source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Boyd H. Wood Company, Respondent, v. Raymond Horgan, Appellant.
    Argued October 18, 1943;
    decided December 8, 1943.

      Saul L. Harris, Raymond Zeitz and William Springer for appellant.
    Paragraph 18 of the lease providing for the waiver of section 230 of the Beal Property Law is void as against public policy. (Ginsberg Realty Co. v. Greenstein, 158 Misc. 473; People v. Hawkins, 157 N. Y. 1; Merts v. Merts, 271 N. Y. 466; Straus & Co. v. Canadian Pacific R. Co., 254 N. Y. 407; Kneettle v. Newcomb, 22 N. Y. 249; Crowe v. Liquid Carbonic Co., 208 N. Y. 396; 3175 Holding Corp. v. Schmidt, 150 Misc. 853; Matter of Brooklyn Loan Corp. v. Gross, 259 App. Div. 165.)

      Matthew W. Wood for respondent.
    The lessee could and did legally waive the provisions requiring the giving of notice to him of the existence of the renewal clause. He is estopped by his writing and by his conduct and is not entitled to the protection of the doctrine of public policy. (Baltimore & Ohio S. W. Ry. Co. v. Voigt, 176 U. S. 498; Waddey v. Waddey, 290 N. Y. 251; State of Arkansas v. Kansas & Tenn. Coal Co., 96 F. 353; Kirshenbaum v. General Outdoor Adv. Co., 258 N. Y. 489; Metropolitan Sav. Bank v. Tuttle, 290 N. Y. 497; Ginsberg Realty Co. v. Greenstein, 158 Misc. 473; Geneve Courts Inc. v. Pomeranz, 159 Misc. 814; Goelet Realty Co. v. Robin Redbreast Hosiery Co., 14 N. Y. S. 68; Waterside Holding Corp. v. Lask, 233 App. Div. 456; Cowenhoven v. Ball, 118 N. Y. 231; Levy v. Delaware, L. & W. R. R. Co., 211 App. Div. 503; Draper v. Oswego Co. Fire Relief Assn., 190 N. Y. 12.)
   Lewis, J.

The provisions of section 230 of the Beal Property Law (L. 1934, ch. 576) were designed to afford to tenants a measure of protection against automatic renewal clauses in leases of real property. Our problem is to determine whether a clause in a written lease, by which a tenant waives in advance the benefits of that statute, is void as opposed to the public policy of this State.

That question arises in an action for rent brought by the respondent, a landlord, against the appellant, a tenant, who leased an apartment for a term of one year commencing October 1, 1937. The tenant remained in possession until September 30, 1941, under a written lease which contained the following renewal clause: ‘ 12. That this letting and hiring shall be extended and renewed by and against the parties hereto for the further term of one year from the expiration of the term granted hereby, at the same rate of rental without any deduction or concession, and upon all the above terms, conditions and covenants, unless either party on or before the first day of August next preceding the termination of any term granted hereby, shall give notice to the other of an intention to surrender or have possession of the premises, as the case may be. Notice by the landlord to the Tenant must be given by sending the same by TI. S. Registered mail. Notice by the Tenant to the landlord must be given by sending the same by U. S. Registered mail. This clause shall be and continue operative ■ likewise with respect to any renewals or extensions hereof. ’ ’

When possession was relinquished by the tenant on September 30, 1941, he had failed within the period prescribed in the lease (automatic renewal clause, par. 12, quoted above) to give notice to the landlord of his intention to surrender the premises. Meantime, however, the landlord had failed on his part to give to the tenant written notice of the existence in the lease of the automatic renewal clause, as required by section 230 of the Real Property Law. (L. 1934, ch. 576 as amd. by L. 1936, ch. 702.) That section provides: “ § 230. Certain provisions of leases to be inoperative unless express notice thereof is given to tenant. No provision of a lease of any real property or premises which states that the term thereof shall be deemed renewed for a specified additional period of time unless the tenant gives notice to the lessor of his intention to quit the premises at the expiration of such term shall be operative unless the lessor, at least fifteen days and not more than thirty days previous to the time specified for the furnishing of such notice to him, shall give to 'the tenant written notice, served personally or by registered mail, calling the attention of the tenant to the existence of such provision in the lease.”

Despite his failure to give the written notice required by the above statute, the landlord took the position that, in accord with the automatic renewal clause contained in paragraph 12 the lease had been renewed for a period of one year. When the apartment stood vacant for the month of October, 1941, the landlord instituted the present action to recover the rent reserved for that month.

The question of law for our decision arises upon the contention by the landlord that the tenant may not invoke the protective provisions of section 230 of the Beal Property Law because there is in the written lease executed by the tenant a clause which provides — “ the provisions of Chapter 576 of the Laws of 1934 are hereby waived.” The statute cited in the clause — now relied upon by the landlord — became section 230 of the Beal Property Law.

The tenant admits that there is in the lease a waiver clause such as that now invoked by the landlord. He contends, however, that such a clause, which assumes to waive the provisions of section 230, is contrary to public policy and that, accordingly, it is not legally effective to relieve the landlord of the statutory requirement of a written notice which brings to the tenant’s attention the existence in the lease of the automatic renewal clause.

The issue of law thus tendered is not between parties to a contract, who, after default, enter into a new agreement upon a new consideration and attempt thereby in good faith to settle differences between them. (See Adler v. Weis & Fisher Co., 218 N. Y. 295, 299, 300.) In such a case the reasonable probabilities are that as to bargaining power the contracting parties deal on equal terms. Here we are to determine the legal consequences of a clause — “ The provisions of Chapter 576 of the Laws of 1934 are hereby waived” — inserted as the eighteenth paragraph of a lease which was to govern the conditions of a tenancy to begin in the future. Manifestly the brief waiver clause — quite incomprehensible to the unwary prospective tenant — would, if valid, deprive the tenant of important statutory rights designed to protect him against his express covenant, for the automatic renewal of his lease. This simple expedient, by which a tenant agrees in advance to waive the benefits of the statute, would nullify the only purpose of the act, which is to render such covenants unenforcible unless the statutory notice is given. We may not give judicial sanction to means designed to evade the legislative will.

Long ago this court held that a prospective waiver of a benefit under the exemption law, by a clause embodied in the original contract between the parties, was void as against public policy. (Kneettle v. Newcomb, 22 N. Y. 249.) In that case it was said per Denio, J. (pp. 250, 251): “ I am of the opinion that a person contracting a debt cannot agree with the creditor that, in case of non-payment, he shall be entitled to levy his execution upon property exempt from levy by the general laws of the state. * * * A few words contained in any note or obligation would operate to change the law between those parties, and so far disappoint the intentions of the legislature. If effect shall be given to such provisions, it is likely that they will be generally inserted in obligations for small demands, and in that way the policy of the law will be completely overthrown. * * * In these. cases, the law seeks to mitigate the consequence of men’s thoughtlessness and improvidence; and it does not, I think, allow its policy to be evaded by any language which may be inserted in the contract.”

Later, in Shapley v. Abbott (42 N. Y. 443, 452) it was stated by Chief Judge Eael, writing for the court “ * * * no case has occurred to me in which a party can, in advance, make a valid promise that a statute founded in public policy shall be inoperative.”

Believing as we do, that the enactment of section 230 of the Beal Property Law was prompted by considerations of public policy, it is not within the function of the judicial process to weaken the protective measure which the Legislature chose to adopt.

In reaching this conclusion we have been influenced by the rule in Crowe v. Liquid Carbonic Co. (208 N. Y. 396). There, as in the present case, the question for decision was whether a clause in a contract was legally effective which expressly waived in advance certain protective rights granted by statute. There, as here, the enactment involved contained no express prohibition against the waiver of the statute’s benefits. There it was ruled (p. 402) that the express waiver written into the contract was ineffectual ‘‘ because inconsistent with the public policy which the legislative act manifested.” (See, also, Roach v. Curtis, 191 N. Y. 387, 391.)

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

Lehman, Ch. J., Loughban, Rippey, Conway, Desmond and Thaoheb, JJ., concur.

Orders reversed, etc.


author: Thacher, J.

text:
    J. H. Holding Co., Inc., Appellant, v. M. Josephine Wooten, Respondent.
    Argued October 7, 1943;
    decided December 8, 1943.

