brick Corp., 283 N. Y. 64; Wiley v. Solvay Process Co., 215 N. Y. 584; People v. New York Central R. R. Co., 24 N. Y. 485; Marsden v. Cornell, 62 N. Y. 215.) The judgment in foreclosure is not res judicata as against the plaintiff and is not a bar to this action. (Skilton v. Dodington, 185 N. Y. 80; Matter of Active Wet Wash Laundry Co., 8 Fed. Supp. 966; Matter of Thomas, 199 Fed. Rep. 214; Slote v. Cascade Holding Corp., 276 N. Y. 239; Jasper v. Rozinski,
      228 N. Y. 349; Schuykill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Russell v. St. Mart, 180 N. Y. 355; Rotkowitz v. Sohn, 136 Misc. Rep. 265; Mandeville v. Avery, 124 N. Y. 376.)
   Rippey, J.

. In January, 1931, defendants Boland, Play-fair and Ross each loaned to the St. Lawrence Marine Repair Dock Corporation $6,500 and each received a promissory note therefor. As security for the payment of such notes, the debtor executed and delivered to those creditors its mortgage on all of its real and personal property. The creditors recovered in part on mortgage foreclosure proceedings. The mortgagor filed a voluntary petition in bankruptcy on March 25, 1936. Plaintiff, as its trustee in bankruptcy, has secured a judgment requiring defendant Boland to account for the fair market value of the personal property covered by the mortgage and sold in the foreclosure action on the sole ground that, since the mortgagees failed to refile the mortgage in the office of the City Clerk of Ogdensburg as required by section 235 of the Lien Law (Cons. Laws, ch. 33), the mortgage was void and Boland wrongfully converted the proceeds of the sale to the use of the mortgagees.

The trial court found upon undisputed evidence that the defendant Boland at no time had any partnership arrangements with Playfair or Ross, that he advanced to the St. Lawrence Marine Repair Dock Corporation $6,500 in cash from his own funds hi good faith upon an agreement by the borrower that he should receive as security for his loan a first mortgage lien upon the real estate and personal property of the corporation; that the execution and delivery of the mortgage and of the evidences of the loan underlying it were duly authorized by the stockholders and the money so loaned was in fact used for corporate purposes; that all the real and personal property covered by the mortgage was located in St. Lawrence county, was free and clear of all liens and incumbrances at the time of its execution and delivery and that it was recorded in the office of the Clerk of St. Lawrence county on January 11, 1931; that at no time did the mortgagor pay any interest on the indebtedness to Boland and on January 2, 1932, the mortgage matured, was in default for failure to pay either principal or interest and such default continued until the commencement and completion of foreclosure proceedings and furnished, with failure to pay taxes as agreed, the basis for such proceedings.

Notice of pendency of the action to foreclose the mortgage was filed and recorded, and the complaint in foreclosure was filed in the Clerk’s office in St. Lawrence county on November 29, 1935. Boland, Ross and Playfair were plaintiffs. The mortgagor and all persons having any known interest by way of lien or otherwise were made parties defendant and were duly served with the summons and complaint. In due course, as found by the trial court in this action, a judgment of foreclosure and sale was granted and entered wherein it was found and determined that said mortgage constituted a valid and subsisting first lien upon the said real and personal property for the amount of the said indebtedness due said defendant Boland, with interest and costs, in addition to the principal and interest due the said Playfair and Ross, in the aggregate amount of $28,907.97, and that the said St. Lawrence Marine Repair Dock Corporation and the other defendants be barred and foreclosed from any further right, title, interest or equity in and to the said property and that the said property be sold in accordance with the directions of the court,” etc. It was further found that, pursuant to such judgment, the real and personal property was in due course sold by the referee appointed for that purpose on due notice at public auction on March 4, 1936, as a whole and in one parcel and lot in accord and conformity with the terms of said judgment, for the sum of $20,000.00 ” to Ross, who was the highest bidder, who, on the same day assigned his bid to the Algonquin Paper Corporation, which later paid the bid price in cash and took possession of the property both real and personal, and that the sum bid was the fair and reasonable value of the real and personal property sold. The trial court found that the referee’s report of sale and of distribution of the proceeds of sale was duly confirmed and filed on April 24, 1936. It appears from the referee’s report that, after payment of the tax liens and the expenses of foreclosure and sale, there was paid to the attorneys for the plaintiff out of the proceeds of sale the sum of $15,705.95, but the trial court here found that the amount Boland actually received out of the proceeds of the sale of both the real and personal property was $3,575.88.

The trial court further found that Boland commenced and maintained the mortgage foreclosure proceedings in good faith, in the belief that the mortgage constituted a valid first lien upon all of the real and personal property of the mortgagor as described in the mortgage, that he had no knowledge or information that the lien of the mortgage upon the personal property or any part thereof was claimed to be invalid by any creditors of the mortgagor, that he had no interest in the Algonquin Paper Corporation and that no fraud or collusion is claimed or proved as regards the inception of the mortgage debt or any of the proceedings in the foreclosure and sale.”

. The mortgaged property was located principally in the city of Ogdensburg. The mortgage was filed in the office of the City Clerk on January 28, 1931. The. mortgagees did not at once take possession of the personal property mortgaged but left it in the hands of the mortgagor. Plaintiff alleged and it has been found and adjudged that the mortgage did not create a lien upon the real and personal property as security for the payment of bonds and consequently was not exempt under section 231 of the Lien Law from the requirement of section 235 for refiling in the City Clerk’s office within thirty days next preceding the expiration of one year from January 28, 1931. It was not refiled within that time. Upon that fact alone, it has been determined that the mortgage, so far as it purported to cover personal property, was invalid as to general creditors and that defendant Boland was jointly and severally liable to plaintiff for the fair and reasonable market value of the personal property as of the date it was sold on foreclosure. By an interlocutory judgment, a referee was appointed to fix the value. The Appellate Division has affirmed by a divided court and has certified to us the question, “ Is the plaintiff-respondent entitled'to the relief which the interlocutory judgment grants against the defendant-appellant Boland? ” We think the question must be answered in the negative as matter of law.

