author: Loughran, J. Finch, J.

text:
    Anna Rose et al., Appellants, v. Daily Mirror, Inc., Respondent.
    Submitted December 4, 1940;
    decided December 31, 1940.

      Herbert Baer Brill, Abraham Brill and Frank F. Bergenfeld for appellants.

      Charles Henry and James Carroll for respondent.
   Loughran, J.

The question is whether the complaint in this action states facts sufficient to constitute a cause of action for libel.

The pleading alleges that the plaintiff Anna Rose was the wife of Jack Rose and that the other plaintiffs are their children; that Jack Rose died on May 25, 1939; and that the defendant then published in its newspaper an article of and concerning the deceased Jack Rose wherein he was erroneously identified with one “ Baldy Jack Rose,” ' a person described in the article as a self-confessed murderer who had “ lived in constant fear that emissaries of the ■underworld * * * WOuld catch up with him and execute gang vengeance.” This article named the respective plaintiffs as the surviving wife and children of the deceased Jack Rose but made no other direct reference to them.

A motion by the defendant for judgment dismissing the complaint was denied by Special Term. The order of the Special Term was reversed and the motion granted by the Appellate Division. The issue is now here on this appeal by the plaintiffs.

Defendant does not deny that the publication complained of was a libel on the memory of the deceased Jack Rose. Plaintiffs make no claim of any right to recover for that wrong. They stand upon the position that the publication — while it did not affect their reputations in respect of any matter of morals — tended to subject them in their own persons to contumely and indignity and was, therefore, a libel upon them. It is true that a publication which lowers a person in the esteem of others may be actionable as a libel, though it may do no harm at all to the person’s reputation respecting his moral disposition. (See the cases collated in Burton v. Crowell Pub. Co., 82 Fed. Rep. [2d] 154, 155.) In that view, it has been held that it is a libel to write of a person that a near relative of his was a criminal. (Merrill v. Post Pub. Co., 197 Mass. 185; Van Wiginton v. Pulitzer Pub. Co., 218 Fed. Rep. 795.)

In this State, however, it has long been accepted law that a libel or slander upon the memory of a deceased person which makes no direct reflection upon his relatives gives them no cause of action for defamation. (Wellman v. Sun Printing & Publishing Assn., 66 Hun, 331; Sorensen v. Balaban, 11 App. Div. 164.) It has been said that the reason for the decision of Sorensen v. Balaban was that there the defamatory words were spoken of the deceased person alone and were not spoken of the plaintiff (Merrill v. Post Pub. Co., supra, at p. 192). Reading the Sorensen case that way, the plaintiffs say it is not in point here, since their names appear in the publication in question. This distinction does not commend itself to us. If their names had been omitted from the publication in question, the plaintiffs doubtless would still have suffered in an appreciable degree the loss of social standing and the mortification of which they presently complain. The question now before us is thus in substance the same question that was decided in the Sorensen case. Moreover, in Wellman v. Sun Printing & Pub. Assn. (supra), the libel upon the memory of the deceased wife of the plaintiff named him as her husband and that case and the Sorensen case have uniformly been cited together as authority for the same principle. (Matter of Fleming, 223 App. Div. 849; Groggins v. Daily Mirror, Inc., 241 App. Div. 818; Eagles v. Liberty Weekly, Inc., 137 Misc. Rep. 575; Garrison v. Sun Printing & Pub. Assn., 74 Misc. Rep. 622. [In the case last cited, the appeal to this court did not present the question now under consideration, 207 N. Y. 1.] See, too, Bradt v. New Nonpareil Co., 108 Iowa, 449.)

It is thus quite plain to us that the complaint of these plaintiffs can be sustained only if we are prepared to construct a far-reaching extension of the law of libel as it has been generally understood in this State for many years. We are not persuaded that either justice or expediency dictates that we should do so.

The judgment should be affirmed, with costs.

Finch, J.

(dissenting). It is submitted that the plaintiffs herein sue to recover for a libel upon themselves. To publish that a man was a notorious criminal, and then to say that one of the plaintiffs was his wife and the others his children and so possessed of his blood, would seem to give them a cause of action for damages, just as much as to say that plaintiff had no proper family origin, i. e., was illegitimate. (Shelby v. Sun Printing & Pub. Assn., 38 Hun, 474, 476; affd., 109 N. Y. 611.) Either of these charges would cause plaintiffs to be held up to ridicule and contempt. The charge of close relationship, as in the case at bar, distinguishes this case from that where the libel merely characterizes plaintiff as a near relative of the criminal without specifying the relationship. (Cf. Merrill v. Post Pub. Co., 197 Mass. 185.) In Sorensen v. Balaban (11 App. Div. 164) the names of the relatives do not appear upon the publication, which differentiates it entirely from the case at bar. It may be, if. the names of the plaintiffs had been omitted from the publication, that they might still have suffered damage, but that is not the case before us.

Mere failure to attribute personal fault or misconduct to plaintiffs does not render the publication of defendant any the less libelous. The charge that the plaintiff is illegitimate is not to attribute fault or misconduct to plaintiff, yet plaintiff has a cause of action. There would seem no distinction between such case and the case at bar.

Plaintiffs are not the widow and children of Baldy Jack Rose, as alleged in the publication in question, and Jack Rose was not the despicable criminal whose shameful career was described. A respectable family whose husband and father has just passed away awakes the next morning to find blazoned forth in a morning newspaper that decedent was a notorious criminal, thus blackening the family and all its members. The slightest effort at verification would have shown the falsity of the story. If the law has reached the result of affording no relief here for the damages suffered, it would seem that the matter should be called to the attention of the Legislature.

It follows that the judgment dismissing the complaint should be reversed.

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

Judgment affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Arlen Service Stations, Inc., Respondent.
    Argued December 4, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum of counsel), for appellant.

      Charles J. Bensky for respondent.

      Sol. A. Herzog for Garage and Gasoline Station Operators Council of Greater New York, amicus curiæ.

   Lewis, J.

The single question presented by this appeal is the constitutionality of Local Law No. 141 adopted by the Council of the City of New York August 10, 1939, which added to the Administrative Code (Laws of 1937, ch. 929) the following provision:

Article 7. Retail Sales of Petroleum Products.

§ B36-101.0. It shall be unlawful for any person, firm or corporation to sell or offer for sale at retail for use in internal combustion engines in motor vehicles any gasoline unless such seller shall post and keep continuously posted on the individual pump or other dispensing device from which such gasoline is sold or offered for sale a sign or placard not less than seven inches in height and eight inches in width nor larger than twelve inches in height and twelve inches in width and stating clearly and legibly in numbers of uniform size the selling price or prices per gallon of such gasoline so sold or offered for sale from such pump or other dispensing device together with the name, trade name, brand, mark or symbol, and grade or quality classification, if any, of such gasoline.

a. The amount of governmental tax to be collected in connection with the sale of such gasoline shall be stated on such sign or placard and separately and apart from such selling price or prices.

“ b. No sign or placard stating the price or prices of gasoline other than such signs or placards as hereinabove provided shall be posted or maintained on the premises on which said gasoline is sold or offered for sale. * * * ”

The defendant corporation, which operates a service station at 594 Jamaica avenue in the borough of Brooklyn, concedes that it violated section B36-101.0 of the Administrative Code on November 2, 1939, when it failed to post on each of four pumps from which it sold gasoline a sign stating the retail price per gallon of gasoline sold therefrom; and by posting on two other pumps maintained on the premises, three signs of dimensions sixty inches in height and from thirty to thirty-six inches in width on which were letters twenty-four to twenty-five inches in height.

The judgment of conviction against the defendant in the Magistrates’ Court of the City of New York was reversed on the law by the Appellate Part of the Court of Special Sessions in the second judicial department and the complaint against the defendant was dismissed. The record is now before us for review upon appeal by the complainant by leave granted by a member of this court.

Section B36-101.0 of the Administrative Code, quoted above, bears upon its face clear indication that it was designed to prevent fraud in the retail sale of gasoline.. In our present inquiry, however, we may not give weight to the fact that fraud was neither charged nor proved against the defendant. A business, however honest in itself, may be the subject of governmental regulation if it may become a medium of fraud. “It is not enough to say that the business may be honestly conducted.” (People v. Beakes Dairy Co., 222 N. Y. 416, 427.) Nor may we extend the field of our judicial inquiry into the realm of expediency where legislative judgment alone dictates the necessity for statutory regulation and its wisdom.

The defendant asserts that the law here in question is an improper exercise of police power and violates the due process clauses of the Federal Constitution (Fourteenth Amendment) and the Constitution of New York (Art. I, § 6). But we know that A reasonable regulation governing the use of property offered for sale so as to prevent fraud, does not destroy that property nor deprive the owner of its use in a constitutional sense.” (People v. Luhrs, 195 N. Y. 377, 383.) We also have in mind the rule that A legitimate public purpose may always be served without regard to the constitutional limitations of due process and equal protection.” (People v. Perretta, 253 N. Y. 305, 309; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y 429; New York ex rel. Bryant v. Zimmerman, 278 U. S. 63.)

Accordingly we are concerned only as to whether section B36-101.0 of the Administrative Code is a legislative measure reasonably adapted to accomplish its purpose.

From the arguments of counsel we understand that, as in a case before this court more than fifty years ago, which involved the adulteration of food products, so today when we consider a local regulatory measure which governs the retail sale of gasoline, Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils.” (People v. Kibler, 106 N. Y. 321, 324.) Those perils, including the exceptional facilities which the retail sale of gasoline affords for imposition upon the public, are not, however, a matter for our consideration. We may assume they were the subject of investigation and study by the City Council during its consideration of the necessity for and wisdom of the local law in question. Our inquiry goes only to the reasonableness of the resulting enactment.