      Clarence Horwitz for appellant.
    The automatic renewal clause in the lease was rendered inoperative by the landlord’s failure to give the notice provided for in section 230 of the Beal Property Law. (138 — 19th Street, Jackson Heights, Inc., v. Canaday, 265 App. Div. 5; Ginsberg Realty Co. v. Greenstein, 158 Misc. 473; Johnson v. Bjerregaard, 158 Misc. 436; Doublet o Bldg. Co. v. Littell, 23 N. Y. S. 2d 728.) A tenant may not for her own benefit waive the notice provided for in section 230 of the Beal Property Law. (Alsens A. P. C. Works v. Degnon Contr. Co., 222 N. Y. 34; Johnson v. Bjerregaard, 158 Misc. 436.) This tenant did not waive the notice provided for in section 230 of the Beal Property Law. (Alsens A. P. C. Works v. Degnon Contr. Co., 222 N. Y. 34; Doublel Bldg. Co. v. Littell, 23 N. Y. S. 2d 728.

      John H, Griggs, Jr., for respondent.
    Section 230 of the Beal Property Law having been enacted solely for the benefit of tenants, a tenant can waive its benefits. (Boyd H. Wood Co. v. Horgan, 178 Misc. 385, 265 App. Div. 975; Ginsberg Realty Co. v. Greenstein, 158 Misc. 473.) In the instant case there was a waiver of the provisions of section 230 by the tenant and the automatic renewal clause was of course operative. (Geneve Courts, Inc., v. Pomeranz, 159 Misc. 814.)

   Thacher, J.

This appeal, in a summary proceeding under article 83 of the Civil Practice Act, to recover possession of an apartment upon the alleged expiration of a lease, is from an order of the Appellate Division affirming a decision of the Appellate Term which reversed a final order of the Municipal Court dispossessing the tenant and granted a final order in the tenant’s favor.

We are concerned with the legal effect of section 230 of the Beal Property Law upon automatic renewal clauses which require tenants to give notice of an intention to surrender the leased premises or be liable under the lease for another term. The automatic renewal clause contained in the lease here in question reads as follows: “ 12.. That this letting and hiring shall be extended and renewed by and against the parties hereto for the further term of one year from the expiration of the term granted hereby, at the same rate of rental without any deduction or concession, and upon all the above terms, conditions and covenants, ‘unless either party on or before the first day of..........next preceding the termination of any term granted hereby, shall give notice to the other of an intention to surrender or have possession of the premises, as the case may be. Notice by the Landlord to the Tenant must be given by sending the same by U. S. Registered Mail. Notice by the Tenant to the Landlord must be given by sending the same by U. S. Registered Mail. This clause shall be and continue operative likewise with respect to any renewals or extensions hereof. ’ ’

Section 230 of the Real Property Law provides: “ No provision of a lease of any real property or premises which states that the term thereof shall be deemed renewed for a specified additional period of time unless the tenant gives notice to the lessor of his intention to quit the premises at the expiration of such term shall be operative unless the lessor, at least fifteen days and not more than thirty days previous to the time specified for the furnishing of such notice to him, shall give to the tenant written notice, served personally or by registered mail, calling the attention of the tenant to the existence of such provision in the lease.”

In Boyd E. Wood Co. v. Horgan, 291 N. Y. 422, decided today, we hold that the protective provisions of this section of the Real Property Law may not be nullified in advance by an express waiver incorporated in a lease, since the purpose of the statute was to protect the tenant against the consequences of failure to give notice of his intention to surrender under such clauses unless the landlord has given the notice required by the statute.

In this case, the landlord, desiring to terminate the lease, refrained from giving notice under the statute but neglected to give the notice necessary for termination under the renewal clause. The tenant, desiring to continue in possession for another term, gave no notice under the renewal clause, and in the dispossess proceedings contended that she is entitled to possession.

The Appellate Term sustained the tenant’s contention hut put its decision upon the tenant’s so-called waiver of the statutory notice by remaining in possession for the extended term as provided in the lease, citing Ginsberg Realty Co. v. Greenstein (158 Misc. 473). This decision was obviously correct, not because of any waiver but because section 230 of the Beal Property Law was enacted solely for" the protection of the tenant and only affects the lease insofar as it provides for automatic renewal “ unless the tenant gives notice to the lessor of his intention to quit the premises at the expiration of such term ”. Only this provision is affected by the statute, the purpose of the statutory notice being simply to warn the tenant that if notice of intention ‘‘ to surrender ’ ’ is not given the term will be renewed. By refraining from giving the statutory notice the landlord was not excused from complying with the provision of the lease that, unless it gave notice of intention to “ have possession ”, the tenant would be entitled to remain in possession for another term, as expressly provided in the renewal clause.

The order should be affirmed, with costs.

Lehman, Ch. J., Lottghean, Bippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.


author: Thacheb, J.

text:
    In the Matter of Fred A. Healey, Respondent, against John Bazinet, Mayor of the City of Glens Falls, et al., Constituting the Board of Public Safety of said City, Appellants.
    Reargued October 6, 1943;
    decided December 8, 1943.

      G. E. Fitzgerald and Thomas J. McCarthy for appellants.
    The petitions are insufficient and fatally defective, in that it affirmatively appears from the allegations thereof and the supporting papers, that petitioner did not occupy a position de jure under the civil service at the time of his dismissal. (Matter of DeSalvo v. Murray, 262 N. Y. 573; People ex rel. Hannan v. Board of Health, 153 N. Y. 513; Matter of Walsh v. Patterson, 239 App. Div. 757; Matter of Meehan v. Flaherty, 119 App. Div. 128.) The petitions must be dismissed, as it affirmatively appears that the position of special policeman is not within the scope of the Civil Service Law. (Palmer v. Board of Education, 276 N. Y. 222.) Employees without civil service status may be summarily dismissed. (Civil Service Law, § 22, subd. 2, L. 1940, ch. 834; Palmer v. Board of Education, 276 N. Y. 222; Matter of Hilsenrad v. Miller, 284 N. Y. 445; Koso v. Greene, 260 N. Y. 491; Matter of Scahill v. Drzewucki, 269 N. Y. 343.) There is no basis for petitioner’s theory that section 66 of the Glens Falls Charter has been repealed by the general statute law of the State. The relief granted by the Appellate Division was improper in that it exceeds that permitted by section 23 of the Civil Service Law, requiring deduction of outside compensation. The position to be held in the event of reinstatement should be specified.

      Frank Hurley for respondent.
    Section 66 of the Charter limiting the number of permanent policemen, and section 75, granting power of summary removal, have been repealed by general statutes. (Unconsolidated Laws, L. 1935, ch. 901, § 846; L. 1940, ch. 834; People ex rel. Fleming v. Dalton, 158 N. Y. 175; People ex rel. O’Connor v. Brady, 49 App. Div. 238; People ex rel. Tate v. Dalton, 158 N. Y. 204; Koso v. Greene, 260 N. Y. 491; People ex rel. Leet v. Keller, 157 N. Y. 90.) Petitioner received a permanent appointment to a position in the competitive class and had satisfactorily completed an uninterrupted term of more tha\i six years before he was summarily removed. (Civil Service Law, §§ 9, 14; Matter of Voll v. Helding, 256 App. Div. 44; Matter of Schaefer v. Rathmann, 237 App. Div. 491; Matter of Eagan v. Livoti, 262 App. Div. 851;
      Matter of Camfield v. Mealy, 288 N. Y. 149; Matter of Rick v. Board of Education, N. Y. L. J., December 15, 1934, p. 2410, 245 App. Div. 729; Matter of Burch v. Finegan, N. Y. L. J., February 13, 1936, p. 782, 248 App. Div. 561, 272 N. Y. 676; Matter of McNeles v. Board of Supervisors, 173 App. Div. 411, 219 N. Y. 578; McGuillicuddy v. Civil Service Comm., 133 Cal. App. 782.) At the time of petitioner’s dismissal, his name was on a valid eligible civil service list covering his position. (Brown v. Craig, 209 App. Div. 11.)
   Thacheb, J.