The courts below have held that the bankrupt corporation was bound by the judgment in the foreclosure action, that there was no fraud involved, that there was no preferential transfer, that the foreclosure was regularly conducted, that the purchaser on the sale, the Algonquin Paper Corporation, got good title to both the real and personal property and that the bankruptcy law forbade interference with that judgment. Nevertheless, says the trial court, the plaintiff is vested with all the rights of creditors of the mortgagor and Boland, jointly with the other defendants, must be held liable jointly and severally for the sale price of the personal property since they sold it in the foreclosure action in violation of the rights of creditors and unlawfully converted the proceeds of the sale to their own use. With the background of facts as stated, no authority is cited for any such conclusion and we have found none.

We do not pass upon the question of whether the mortgage was one requiring refiling by the terms of section 235 of the Lien Law to retain its validity as a lien upon the mortgaged personalty. For the purpose of the decision here we may assume that to be the case. Even then, the mortgage was not absolutely void as to general creditors. It was good as between the parties and void only as to judgment creditors or those- armed with legal process authorizing seizure of the property (Button v. Rathbone, Sard & Co., 126 N. Y. 187). It was not void as malum in se but as malum prohibitum. It was valid as to all the world until attacked by a creditor standing upon an attachment or judgment ” (Stephens v. Meriden Britannia Co., 160 N. Y. 178, 181). The plaintiff, as trustee of the mortgagor in bankruptcy, was vested with whatever title to property the bankrupt had at the time of its adjudication in bankruptcy and to property transferred by the bankrupt in fraud of the creditors of the bankrupt (U. S. Bankruptcy Act, July 1, 1898, ch. 541, § 70, as amd. 30 Stat. 565; U. S. Code, tit. 11, § 110). As to property of the bankrupt in the custody of the bankruptcy court or coming into its custody, he was deemed vested with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, * .* * with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied ” (Bankruptcy Act, § 47 as amd., 30 Stat. 557; U. S. Code, tit. 11, § 75). Only as to unlawful preferences and property fraudulently conveyed has the trustee any rights, in the interest of creditors, beyond those which the bankrupt itself could have enforced (Bennett v. Ætna, Ins. Co., 201 Mass. 554).

The judgment of foreclosure and sale was rendered in a court of competent jurisdiction both as to the parties and the subject-matter. The trial court applied the fundamental doctrine that the integrity of judicial sales, regularly and lawfully conducted, must be upheld and refused to set aside the sale. Unless reversed upon appeal or set aside in a direct attack, the judgment was final and conclusive upon the mortgagor and upon all those claiming under or through it. There is neither claim on the part of the trustee nor evidence that there was any fraud in connection with the making and delivery of the mortgage or in the foreclosure proceedings and the lower courts have so found. Since the judgment of foreclosure and sale was valid, binding and conclusive upon the mortgagor and there was neither evidence nor finding of fraud or unlawful preference,, it is binding and conclusive upon its trustee. (Stewart v. Platt, 101 U. S. 731.) There is no foundation upon which the judgment appealed from can legally rest.

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

Lehman, Ch. J., Loughran, Finch, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


text:
    William Goldsmith, Appellant, v. National Container Corporation et al., Respondents.
    Submitted January 5, 1942;
    decided March 5, 1942.

      Benjamin Davidson for appellant.
    The plaintiff’s cause of action lies in fraud and not in rescission; hence a tender is not necessary. (Gould v. Cayuga County Nat. Bank, 86 N. Y. 75; 99 N. Y. 333; Strong v. Strong, 102 N. Y. 69; Vail v. Reynolds, 118 N. Y. 292; Kley v. Healy, 127 N. Y. 555; Belt v. American Central Ins. Co., 148 N. Y. 624; Davis v. Rosenweig Realty Co., 192 N. Y. 128; Heckscher v. Edenborn, 203 N. Y. 210; Merry Realty Co. v. Shamokin & Hollis Real Estate Co., 230 N. Y. 316; Weigel v. Cook, 237 N. Y. 136; Brennan v. National Equitable Investment Co., 247 N. Y. 486; New York Bankers, Inc., v. Duncan, 257 N. Y. 160.)

      Marshall M. Bernstein and Saul Bernstein for respondents.
    The rule that one may affirm a transaction alleged to have been induced by fraud and sue for damages resulting from the fraud does not avail the appellant, because here affirmance of the transaction includes affirmance of the general releases given by appellant as an integral part of the entire transaction. These releases by their express terms bar appellant from recovery for alleged fraud claimed to have occurred a year and a half earlier and not at the time the releases were given. (Kirchner v. New Home Sewing Machine Co., 135 N. Y. 182; Houston v. Trower, 297 Fed. Rep. 558; Gilbert v. Rothschild, 280 N. Y. 66; Kamerman v. Curtis, 285 N. Y. 221; Brassel v. Electric Welding Co., 239 N. Y. 78; Taylor v. Russell, 258 App. Div. 305; E. T. C. Corp. v. Title G. & T. Co., 271 N. Y. 124.) The general releases which bar the maintenance of this action cannot be set aside unless the appellant restores t'he consideration received by him. (Kamerman v. Curtis, 285 N. Y. 221; Gilbert v. Rothschild, 280 N. Y. 66; E. T. C. Corp. v. Title

      G. & T. Co., 271 N. Y. 124; New York Bankers, Inc., v. Duncan, 257 N. Y. 160; Kley v. Healy, 127 N. Y. 555; Joslyn v. Empire State Degree of Honor, 204 N. Y. 621.)
   Lewis, J.

We think it was error to grant summary judgment to the defendants-respondents.