It cannot be said of this local legislation that it impairs the defendant’s freedom to determine the price at which it will sell the gasoline which it offers to the public, nor does it prohibit the defendant from advertising that price. True, there are restrictions as to the location and size of the sign which the City Council has determined must be posted upon each pump as a means of imparting to customers information upon factors which enter into each retail sale of motor fuel — the sale price per gallon of the gasoline to be delivered at each pump; the amount of governmental tax to be collected in connection with the sale; the trade name, if any, by which the gasoline is marketed and the grade or quality by which it is classified. Likewise a restriction is made effective by the prohibition against the posting upon the premises of any other sign which states the price or prices of gasoline sold.

Restriction is implicit in police power however exercised. The problem is to ascertain whether the restriction, as an incident to the accomplishment of the legislative purpose, is reasonable in degree. We have said that Any trade, calling or occupation may be reasonably regulated if ‘ the general nature of the business is such that unless regulated many persons may be exposed to misfortunes against which the Legislature can properly protect them.’ ” (Biddles, Inc., v. Enright, 239 N. Y. 354, 363.) In the present instance we do not regard the restriction as to the placement, size or limitation of signs, or the requirement of a uniformity in size of the retail sale price figures thereupon, as being more drastic than is reasonable to accomplish the end for which the law was adopted.

It follows that the enforcement of the local law does not deprive the defendant of its property without due process. (Cf. Slome v. Godley, 304 Mass. 187.)

Nor can we say upon the present record that the defendant has been deprived of the equal protection of the laws. There is no proof of discrimination or of arbitrary action. The local law affects alike all in a given class — the retail dealers in motor fuel — and calls for the uniform enforcement of the act itself. (People v. Beakes Dairy Co., supra, p. 429; People v. Klinck Packing Co., 214 N. Y. 121, 137.)

The order of the Court of Special Sessions, Appellate Part, should be reversed and the judgment of conviction affirmed.

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

Judgment accordingly.


author: Finch, J.

text:
    Gerald G. Rucker, an Infant, by Jasper G. Rucker, His Guardian ad Litem, et al., Respondents, v. Board of Education of the City of New York, Appellant.
    Argued November 28, 1940;
    decided December 31, 1940.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for appellant.

      Benjamin Cooper for respondents.
   Finch, J.

The action is in negligence. Plaintiff moved in the action at Special Term for an examination before trial. Special Term denied the application. The Appellate Division reversed, granted the motion, and certified the following question to this court: “ Was the order of the Special Term denying the motion for an examination before trial properly made?

An examination before trial of a municipal corporation has been held by us not authorized under the provisions of the Civil Practice Act (§§ 288, 289). (Davidson v. City of New York, 221 N. Y. 487; Bush Terminal Co. v. City of New York, 259 N. Y. 509; Kasitch v. City of Albany, 283 N. Y. 622.)

Does the rule applied to municipal corporations apply likewise to the Board of Education? The Board of Education, even if it is not a municipal corporation in the same sense as that term is applied to a city, nevertheless is without doubt a public corporation as distinguished from a private corporation. In Gunnison v. Board of Education (176 N. Y. 11, 14) it was conceded that the Board was a public municipal corporation.” (See, also, Matter of Hirshfield v. Cook, 227 N. Y. 297; Lessin v. Board of Education, 247 N. Y. 503.) Even if the Board of Education be considered a governmental agency exercising State functions, or an administrative department of the city (Charter of the City of New York, ch. 20, §§ 521-526, effective January 1, 1938; Matter of Hirshfield v. Cook, supra), the same reasons which have been advanced by the courts for disallowing examinations before trial of a municipal corporation, would seem to apply with equal force to the Board of Education. The language of the Civil Practice Act (§§ 288, 289), in providing how the testimony before trial may be taken, speaks of “ * * * the testimony of one or more of its officers, directors, managing agents or employees * * This is language ordinarily applied to private as distinguished from municipal or other public corporations. As we have held such language not applicable to municipal’ corporations (Davidson v. City of New York, 221 N. Y. 487), it would seem likewise not applicable to the Board of Education. It has also been held, where the language of a statute merely refers in general terms to a corporation, joint-stock association, or other incorporated association ” (Civ. Prac. Act, § 289), and contains no express authorization for the inclusion therein of municipal or public corporations, the latter are excluded therefrom (13 American Jurisprudence, Corporations, § 3). In addition, these provisions of the Civil Practice Act, providing for an examination before trial, have been enacted by the Legislature after the decisions of the courts excluding municipal corporations therefrom. Despite this, the Legislature has not sought to include such corporations in the general provisions. (Matter of Trosk v. Cohen, 262 N. Y. 430, 435; Matter of Scheftel, 275 N. Y. 135, 141.) For all these reasons, the conclusion is reached that the Board of Education of the City of New York is excluded from the provisions of these sections of the Civil Practice Act (§§ 288, 289).

Respondent urges that the case at bar arises out of alleged negligence in the proprietary activities of the Board of Education rather than its governmental function and, therefore, as to such proprietary activities, an examination before trial should be had. Such contention overlooks the fact that the sections of the Civil Practice Act providing for an examination before trial make no division based upon the subject-matter of the suit but deal only with the parties to be examined. In Kasitch v. City of Albany (283 N. Y. 622), where the city was charged with liability for alleged negligence, this court held that, despite the unavailability of any defense of governmental function, defendant was not subject to examination before trial under the provisions of the Civil Practice Act.

It follows that the order should be reversed, the motion of plaintiffs denied, without costs, and the certified question answered in the affirmative.

Lehman, Ch. J., Loughran, Rippey, Sears, Lewis and Conway, JJ., concur.

Order reversed, etc.


author: Finch, J. Lewis, J.

text:
    Finlay Elder, Respondent, v. New York and Pennsylvania Motor Express, Inc., Appellant.
    Argued November 26, 1940;
    decided December 31, 1940.

      Walter K. Pick, Martin Greene and Myron J. Greene for appellant.

      Thomas J. Milan for respondent.
   Finch, J.

The question presented by this appeal is whether or not the principle of res judicata applies.

The facts in so far as necessary to present the issue here involved are briefly as follows: The actions lie in negligence. They grow out of an accident in which a truck owned by the New York and Pennsylvania Motor Express, Inc. (Penn.) collided with one owned by the United States Trucking Corporation (United). Damages to person and property resülted. Penn, sued United for property damage to its truck. United brought an independent action for property damage to its truck against Penn. These two actions were consolidated and, after a trial of all the issues, a jury awarded a verdict to United. On the basis of this recovery by United for its property damage, the driver of United’s truck, one Elder, now brings this action against Penn., which was both a plaintiff and a defendant in the previous action, for his personal injuries. At the trial of the present action, Elder moved for the direction of a verdict in his favor upon the ground that the judgment obtained by his employer, United, was conclusive against Penn. The trial court denied the motion and a trial was had on the evidence before a jury which returned a verdict in favor of the defendant. Upon appeal by the plaintiff to the Appellate Division, the parties stipulated that the sole question to be reviewed would be the application of the doctrine of res judicata as it related to the case at bar. The Appellate Division, one justice dissenting, ruled that the judgment in the prior consolidated action was res judicata as to the defendant’s liability to the present plaintiff; the judgment at the Trial Term was reversed and a new trial was ordered. We now review the order of the Appellate Division upon a stipulation by the defendant for judgment absolute.

The sole question involved in this appeal is whether or not Elder can plead the judgment obtained by United against Penn, in the previous action as res judicata.

No plea in bar could estop the plaintiff from enforcing his rights since he was not a party to the prior action, unless he came within an exception to the rule of mutuality, which rule is embodied in the principle of res judicata. When issues on the same subject-matter have once been settled by litigation between the same parties or their privies, before a court of competent jurisdiction, and the estoppel of the judgment is mutual, that is to say that the other party would be bound if the original decision had been to the contrary, then in the interest of reasonable finality of litigation that decision should be conclusive. A well-recognized “ apparent exception to this rule of mutuality ” exists where liability for the fault of an agent or servant or indemnitee is asserted against a principal, master or indemnitor. In such case where there has been a prior judgment in favor of the agent, servant or indemnitee rendered in an action brought against him by the same plaintiff, such judgment destroys the basis of liability asserted against the principal, master or indemnitor and constitutes a complete defense to the action thereafter brought against him. (Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111, 127.) We followed that principle in Good Health Dairy Products Corp. v. Emery (275 N. Y. 14).

In the Good Health case the liability of the owner was dependent upon a recovery from the person from whom the liability was derived. The plea of res judicata there was considered solely as a defense since no attempt was made to plead it in support of the counterclaim, or to use it to establish liability affirmatively. In the consideration of the plea of res judicata in bar of the action, the relationship between principal and surety, while only partly analogous, illustrates the liabilities involved. If, despite the fact that the driver in the Good Health case had been found by the jury free from negligence, we had allowed a recovery against the owner, then the latter could have recovered over against the driver, surely an extraordinary result.