By act of the Legislature in 1908 (ch. 29), the city of Glens Falls was incorporated under a charter which became effective March 13, 1908. The establishment of a Police Department was provided for in two sections of this charter: section 66 limited the appointment of permanent 'policemen to one for each 1,500 inhabitants and section 75 provided for special policemen to be appointed by the Board of Public Safety and to be removable at the pleasure of this Board. These sections read as follows: § 66. Appointment of police force. ■— For the purpose of providing a permanent and effective police force, it shall be the duty of said board of public safety, as soon after their appointment as possible, to select from the electors of the city, and appoint by warrant of appointment bearing the signatures of a majority of said commissioners, and to be immediately filed with the city clerk, as many permanent policemen as they may deem necessary, not to exceed one for each fifteen hundred inhabitants of said city, as shown by the last preceding state or national enumeration of the corporation of Glens Falls, except as hereinafter otherwise specified, and as vacancies occur to fill the same in the same manner. And said board shall from said number of policemen appoint a chief of police through whom said board may promulgate rules, regulations and orders to the police force, and who shall have the immediate direction and control of said force; subject, however, at all times to the rules, regulations and orders of said board or of its president as authorized by the board, and such chief of police and policeman appointed in the manner aforesaid, may hold his respective office during good behavior or until he becomes incapacitated or until the board shall decide such chief of police or policeman has become incompetent and inefficient and cause Ms removal after due trial as herein provided.”

§ 75. Power to appoint special police. — The board of public safety shall also have power to appoint special policemen, who shall hold their office by virtue of such appointment for such period as such board shall direct, and shall be subject to the provisions of this act, and may be removed at the pleasure of said board. Such special policeman shall forthwith take the oath of office, and shall thereupon become vested with all powers and- shall discharge all the duties of policemen under this act and the statutes of this state, subject to such limitations and restrictions as said board shall fix and prescribe; such special policemen shall receive such fees and compensation as may be allowed to them by said board of public safety, or as otherwise hereinbefore provided.”

Neither of these sections expressly provides for competitive examinations, but as required by the Constitution and section 14 of the Civil Service Law, competitive examinations were held and the number of positions authorized in the permanent force under section 66 of the Charter were filled by the appointment of candidates from an eligible list graded upon the results of the examination.

Thereafter others who had passed a competitive examination — twelve in number, including the petitioner — were appointed special policemen pursuant to the authority of section 75 of the Charter. All the men thus appointed were examined in conformity with civil service requirements and a list was certified containing the names of the persons passing the examination. The appointments were made from among the three highest men on .the list. Upon his written application, petitioner was appointed a special policeman by action of the Board of Public Safety on August 2, 1935, to serve during the pleasure of the Board.

The list upon which his name appeared and from which he was appointed was a list of those eligible for appointment to the Police Bureau ” graded upon the results of an examination “ of candidates for an eligible list from which may be chosen Patrolman in the Police Department. ’ ’ Thus the examinations were advertised and no distinction was made in the examination of patrolmen who became members of the limited permanent force and those who became special policemen. Indeed there was no reason for any distinction at alb because the duties and powers of both officers were defined by section 75 as precisely the same. For more than six years the petitioner served as a special policeman performing the same duties as a member of the regular force. By Local Law No. 2 of Glens Falls, effective October 31, 1941 (Local Laws, 1941, p. 181), section 66 of the Charter was amended so as to permit the appointment of one permanent patrolman for each 700 inhabitants. Thereafter, on December 15, 1941, the Board of Public Safety summarily removed petitioner from his position as special policeman as of November 11, 1941, and on January 2, 1942, appointed all but one of the special policemen remaining in the municipal service as “ regular policemen.”

Petitioner brought this proceeding to compel his reinstatement to the position of patrolman, and Special Term dismissed his petition. The Appellate Division, however, reversed, granted the prayer of the petition and directed that petitioner be paid his salary from the time of the attempted separation from the service.

There can be little doubt that the petitioner was serving in the competitive class of the civil service of the city of Glens Falls. Every position for which it is practicable to hold competitive examinations necessarily falls within the competitive class. (Matter of Andresen v. Rice, 277 N. Y. 271.) It was practicable to conduct examinations for positions in the local police force in the city of Glens Falls. The petitioner was examined in a competitive examination, as were others who were appointed either as special or permanent policemen. Nor was his appointment as a special policeman a temporary or provisional appointment which under the Civil Service Law could be made without selection from an eligible list or in disregard of standing on such a list (Civil Service Law § 15; Koso v. Greene, 260 N. Y. 491, 494; Matter of Hilsenrad v. Miller, 284 N. Y. 445.) On the contrary, the position was one created by section 75 of the City Charter which in no way suggests the length of the term or that the service is to be temporary. The term was indefinite, and terminable at the pleasure of the Board. The limitation of section 66 of the Charter upon the number of permanent policemen made it necessary to continue the employment of the petitioner and other special policemen until after section 66 had been amended. This was not a temporary condition. It was fixed by law and continued until the law was changed. Temporary and provisional appointments, within the meaning of the Civil Service Law and of the decisions which have dealt with them, may only be continued for brief periods, which could not exceed four months when petitioner was appointed. His service was continued in accordance with the law for more than six years.

Section 14 of the Civil Service Law provides: Appointments shall be made from the eligible list most nearly appropriate for the group in which the position to be filled is classified, and a new list shall be created for a stated position or group of positions only when there is no appropriate list existing from which appointment may be made.” (Italics ours.)

The powers and duties of patrolmen in the city of Glens Falls, whether serving as members of the permanent force or as special policemen are precisely the same (L. 1908, ch. 29, § 75). It follows that under the provisions of section 14 of the Civil Service Law appointments made to the permanent force or as special policemen could properly be made from the same list. This was done. The list as certified did not refer either to special policemen or to members of the permanent staff except in a parenthetical clause to the effect that the names were not certified for appointment to the permanent force, no doubt because there were no vacancies in the permanent staff. The Municipal Civil Service Commission, however, certified the list as “ an eligible list for appointment to the Police Bureau of your department ”.

Having been appointed a special policeman from an appropriate eligible list of those rated highest in an open competitive examination conducted by the Municipal Civil Service Commission, petitioner was serving in a position in the competitive class of the Civil Service in a city of the State, that is to say, the position of special policeman in the city of Glens Falls. From this position he was summarily removed by the Board of Public Safety on November 11,1941, without notice of charges and without being afforded a hearing.

By enactment effective April 28, 1940 (L. 1940, ch. 834) it was provided: “ A policeman serving in the competitive class of civil service in any city, county, town or village of the state, any provision of law, rule or regulation to the contrary notwithstanding, shall not be removed from his position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such policeman to be represented by counsel at such hearing and to a judicial review in accordance with the provisions of article seventy-eight of the civil practice act.” Since this statute expressly overrides all provisions of law, rules or regulations to the contrary, the inconsistent provisions of section 75 of the Glens Falls Charter, authorizing summary removal by the Board of Public Safety, were thereby superseded and the petitioner could only be removed after hearing on notice and on charges, with the right to representation by counsel, as provided in the statute; consequently, his summary removal by the Board of Public Safety was unlawful.

We agree with the Appellate Division that the petitioner should be reinstated to the position from which he was unlawfully removed.

The order appealed from should be modified so as to provide that petitioner be reinstated to the position of special policeman, and that he be paid the compensation he would have received v from November 11, 1941, to the date of his reinstatement, less the amount of compensation received from any other employment or occupation during such period.

The order of the Appellate Division should be modified in accordance with this opinion and as so modified, affirmed, with costs to the petitioner-respondent.

Rippey, Conway and Desmond, JJ., concur; Lehman, Ch. J., Loughran and Lewis, JJ., dissent on the ground that.the petitioner was not ‘ ‘ serving in the competitive class of civil service in any city,” within the meaning of the statute.

Ordered accordingly.


author: Thacher, J. Lehman, Ch. J., Lewis and Conway, JJ.,

text:
    The People of the State of New York, Respondent, v. Mike Peller and Abraham Podinker, Appellants.
    Reargued October 13,1943;
    decided December 8, 1943.