The plaintiff chose an action at law as his remedy to recover money damages alleged to have been suffered by reason of the defendants’ fraud and conspiracy. As our decision must rest upon the pleadings and supporting affidavits, we pass directly to a consideration of facts alleged.

The defendant National Container Corporation — to which reference will be made as National ”— is a manufacturer of corrugated boxes. Its stockholders, directors and officers are the three individual defendants, Kipnis, Ginsberg and Rosenfeld, who control its business policies and are in active charge of its affairs. In the month of December, 1936, National, George J. Schneider and the plaintiff organized the defendant Anchor Container Corporation — hereinafter referred to as “ Anchor ”— to conduct a business of the same type as National. The capital stock of Anchor was held by National, Schneider and the plaintiff — the plaintiff being chosen as a director and president of the new corporation. .The plaintiff also became general manager of the corporation under a contract by which his annual salary was fixed at $10,400 for a term of ten years. Thereafter, according to the complaint, the defendants, other than Anchor, represented to the plaintiff and to Anchor that National and its affiliates enjoyed “ a special arrangement with Southern Kraft Corporation for the purchase of Kraft paper and that if Anchor would also agree to buy Kraft paper from the Southern Kraft Corporation, Anchor would receive and derive the same benefits, terms and advantages from the said Southern Kraft Corporation as those enjoyed and received by the defendant National * * * by virtue of said special arrangement.” The plaintiff alleges that, relying thereupon, Anchor purchased 4,000 tons of paper from Southern Kraft Corporation during 1937 and thereby became entitled to the benefits of such “ special arrangement.” It is also alleged that pursuant to the special arrangement ” National received approximately $342,000 from Southern Kraft Corporation as a refund for paper purchased during 1937 on behalf of Anchor, National and two other corporations which National controlled, of which Anchor was entitled to its proportionate share. Then follow allegations by the plaintiff that the defendants, other than Anchor, knowing the true facts, falsely, fraudulently and knowingly misrepresented Anchor's proportionate share of such refund to be $7,523.78 which was paid to Anchor; that the plaintiff and Anchor were not aware of the true amount of such refund to which Anchor was entitled and that they relied upon such representations and believed the true amount of refund to be $7,523.78 when in fact Anchor was entitled to at least $30,000; that the defendants continued to suppress the true facts as to Anchor’s pro rata share of the refund; that the plaintiff, in ignorance of the true amount of such refund and the true value of his stock having been wrongfully concealed from him by the defendants, entered into a contract on July 17, 1939, by which, for an inadequate consideration, he agreed to sell his Anchor stock to National, to resign as president and director of Anchor and to cancel his agreement of employment as its general manager. Upon the basis of these alleged facts the plaintiff, as his first cause of action, demands damages in the amount of $10,000 for alleged fraud, deception, misrepresentations and concealments, which sum, he states, is in addition to the alleged inadequate consideration received by him for the sale of his Anchor stock, his resignation as president and general manager of Anchor and the cancellation of his contract of employment. By his second cause of action the plaintiff pleads the same facts but alleges conspiracy by the defendants deliberately to deprive the plaintiff of his true share as a stockholder of Anchor and of the true worth of his interest in his contract of employment.

The single answer interposed by all defendants denies, among other allegations in the complaint, those which charge fraud and conspiracy. It alleges as affirmative defenses that in accord with the terms of the agreement of July 17, 1939 — which made provision for the sale by the plaintiff of his stock in Anchor, the cancellation of his employment contract and other matters — the plaintiff executed and delivered instruments in writing by which he released and discharged each of the defendants from all claims and demands which he might have against them.

It is the claim of the defendants-respondents that the releases, concededly given by the plaintiff, are an absolute bar to the plaintiff’s action unless, after rescinding the contract of July 17, 1939, and the releases, he tenders back the consideration he has received.

Claiming the releases to be voidable because of alleged misrepresentations and concealments by the defendants as to the value of his Anchor stock, the plaintiff elects to affirm the contract of July 17, 1939, and to sue at law in fraud for damages which he claims he has suffered. This, we think, is a remedy which he may pursue.

The basis of the plaintiff’s action at law, as pleaded, is that he was induced to cancel his contract of employment and to sell his Anchor stock at a time when he was ignorant of the true value of the stock, which sale — at a price less than its actual value — was accomplished by the defendants by their fraudulent misrepresentations and concealment as to its true value and as to factors, then known to them, which enhanced its value.

It is settled law that where, as alleged by the present plaintiff, a person has parted with something of value as the result of a contract induced by fraud, he may pursue one of three remedies: He may rescind the contract absolutely and sue in an action at law to recover the consideration parted with upon the fraudulent contract. To maintain such action he must first restore, or offer to restore, to the other party whatever may have been received by him by virtue of the contract. * * * He may bring an action in equity to rescind the contract and in that action have full relief. * * * Such an action is not founded upon a rescission, but is maintained for a rescission, and it is sufficient therefore for the plaintiff to offer in his complaint to return what he has received and make tender of it on the trial. Lastly, he may retain what he has received and bring an action at law to recover the damages sustained. This action proceeds upon an affirmance of the contract. * * * ” (Emphasis supplied.) (Vail v. Reynolds, 118 N. Y. 297, 302; Gould v. Cayuga County Nat. Bank, 99 N. Y. 333, 337; Sager v. Friedman, 270 N. Y. 472, 479. See 5 Williston on The Law of Contracts [rev. ed.], § 1523, pp. 4264, 4265.)

The rule in Kamerman v. Curtis (285 N. Y. 221) cited by the respondents in support of the present judgment, is not decisive of the question now before us. There the plaintiff chose to disaffirm the contract alleged to have been induced by fraud and sued in equity for an accounting. The election thus made required him to tender or offer to return the amount received. Here the plaintiff affirms both the contract and the releases and sues at common law for damages suffered.