If, as urged by respondent, we eliminate in the rule followed in the Good Health case, the necessity of the liability being dependent upon the negligence of the servant and permit a reliance upon a judgment a,s res judicata, where identical issues of liability upon a given set of facts are put at issue in two successive suits, and where a full and complete trial of those issues has been had, and there are no circumstances of record in the second suit which might reasonably justify a court in reaching a result contrary to the prior decision, then it would seem that we would eliminate entirely the requirements of mutuality of estoppel and of privity. In so doing it is submitted that this would overturn fundamental conceptions and overrule authorities. (Haverhill v. International Ry. Co., 217 App. Div. 521; affd., 244 N. Y. 582; Atlantic Dock Co. v. Mayor, 53 N. Y. 64, 68; Booth v. Powers, 56 N. Y. 22; Nelson v. Brown, 144 N. Y. 384, 390.) In the Haverhill case the court refused to allow plaintiff employer to introduce the prior judgment in favor of his employee, since there was no mutuality of estoppel. Heretofore also the rule of mutuality has been held operative in actions ex delicto and permits successive suits by different passengers based on the negligence of the defendant carrier arising out of the same accident where the identical issues arise in each trial. In the case at bar plaintiff was one of the two principal actors in the collision and his right to recover has not been adjudicated in the previous action. The proposed abrogation of the rule of mutuality would seem to lead to a complete abrogation of the rule, even if the new exception now urged upon us should be confined to that class of cases where the defendant has been a plaintiff in the prior action.

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

Lewis, J.

(dissenting). The decision upon this appeal turns upon the application of the doctrine of res judicata.

Three actions at law have been the outgrowth of a collision between two motor trucks — one owned by the United States Trucking Corporation, the other by the present defendant, New York and Pennsylvania Motor Express, Inc. The first two actions were by the owner corporations against each other. Each owner demanded property damages alleged to have resulted from the collision; each alleged freedom from negligence by the driver of its own vehicle and each charged tñat the property damage which it sustained was due solely to the negligence of the driver of the other truck. An order of consolidation of the two actions brought to trial before a single jury the issues of negligence and contributory negligence of the operators of the respective trucks. The outcome was a verdict for damages in favor of United States Trucking Corporation against New York and Pennsylvania Motor Express, Inc.

In the third action, now before us on appeal, the plaintiff was the driver of the truck owned by United States Trucking Corporation, the successful party in the consolidated action. He seeks damages for personal injuries against the corporate defendant which, as between the two truck owners, was held responsible for the collision.

The present plaintiff pleads two causes of action, the first being in the conventional form upon facts alleged to have been involved in the collision. By the second cause of action the plaintiff seeks whatever advantage is to be gained from the judgment recovered in the consolidated action in which the present defendant New York and Pennsylvania Motor Express, Inc., was found to have been negligent and he, as the driver of the truck of United States Trucking Corporation, was found free from fault. To that end he pleads the judgment in the consolidated action as res judicata upon the issues of the negligence of the defendant and his own freedom from contributory negligence.

Before any evidence was taken at the trial of the present third action the plaintiff moved for the direction of a verdict in his favor upon the ground that the former judgment obtained by United States Trucking Corporation was conclusive upon issues tendered by the pleadings. The trial court denied the motion and thereupon the question of the defendant’s liability was tried out before a jury which returned a verdict in favor of the defendant. Upon appeal by the plaintiff to the Appellate Division, the parties stipulated that the sole question to be reviewed would be the application of the doctrine of res judicata as it related to the second cause of action. The Appellate Division, one justice dissenting, ruled that the judgment in the prior consolidated action was res judicata as to the defendant’s liability to the present plaintiff; the judgment at Trial Term was reversed and a new trial was ordered. We now review the order of the Appellate Division upon a stipulation by the defendant for judgment absolute.

If, as has been suggested, there lies behind the phrase res judicata “ a rule of reason and practical necessity ” and if one who has had his day in court should not be permitted to litigate the question anew ” (Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14, 18), the record at hand affords a favorable background against which the application of that doctrine of estoppel by judgment may be considered. We have seen that, as a result of the consolidation of the two prior actions, it fell to a single jury to determine, as between the two truck drivers, whose conduct was responsible for the collision. And it is clear that there is no substantial difference between the opportunity afforded in the prior action to the present defendant New York and Pennsylvania Motor Express, Inc., to establish that its driver exercised due care and that the collision was caused by culpable negligence by the driver of the other truck, and the opportunity afforded in the present action. In other words, here the party against whom the plea [of res judicata] is raised was a party to the prior action and had full opportunity to litigate the issue of its responsibility.’ ” (Good Health Dairy Products Corp. v. Emery, supra, p. 18, and see Liberty Mut. Ins. Co. v. Colon & Co., 260 N. Y. 305, 312.) It makes no difference whether in the prior action, in which the present defendant was the plaintiff, the negligence of the driver of the present defendant’s truck was imputed to the owner. In any view of the applicable law the jury must have found that the present plaintiff Elder, as driver of the truck owned by United States Trucking Corporation, was free from negligence and that the driver of the present defendant’s truck was negligent.

It must be conceded that a judgment in an action brought against the driver of a motor vehicle becomes res judicata in a subsequent action brought against the owner to enforce “ derivative ” liability. (Portland Gold Mining Co. v. Stratton’s Independence, Ltd. [opinion by Van Devanter. J.], 158 Fed. Rep. 63; Featherston v. President of Newburgh & Cochecton Turnpike Road, 71 Hun, 109.) The converse of this rule is also true — that a judgment in an action brought to enforce derivative ” liability against the owner is res judicata in a subsequent action against the driver. In Giedrewicz v. Donovan (277 Mass. 563) the court said (p. 569): “ As a matter of public policy and in the interest of accomplishing justice, the better rule would seem to be that, if it is clearly established, in the trial of an action either against the employee or against the principal for damages caused by the employee’s negligent conduct, that the employee is not negligent, the judgment in the case first tried is a bar to a subsequent action by the same plaintiff for the same negligent act of the same employee. In principle it would seem to be immaterial whether the first judgment was obtained in an action against the employer provided the only ground for holding the employer is the negligence of the employee and it clearly appears that in the first trial the employee was found to be free from culpability. * * *.”

This principle was reaffirmed by the opinion by Rugg, Ch. J., in Tighe v. Skillings (297 Mass. 504, 507): “ The crucial question in the case at bar is whether the judgment in the former case necessarily decided that at the time of the collision the operator of the truck of the H. B. Church Truck Service Company was not negligent. If it did so decide, it is a bar to the present action.” (See, also, Jepson v. International Ry. Co. [opinion by Pound, J.], 80 Misc. Rep. 247, 249; affd., 163 App. Div. 933; affd., on other grounds, 220 N. Y. 731; Lasher v. McAdam, 125 Misc. Rep. 685; affd., 217 App. Div. 718; Emery v. Fowler, 39 Me. 326; Mc Namara v. Chapman, 81 N. H. 169; Fightmaster v. Tauber, 43 Ohio App. 266, and see annotation 31 A. L. R. 194.) Thus, if in the action now before us the defendant were the plaintiff, the judgment in the former action would be res judicata.

The facts in the case at bar differ from those in the cases last cited only in the fact that in the cited cases the party against whom the plea of res judicata was invoked was the plaintiff in both actions. Here the party against whom res judicata is urged was the plaintiff in the prior action and is the defendant in the present action. Ordinarily this change in the position of the parties would defeat the application of res judicata. That would be so in the present case, only if it could be said that in the prior action, in which New York and Pennsylvania Motor Express, Inc., was the plaintiff, it failed to recover because of the negligence of its own driver, not because of the fact that Elder was free from negligence. (Cf. 8 Brooklyn Law Review, pp. 224, 227, 231.) In the present case, however, the objection to the application of res judicata is not valid because in circumstances peculiar to the prior action the jury, which functioned under the order of consolidation, must have found that the present plaintiff Elder was free from negligence.

In cases where the liability of one party is said to be derivative ” the requirement of mutuality of estoppel by judgment has been relaxed, as. in Good Health Dairy Products Corp. v. Emery (supra), where the second action was brought to enforce a secondary liability against a car owner at a time when a prior judgment had conclusively adjudicated that the driver of the defendant’s car was not negligent. However, where the party against whom res judicata is invoked, was a defendant in both actions, the requirement of mutuality of estoppel has not been relaxed. (Haverhill v. International Ry. Co., 217 App. Div. 521; affd., 244 N. Y. 582.) In other fields of law the requirement of mutuality has been disregarded. (Epstein v. Gluckin, 233 N. Y. 490, 493; The Mutuality ” Rule in New York, by Harlan F. Stone, 16 Columbia Law Review, p. 443 ; 3 Wigmore on Evidence [2d ed.], p. 78; 5 Williston [Rev. ed.], §§ 1433, 1434, 1440.)

The rule applicable to the case before us would seem to be that where identical issues of liability upon a given set of facts are put at issue in two successive suits, and where a full and complete trial of those issues has been had and there are no circumstances of record in the second suit which might reasonably justify a court in reaching a result contrary to the prior decision, estoppel by judgment becomes applicable provided the one against whom the prior judgment is invoked was a party to ■— at least a plaintiff in — the prior action. (See Res Adjudicata: Who Entitled to Plead, by Berkeley Cox, 9 Virginia Law Register [N. S.], 241, 254.)

If the present plaintiff Elder had been found negligent in the prior action, that judgment could not be asserted against him as res judicata. Such was the ruling in Pesce v. Brecher (302 Mass.-, decided February 1, 1939), where the court distinguished the Giedrewicz case (supra) on the ground that There the plaintiff had already had a complete trial of his own case under his own management and sought a second opportunity to prove the same facts which he had failed to prove the first time. Here the plaintiff had no previous opportunity to prove his case.”