      Harry O. Anderson and Samuel Bader for Mike Peller, Appellant.
    There was insufficient evidence as matter of law to corroborate the testimony of the accomplice Popek. (People v. Kress, 284 N. Y. 452; People v. Vaccaro, 288 N. Y. 170; People v. Ryan, 263 N. Y. 298; People v. Storrs, 207 N. Y. 147; People v. McQuade, 110 N. Y. 284; People ex rel. State v. Davis, 56 N. Y. 95; People v. De Paulo, 235 N. Y. 39; People v. Page, 162 N. Y. 272; People v. Weiss, 290 N. Y. 160; People v. Marendi, 213 N. Y. 600; People v. Cascone, 185 N. Y. 317; People v. Koerner, 154 N. Y. 355; People v. Smith, 172 N. Y. 210.) The verdict is against the weight of the evidence. (People v. Crum, 272 N. Y. 348; People v. Davino, 284 N. Y. 486; State v. Fong Loon, 29 Idaho 70; Wilson v. United States, 232 U. S. 563; People v. Webster, 139 N. Y. 73; People v. Florina, 232 N. Y. 545; People v. Reddy, 261 N. Y. 479; People v. Feolo, 284 N. Y. 381; People v. Weiss, 290 N. Y. 160; People v. Page, 162 N. Y. 272; People v. De Paulo, 235 N. Y. 39; People v. Cascone, 185 N. Y. 317; People
      v. Nitsberg, 287 N. Y. 183, 289 N. Y. 523; People v. Buchalter, 289 N. Y. 181; People v. Goldstein, 285 N. Y. 376.) The trial court committed reversible error in receiving as against appellant Peller testimony of admissions made by the alleged conspirators Popek and Podinker in Peller’s absence and after the termination of the conspiracy. (People v. Vaccaro, 288 N. Y. 170; People v. Ryan, 263 N. Y. 298; People v. Storrs, 207 N. Y. Í47; People v. McQuade, 110 N. Y. 284; People v. Davis, 56 N. Y. 95.) The trial court committed reversible error in receiving in evidence Lieberman’s testimony as to a conversation with Peller and permitting the jury to accept such testimony as corroborative of the testimony of the accomplice. (People v. Kress, 284 N. Y. 452; People v. Maione, 284 N. Y. 423.)

      James D. C. Murray and Daniel Kirchman for Abraham Podinker, appellant.
    The guilt of the defendant Podinker was not established beyond a reasonable doubt. (People v. Cohen, 223 N. Y. 406; Winston v. Winston, 165 N. Y. 553; State v. Fong Loon, 29 Idaho 70; Wilson v. United States, 232 U. S. 563; People v. Webster, 139 N. Y. 73; People v. Davino, 288 N. Y. 423; People v. Reddy, 261 N. Y. 479; People v. Feolo, 284 N. Y. 381; People v. Kress, 284 N. Y. 452; People v. Florina, 232 N. Y. 545; People v. Becker, 210 N. Y. 274; People v. Nitzberg, 289 N. Y. 523.) The substantial rights of defendant Podinker were impaired by the introduction of prejudicial testimony. (People v. Zackowitz, 254 N. Y. 192; People v. Thau, 219 N. Y. 39; People v. Grutz, 212 N. Y. 72; People v. Thompson, 212 N. Y. 249; People v. Mangamaro, 218 N. Y. 9; People v. Slover, 232 N. Y. 264.)

      Frank S. Hogan, District Attorney (Stanley H. Fuld and Richard G. Denser of counsel), for respondent.
    The guilt of the defendants was proved beyond a reasonable doubt. (People v. Nitzberg, 287 N. Y. 183; People v. Goldstein, 285 N. Y. 376; People v. Kress, 284 N. Y. 452; People v. Cohen, 223 N. Y. 406; People v. Hoogkerk, 96 hi. Y. 149; People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111.) There was ample evidence corroborating Popek’s testimony that Podinker participated in the commission of the crime. (People v. Deitsch, 237 N. Y. 300; People v. Gorski, 236 N. Y. 673; People v. Lewis, 136 Cal. App. 405; People v. Lomars, 288 N. Y. 645; People v. Jackson, 182 N. Y. 66; People v. Birnbaum, 208 App. Div. 476; Wilson v. United States, 162 U. S. 613.) There was ample evidence corroborating Popek’s testimony that Peller participated in the commission of the crime. (People v. Wagner, 180 N. Y. 58; Stokes v. People, 53 N. Y. 164; People v. Kennedy, 32 N. Y. 141; Jewett v. Banning, 21 N. Y. 27; People v. Whitlock, 187 App. Div. 863; People v. Vitusky, 155 App. Div. 139; People v. Stilwell, 244 N. Y. 196; People v. Meehan, 256 App. Div. 268; Dockerty v. People, 96 Col. 338; People v. Burbank, 234 Mich. 600; People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111.) A conviction is not to be disturbed simply because it is supported by testimony of “ bad men,” and that the credibility of criminals is a question for the jury. (People v. Buchalter, 289 N. Y. 181; People v. Goldstein, 285 N. Y. 376; People v. Arata, 255 N. Y. 374; People v. Cohen, 223 N. Y. 406; People v. Becker, 215 N. Y. 126; People v. Seidenshner, 210 N. Y. 341; People v. Driscoll, 107 N. Y. 414.) The testimony of Newburg and Lieberman concerning their conversations with the defendants and Popek was properly admitted. (People v. Snyder, 246 N. Y. 491; People v. McCarthy, 256 App. Div. 522; People v. Doran, 246 N. Y. 409; People v. Emieleta, 238 N. Y. 158; People v. Semione, 235 N. Y. 44; People v. Krassner, 241 App. Div. 741, 265 N. Y. 470; People v. Patrick, 182 N. Y. 131; People v. Jacobs, 158 App. Div. 293; Lancaster v. State, 21 Ala. App. 140; People v. Dixon, 231 N. Y. Ill; People v. McCallam, 3 N. Y. Cr. Rep. 189, 103 N. Y. 587.)
   Thacher, J.

The appellants, Peller and Podinker, appeal to this court from a judgment of death entered upon their convictions of the crime of murder in the first degree.

On the evening of September 6, 1928, the body of Jacob Weinberg was found in the cellar areaway of 166 Suffolk Street in the city of New York. Death had been caused by one of four bullets which were found in the deceased’s head. In March 1942, the appellants were indicted, together with David Popek, for Weinberg’s murder. At the trial Popek testified for the People and his testimony, corroborated by the testimony of Sidney Newburg and Jack Lieberman, constituted the chief basis for the verdict of guilt.

Popek had been previously convicted of nine different crimes. He testified that, a few days before the killing, he had been in the company of the two appellants in Peller’s apartment, where all three were smoking opium. In the course of conversation Peller, a dealer in narcotics, remarked that he was having trouble ” with one of the men who used to work for him, whereupon Podinker volunteered “ to take care of it any time you say so ”. Peller deferred decision for the time being, and on the next day all three again met in Peller’s apartment. On that occasion, Peller declared that Weinberg (the deceased) had been stealing his opium customers and told both Popek and Podinker that if they would ‘1 take care of that ’ ’ he would turn certain opium business over to them. Podinker then promised that Weinberg would be killed whenever Peller would say the word.” On the next day, which was September 5, 1928, both Popek and Podinker set out to find a building with two exits so that they could “go in one way and come out another way.” The building at 166 Suffolk Street was then chosen.

All three then met again in Peller’s home on September 6th, where Peller instructed Popek and Podinker to kill Weinberg right away.” That evening the deceased was lured into the cellar of the building, where Podinker killed the deceased with a revolver borrowed for the purpose by Popek. Popek and Podinker then made their exit through the rear of the building and proceeded to Peller’s apartment where they told him what they had done.

Two witnesses — Lieberman and Newburg — were called to corroborate the accomplice, Popek. These three witnesses, upon whose testimony the convictions in this case depend, were of the most disreputable character and there is little to choose among them. The jury would have been entirely justified in rejecting their testimony as unworthy of belief. Their testimony was opposed only by denials of the defendants, whose characters,'associations and activities were no better than those of their former associates who testified against them. Thus the case turned upon credibility of oral testimony of highly questionable quality which was in irreconcilable conflict. By its verdict the jury has given credence to the People’s witnesses and has rejected the defendants’ denials.

Was the testimony of the accomplice corroborated by other evidence which tended to connect the defendant with the commission of the crime? (Code Crim. Pro. § 399.) If there was such corroboration, was the verdict against the weight of the evidence? (Code Grim. Pro. § 528.) If there was corroboration and the verdict was not against the weight of the evidence, was the verdict of the jury influenced by errors which may not be disregarded, though no exceptions were taken, and which are of such a character as to require a new trial in the interest of justice? (Code Grim. Pro. § 528.) These are the questions which confront us.