In the present case the releases given by the plaintiff, which the defendants’ answer pleads as a defense, do not bar the present action at law whereby plaintiff seeks damages due to alleged fraudulent misrepresentations and concealments which induced him to give such releases.

The defendants by their answer deny allegations by the plaintiff that he was induced to enter, into the contract of July 17, 1939, by reason of the defendants’ fraudulent misrepresentations and concealments as to the true amount of refund to which Anchor was entitled from Southern Kraft Corporation, and the true value of the plaintiff’s Anchor stock and his employment contract. These issues of fact, and others tendered by the pleadings, should be tried.

The judgments should be reversed, with costs in all courts, and the defendants’ motion for summary judgment denied.

Lehman, Ch. J., Loughran, Finch, Conway and Desmond, JJ., concur; Rippey, J., dissents.

Judgments reversed, etc.


author: Loughran, J.

text:
    Ruth Harris, Respondent, v. Mitchell Harris, Appellant.
    Argued January 5, 1942;
    decided March 5, 1942.

      Samuel Mezansky and David L. Blick for appellant.
    The defendant’s contractual obligation under the trust agreement was 'mutually canceled and terminated and no action may be maintained upon it. (Woods v. Bard, 285 N. Y. 11; Graves v. White, 87 N. Y. 463; Randolph v. Field, 165 App. Div. 279; Sockman v. Sockman 252 App. Div. 914; Ross v. Ross, 233 App. Div. 626; Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121; Trustees of Calvary Presbyterian Church v. Putnam, 249 N. Y. 111; Markey v. Smith, 301 Mass. 64; Booker v. Booker, 119 App. Div. 482; Darling v. Darling, 241 App. Div. 57; Gillet v. Bank of America, 160 N. Y. 549; Brooklyn Public Library v. City of New York, 250 N. Y. 495; Matter of Bloodgood, 184 App. Div. 798.) The courts will not disturb the results of an executed alleged illegal agreement. (Tallinger v. Mandeville, 113 N. Y. 427; Schley v. Andrews, 225 N. Y. 110; Jameson v. Carpenter, 68 N. H. 62; Dworkin v. Dworkin, 247 App. Div. 213; City of New York v. New York Central R. R. Co., 275 N. Y. 287; Trustees of Calvary Presbyterian Church v. Putnam, 249 N. Y. 111.)

      Jerome I. Hyman and Abel Cary Thomas for respondent.
    The alleged cancellation agreement is wholly void for illegality. As such, and despite the conveyance, it is ineffective to cancel the defendant’s personal obligation under the trust agreement. (Kyff v. Kyff, 286 N. Y. 71; Galusha v. Galusha, 138 N. Y. 272; Kaufman v. Kaufman, 158 App. Div. 892; Schley v. Andrews, 225 N. Y. 110; Foley v. Speir, 100 N. Y. 552.)
   Loughran, J.

The plaintiff, Ruth Harris, is the wife of the defendant, Charles Mitchell Harris. At Special Term she recovered against him a summary judgment for $19,020.62, which is now before us for review on his appeal from an affirmance thereof.

In 1927 the plaintiff secured a judgment separating the parties from bed and board and directing that the defendant pay to her fifty dollars a week for the support of herself and their infant daughter, June Harris, whose custody was thereby committed to her. Defendant did not make the payments so required of him with the result that judgments therefor aggregating $9,920.95 were docketed against him. He was owner of an undivided one-fourth interest in 161 East One Hundred and Twenty-fifth street, Manhattan, city of New York. Another undivided one-fourth interest therein was owned by his brother, Averell Harris, who also held title to the remaining one-half interest as trustee of a testamentary trust of which he and the defendant were the beneficiaries. A receiver of the defendant’s interest in that property was appointed on the application of the plaintiff.

Such was the situation in April, 1930, when the parties composed their affairs in this fashion: Plaintiff accepted from the defendant $6,000 in satisfaction of his judgment liability to her for unpaid alimony. She allowed him to enter an order vacating the alimony provisions of the judgment of separation. He conveyed all his right, title and interest in 161 East One Hundred and Twenty-fifth street to a trustee for the purpose of payment to her out of the net income therefrom of fifty dollars each week “ during her lifetime or until her re-marriage, during the lifetime of the defendant, whichever event shall first take place.” He agreed that if at any time the net income from this trust were less than fifty dollars a week he would pay to her such sum in addition thereto which together with the income from said right, title and interest shall equal the sum of $50 per week.”

In January, 1936, the parties made a contract for cancellation of that trust arrangement. It was then agreed-between them that they would convey the interest of the defendant in 161 East One Hundred and Twenty-fifth street to their daughter, June Harris (who had come of age), and ' that the defendant would procure Averell Harris to convey to June Harris all the remaining title to that property. Concededly these stipulations were thereupon fully carried out.

This cancellation contract of January, 1936, made also these provisions: “3. Charles Mitchell Harris promises Ruth Harris to take all steps necessary to institute an action for a divorce in the Courts of Chihuahua, Mexico, on the grounds of incompatibility and to confer jurisdiction upon said courts for said purpose and he hereby does confer jurisdiction upon said courts for the said purpose, and further agrees and promises to pay to the attorney for Ruth Harris the sum of Two hundred Dollars to defray the expenses of said divorce action and agrees further that, in the event, that he fail to do so, that the cancellation of the trust agreement hereby by Ruth Harris shall be of no force and effect and that he shall continue to remain liable ■under said agreement of trust until he has performed the conditions contained in this paragraph of this [cancellation] agreement, numbered‘ 3.’ * * * 7. Ruth Harris hereby consents and agrees that the trust agreement affecting premises 161 East 125th street be cancelled and that it be null and void on condition that Charles Mitchell Harris do all those things reserved for him to be done under the terms of paragraph numbered 3 ’ of this [cancellation] agreement and Ruth Harris further agrees to confer jurisdiction upon the Courts of Chihuahua, Mexico, for the purpose of instituting an action for a divorce * * * on the ground of incompatibility and agrees to do all those things which may be necessary to confer said jurisdiction as aforesaid and to obtain said decree of divorce. Ruth Harris agrees to waive, in said action, all claims to alimony or maintenance or support, and to waive all claims against the property of the said Charles Mitchell Harris.” It is conceded that nothing was done by either party in performance of these provisions.