It is not necessary to pass upon the question whether the judgment in the prior action brought by United States Trucking Corporation is res judicata here. It is the judgment in the prior action brought by the present defendant New York and Pennsylvania Motor Express, Inc., which is res judicata. Under the peculiar facts in this record, where the same jury passed upon the issues presented by both actions, we are not left in doubt as to the basis of the judgment in so far as culpability is concerned.

The order of the Appellate Division should be affirmed and judgment absolute ordered for the plaintiff.

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

Ordered accordingly.


author: Sears, J.

text:
    In the Matter of the Claim of Joe Levine, Respondent, against Comet Painting & Decorating Co., Inc., Employer, and State Insurance Fund, Appellant. State Industrial Board, Respondent.
    Submitted November 14, 1940;
    decided December 31, 1940.

      George J. Hayes and William F. O’Rourke for appellant.

      Henry Kane for claimant, respondent.
   Sears, J.

The claimant, Joe Levine, has sought a workmen’s compensation award for disability from lead poisoning suffered on November 18, 1936.

A hearing before the referee was had on April 21, 1937, and two days later notice was given of an award made at the hearing in favor of the claimant and against the employer and the State Insurance Fund as carrier. Soon thereafter the State Insurance Fund evidently discovered the employer’s policy had expired on November 8, 1936, ten days before the claimant suffered the disability, and an application was promptly made by the carrier to the Industrial Board for an opportunity to submit evidence as to non-coverage on the date the disability was suffered. Such evidence was received on July 13, 1937, and on August 12, 1937, the Board rendered a decision expressly sustaining the claim of the State Fund as to non-coverage and modifying the decision of April 21, 1937, by eliminating therefrom the insurance carrier and charging the award solely upon the employer as non-insured.

The sole question is whether the State Fund has waived its defense of non-coverage or is estopped from asserting it, by not presenting it before the award of April 21, 1937, was made. The Appellate Division reversed the determination of the Industrial Board, holding that the defense of non-coverage could not be asserted (citing Gerka v. Fidelity & Casualty Co., 251 N. Y. 51).

We find warrant in the statute for the consideration by the Industrial Board of the liability of the carrier in spite of the carrier’s failure to show the termination of the contract of coverage at the hearing before the referee. Section 19 of the Labor Law (Cons. Laws, ch. 31) provides that the decision of the referee on such a claim shall be deemed the decision of the Industrial Board from the date of the filing thereof in the department unless the Industrial Board on its own motion or on application duly made to it modify or rescind such decision. Section 23 of the Workmen’s Compensation Law (Cons. Laws, eh. 67) provides for an appeal from the award or decision of the referee, on which appeal the Industrial Board may review, modify or rescind the decision of the referee. Section 123 of the Workmen’s Compensation Law provides that the power and jurisdiction of the department over each case shall be continuous and rules 13 and 14 of the Rules of the Industrial Board provide, in effect, that the Board may, upon application, take further testimony and may, upon the record, affirm, reverse or modify any decision of the referee as the law and the facts may require. There is authority in these sections and rules to take new evidence after the referee has made his decision and make a determination thereon. (Hio v. Younglove Casket Co., 206 App. Div. 633.)

The present case, direetly against the insurance carrier, also lacks other features of estoppel present in the Gerka case, cited by the Appellate Division.

In the present case the defense of non-coverage is offered in the original proceeding for an award while the adjudication of the claim was still within the jurisdiction of the Industrial Board.

The order of the Appellate Division should be reversed and the determination of the State Industrial Board affirmed, without costs.

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

Ordered accordingly.


text:
    Ottilie M. Martens, Appellant, v. Hellmuth Martens, Respondent.
    Submitted November 15, 1940;
    decided December 31, 1940.

      George Stamper for appellant.

      Louis Jay Brecher, Maurice Frieman and Joseph M. Herman for respondent.
   Sears, J.

In this action for divorce, the defendant has moved under subdivision 5 of rule 107 of the Rules of Civil Practice for the dismissal of the plaintiff's complaint upon the ground that there is an existing final judgment of a court of competent jurisdiction rendered on the merits, determining the same cause of action between the parties. In support of Ms motion, the defendant annexed to Ms affidavit a photostatic copy of a translation of what purports to be a judgment of a German court dissolving the marriage between the parties in compliance with the demand of both parties, each having been found guilty of conduct wMch brought about such dissolution. The only certificates attached to the document are one by Wilhelm Eggers, a Sworn Translator and Interpreter residing and practising in the Free and Hanseatic City of Hamburg, Germany,” to the effect that the document is a true translation,” and a certificate of the Consul of the "United States of America in the city of Hamburg to the effect that Wilhelm Eggers at the date that he made Ms certificate was a sworn translator practicing before the Hanseatic courts at Hamburg, Germany, duly commissioned and qualified, to whose official acts faith and credit are due.” Although the copy of the translation of the judgment shows at its foot the names of judges and of a “ clerk of records,” there is a complete absence of the authentication required by the terms of section 395 of the Civil Practice Act to permit the document to be evidence. Authentication is as necessary for a document used upon a motion as for one offered as evidence upon a trial.

The papers do not disclose the jurisdiction of the foreign court or the laws of the German Empire relating to dissolution of marriage. Judgments of courts of foreign countries are received in evidence in our courts when duly authenticated but they differ from judgments of courts of our sister States to wMch, by constitutional mandate, full faith and credit must be given. They must not contravene our public policy. In order to pass upon the question as to whether a judgment of a court of a foreign country is to be recognized, there must be a disclosure of the jurisdiction of the foreign court of the subject-matter and of the parties. The acts of the parties to the foreign litigation in invoking the jurisdiction must also sometimes be scrutinized. This can best be done at a trial where the court has all the facts before it and can determine under established rules the question of recognition or non-recognition of the judgment of the foreign court. Upon this motion we do not pass upon the question whether the fifth subdivision of rule 107 is applicable to such a case as this where the cause of action for dissolution of the marriage alleged to have been sustained in another court is founded on a different basis of fact than that offered as the grounds of the present suit — in other words, whether on the facts here attempted to be presented the German judgment determined the same cause of action as the one here in litigation between the parties.

The judgment of the Appellate Division should be reversed and the order of the Special Term denying the motion to dismiss the complaint affirmed, without costs.

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

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Clifford J. Kohlmeyer, Appellant.

      Argued December 4, 1940;
    decided December 31, 1940.

      F. Trowbridge vom Baur, Leonard H. Cohen and David W. Louisell for appellant.

      Thomas E. Dewey, District Attorney (Manuel Lee Robbins and Stanley H. Fuld of counsel), for respondent.
   Sears, J.

The record shows without dispute that the defendant, Clifford J. Kohlmeyer, committed acts which constitute the crime of which he stands convicted, robbery in the first degree. His defense is that at the time of his acts he was suffering from such a defect of reason as not to know their nature and quality or that they were wrong.

As probative of the defense of incompetency, defendant offered in evidence, under Civil Practice Act, section 374-a (applicable by Code of Criminal Procedure, section 392), copies of hospital records in Wisconsin relating to the insanity of his paternal grandmother. Before the trial the District Attorney had waived all questions of the informality and lack of authentication of the records. When they were offered on the trial the District Attorney interposed the general objection that the documents were immaterial, irrelevant and incompetent. The exclusion of this evidence is sought to be justified on the following grounds: First, there was no proof of the transmissible nature of insanity; and, second, it contained hearsay statements. As to the first objection we note that there is testimony in the record that insanity of a manic depressive type in an ancestor may predispose a descendant to insanity of the type of dementia praecox. There is evidence that the defendant was suffering from insanity of the type of dementia praecox. The hospital records tend to show that defendant’s ancestor suffered from insanity of the manic depressive type. In Walsh v. People (88 N. Y. 458, 467) we had under consideration the question of the competency of evidence showing insanity in an ancestor as bearing on the existence of insanity in a descendant, and in the course of the opinion we said: “ It was competent for the prisoner, to prove in aid and corroboration of other proof, or of circumstances, creating a presumption or

tending to justify an inference of insanity at the time of the commission of the act, that he inherited a disease which predisposed him to insanity. The insanity of parents, or relatives, is also admissible upon the issue of insanity.” Thus, not only was the evidence competent, but whatever defect existed in evidential foundation when the records were first offered was subsequently cured. A general objection will not avail upon an appeal where the defect was remedied upon the trial. As to the second ground, hearsay, the record shows that the defendant offered the hospital records excluding therefrom the hearsay statements, particularly in respect to the history of the patient. The records in addition to daily observations of the patient’s mental and physical condition, also included diagnoses of manic depressive insanity. Despite some decisions in the Appellate Divisions (Stone v. Goodman, 241 App. Div. 290; Matter of O’Grady, 254 App. Div. 691), we conclude that the diagnoses contained in the hospital records were admissible, no question as to privilege being presented. The diagnoses were records of an act, transaction, occurrence or event made in the course of the doctor’s profession ” or the scientific deductions therefrom. (Cf. Goodkin v. Brooklyn & Queens Transit Corp., 241 App. Div. 737; affd., 265 N. Y. 638.) It is always competent for physicians to state their scientific opinions as to the nature of illnesses, their causes and probable results, founded upon the facts disclosed in the evidence. A physician who has examined a patient first states the objective facts of the examination and then his scientific appraisal. Without his opinion, his testimony often has little value. Where insanity is an issue, it is elementary law in this State that the physician states his direct opinion as to the sanity or irrationality of the person whose mental condition is under investigation; while a lay witness may only state that disclosed acts of the person were or were not, in the opinion of the witness, rational or irrational. (Wyse v. Wyse, 155 N. Y. 367; People v. Nino, 149 N. Y. 317, 326.) We fail to see why the recorded conclusions of the hospital physicians on scientific matters should be deemed objectionable on any ground when they would not be objectionable were the physician whose diagnosis is contained in the record called personally to the witness stand. Hospital records concededly are included within the records to which section 374-a of the Civil Practice Act is applicable. We find no difference in a recorded diagnosis of a physical condition and of a mental condition. It was error, therefore, to exclude from evidence the parts of the hospital records which were not hearsay. Having regard for the serious conflict as to the mental condition of the defendant at the time of the commission of the acts on which the prosecution is based, we conclude that the error was so material as to require a reversal of the judgment appealed from.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Finch and Rippey, JJ., concur; Loughran, Lewis and Conway, JJ., dissent.