Upon the preliminary question we are not concerned with credibility at all. The statutory test is whether the evidence offered in corroboration has a tendency to connect the defendant with the commission of the crime, and the testimony of a thoroughly discredited witness to an oral admission of the accused, having a tendency to connect him with the commission of the crime, is sufficient corroboration to meet the statutory requirement. (People v. Buchalter, 289 N. Y. 181.) Lieberman’s testimony directly connected the defendant Podinker with the commission of the crime, for he testified that he saw Jocko (the deceased) on Suffolk Street at about eight o’clock in the evening of the day of the murder in the company of Popek and Podinker. He testified: I said, " Hello, Jocko, I want to see you,’ * * * He told me, ‘ I will be right back.’ * * * he wasn’t alone. * * * He was with David Popek and Schtunky [Podinker], Q. And when he said that he would see you in a minute, what happened — now, go ahead and tell us. A. Oh, I seen Jocko and David Popek and Schtunky walk into the hallway of 166 Suffolk Street. * * * After a few — after a minute or a half a minute there, I heard shots. * * * I immediately walked away towards Stanton .Street * * * I didn’t see'anybody coming out of that particular building there but as I walked around the corner there I seen Schtunky and David Popek coming out of a building. Q. Did you see Jocko Weinberg with them? A. No, sir. Q. What did you do then? A. I walked away.”

The building the three men entered was where Weinberg’s body was found, and the testimony of Lieberman directly corroborated the account of his killing by Podinker in the area at the rear of the building.

the Lieberman also testified to a conversation with Podinker and Popek in a restaurant on the evening of the day following the murder, when Popek told him in the presence of Podinker: “ Jocko had it coining to him because he was taking a lot of trade away from Whitey Heller [Peller] ”, saying he expected Peller to put him and Podinker on the payroll at fifty dollars a week. Lieberman said that Podinker then told Popek to “ keep his big mouth shut because everybody knows about it in the neighborhood.”

Sidney Newburg also testified that he and Popek and Podinker, three or four days after the murder, went to his apartment in Eidge Street to smoke opium and that they had a conversation relating to Weinberg, that Popek did most of the talking and ‘1 he was blaming Whitey for — calling Whitey a few names for only giving him ninety dollars for killing Jocko, and he promised much more, and he saido that he would get the rest of it, that Whitey had a ring, and this — and if necessary he would go up and take the ring from him. Q. And was Podinker present? A. Yes. Q. Did Podinker say anything? A. All he did .was chimed in with him. Q. Did he say anything? A. Yes, he made a few remarks about — The Court: Well, what were they? The Witness: I don’t remember exactly, but I know that everything that Popek said, that Podinker would say Yes,’ ‘ imagine that big son of a bitch. It wasn’t worth losing the trade oyer the money,’ and all this and that. ’ ’

With relation to the defendant Peller, Sidney Newburg testified that about noon on the day Weinberg was killed, September 6, 1928, he came through Norfolk Street on his way to the candy store and Jocko came out of a moving van place next to the.store and asked him what he wanted; that he told Weinberg he wanted three, meaning tins of opium. Jocko went back into the moving place and came out with three tins. As he did, Peller came out of the candy store and started jumping on ” Jocko, calling him foul names and saying: What the hell do you think I am doing, building up a trade for the likes of you around here ? ’ ’ The argument was heated, Jocko insisted that he was not stealing any customers and that it was anybody’s trade, to which Peller replied: “ This is the last customer of mine you’ll ever take.” Peller then started bawling ” Newburg “ out ” for buying from Jocko. Newburg told Peller that he was not responsible for that, that he didn’t know that Jocko wasn’t working for Peller, that he didn’t come around looking for Jocko, that he came around looking for Peller and thought Jocko was working for him. He left the two men still arguing.

This angry altercation and the remark of Peller, which could only have been intended and understood as a threat, were so closely connected in point of time with the murder of Weinberg as to have a potent tendency to connect Peller with the commission of the crime.

With relation to Peller, Lieberman testified: “ Q. Did you ever see Heller after the killing of Jocko Weinberg? A. Oh, I seen him say a few days afterwards. Q. Where did you see him? A. At Stanton and Suffolk Street. Q. Did you talk with him or did he talk with you? A. I spoke to him and he spoke to me. Q. Tell us what was said. A. About ten o’clock in the evening, I don’t know when, it was very late in the evening, it was dark at that particular time when Whitey Heller came over to me and asked me if I saw David Popek or Schtunky. I told him I seen them walk towards the restaurant. He asked me whether or not Davel spoke to me with reference to with (sic) Jocko. I told him he did. He asked me, ‘ What did he say? ’ ‘ He says that I, he and Schtunky expect to be put on the payroll by you.’ ‘ What else? ’ And I told him that it was a lousy thing to do in reference with Jocko because Jocko was a hell-of-a-nice fellow, he was well liked by a lot of people, and I even told Whitey that he marked himself lousy around the neighborhood by having two other fellows killing Jocko, and I told him if he didn’t have guts enough to do it himself there he never should have sent two other people to do it. Q. Did he say anything? A. He told me ‘ Keep my big mouth shut ’ there, and I just walked away from him.”

Pe'ller’s response disclosed a state of mind quite inconsistent with innocence. The plain assertion that he had hired two others to do the killing was neither denied nor resented but Lieberman was warned to keep quiet about it. Under the circumstances, Peller’s response tended to show his connection with the murder.

Accordingly, we must conclude that there was sufficient corroboration to take the whole case to the jury for its consideration and determination under proper instructions from the court.

In considering the weight-of the evidence, as we must under the statute, we are to consider all the testimony and evidence in the record and in so doing may not close our eyes to questions of credibility which may have important bearing upon the question whether the evidence was of such weight as to justify the jury’s determination of guilt beyond a reasonable doubt. This inquiry is not one in which we may usurp the function of the jury in determining the question of guilt or innocence and conclude upon our own review of the record that we would not feel justified in reaching the same determination. For we may not set aside the jury’s verdict unless we conclude that it is against the weight of the evidence. Here all the witnesses are of the same character — thoroughly discreditable people — convicts, dope peddlers and users of drugs, if not addicts. In such a situation justice requires that decision be left to the jury as the triers of the facts who have seen and heard the witnesses and are most competent, under proper instructions from the court, to determine questions of credibility. Such a situation is clearly distinguishable from a case where witnesses of bad character and ill repute are contradicted by persons of character and of standing in the community. (People v. Crum, 272 N. Y. 348.) There the court concluded that the jury was not justified in finding the defendant guilty beyond a reasonable doubt.

If the People’s witnesses were telling the truth, as the jury found, the verdict was clearly supported by the weight of the evidence. If no errors or defects affect the verdict thus supported, we may not set it aside and grant a new trial. (People v. Buchalter, 289 N. Y. 181, 230.)

Serious question arises because of the admission of testimony relating to conversations with Podinker and Popek, when Peller was not present, which gravely incriminated Peller. These are the conversations above referred to,— one in the testimony of Lieberman which occurred in a restaurant on the evening of the day following the murder, the other in the testimony of Newburg three or four days after the murder. It was entirely proper to receive this testimony against Podinker, who participated in each conversation, but Peller was entitled to instructions strictly limiting the effect of such testimony to the case against Podinker. Counsel for Peller moved to strike out New-burg’s testimony as to the second conversation, but no ruling was made on this motion and counsel did not press for a ruling. No objection was made or exception taken to Lieberman’s testimony as to the earlier conversation. The jury was not told to disregard the testimony in considering the evidence against Peller, and counsel did not request such instructions. This situation requires consideration as to whether justice requires a new trial ”, although no ruling was requested limiting the effect of this testimony so that it should not be regarded as incriminating Peller. We are unable to avoid conviction that the testimony, received without limitation and without instructions that the jury should disregard it in the consideration of the case against Peller, was highly prejudicial and may well have turned the scales against Peller in the jury’s consideration of the case. We are led to this conclusion by the importance which this testimony assumed in relation to the theory of the prosecution as explained in the judge’s charge. Quite properly, the trial judge emphasized repeatedly the necessity of finding a conspiracy to kill Weinberg in which Popek, Podinker and Peller were engaged. Having thus fixed the attention of the jury upon the alleged conspiracy among the accomplice and the two defendants, the court reviewed the testimony given by the People’s witnesses and the testimony given by the defense and in the course of this review recited the conversation which Newburg testified occurred three or four days after the death of Weinberg, when he accompanied Podinker and Popek to his apartment, where Popek said that Peller had given him only ninety dollars for the killing of Jocko and that Peller had promised him much more. Then, referring to all the testimony of Newburg previously summarized, the court continued: The People assert that this testimony of Newburg’s tends to support the testimony of the accomplice Popek inasmuch as, they say, it is tantamount to an admission by Podinker that he shared in the proceeds of the money received for the killing of Weinberg, and that he expected to share in whatever proceeds came from such enterprise, including anything that Popek got from Peller.” There was no instruction at this or at any other time that such testimony was not evidence against Peller.