In 1940 the plaintiff brought the present action. Her case is one for breach by the defendant of the promise he made to her as part of the trust arrangement of April, 1930. Her complaint alleges: “ Said trust was duly established, but, by reason of the insufficiency of the trust income, plaintiff has not received any payments whatsoever therefrom since July 12, 1934 * * *. Although demand has been duly made upon the defendant, no payments on account of the said deficiency in the trust income have been made to the plaintiff by the defendant.” On that hypothesis, the plaintiff was awarded the summary judgment for $19,020.62, which the defendant has brought here for review.

The courts below correctly held that the contract of January, 1936, for cancellation of the trust arrangement of April, 1930, was void as against public policy. (Schley v. Andrews, 225 N. Y. 110; Murthey v. Murthey, 287 N. Y. 740.) This proposition, however, is by no means sufficient to vindicate the fullness of the plaintiff’s recovery.

The obligation assumed by the defendant in connection with the trust of April, 1930, did not bind him to pay any specific sum to the plaintiff. He thereby undertook only that he would make up to her any realized difference between the anticipated trust income and the sum of fifty dollars per week. The parties destroyed that trust by their concerted conveyance of full ownership of the corpus thereof to their daughter June Harris in pursuance of their illegal bargain of January, 1936. Plaintiff had no right to recover for her alleged “ deficiency of trust income ” after that date, for thenceforth no trust existed, as she had herself decreed.

The judgments should be reversed, without costs, and" the action remitted to the Special Term for further proceedings not inconsistent with this opinion.

Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


text:
    In the Matter of Edwin J. Long. Loleta A. Long, as Administratrix of the Estate of Edwin J. Long, Deceased, Appellant; Harry H. Goebel et al., Attorneys, Respondents.
    Argued January 5, 1942;
    decided March 5, 1942.

      Frederick Shulman and Saul G. Goldstein for appellant.
    The court at Special Term had jurisdiction to direct the return of the moneys in a summary proceeding. (Matter of Paschal, 77 U. S. 483; Schell v. Mayor, 128 N. Y. 67; Forstman v. Schulting, 108 N. Y. 110; Foster v. Townshend, 68 N. Y, 203; Bowling Green Sav. Bank v. Todd, 52 N. Y. 489; Matter of Bucken v. Busch, 203 App. Div. 717; Sherman v. Yankee Products Corp., 201 App. Div. 647; Matter of Papa v. Rini, 171 App. Div. 796; 219 N. Y. 575; Matter of Cartier v. Spooner, 118 App, Div, 342; Matter of Radley v. Gaylor, 98 App. Div. 158; Brott v. Davidson, 87 App, Div. 29; Matter of Day, 156 App. Div. 864.) Respondents submitted to the jurisdiction of Special Term in the summary proceeding and cannot now complain that such jurisdiction did not lie. (Barnard v, Onderdonk, 98 N. Y. 158; Fisher v. Hepburn, 48 N. Y. 41; Yates v. Heath, 52 Hun, 612; Matter of Chittenden, 42 Hun, 659; Matter of Foster, 15 Hun, 387; Matter of Goldin v. Duncan, 216 App. Div. 472; Scheu v. Blum, 124 App. Div. 678.)

      Robert H. Elder and Otho S. Bowling for respondents.
    Even if Special Term had the power to revive an incompetency proceeding after the death of the incompetent so as to permit the administratrix to prosecute this appeal, the order directing respondents to refund their fee was properly reversed because the court had no power to make it. (Hughes v. Jones, 116 N. Y. 67; Finch v. Goldstein, 245 N. Y. 300; Matter of Frank, 283 N. Y. 106.) Even if this could be regarded as a summary proceeding against attorneys, the Special Term had no power to make the order reversed by the Appellate Division. (Matter of Rosenberg, 263 N. Y. 357; Matter of Minnesota Phonograph Co., 148 App. Div. 56; 212 N. Y. 574.) Even if this may be regarded as an attorney’s proceeding and one which the court had power to entertain, it had no power to decide it, as it did, on testimony heard in another casé, and without a trial. (Matter of King, 168 N. Y. 53.)
   Lewis, J.

This proceeding was initiated by an order directing the two respondents to show cause why an order of the Supreme Court should not issue requiring them, as attorneys and officers of the court, forthwith to return to the committee of an incompetent person the sum of $3,300.

At the outset it should be stated that, although all papers in the present proceeding bear the caption of an incompetency proceeding, we regard the proceeding here on appeal as summary in character. Although facts are repeatedly mentioned in the numerous affidavits of record which relate to the incompetency proceeding, we treat the appeal as involving a special summary proceeding.

After papers were served by which a proceeding was commenced to declare Edwin J. Long an incompetent person, the alleged incompetent consulted the respondents as attorneys and signed a written memorandum purporting to be his agreement to pay them $5,000 for services to be rendered in that proceeding. The agreed sum, however — according to the written memorandum of retainer dated January 22, 1940 — “ does not include any appeal if necessary, or the printing of any minutes on appeal.” The respondents concede that, while the incompetency proceeding was pending, sums amounting to $2,500 were paid to them, not as an allowance by the court but in accord with the retainer agreement of January 22,1940. It also appears that on or about February 26,1940, the respondents received from the alleged incompetent the additional sum of $800 on a separate retainer which authorized them to prosecute an appeal from an order of Special Term made in the proceeding.