Judgments reversed, etc.


author: Loughran, J.

text:
    In the Matter of Lawyers Mortgage Company. Brooklyn Trust Company, as Trustee, Appellant; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Mortgage Company, Respondent.

      Argued November 15, 1940;
    decided December 31, 1940.

      Stanley S. Hawkes and Ralph W. Crolly for appellant.

      Walter B. Herendeen and Vivienne M. Camps for respondent.
   Loughran, J.

The two corporate names appearing in the record will be abbreviated. Lawyers Mortgage Safe Deposit Company will be called the Safe Deposit Company and Lawyers Mortgage Company will be called the Mortgage Company.

The Mortgage Company was incorporated as a title guaranty corporation under the Insurance Law (Cons. Laws, ch. 28). The Safe Deposit Company was incorporated under the Banking Law (Cons. Laws, ch. 2). The capital stock of the Safe Deposit Company (except for sixteen shares held by its directors) was owned by the Mortgage Company and the directors of both companies were the same persons.

The Mortgage Company sold certificates of participation in mortgages and guaranteed payment of principal and interest to become due thereon. In 1932 the Safe Deposit Company out of its own funds paid to the Mortgage Company $7,500 for a participation of that amount in a mortgage for $234,000. This transaction was evidenced by the Mortgage Company’s “ Guaranteed First Mortgage Certificate No. 72, Series No. 200643 ” which the Mortgage Company delivered to the Safe Deposit Company.

In 1933 the Superintendent of Insurance was made rehabilitator of the Mortgage Company in a proceeding instituted pursuant to article XI of the Insurance Law. In that capacity, he purchased the sixteen shares of the capital stock of the Safe Deposit Company held by the directors thereof and then brought about the dissolution of the Safe Deposit Company through proceedings taken under section 486 (now § 605) of the Banking Law. Inasmuch as the Safe Deposit Company at that time had no creditors, all its assets (including the above-mentioned Mortgage Certificate No. 72 of Series No. 200643) were thereupon transferred to the Mortgage Company as sole stockholder of the Safe Deposit Company. Thereafter, and in 1937, a proceeding for the liquidation of the Mortgage Company was instituted pursuant to article XI of the Insurance Law and the Superintendent of Insurance, as liquidator, became vested with title to all property and assets of the Mortgage Company.

The present proceeding was brought under chapter 19 of the Laws of 1935, for a reorganization of the mortgage underlying the Series 200643 guaranteed mortgage certificates of the Mortgage Company. An order approving a plan of reorganization of the mortgage was entered in 1938. The Brooklyn Trust Company was thereby made trustee for holders of certificates of that series.

Upon application of the Superintendent of Insurance, as liquidator of the Mortgage Company, Special Term on October 30, 1939, made an order in the present proceeding as follows:

ORDERED, that the Brooklyn Trust Company, as Trustee, be authorized and directed to register certificate No. 72 of Lawyers Mortgage Company series No. 200643, now owned by the Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Mortgage Company, on a parity with all other outstanding certificates in the same series, and it is further

ORDERED, that the Brooklyn Trust Company, as Trustee, pay over to the Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Mortgage Company, any and all sums on account of principal and/or interest distributable or to become distributable on certificate No. 72 of Lawyers Mortgage Company series No. 200643 on a parity with distributions heretofore or hereafter made to the holders of all other outstanding certificates in the same series.”

Whether these directions were validly made is the question presented on this appeal by the Brooklyn Trust Company, as trustee, from an affirmance by the Appellate Division of the order of the Special Term.

The argument against the order of the Special Term is that the purchase of this Certificate No: 72 by the Safe Deposit Company was in effect a purchase thereof by the Mortgage Company. If the case is to be taken that way, that certificate should have been subordinated to other outstanding certificates of the same series for the purposes of distribution of the proceeds of the underlying mortgage. (Matter of Title & Mortgage Guaranty Co., 275 N. Y. 347; Pink v. Thomas, 282 N. Y. 10.) The Safe Deposit Company did not, however, become the instrumentality of the Mortgage Company merely because of the non-commercial identity of either, company with the other. It does not appear that the Mortgage Company ever profited by any use of the assets of the Safe Deposit Company. Certificate No. 72 was purchased by the Safe Deposit Company with its own capital. On these facts the courts below properly held that complete ownership of that certificate when it was issued was in the Safe Deposit Company as a corporate entity distinct from the Mortgage Company. (See Berkey v. Third Avenue Ry. Co., 244 N. Y. 84; Jenkins v. Moyse, 254 N. Y. 319.)

As rehabilitator and as liquidator of the Mortgage Company the Superintendent of Insurance was a statutory receiver of its property. Certificate No. 72 was transferred to him in that character by operation of law for the benefit of all creditors of the Mortgage Company. No criticism has been made of the Superintendent because as rehabilitator of the Mortgage Company he caused the Safe Deposit Company to be wound up and we do not suppose that his official action to that end imparted to other mortgage certificates of Series 200643 a priority over Certificate No. 72 which otherwise could not be claimed.

On the whole, we think the courts below were warranted in their ruling that for the purposes of the present proceeding Certificate No. 72 stood on a parity with all other outstanding certificates of the same Series 200643.

The orders should be affirmed, without costs, and the question certified answered in the affirmative, though the order of the Appellate Division was a final order (Matter of Lawyers Mortgage Co. [40 Lincoln Road], 284 N. Y. 325, decided herewith), and no certified question was called for.

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

Orders affirmed, etc.


text:
    In the Matter of William Weber, Respondent, against Town of Cheektowaga et al., Appellants.

      Argued November 14, 1940;
    decided December 31, 1940.

      Carlton A. Fisher for appellants.

      William Brennan, Jr., for respondent.
   Finch, J.

William Weber, a civil service employee and an exempt volunteer fireman, was removed by a unanimous vote of the five members of the Town Board after a hearing upon charges preferred against him by the Superintendent of Public Works of the town of Cheektowaga. Weber was one of two janitors of the Town Hall of the town of Cheektowaga. The Superintendent of Public Works of the town, to whom Weber had been assigned as a laborer to work under his jurisdiction and orders in the Department of Public Works, preferred the charges against Weber as follows: That on or about the 25th of April, 1937, after William Weber had been assigned to cleaning the interior of the Town Hall and had been directed by deponent to work from nine a. m. to twelve noon, and from two p. m, to seven p. m., he appeared between two and three o’clock at the Town Hall in an intoxicated condition and was unable to perform his duties; also that prior to the 25th of April, Weber absented himself from his duties and neglected his work at the Town Hall.

At the hearing, in addition to testimony showing verbal warning, there was introduced a letter from the Superintendent of Public Works, as follows:

April 16, 1937
Mr. William Weber,
Broadway,
Cheektowaga, N. Y.
“ Dear Sir: On April 16, 1937, I observed while trying to converse with you that you were under the influence of some intoxicating liquor. Other employees in the Town Hall also notified me to that effect. On one other occasion you were reported under the influence of liquor, you also have left your position without reporting to me for my permission.
I therefore deem it advisable to warn you that if this condition occurs again, I shall have to prefer charges against you asking for your dismissal from the town payroll.
Very truly yours,
“ TOWN OF CHEEKTOWAGA
Supt. of Public Works.
EM:LA.”

There is substantial evidence in this record to sustain the charges of neglect of duty, absence from duty, and intoxication while on duty. The Town Board by unanimous vote sustained the charges and dismissed Weber. Weber then sought by this action to review the determination of the Town Board. (Civil Service Law [Cons. Laws, ch. 7], § 22, subd. 1; Civ. Prac. Act, art. 78, § 1296.) At Special Term his reinstatement was ordered. Thereafter the town of Cheektowaga and the Superintendent of Public Works appealed to the Appellate Division, which also annulled the act of the Town Board and directed the reinstatement of Weber, one justice dissenting. There followed the present appeal to this court.

The duty of supervision of the employees of the town devolves upon the Town Board selected by the inhabitants of the town for that, among other purposes. In case of dereliction of an employee in the performance of duty, the determination upon the facts is for the Town Board, and such determination will not be set aside by the courts unless it is unsupported by proof sufficient to satisfy a reasonable man, of all the facts necessary to be proved in order to authorize the determination, or unless there is such a preponderance of proof against the existence of any of the facts necessary to be proved as would require the setting aside of the verdict of a jury. Upon the record in the case at bar, not only was there competent proof of all the facts necessary to be proved in order to authorize the making of the determination, but also it cannot be said that there was such a preponderance of proof against the finding of guilt that the verdict of a jury affirming the existence thereof would be set aside by the court as against the weight of the evidence. Under such circumstances, neither the Special Term nor the Appellate Division should have set aside the finding of the Town Board. If People ex rel. Gilson v. Gibbons (231 N. Y. 171), relied upon by respondent, were accepted as holding the contrary, it would be inconsistent with People ex rel. Guiney v. Valentine (274 N. Y. 331) and Matter of Roge v. Valentine (280 N. Y. 268).