Again, in summarizing Lieberman’s testimony to the conversation on the day following the murder, the court said: Levy [Lieberman] said on the following day he met Popek and Podinker in a restaurant, and that Popek asked him if he had seen anything the night before and he told him he had not. Levy then said that Popek told him that Weinberg had it coming to him because he had taken a lot of trade from Peller. And Podinker, who was with Popek, said nothing.

“ Levy said he again met these same two men in the same restaurant the following night, and Popek again began talking about Weinberg having it coming to him. Popek said, in the presence of Podinker, that he, Popek, éxpected Peller to put him and Podinker on the payroll for $50 a week.”

Again there was no instruction to the jury that these highly incriminating remarks in regard to Peller, picturing him as paymaster of the assassins, should not be considered against Peller himself. A fair trial demanded that such testimony — particularly in a case dependent upon proof of conspiracy — should be submitted to the jury only under careful and proper instructions limiting its effect as the defendant Peller was entitled to have it limited. In the absence of instructions, we may not fairly assume that the jury disregarded this testimony in considering the evidence against Peller; nor may we conclude that testimony so highly prejudicial, if regarded by the jury in considering the case,against Peller, did not affect its verdict against him.

We find no error in the record upon which the verdict against Podinker may be set aside. Accordingly, the judgment of conviction of the defendant Podinker should be affirmed, and the judgment of conviction of the defendant Peller should be reversed and a new trial ordered as to him.

Lehman, Ch. J., Lewis and Conway, JJ.,

concur; Rippey, J., concurs as to Podinker, but votes to reverse the judgment of conviction and to dismiss the indictment as to Peller on the ground that the evidencé is insufficient, as a matter of law, to sustain his conviction beyond a reasonable doubt; Lotjghban and Desmond, JJ., dissent in part in the following memorandum: “ If there is to be a new trial here, it should be on the firm ground that the People’s witnesses just could not be believed. That requires a new trial for Podinker as well as for Peller, and we so vote.”

Judgment accordingly.


author: Cokway, J.

text:
    In the Matter of Jack Weiss, Respondent; Meyer Rubin, Doing Business under the Name of Parkside Meat Market, Appellant.
    Submitted October 5, 1943;
    decided December 8, 1943.

      Asher Zeide for appellant.
    A judgment debtor in an action arising out of tort is not entitled to exemption from arrest priot to his actual arrest. (Matter of Perine, 158 Misc. 597; Matter of Berman, 244 App. Div. 95.)

      Samuel Witte and Sidney Holtzman for respondent.
    The action in which appellant recovered judgment based upon fraudulent representations was upon contract within the meaning of the statute, article 4, section 101, of the Debtor and Creditor Law. (Develin v. Cooper, 84 N. Y. 410.)
   Cokway, J.

This is an application under Debtor and Creditor Law, article 4, for the exemption from arrest of an alleged insolvent debtor. In order for the court to grant the application it was necessary that it be established to its satisfaction that the debt arose .upon a contract previously made by the petitioner. (Debtor & Creditor Law, § 101.) In opposing the application, one of the creditors, Meyer Rubin doing business as Parkside Meat Market, made proof of the fact that his judgment was obtained in an action commenced in the Municipal Court of the City of New York upon an oral complaint which alleged: Action to recover the sum of $161.90 for fraud of the defendants, Jack Weiss and Nathan Reichman, in connection with the sale and delivery of meat products to Court House Griddle Corp. although duly demanded no part has been paid.” The petitioner Weiss was the only defendant served and, after trial before a court and jury, judgment was rendered against him. By that judgment it was provided “ that the plaintiff have execution therefor, against the property and person of the defendant, Jack Weiss.” It was following the entry of judgment and prior to arrest that petitioner made the application now before us.

In the schedule attached to his petition, required by Debtor and Creditor Law, section 102, petitioner listed Rubin as an unsecured creditor and asserted: “ This creditor recovered a judgment in the Municipal Court of the City of New York, Borough of Queens, Fifth District, on the 5th day of December, 1941, on a cause of action for alleged fraudulent representations in the sale of meat to Courthouse Griddle Shop, Inc., a corporation of which petitioner was a principal officer and agent.”

The question presented is whether it has been established that the debt to Rubin arose upon a contract. It seems to us that it has not. The petitioner was sued individually according to his own statement “ on a cause of action for alleged fraudulent representations in the sale of meat ” to a corporation of which he was an officer and agent. If the cause of action had been upon contract the corporation would have been the party defendant. The fraudulent representations to which petitioner refers must of necessity have been in connection with a contract made between persons other than petitioner. The oral complaint also indicates that. The words of the statute “ arising upon a contract previously made ” mean a debt created by contract even though fraud entered into the creation of the contract debt. That was the situation in Develin v. Cooper (84 N. Y. 410, 418.) There there was a contract made and a debt arising under it although the debtor had been guilty of fraud in contracting thp debt and incurring the obligation. That is not this case. Here the petitioner made no contract and no indebtedness by him arose by reason of any contract. Petitioner’s liability was in tort due to his fraud committed in connection with a contract made between two persons other than himself and to which he was not a party.

The orders should be reversed and the petition dismissed, with costs in all courts.

Lehman, Ch. J., Bippey, Lewis, Desmond and Thaoher, JJ., concur; Lottghran, J., concurs in result.

Orders reversed, etc.


text:
    The People of the State of New York, Respondent, v. Lloyd Jackson, John Greene and Wilton Munford, Appellants.
    Argued October 11, 1943;
    decided December 8, 1943.

      Michael Kern and William, Leibowits for Lloyd Jackson, appellant.
    The testimony of the witness Bey should have been rejected by the trial court as unworthy of belief; in any case it was not binding on defendant Jackson. (People v. Weiss, 290 N. Y. 160; People v. Ledwon, 153 N. Y. 10; People v. Pignataro, 263 N. Y. 229.) The testimony was insufficient to establish that defendant Jackson conspired or aided, abetted or otherwise participated in the killing of the deceased; in any event the verdict was against the weight of . the evidence. (People v. Fitzgerald, 156 N. Y. 253; People v. Weiss, 290 N. Y. 160; People v. Razezicz, 206 N. Y. 249; People v. Woltering, 275 N. Y. 51; People v. Suffern, 267 N. Y. 115.)

      Joseph J. Zeiger and Ella Bernard for John Greene, appellant.
    It was reversible error for the trial court to permit the jury to consider as against the defendant Greene the testimony as to the alleged motive of the defendant Munford to kill the deceased. (People v. Weiss, 290 N. Y. 160; People v. Fitzgerald, 156 N. Y. 253; People v. Bennett, 49 N. Y. 137.) It was reversible error for the trial court to permit the testimony of the defendant Munford to be used against the defendant Greene to show that the defendants killed the deceased and to show that the stabbing took place on the street. (People v. Ledwon, 153 N. Y. 10; People v. Corbisiero, 290 N. Y. 191; People v. Golden, 240 N. Y. 17; People v. Van Zile, 143 N. Y. 368; People ex rel. Perkins v. Moss, 187 N. Y. 410; People v. Miller, 247 App. Div. 489; People v. Van Wormer, 175 N. Y. 188.)

      Frederick L. Kopff, Rudolph Stand and Benjamin Glass for Wilton Munford, appellant.
    The judgment should be reversed as the conviction of all three defendants was on the theory of a conspiracy to kill and such a conspiracy was not established beyond a reasonable doubt. The paramount issue as to the alleged conspiracy to kill was for the determination of the jury and the court committed prejudicial error in ruling as a matter of law, that there was a continuing conspiracy. (3 Warren on Homicide, § 318; People v. Ohanian, 245 N. Y. 227; People v. Walker, 198 N. Y. 329; People v. Weaver, 177 N. Y. 434.) For all that appears, the knife found by the officer inside an iron fence, may have been there for days, weeks, or months preceding the fatal night in question. There was not sufficient connecting testimony of any other kind which justified the admission in evidence of the weapon found by the officer. (People v. Kinney, 202 N. Y. 389; Wharton on Homicide 3d ed., pp. 945-6.)