Omitting reference to recitals in affidavits and documents upon which Special Term made its order it is sufficient, as to facts, to set forth the following chronology: An incompetency proceeding was instituted on January 8, 1940, in which, after a jury trial of framed issues, an order was made adjudging Edwin J. Long to be incompetent and appointing Henry A. Cornell as committee of his person and property. Following his qualification the committee made a written demand upon the respondents for the return to him as such committee of the sum of $3,300, which the incompetent had paid to the respondents after the commencement of the incompetency proceeding. When such demand was refused the committee promptly instituted the present summary proceeding by serving an order to show cause dated May 29, 1940, which recited as its basis the affidavits of various persons, “ the testimony taken upon the trial of the above proceeding, the exhibits therein and upon all the papers and proceedings heretofore had herein.” The respondents interposed affidavits in opposition to the summary relief demanded in the present proceeding and by cross-motion demanded “ a trial as to the right to fees or reasonable compensation for the services rendered by them, on behalf of said alleged incompetent, and for disbursements in connection therewith, or, in the alternative, for a reference to determine the reasonableness of the fees for such services as were rendered by them, and for their disbursements incurred * * *.”

In the summary proceeding Special Term ruled that the respondents had not acted in good faith in holding themselves out as authorized by the incompetent to represent him and his estate in the incompetency proceeding; that they were not justified in believing Edwin J. Long to be competent to care for himself or his property; that in the incompetency proceeding the opposition was not conducted for the benefit of the incompetent or for the protection of his rights and interests but was primarily for the benefit of the incompetent’s chauffeur — “if not indeed for the benefit of. the respondents themselves.” These and other reasons stated in the opinion at Special Term were the basis for its order directing the respondents to return to the estate of the incompetent the sum of $3,300. Special Term also denied the respondent’s cross-motion for a trial as to their right to fees and reasonable compensation for services rendered in the incompetency proceeding upon the ground that “ a trial or reference on the merits of respondents’ application would be an unnecessary expense to the estate, as the record in this proceeding, from its. inception in January, including the five-days trial, contains all the facts necessary for its determination.”

Upon appeal by the respondents from the order directing them, as attorneys, forthwith to return to the committee of the property of the incompetent the sum of $3,300, the Appellate Division reversed the order of Special Term on the law and denied the committee’s application in the present proceeding upon the ground that Special Term was without power summarily to order the return of the moneys paid to them by Edwin L. Long prior to his being adjudicated an incompetent. (261 App. Div. 456.) We reach a different conclusion.

We are not concerned in this summary proceeding with the legal right of the alleged incompetent to deal freely with his own property prior to his being adjudicated incompetent. Our inquiry goes to conduct by the respondent attorneys which is alleged by the petitioner to have been fraudulent. It is not the legal rights of the client as affected by the attorneys’ acts, which are the subject of enforcement. Our concern is the alleged misconduct of the attorneys themselves, who are the court’s own officers. (Matter of Papa v. Rini, 171 App. Div. 796, 797; affd., 219 N. Y. 575.)

A proceeding of this character, to. compel the attorney to pay over money received by him and which belongs to the client, may be entertained and is within the power of the court. The principle upon which this exceptional remedy in such cases is based, is the power which the court has over its own officers to prevent them from, or punish them for, commiting acts of dishonesty or impropriety calculated to bring contempt upon the administration of justice. In such cases the court, in vindication of its own dignity or for the relief of the client when clearly wronged, may entertain summary proceedings by attachment against any of its officers, and may, in its discretion, direct the payment of money or punish them by fine or imprisonment. When an application is made to the court for the exercise of its powers to compel an attorney to pay over money received for and belonging to the client, the ground of the jurisdiction is the misconduct of its own officer. It has been said that this power should always be exercised with great prudence and caution and a sedulous regard for the rights of the client on the one hand and of the attorney on the other. It is not an absolute right that the client has to invoke this severe and summary remedy against the attorney, but one always subject to discretion. It is for the court to say when and under what circumstances it will entertain such proceedings, against its officers, upon the application of the client, and a refusal *to proceed in that way is not the denial of any legal right.” (Schell v. Mayor, 128 N. Y. 67, 68, 69; Bowling Green Sav. Bank v. Todd, 52 N. Y. 489, 493; Matter of H-, an Attorney, 87 N. Y. 521, 524, 526; Forstman v. Schulting, 108 N. Y. 110, 113.)

In the present proceeding we think Special Term had power to deal with the problem presented upon the return of the order to show cause. We find the record is such, however, that there can be no proper review of the evidence upon which Special Term based its ruling. The court did not conduct a hearing, nor was a reference ordered. In the opinion by the justice at Special Term the statement is made that the decision rests in part upon evidence taken in the incompetency proceeding. But such evidence is not printed in the record before us. (Cf. Aron v. Aron, 280 N. Y. 328.) Furthermore, no opportunity was given the respondent attorneys either to call witnesses or to confront and cross-examine the witnesses from whom came evidence upon which is based the present charge of professional misconduct. Even if it be assumed that there was evidence in the incompetency proceeding, which at the close of the hearing therein was sufficient to warrant the order by which Edwin J. Long was adjudicated incompetent, the question upon that proceeding differed widely from the one which is now the subject of this summary proceeding. Here the chief question is whether the respondents, as attorneys, overreached the alleged incompetent in January and February, 1940, when they procured from him the retainer agreements upon which sums amounting to $3,300 were paid for their services. On that question the record at hand contains only affidavits in which but a part is devoted to that inquiry.