It follows that the order of the Appellate Division should be reversed, the petition dismissed, and the finding of the Town Board reinstated, all without costs.

Lehman, Ch. J., Loughran, Rippey, Sears, Lewis and Conway, JJ., concur.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v. Joseph Feolo, Albert Mastrone and Norman J. Brabson, Appellants.

      Argued November 19, 1940;
    decided December 31, 1940.

      Samuel Markewich and Jerome G. Rosenhaus for Joseph Feolo, appellant.

      Frederick J. Sullivan, Joseph D. Edelson and John T. Hogan for Albert Mastrone, appellant.

      Howard Hilton Spellman, Caesar B. F. Barra and LeRoy Campbell for Norman J. Brabson, appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Charles W. Manning of counsel), for respondent.
   Loughran, J.

On September 14,1931, Sergeant Timothy F. Murphy of the police department of the city of New York was shot and killed when he interrupted three persons in their commission of a robbery in a speakeasy on East Thirteenth street, Manhattan.

Six years later, Emilio Funicello informed the authorities that the robbery in the speakeasy had been committed by Joseph Feolo, Norman Brabson and Carl Summerfeld at the instigation of Albert Mastrone. These four were thereupon indicted for murder in the first degree. On a first trial the jury disagreed. A second trial resulted in a judgment of death which this court affirmed as to Summerfeld but reversed as to Feolo, Brabson and Mastrone (People v. Feolo, 282 N. Y. 276).

After a third trial of the indictment as against Feolo, Brabson and Mastrone, they now stand convicted a second time of this felony murder. As on the former appeal, the testimony of Funicello makes the greater part of the record and constitutes a report of various admissions which he said were made to him by one or more of the defendants. Without his testimony,” as the trial judge told the jury, “ there would be no case made out against these defendants, or any of them.” Whether Funicello was an accomplice in the robbery at the speakeasy was a question of fact. In leaving that question to the jury, the trial judge said: “ He denies that he was an accomplice, and if you are convinced beyond a reasonable doubt that he was not an accomplice in the commission of this robbery, then his testimony needs no corroboration * * *. I charge you as a matter of law that if you find that Funicello was an accomplice in the commission of the crime, then his testimony must be supported by other evidence which tends to connect the defendants with the commission of the crime.” (See Code Crim. Proc. § 399.) How this issue as to Funicello’s status as a witness was composed by the jury we cannot know. Hence, we are called upon to say whether on this record the verdict may be taken as a valid finding that Funicello’s testimony was sufficiently corroborated as against each of the three defendants. If as to any defendant the answer is in the negative, the judgment as against him cannot be upheld on the speculation that the jury found Funicello was not an accomplice. (See People v. Lazar, 271 N. Y. 27.)

Detective Thomas Morgan of the police force of Pittsburg, Pennsylvania, arrested Brabson in that city in November, 1937. Morgan testified that on the day of the arrest a brother of Brabson came to the Pittsburg detective bureau where (as Morgan said) the brother questioned what he [Brabson] was arrested for, and the defendant answered the brother, he says, ‘ On a murder charge that happened about six years ago in New York City.’ He stated — he said to the brother, he said, 11 thought it blew over, but finally ;oing back to New York City on that charge.’ ” In j 'gment, it would have been proper to submit to the e question whether the testimony of the witness was sufficient to warrant as against Brabson the i ■ that Funicello told the trüth when he testified '.o and Brabson came to him on the day Sergeant A was murdered and said that with Summerfeld t committed a robbery and “ killed a cop * * * d ast 13th street at that place that Al [Mastrone] gi tip to.”

In the same part of his testimony, Funicello further quoted Feolo in this manner: He [Feolo] said he searched one fellow and took a pocketbook off him, took the money out of it and threw the pocketbook on the floor.” Philip Albert was in the speakeasy when the robbery and homicide were committed. - He testified he handed over his wallet containing forty or forty-five dollars to one of the robbers. The People contend that this evidence of Albert confirms Funicello in bis testimonial report of Feolo’s admission that Feolo took a pocketbook off one fellow at the speakeasy. I think this contention must be rejécted. The corroboration of an accomplice must in some degree confirm him in his designation of a defendant as one who was connected with the commission of the crime. (People v. Hooghkerk, 96 N. Y. 149, 162.) All the witness Albert said was that somebody in the speakeasy robbed him of his wallet. I cannot see how that evidence tended to connect any identifiable person with the killing of Sergeant Murphy — if the testimony of Funicello is cast out.

Police Officer Frederick Knocke testified that in a nearby street he was shot and wounded by a man who ran from the speakeasy at the time Sergeant Murphy was killed. On his direct examination, Officer Knocke said of Feolo: I see the man that looks like the man that shot me.” On his cross-examination the officer said: “ Well, there is something about this man that you can't forget; it was one of those things, you can remember his face a lifetime.” The real character and meaning of this testimony of Officer Knocke was, as I believe, correctly declared by the trial judge in these words: He has not identified Feolo as the man that shot him. He said he only looked like the man who shot him.”

Funicello testified that (antecedently the events in issue) he overheard Mastrone plan a robbery that was to be committed in the speakeasy by Feolo, Brabson and Summerfeld. For corroboration of Funicello in that charge against Mastrone, the People offered testimony of an Assistant District Attorney that in July, 1938, Mastrone (who was then in custody) volunteered the statement that in February or March, 1931, he had pointed out the speakeasy on Thirteenth street to two other men. “ He told us [the Assistant District Attorney testified] that at that time his idea was that the place was to be shaken down, that they were going to impersonate Federal officers and extort money from the proprietor because he was conducting a speakeasy.” In the same interview, as reported by the Assistant District Attorney, Mastrone denied participation in the robbery which brought about Sergeant Murphy’s death.

The People make the argument that Mastrone’s “ admission that he pointed out the place as a likely spot for the commission of a crime — in spite of his self-serving declaration that he merely intended a shakedown ’— supports Funicello and his testimony.” This, I think, is a dubious proposition. It is true that the jury were not constrained to accept Mastrone’s extrajudicial assertion that the place was only to' be shaken down. But if that assertion was disregarded, then Mastrone’s admission amounted only to a concession that he had pointed out the speakeasy to two men.

The foregoing states the whole of the proof relied upon by the People for confirmation of Funicello’s testimony. Except as against Brabson, this corroborative evidence was, as I see it, of little more than conjectural significance.

In respect of the sufficiency of that proof, the trial judge in his charge said to the jury: “ It is for you to say where he [Funicello] got the information concerning the robbery as to which he has testified. He alleges that he got the information from the defendants on trial. Does his testimony as to what transpired at the scene of the robbery agree with the testimony of the inmates of the place, and of Officer Knocke as to what happened during and immediately after the robbery was perpetrated? ” For reasons already suggested, I think such a test of the credit of Funicello as an accomplice-witness was inadmissible. Since neither Officer Knocke nor any person who was in the speakeasy at the time identified any of the defendants as a participant in the robbery, the mere agreement of their narrations with Funicello’s story was no demonstration of his trustworthiness. If Funicello was himself a participant in the robbery at the speakeasy, he «knew the facts of its commission and could readily enough have stated them in the form of the admissions he variously imputed to the several defendants. “A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the person, that is really no corroboration at all.” (Lord Abinger, in R. v. Farler, 8 Car. & P. 106; quoted in Wigmore on Evidence [3d ed.], vol. VII, § 2059, p. 327. See 2 Bishop’s New Criminal Procedure, § 1170.) This test of the sufficiency of corroborative evidence — that it shall tend to connect an identifiable person with the crime — has been criticized as a fallacy. (See Wigmore, supra.) Our statute, however, has adopted that test (Code Crim. Proc. § 399; People v. Plath, 100 N. Y. 590; People v. Reddy, 261 N. Y. 479) and the Legislature has not been persuaded by arguments for its repeal. (N. Y. Leg. Doc. [1937] No. 77.)

In respect of the needed corroboration of Funicello, the trial judge in his charge said to the jury: “ Independent and corroborative proof tending to connect the defendants with the commission of the crime is essential but need not be of great probative force.” This, it seems to me, was a misconception. “ The law of evidence undoubtedly requires that evidence to a jury shall be clearly relevant, and not merely slightly so.” (Thayer, Preliminary Treatise on Evidence, p. 516.) More than that, our statutory requirement of corroboration is predicated of the uniform common-law custom of judges to advise the jury that the evidence of an accomplice should be received with great caution. (People v. Hooghkerk, supra.) In my opinion, the jury should not have been instructed that corroboration of Funicello did not call for evidence of great probative force.

I am impelled to the conclusion that this judgment (even as against Brabson) may well have been the result of a wrong application of the statute which says that a conviction of crime cannot rest solely on the credit of a witness found to have been an accomplice.

As to each defendant, the judgment of conviction should be reversed and a new trial ordered.

Finch, J.