      Thomas Gradock Hughes, Acting District Attorney (Henry J. Walsh of counsel), for respondent.
    The appellants’ guilt was proved beyond a reasonable doubt. (People v. Van Tassel, 156 N. Y. 561; People v. Weiss, 290 N. Y. 160.) Mere presence at the scene of the crime — of all of the appellants — cannot be detached from the previous declaration of the conspirators: “ Let’s kill him.” (People v. Woltering, 275 N. Y. 51.) The jury was entitled to say that the story unfolded by Munford was an untruth and to find that the knife found inside the fence surrounding St. John’s Hospital was the knife with which he had stabbed the deceased.
   Lewis, J.

The three appellants, Wilton Munford, Lloyd Jackson and John Greene stand convicted of murder in the first degree upon an indictment which charged that on May 26,1942, in Kings County, they stabbed and killed Booker T. Bason.

The decedent operated a gambling room in his living quarters in a second floor apartment at the northwest corner of Herkimer Street and Albany Avenue in Brooklyn. As a prologue to proof of the homicide and as evidence of a motive for the crime, witnesses for the People testified that three days prior to the death of Bason, on a Saturday evening when the defendant Munford was present at the apartment engaged in a game of dice, Bason had accused Munford of cheating at the game and had compelled him to return his winnings to the board. Munford, testifying in his own behalf, gave a different version of that incident, it being his contention that he returned his winnings only when Eason, with knife in hand, was in the act of robbing him. There is a conflict in the evidence as to whether the defendants Jackson and Greene were present on that occasion. However, there is no evidence that either of them had any part in the altercation which then took place between Bason and Munford.

Passing to testimony descriptive of events of the following Tuesday night — the night of Eason’s death — it appears that at about nine o’clock the defendants Jackson and Greene met the defendant Munford on the street and accompanied him to the Bason apartment. The People contend that Munford’s return to the Bason game room on that Tuesday night was motivated by his desire to retaliate for the treatment he had received at the hands of Eason on the prior Saturday night. The three defendants deny that a vengeful purpose prompted them to go to the Eason apartment, their contention being that their presence there on Tuesday night was for the sole purpose of joining in a game of dice.

In view of the manner in which evidence of the events of that night was developed on the trial, the problem which the case presents is made more clear if reference is first made to portions of the defendants’ evidence.

Munford was the only defendant who testified at the trial. Prom his testimony it appears that when the three defendants entered the Eason apartment on Tuesday night they went directly to the game room where they found three men, including Eason, standing about a table. As Munford advanced into the room he noticed that Eason started to frown his face and opened his eyes and bite his lips ”. He then saw Eason put his hands in his pockets “ as if to open a knife * e * He put his hand behind his back * * When Munford turned to leave the room he noticed Eason coming around the table toward him. Munford then said to Eason “ Mr. Houseman can I speak to you? ” Eason, who had a knife in his hand, then struck several times at Munford who in turn seized Eason’s arm and, drawing his own knife, proceeded to start cutting with it ”. Munford admitted that in the melee which followed he plunged his knife into Eason’s back,— his contention being that he did so to defend himself from Eason’s attack. Eason then ran from the game room with the knife protruding from his back. In an effort to recover his knife Munford followed him through the adjoining living room and down the front stairs to the street, where the two men — Eason being in the lead — ran one block south along Albany Avenue to Atlantic Avenue where they turned to the east. In the meantime, as they had passed along Albany Avenue, and while Eason was still running, Munford had seen him reach up with his hands and pull something out [and] throw it on the ground ”. Having proceeded along Atlantic Avenue for a distance Eason stopped, turned and walked back to meet Munford. As the two men met, Eason — who had his own knife in his hand — , said to Mun-ford, Jumbo, * * * take my knife. I am sorry what I did. Please don’t bother me no more ”. Munford then took the proffered knife and Eason went on his way alone toward his home. He died at his apartment at about midnight, the cause of death being a stab wound. Munford denied that he cut Eason at any time after they left the game room in the latter’s apartment.' It is Munford’s further testimony that he did not see either Jackson or Greene after leaving Eason’s quarters until after Eason had handed him the knife. At that time, when Jackson and Greene had come up to a point near him on Atlantic Avenue, Munford heard Jackson inquire whether he (Munford) had been cut. Munford admits that a day or two after the stabbing affray he learned that Eason’s brother and friends were making threatening inquiries concerning his (Munford’s) whereabouts. At that time, although he claims he was not then aware he had killed Eason, he fled to Baltimore because he was in fear for his own life.

l The jury rejected the defendant Munford’s testimony that the stab wound he had inflicted upon Eason occurred in the latter’s apartment and that his act was one of self-defense against a knife onslaught by Eason. Instead the verdict indicates the jury’s acceptance of the People’s theory that the wound which caused Eason’s death was inflicted by Munford at a point on Atlantic Avenue to which he had pursued Eason after the preliminary brawl in the game room and their exit from the apartment. The verdict would also make it appear that the jury credited the People’s theory-that the defendants Jackson and Greene conspired with Munford to bring about the death of Eason.

' Evidence that Jackson and Greene were present in the game room on Tuesday night, during the encounter between Munford and Eason, and that they were present later on Atlantic Avenue near the point where Munford admits he met and talked with Eason, was not enough to establish beyond a reasonable doubt that they aided, abetted or participated in the killing. (People v. Weiss, 290 N. Y. 160, 170; People v. Ligouri, 284 N. Y. 309, 318.) If the judgment convicting Jackson and Greene of murder in the first degree is to be upheld, there must be evidence sufficient in law to justify the inference that they “ counseled or induced or encouraged the crime ”. (People v. Swersky, 216 N. Y. 471, 476.) We turn then to the People’s case against the three defendants.

i The only witness called by the prosecution who observed the encounter between Munford and Eason in the game room on Tuesday night was a man who from his position in the adjoining living room observed that during the altercation Eason had grasped Munford’s hand which held a knife. That witness saw Jackson and Greene in the game room at the time but he swore that he saw no participation by them in the tussle which took place there between Munford and Eason. Indeed it is his testimony that when the affair was at its height he heard Jackson say Don’t hit him no more ”. From witnesses who were seated in the living room the prosecution adduced testimony that after the commotion in the game room had gone on for a time Eason ran out into the living room and down the stairs followed by Munford and later by Jackson and Grreene. These witnesses saw a knife in Munford’s hand — the only, knife observed — as he passed through the living room. They saw no blood.

In an effort to establish what occurred after Eason fled from his house pursued by Munford, the People called the witness Bey upon whose testimony the prosecution places its chief reliance to sustain the judgment of conviction against each of the three defendants. Bey had gone to the Eason apartment at an earlier hour that night and had left the place about eleven o’clock. He testified that while he was standing or sitting inside ” his car, which was parked in front of the Eason apartment on Herkimer Street, he saw Eason run from his house. After a lapse of one or two minutes he saw three men come from the Eason house walking “ abreast form ” and following Eason at a distance of about thirty feet southerly along Albany Avenue. Bey swore that upon reaching the corner of Atlantic Avenue they all turned easterly and that he did not see Eason after he turned the corner ”.

On the first day of the trial when Bey was on the witness stand he was asked repeatedly — more than twenty times — whether he recognized or could identify the three men who came from Eason’s house and followed him along Albany and Atlantic Avenues. In response to each of these inquiries Bey stated in substance that he was unable to recognize them, his voluntary explanations being I can’t describe the fellows because it was dark ”, or I did not notice faces because I was starting the car ”. When persistent inquiries had failed to bring forth from the witness testimony leading to the identity of the three men who followed Eason, a recess was declared until the following day. When the court reconvened Bey was recalled to the stand for further direct examination and promptly identified the three defendants as the men he had seen follow Eason from his house. The witness testified further upon direct examination that after the three men had passed him at the curb in front of Eason’s apartment he started his car and followed them easterly along Atlantic Avenue. Upon reaching Troy Avenue he turned to the south and followed them as far as Bergen Street where his tour of observation ended. There is no testimony from Bey that he saw Eason at any point along the several blocks through which he followed the three men. He does not say that he saw any commotion or that the three men stopped at any time during the course over which he followed them. Indeed Bey did not change his testimony, given on the previous day, that he did not see Eason after the latter had turned from Albany Avenue easterly into Atlantic Avenue.