We do not mean to prescribe exact rules of procedure to be followed. In a summary proceeding of this character — where the court exercises an inherent power untrammeled by statutory rules — procedure rests largely in the discretion of the court conducting the inquiry. We merely point out that the respondent attorneys are entitled at least to an opportunity to be heard — to test the basis of the charge against them by cross-examination of witnesses and to offer evidence which may affect the conclusion by the court upon facts of record. (Cf. Matter of Weitling, 266 N. Y. 184, 187; Matter of Heaney v. McGoldrick, 286 N. Y. 38, 44, 45; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 177; Matter of N. Y. Water Service Corp. v. Water P. & C. Comm., 283 N. Y. 23, 31.)

In a case involving professional misconduct by an attorney, not committed in the presence of the court, it was said: On the application addressed in the first instance to the court, as the mode of arousing its attention and setting it in motion, affidavits, minutes of testimony, any thing which furnishes needful information, may be used as the basis upon which to found an order to show cause. Upon the return of that order the accused is heard. He may confess, he may explain, he may deny. If he confess, the court may at once render its judgment. If he explain,, the court may deem the explanation sufficient, or the reverse. But if he meets accusation with denial, the issue thus raised is to be tried, summarily it is true, by the court itself, or by a referee, but nevertheless to be tried, and on that trial the accused is not to be buried under affidavits or swamped with hearsay, but is entitled to confront the witnesses, to subject them to cross-examination, and to invoke the protection of wise and settled rules of evidence. In adopting this conclusion we only secure to the members of the bar the common rights and ordinary privileges of the citizen.” (Matter of Eldridge, 82 N. Y. 161, 167, 168.)

The orders should be reversed and the proceeding remitted to Special Term to proceed in accordance with this opinion, with costs in all courts to abide the event.

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Ordered accordingly.


author: Lewis, J. Rippey, J.

text:
    Martha Epstein et al., Respondents, v. National Transportation Co., Inc., Appellant, and Dixie Cab Corporation et al., Respondents, Impleaded with Another.

      Argued January 7, 1942;
    decided March 5, 1942.

      Phillip Hoffer and James A. Doherty for appellant.
    The Appellate Division erred in holding that as a matter of law it had no power to grant the defendant transportation company an opportunity to be heard in support of the judgment on appeal in that court. (Jones v. Freeman, Inc., 249 App. Div. 710; Neenan v. Woodside Astoria Transp. Co., 261 N. Y. 159; Reed v. Farrand, 198 N. Y. 207; Jackson v. Citizens Casualty Co., 277 N. Y. 385.)

      Arthur N. Seiff and Louis L. Resnick for defendants-respondents.
    The order appealed from properly denied the transportation company’s motion to be substituted as respondent in the place of plaintiffs. (Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461; Croveno v. Atlantic Ave. R. R. Co., 150 N. Y. 225; Johnson v. International Harvester Co., 236 App. Div. 618; Stull v. Then, 247 App. Div. 85; Ward v. Iroquois Gas Corp., 258 N. Y. 124; Kaplan v. Herman, 258 N. Y. 573; Fox v. Western New York Motor Lines, Inc., 257 N. Y. 305; Brown v. McCullough, 240 App. Div. 381; 265 N. Y. 652.)
   Lewis, J.

At common law contribution between joint tort feasors was not enforceable by action either in law or in equity. Recognizing the harshness of that rule, the Legislature enacted section 211-a of the Civil Practice Act (L. 1928, ch. 714), which permits contribution where a money judgment has been recovered jointly against two or more joint tort feasors and has been paid by one, either in part or in full. (Ward v. Iroquois Gas Corp., 258 N. Y. 124, 127, 128.)

The statute provides:

§ 211-a. Action by one joint tort-feasor against another. Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury or for property damage, and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution from the other defendants with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payments; provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment. Such recovery may be had in a separate action; or where the parties have appeared in the original action, a judgment may be entered by one such defendant against the other by motion on notice.”

The theory of the new statute has been said to be “ * * * to give to the paying defendant the plaintiff’s right of execution against the other defendant, up to and no further than his aliquot share of the judgment. The paying defendant thus recovers on the theory of subrogation and partially enforces a right always existing in the plaintiff.” (Neenan v. Woodside Astoria Transp. Co., 261 N. Y. 159, 165.) As to the practical operation of section 211-a this court has said: “ The conditions stated in this section must exist before the right to contribution is given. The two or more defendants must be parties to the action at the suit of the plaintiff and a money judgment must have been recovered jointly against them. Under such circumstances the payment of the entire amount of the judgment by one of the judgment debtors gives him the right to collect the pro rata share from the other defendant or defendants.” (Fox v. Western New York Motor Lines, Inc., 257 N. Y. 305, 308.)

The rule thus made effective by the enactment of section 211-a is to be put to use in the present case. Here the problem involves its application in circumstances where, after a trial has been had resulting in a judgment against three defendants held to have been joint tort feasors, one of the defendants which has not appealed but has paid the judgment in full, seeks contribution against a defendant which has appealed.

Briefly; as to the facts: the plaintiffs sustained personal injuries when a taxicab owned by the defendant Dixie Cab Corp. and operated by the defendant Feingold collided with a cab of the defendant National Transportation Co., Inc.— to which I shall refer as “ National.” In the present action plaintiffs have been awarded a judgment against all three defendants in the sum of $8,205.35. The defendant National did not appeal but has paid in full the judgment which has been satisfied of record. Thereafter, pursuant to section 211-a, National was awarded judgment by default against the defendant Dixie Cab Corp. in the sum of $4,102.68, and execution thereupon has been returned unsatisfied. Meantime, however, the defendant Dixie Cab Corp. appealed to the Appellate Division from the judgment in favor of the plaintiffs. Upon that appeal the defendant National applied at the Appellate Division for an order directing that, upon the appeal taken by its joint tort feasor Dixie Cab Corp., the defendant National shall be named and treated as a respondent and that, in connection with such appeal, all papers be served upon the attorney for the defendant National as a respondent. The Appellate Division denied such application but granted to National permission to appeal to this court upon thrée certified questions.