(dissenting). On a previous appeal, we expressly agreed with the contention of the District Attorney that “ The uniform consistency with which Funicello’s trial testimony tallies in its details with those confessions [Summerfeld’s] is cogent proof of its veracity and accuracy.” (282 N. Y. 276, 281.) A new trial has been had for the three defendants other than Summerfeld and a second jury, without recourse to the confessions of Summerfeld, have again found the defendants guilty upon ample evidence. We need not speculate whether the jury found Funicello to be an accomplice or not, for it is submitted that his testimony setting forth in minute detail the perpetration of the crime is corroborated by independent evidence as to each of the defendants. The corroborative evidence need not show the commission of the crime. (Code Crim. Proc. § 399; People v. Mayhew, 150 N. Y. 346, 353; People v. Swersky, 216 N. Y. 471, 480; People v. Cohen, 223 N. Y. 406, 426; People v. Dixon, 231 N. Y. 111, 116; People v. Reddy, 261 N. Y. 479, 484.) The corroboration is not restricted to any particular point and may vary according to the circumstances of the particular case. Matters in themselves of seeming indifference may so harmonize with the narrative of the accomplice as to furnish the tendency to connect the defendant with the commission of the crime. (People v. Becker, 215 N. Y. 126, 139, 140.)

It is submitted that as to Feolo, the independent evidence tending to connect him with the commission of the crime is, upon the record, stronger than that concerning Brabson. An officer of the New York City Police Department, one Frederick Knocke, identified Feolo as the man who shot him while fleeing from the scene of the murder. Speaking of Feolo, Officer Knocke testified: Well, there is something about this man that you can’t forget; it is one of those things, you can remember his face a lifetime.” The record shows Officer Knocke was a careful witness. Instead of testifying as do many witnesses to the conclusion, “ That is the man,” he first testified to the facts from which the ordinary witness draws the conclusion, namely, “ I see the man that looks like the man that shot me.” Questions and answers of Officer Knocke were as follows: Q. Do you see in this courtroom the man who shot you? A. Yes, sir. Q. Will you point him out. A. That man sitting next to the court attendant looks like the man that shot me. * * * Q. So that the record may be clear, which man were you pointing to? A. To that man sitting there, wearing the glasses, next to the court attendant, sitting to the left of the court attendant.”

Any doubt as to what the officer meant was removed when, upon cross-examination, he was asked to qualify his testimony and said: A. Well, I told him I want to be absolutely sure— Q. That’s right. A. I was absolutely sure that he looks like the man. * * * Q. You appreciate the fact, do you not, that there are any number of persons who look alike and who resemble others — resemble one another? A. Well, this— Q. I mean, just answer the question. You know that to be a fact, as a police officer, do you not? A. Well, there is something about this man that you can’t forget; it is one of those things; you can remember his face a lifetime.”

It was for the jury to weigh this evidence and, if believed, to be satisfied it tended to connect this defendant with the commission of the crime. In People v. Strollo (191 N. Y. 42, 62) the witness said that “ the defendant resembled the man Strollo ” except that the defendant was stout and had a moustache. Later, on being shown- a photograph of the defendant, the witness declared: That picture resembles the man whom I have seen before * * * under the name of Strollo.” The court in affirming the judgment of conviction of murder held that this testimony was evidence of identification. When the testimony of Officer Knocke is read as a whole, as we are compelled to do, it is impossible to say that it does not connect the defendant Feolo with the commission of the crime.

As to Mastrone, there is likewise evidence independent of the testimony of the accomplice tending to connect him with the commission of the crime. This defendant, at his own request, sought an interview with the District Attorney. He volunteered the statement that he had fingered ” this speakeasy as a suitable place for a crime. This statement included a self-serving declaration, a denial that he had selected the place for this robbery, but rather for an extortion as the proprietor was an ex-convict who would fear to complain. Mastrone admitted that he had made more than one inspection of the physical condition of these premises. The jury were entitled to disbelieve his denial and draw the inference from the affirmative evidence in the admission that Mastrone had selected this place for this robbery since if the crime were extortion, no inspection would be necessary, whereas, if a holdup were intended, then a get-away was necessary and an inspection to facilitate such get-away became essential. (People v. Johnson, 185 N. Y. 219; People v. Demasco, 240 N. Y. 170.)

It is submitted that upon this record, if the jury found Funicello to have been an accomplice, there is independent evidence to inculpate defendants Feolo and Mastrone as well as Brabson in the commission of the murder.

Error is claimed in that sentence in the charge wherein the trial judge said to the jury, Independent and corroborative proof tending to connect the defendants with the commission of the crime is essential but need not be of great probative force.” When the sentence referred to is read in connection with the charge as a whole on the subject of corroboration, no error is present. In using the sentence objected to, the court was obviously referring to the fact that the corroborative evidence was needed not in reference to the case as a whole, but only to some material fact. In the sentence in the charge immediately following the sentence objected to, the court said that the whole case need not be proved by the independent testimony, but only evidence from an independent source of some material fact tending to connect the defendant with the commission of the crime. In no event has there been shown to be any error here affecting substantially the rights of the parties. (Code Crim. Proc. § 542.) The convictions should be affirmed.

Lehman, Ch. J., and Rippey, J., concur with Loughran, J.; Finch, J., dissents in opinion, and votes to affirm the convictions of all the defendants, in which Lewis, J., concurs; Sears, J., dissents only as to the defendant Brabson; Conway, J., concurs in the opinion of Finch, J., as to the defendants Feolo and Brabson but votes to reverse and for a new trial as to the defendant Mastrone upon the ground that there is no corroboration as a matter of law.

Judgments of conviction of Feolo and Mastrone reversed and new trials ordered.

Judgment of conviction of Brabson affirmed.


author: Seajrs, J.

text:
    The People of the State of New York, Respondent, v. Henry Rubin, Appellant.

      Argued December 4, 1940;
    decided December 31, 1940.

      Henry Rubin, appellant, in person. The Police Commissioner has no authority to regulate parking.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Eugene A. Leiman of counsel), for respondent.
   Seajrs, J.

Defendant has been convicted of fifteen violations of the parking regulations of the city of New York. The defendant challenges the validity of the regulation, for breach of which he has been convicted, and also urges that the proof presented was insufficient to warrant a conviction.

The regulation in question was adopted and promulgated by the Police Commissioner and, so far as material here, is as follows, No person shall park a vehicle; (a) More than one hour in congested, business or residential streets.” The power to adopt the resolution is found in section 435 of the Charter of the City of New York (effective January 1, 1938), the pertinent part of which is as follows: “ The police department and force shall have the power and it shall be their duty to * * * regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health * * *. The commissioner shall make such rules and regulations for the conduct of pedestrian and vehicular traffic in the use of the public streets, squares and avenues as he may deem necessary * * *. The violation of such rules and regulations shall be triable by a city magistrate and punishable by not more than thirty days’ imprisonment, or by a fine of not more than fifty dollars, or both.”

The validity of the power of the police commissioner to make traffic regulations has already been sustained by this court. (Cherubino v. Meenan, 253 N. Y. 462.) The point is now raised that a limitation of parking to one hour is not a regulation of “ traffic in the use of the public streets.” This is too narrow a construction of the word “ traffic.” In a general sense, the word applies naturally to movement but cannot be wholly confined thereto. Stopping of vehicles to accommodate the occupants is the common purpose of travel on our roads and streets. They are built to facilitate the end as well as the means of travel. It is common knowledge that an unreasonable use of the stopping or parking facilities thus provided interferes with the progress of moving vehicles. (Cohen v. Mayor, 113 N. Y. 532.) In a broad sense, then, the stopping of vehicles on the streets, including parking, is a part of traffic itself. If the occupancy of a part of a street is not for traffic, it is hard to see by what right the vehicle is there at all. Unreasonable use for parking or travel constitutes a threat to the safety of other wayfarers. Regulation is essential to adjust the use with the need and eliminate dangers. The time during which parking is to be allowed falls within the discretion of the board or individual to whom the legislative power of promulgating such regulations is committed. The inclusive meaning of the word “ traffic ” is forcibly shown by the fact that in the Vehicle and Traffic Law (Cons. Laws, ch. 71) parking is treated in section 86 contained in article 6 which is entitled Provisions applying to highway traffic * * We are not referred to any decision of this court to the contrary, and other courts of this State, and courts of other States, have rendered decisions in accordance with the views here expressed. (Weiss, Inc., v. Whalen, 135 Misc. Rep. 290; People v. Harden, 110 Misc. Rep. 72; People v. Lewis, 167 Misc. Rep. 139; Commonwealth v. Fenton, 139 Mass. 195; Welsh v. Town of Morristown, [1923] 98 N. J. L. 630; affd., 99 N. J. L. 528; Allen & Reed, Inc., v. Presbrey, [1929] 50 R. I. 53; Matthews v. City of Prahran, [1925] Viet. L. Rep. 469; 31 Argus L. R. 338.)

The jurisdiction of the magistrate to try the defendant on the charge of a traffic infraction is fully supported not only by the quoted language of section 435 of the Charter of the City of New York, but also by subdivision 29 of section 2 of the Vehicle and Traffic Law and by section 2 of the Penal Law. (Cf. People v. Grogan, 260 N. Y. 138, citing with approval Matter of Cooley v. Wilder, 234 App. Div. 256.)

The defendant also contends that violation of the' ordinance Was not proved. The record on this point is very brief. The defendant conceded that the police officer who made the charges found the car in question parked at the times and places charged in the city and county of New York for the length of time charged in the complaint and that the defendant was the licensed owner of the car in each instance. No evidence was offered by the defendant. No question is made of the right of the magistrate to take judicial notice of the character of the localities as falling within the description of the regulation. The concession made out a prima fade case. The contrary is urged because there was no direct proof that the stationing of the car in violation of the ordinance was done by the defendant. To rule that this inference may not be drawn from the established facts would be to deny to the trier of the facts the right to use a common process of reasoning. (Justice v. Lang, 52 N. Y. 323.) Ownership of a vehicle in civil cases has long been recognized as prima fade proof that it was being operated by or for the owner. (Potts v. Pardee,

220 N. Y. 431; St. Andrassy v. Mooney, 262 N. Y. 368.) Here, ownership has been held a sufficient basis for an inference of personal conduct. If he was not in control he could easily have produced a witness or witnesses to show it. (People v. Dyle, 21 N. Y. 578; People ex rel. Woronoff v. Mallon, 222 N. Y. 456, 465.) We find it competent under the circumstances to conclude from the proof that the owner of the car controlled the car and personally violated the regulation. (Commonwealth v. Ober, 286 Mass. 25. Cf. People v. Kayne, 286 Mich. 571.)

The judgment should be affirmed.

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

Judgment affirmed.


text:
    Walter F. Jenkins et al., Appellants, v. 313-321 W. 37th Street Corporation, Appellant and Respondent, and National Transportation Corporation et al., Respondents, Impleaded with Another.

      Argued November 26, 1940;
    decided December 31, 1940.

      Eli S. Silberfeld, T. J. Gillen and Edward M. Edenbaum for plaintiffs, appellants.

      H. H. Brown and E. C. Sherwood for defendant, appellant and respondent.

      Edward M. Fuller and Daniel Mungall for respondents.
   Sears, J.

The Appellate Division has reversed, two justices dissenting, a judgment in favor of the plaintiffs against the defendant, 313-321 W. 37th Street Corp., upon the law only and dismissed the complaint. In its order, the Appellate Division also unanimously affirmed the judgment dismissing the cross-complaint of the defendant against the impleaded defendants. Plaintiffs appeal from the judgment of reversal and dismissal of the complaint and defendant appeals from the part of the judgment which affirmed the judgment of the trial court dismissing the cross-complaint.

The plaintiffs are New York city firemen. On March 22, 1932, they responded to an alarm of fire in premises owned by defendant 313-321 W. 37th Street Corp. The fire started in the engine room of the sub-basement and to get there the firemen had to go down eighteen or twenty steps from the street level to the basement and thence down another stairway of six steps to the floor of the sub-basement. The floor of the sub-basement was seventeen feet below the sidewalk; it was below the sewer level. In the floor was a sump pit into which any liquid on the floor would drain. When the drainage reached a certain level in the pit which was three or four feet square and five or six feet deep, an automatic electric pump would drain it off from the bottom of the pit. Some drainage was, however, always left in the pit. The first fireman to reach the bottom of the second stairway noticed a strong odor of gasoline and saw flames dancing along the floor four or five feet away from the sump pit. The fireman in charge ordered another to open the windows in the rear of the room. Before the order could be carried out, in fact, immediately after it was given, an explosion occurred and the room was aflame. The fireman who had given the order was killed; other firemen in the room were seriously injured, and those still on the stairway also received injuries, which, however, were less serious. The plaintiffs are firemen who were on the stairway and in the engine room when the explosion occurred.

The superintendent of the building testified on behalf of the plaintiffs. According to his testimony he was in the sub-basement when the fire started. He was about to remove the head of an empty steel barrel which had previously contained oil when an explosion occurred and water began to pour from the fire sprinklers. He was burned, and “ scrambled ” upstairs and entered a store on the ground floor of the building where his burns were being rubbed with oil when the firemen arrived. He also testified that he had seen no fire before the explosion. The origin of the fire and the exact cause of the first explosion are not otherwise explained in the record.

No gasoline was stored or used on defendant’s premises. On the adjoining premises, owned or operated by the impleaded defendants, gasoline was stored and constantly in use. Tests made after the fire showed that gasoline was present in the soil of the adjoining premises, and that oily fluid was seeping into the sub-basement of defendant’s premises and there accumulating in the sump pit, sometimes at the rate of three and four gallons a day, sometimes less. The condition seems to have been affected by the remnants of a rivulet which formerly flowed in the vicinity.

While the presence of gasoline in the quantity indicated would not, under ordinary circumstances, constitute an unusual hazard (Flaherty v. Metro Stations, Inc., 202 App. Div. 583, 588), its presence in a closed room in which a fire was burning and where an explosion had occurred presented a situation on which the jury might predicate a finding of unusual hazard. If such a danger existed to the knowledge of the defendant or its agent, the defendant was under a duty if it had opportunity to give warning of the peril. (Meiers v. Koch Brewery, 229 N. Y. 10; American Law Institute, Restatement of the Law of Torts, § 345.)

Before the trial defendant’s superintendent signed and verified a statement that “ * * * for a time previous to the fire and explosion there was a strong order of gasoline in the engine room and the floor of the sump pit was damp from the same. Upon notification to my superiors I was ordered to spread ashes to eliminate this condition this I did but the condition was never entirely eliminated and unfortunately a fire and explosion resulted in which * * * myself and many firemen were seriously injured.” Upon the trial, as a witness for the plaintiffs, the superintendent denied the truth of the matter sworn to, but when confronted with his signed statement, admitted signing it after certain corrections had been made, at his suggestion, and swore that he signed it because it was true. Later, he again denied that there was any gasoline in the sub-basement. This affirmative' proof, together with the undisputed fact that while the superintendent was in the sub-basement an explosion had occurred, warranted a finding by the jury that defendant or its agent in charge had notice of the unusual hazard into which the firemen unknowingly walked. Opportunity to warn the plaintiffs of the peril might be inferred by the jury from the fact that the superintendent was on the premises when the firemen arrived and knew of their arrival.

Defendant’s liability was, therefore, under the circumstances presented by this record, a question of fact for the jury and, but for an error in the receipt of evidence, we would be constrained to reinstate the verdict. Plaintiffs called defendant’s superintendent as their own witness. Not being content to impeach him by his signed statement alone, they sought to introduce oral contradictory statements made by the witness. Over objection and exception, these statements were received. The recent amendment to the Civil Practice Act (§ 343-a; L. 1936, ch. 191, amd. L. 1937, ch. 307) permitting impeachment of one’s own witness" is in derogation of the common law and must be strictly construed. Such construction does not admit of the use of other than signed statements or statements under oath to impeach one’s own witness.

With respect to the cross-complaint, there is in tms record no evidence of negligence on the part of the impleaded defendants. Even if we infer from then use and storage of gasoline, that in some way they created the condition, there was a total absence of proof of negligence in respect thereto.

The judgment of the Appellate Division in so far as it dismisses the complaint should be reversed and a new trial granted, with costs to abide the event, and in so far as it affirms the judgment dismissing the cross-complaint affirmed, with costs. The motion to dismiss the appeal should be denied.

Loughran, Rippey, Lewis and Conway, JJ., concur; Lehman, Ch. J., and Finch, J., dissent and vote to affirm the judgment.

Judgment accordingly.


author: Per Curiam.

text:
    Vanneck Realty Corporation, Appellant, v. City of New York et al., Respondents.

      Argued November 18, 1940;
    decided December 31, 1940.

      Alfred T. Davison, Orrin G. Judd and Herbert A. Heerwagen for appellant.

      William C. Chanler, Corporation Counsel (Daniel M. Cohen, Julius Isaacs and Lewis Orgel of counsel), for respondents.
   Per Curiam.

If the resolution of the Board of Estimate, approving the acquisition in accordance with the provisions of section 706 of the Charter of the City of New York (effective January 1, 1938) by purchase, condemnation or otherwise of the property therein described for the improvement of the water front in the borough of Manhattan, is to be construed, as the city maintains, as authorizing a proceeding only for the purpose of acquiring title for a marginal street for the improvement of the water front, then any possible damages suffered by the plaintiff would arise not from the taking of the property itself but from the use to which the street might be put, and only upon such use becoming actual or threatened might the plaintiff have the rights which he now asserts. On the other hand, if the resolution is to be construed as providing for the condemnation of greater rights than for a marginal street for the improvement of the water front, the plaintiff can assert its claim for damages in the condemnation proceeding itself.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    Robert Martucci, an Infant, by Joseph Martucci, His Guardian ad Litem, et al., Appellants, v. Brooklyn Children’s Aid Society et al., Defendants. Desmond T. Barry, Respondent.
    Submitted November 18, 1940;
    decided December 31, 1940.

      Charles A. Loreto and Louis Napolitano for appellants.

      Desmond T. Barry, in person, and Edward A. Shandell for respondent.
   Per Curiam.

The respondent, having as the appellants’ attorney instituted an action to enforce a cause of action of appellants against a third party, had a charging lien upon the cause of action for bis services rendered in the action. (Judiciary Law, § 475 [Cons. Laws, ch. 30]; Matter of Heinsheimer, 214 N. Y. 361, 365.)

The appellants moved for a substitution of attorneys and asked that the value of respondent’s services be determined. Respondent relied on his lien and sought to have the value of his services fixed at $500. An order is before us which fixed respondent’s lien at twelve and one-half per cent of any recovery secured or settlement made, but in no case less than $400.

Appellants urge that respondent’s hen cannot be fixed on a percentage basis. Respondent is entitled to compensation on the basis of quantum meruit. A percentage allowance does not fall within the description of quantum meruit. The amount of recovery or settlement wifi depend on factors with some of which respondent has no concern. However, the terms of the retainer contract, now at an end, may be taken into consideration' in fixing the value of the lawyer’s services. (Matter of Tillman, 259 N. Y. 133; Matter of Montgomery, 272 N. Y. 323.)

The orders should be reversed, with costs in all courts, and the matter remitted to the Special Term to fix the amount of the respondent’s lien in accordance with this opinion.

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

Ordered accordingly.