The right accorded by section 211-a to National, a non-appealing defendant, did not come into being until that defendant had paid more than [its] own pro rata share ” of the money judgment entered against the three defendants. When execution upon that judgment issued and was returned unsatisfied, the relation of National to the rights of the plaintiffs was in the nature of subrogation. In that relation National could enforce against the defendant Dixie Cab Corp. the rights which formerly existed in the plaintiffs as judgment creditors but only to the extent allowed by section 211-a. It may be true that upon appeal, in the protection of the rights which National acquired by full compliance with section 211-a, the position of National as respondent will be inconsisten with the position it took upon the trial when the question of its liability in tort was an issue. That difference, however, in so far as it creates inconsistencies, is of no significance in view of the payment made in full by National of the judgment against the three defendants. National no longer asserts non-liability. In effect it admits liability, as it has the clear right to do under the statute. There will be, therefore, in the position National may take, no inconsistency which will defeat its right to be named and treated as a respondent on appeal. It may take such position as respondent as will serve best to protect its right as a judgment creditor of Dixie Cab Corp., and thus exercise a right given by section 211-a. which the courts may not take away. (See Jones v. Freeman, Inc., 249 App. Div. 710.)

In Ward v. Iroquois Gas Corp. (258 N. Y. 124) and Price v. Ryan (255 N. Y. 16) a defendant was not permitted to appeal against his codefendant because there was neither a joint judgment nor payment of a joint judgment. In the present case, where the defendant National has paid in full the judgment rendered against the three joint tort feasors and thus has a present right of contribution against its codefendant, it should be allowed to protect that statutory right.

The order should be reversed and the motion granted, with costs in this court and in the Appellate Division. We interpret the questions certified by the Appellate Division as raising only the question of its power to make the order here on appeal and we answer each question in the affirmative.

Rippey, J.

(dissenting). Plaintiffs procured a judgment in a negligence action after a trial against three defendants, National Transportation Co., Inc., Dixie Cab Corporation and Samuel Feingold, as joint tort feasors. Defendant National Transportation Company, Inc., did not appeal and paid the judgment in full. It thereupon moved at Special Term for an order, pursuant to the provisions of section 211-a of the Civil Practice Act, for judgment for pro rata contribution against the Dixie Cab Corporation, which motion was granted. In the meantime, defendant Dixie Cab Corporation appealed to the Appellate Division from the original judgment in favor of plaintiffs against the joint tort feasors but did not serve the notice of appeal on the National Transportation Co., Inc. Thereupon, the National Transportation Co., Inc., moved for an order substituting it in place of plaintiffs on the appeal. The motion was denied by the Appellate Division, not as a matter of discretion but upon the law, and that court allowed an appeal" to this court, certifying certain questions for our determination. The decision below was correct.

Section 211-a changed the common law rule as to contribution between joint tort feasors and had no purpose to change or affect the law governing the right to appeal (Ward v. Iroquois Gas Corp., 258 N. Y. 124). The right to appeal is purely statutory (Croveno v. Atlantic Ave. R. R. Co., 150 N. Y. 225, 228). The appellant here had the right to appeal from the judgment in favor of plaintiffs (Civil Practice Act, § 557), but it did not do so. Asserting that it now is a party aggrieved since it has paid plaintiffs’ judgment and has the right to pro rata contribution from its co-tort-feasor of part of the amount paid, it seeks to be substituted as respondent in place of the plaintiffs in the original action upon the appeal. Section 557 of the Civil Practice Act, which it invokes in favor of its motion, has no application to the situation here presented. It has not, within the intent or wording of subdivision 2 of that section, “ acquired since the * * * rendering of the judgment appealed from an interest which would have entitled him to be so substituted if it had been previously acquired.” The interest of a person injured in his right to recover against the wrongdoer is not, under the common law, assignable. Neither section 211-a nor any other statutory provision has changed that rule of law. Section 211-a confers a right to and creates an interest in a party against his joint tort feasor in the subject matter of the action only after judgment against bo.th joint tort feasors in favor of the party who has sustained his injuries as the result of their joint or concurring negligence and confers upon it no right to participate in an appeal as against its joint tort feasor (Ward v. Iroquois Gas Corp., supra).

A prop for reversal is found in a statement obiter in Neeman v. Woodside Astoria Transp. Co. (261 N. Y. 159, 165) that “ The paying defendant thus recovers on the theory of subrogation and partially enforces a right always existing in the plaintiff.” Subrogation is a doctrine purely of equity whereby there arises the substitution in place of the creditor of one, usually a surety, who under the compulsion of necessity, or for the protection of his own interests, has discharged a debt for which as between himself and another, the latter is primarily liable ” (Mansfield v. Mayor, 165 N. Y. 208, 214. See, also, Black’s Law Dictionary, Subrogation, pp. 1169, 1170, with authorities and cases cited.) Subrogation cannot exist between joint tort feasors. Each is liable to plaintiffs for payment of the whole judgment. There is no primary obligation to pay the judgment as between the two. Appellant was a wrongdoer and it has been so adjudged. Furthermore, under the common law, payment of the judgment by one of two joint tort feasors discharged the debt as to all (Barrett v. Third Avenue R. R. Co., 45 N. Y. 628). Prior to the enactment of section 211-a of the Civil Practice Act, one joint tort feasor, after paying the judgment, could not maintain an action either at law or in equity against the other tort feasor for contribution (Ward v. Iroquois Gas Corp., supra, pp. 127, 128). That rule of the common law was changed by section 211-a by which contribution might be compelled by one of two specific remedies which are adequate and exclusive and subrogation is not one of them. There can be no subrogation in equity where there is an adequate remedy at law (37 Cyc. p. 373 and cases cited).

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

Lehman, Ch. J., Finch and Desmond, JJ., concur with Lewis, J.; Rippey, J., dissents in opinion in which Loughran and Conway, JJ., concur.

Order reversed, etc.