We come then to Bey’s last answer which is of vital importance to the People’s case and in connection with which a statement was made by the Court which we believe was prejudicial to the defendants’ rights: “ Q. When you saw the three defendants come out of the house and go over from Herkimer Street to Albany Avenue, did you hear something said; yes or no? A. I did. Q. Tell us what you heard. Mr. Kopff [counsel for the defendant Munford] : I object to it. Miss Bernard [counsel for the defendant Greene]: Objection on the part of John Greene. Mr. Leibowitz [counsel for defendant Jackson] : I further object unless the witness can say which one of the defendants said anything. The Court: I will permit the witness to state what was said by any one of the three. If the statement came from any one of the three I will permit it irrespective as to whether or not he can tell which one said it. Mr. Leibowitz: I respectfully except. The Court: On the ground there is a continuing conspiracy at that particular time. Mr. Leibowitz: I object to that statement, if the Court please. The Court: You may have your objection and your exception. Q. What was said by any one of those three men? A. I heard one of the three say, ‘ There goes that nigger. Let’s catch him and kill him ’, and they started running after him.” (Emphasis supplied.)

Whether a conspiracy existed among the three defendants to accomplish Eason’s death became one of the principal questions of fact to be determined. In the absence of evidence, direct or circumstantial, that either Jackson or Greene stabbed Eason, we may assume from the verdict of first degree murder returned against each of the three defendants that the jury found as a fact that they were guilty of a conspiracy to kill Bason. Upon that question of fact the testimony of Bey was of vital importance. We have seen that when first examined on the subject he repeatedly denied his ability to identify the three men who followed Bason from his house. He had stated definitely the reasons why he could not identify them. When on the following day Bey changed his former testimony and readily identified the three defendants, and then told the jury that he “ heard one of the three say ‘ There goes that nigger. Let’s catch him and kill him ’ * * * ”, he gave in that brief answer testimony which was of crucial consequence to the defendants. The answer itself came into the record only after counsel had objected to the question unless Bey could tell the jury “ which one of the defendants said anything ”. We cannot say that the jury’s finding upon the important question of f act —- whether the defendants conspired together to kill Bason — was not influenced by the language of the trial judge who in his ruling stated that he would permit Bey to testify as to what he heard irrespective of whether or not he can tell which one said it. * * * On the ground there is a continuing conspiracy at that particular time.” We think the words italicized in the ruling last quoted above were prejudicial to the defendants’ substantial rights. They related to an important phase of the case. They were spoken by the Court at a critical point in the trial and may well have led to the jury’s finding upon a question of fact which was exclusively for its decision.

The People contend, and the jury must have found, that Bason was fatally stabbed by Munford at a point on Atlantic Avenue approximately seventy-five feet east of Albany Avenue. There was no direct proof to that effect. To fix that location as the site of the crime the prosecution relied upon circumstantial evidence. A police officer testified that on the morning after Bason’s death he found a knife lying at a point seventy-five feet east of Albany Avenue within a grass plot behind an iron fence which runs along the northerly sidewalk of Atlantic Avenue. The knife was not identified as ever having been in the possession of Munford or any one else. Although no witness was called who had ever seen the knife before, except the police officer who found it, and despite the uncontradicted testimony of Munford, adduced by the District Attorney, that the knife was not his and that it differed in several particulars from the knife he had used in his encounter with Eason in the latter’s game room, it was offered in evidence by the prosecution and received under the ruling — ‘ ‘ Admitted. Question of fact for the jury,” The finding of an unidentified knife in a grass plot near Atlantic Avenue afforded no legal" sanction for an inference that the crime with which these defendants are charged was committed nearby. The inference which the jury was permitted to draw — that the place where the unidentified knife was found marked approximately the site where Munford inflicted upon Eason a fatal knife wound — was based upon conjecture, not upon known or proven facts which are essential and alone give probative value to circumstantial evidence. (People v. Weiss, supra, p. 163; People v. May, 290 N. Y. 369, 371; People v. Woltering, 275 N. Y. 51, 61; People v. Suffern, 267 N. Y. 115, 127; People v. Razezicz, 206 N. Y. 249, 269-273; People v. Fitzgerald, 156 N. Y. 253, 258.)

These considerations lead us to conclude that the judgments of death entered herein should not be executed upon the present record. Justice to the,defendants’ rights requires a new trial.

The judgments of conviction should be reversed and a new trial ordered.

Lehman, Ch. J., Loughban, Rippey, Conway, Desmond and Thacheb, JJ., concur.

Judgments of conviction reversed, etc.


author: Lewis, J. Conway, J.

text:
    John L. Campbell, Respondent, v. City of New York, Appellant.
    Reargued December 1, 1943;
    decided December 8, 1943.

      Robert H. Schaffer, Acting Corporation Counsel (John G. Clancy, James Hall Pr other o and Paul E. Fusco of counsel), on original argument, and Ignatius M. Wilkinson, Corporation Counsel (John G. Clancy, Nicholas Bucci and Howard C. Fischbach of counsel), on reargument, for appellant.
    Plaintiff admittedly is not a “ complainant.” He is not a “ person affected ” within the contemplation of subdivision 8 of section 220 of the Labor Law by the Comptroller’s determination, for any period prior to November 10, 1939, the date of such determination. Defendant’s motion for summary judgment should therefore have been granted. (Matter of Heaney v. McGoldrick, 286 N. Y. 38; Matter of Gaston v. Taylor, 274 N. Y. 359; Matter of Rooney
      v. McGoldrick, 280 N. Y 632; Matter of Mount Hope Development Corp. v. James, 233 App. Div. 284, 258 N. Y. 510; Matter of Carr v. Kern, 279 N. Y. 42; Matter of Simpson v. Taylor, 278 N. Y. 643; Bouton v. Van Buren, 229 N. Y. 17; Adelson v. Sacred Associates Realty Corp., 192 App. Div. 601; Bickford’s Inc. v. Federal Reserve Bank of New York, 5 F. Supp. 875; Warnock Uniform Co. v. Garifalos, 224 N. Y 522.)

      David A. Savage and Maurice Breen for respondent.
    Plaintiff is a “ person affected ” by the determination of the Comptroller, under paragraph 8 of section 220 of the Labor Law, and was entitled to recover the prevailing rate as determined by the Comptroller’s determination from the date of filing the verified complaint. (People v. Dethloff, 283 N. Y. 309; Matter of Carder Realty Corp. v. Perkins, 237 App. Div. 152, 261 N. Y. 634; Matter of Heaney v. McGoldrick, 286 N. Y. 38; McAvoy v. City of New York, 52 App. Div 485, 166 N. Y. 588; Ryan v. City of New York, 177 N. Y. 271; McMahon v. Mayor of the City of New York, 22 App. Div. 113; McCunney v. City of New York, 40 App. Div. 482; McCann V. City of New York, 52 App. Div. 358, 166 N. Y. 587; Campbell v. City of New York, 244 N. Y. 317; Wright v. State, 223 N. Y. 44; Austin v. City of New York, 258 N. Y. 113.)
   Lewis, J.

The statute law of this State requires that the wages of laborers, workmen and mechanics engaged upon public works shall be not less than the rate prevailing in the same trade or occupation in the locality where the public work is being performed. (Labor Law, § 220.)

On November 10, 1939, the Comptroller of the City of New York, having followed procedure set forth in section 220 id., filed in his office an order by which he determined that since January 1, 1935, the prevailing rate of wages for wiremen in the city was $9 a day. The plaintiff, a wireman, had been employed in the City Fire Department from January 1, 1935, to December 31, 1937, at a daily wage of $7.78, his total pay for that period having been $6,006.25. Claiming that during that period, according to the Comptroller’s prevailing rate of wage order of November 10, 1939, he should have been paid at the rate of $9 a day, or a total of $6,975., the plaintiff has instituted the present action to recover the difference, viz., $968.75. In its answer the defendant City pleads as a separate defense that it was under no obligation to pay the plaintiff a difference in wages for any period prior to January 1, 1938, because — “plaintiff did not prior to January 1, 1938, file any verified complaint with the Comptroller of the City of New York as required by § 220 of the Labor Law regarding the rate of wages paid to said plaintiff as a wireman.”

At Special Term — where the plaintiff moved to strike out the defendant’s answer and for summary judgment, and the defendant by cross motion applied for an order dismissing the complaint — the court denied defendant’s cross motion and granted plaintiff’s application for an order striking out the answer and allowing judgment for the plaintiff in the sum of $968.75. Upon appeal by the defendant the Appellate Division modified on the law and facts the order of Special Term and the judgment entered thereupon, by reducing the amount of such judgment to $652.50. Upon granting the defendant’s motion for permission to appeal to this court, the Appellate Division certified the question: “ Should the defendant’s motion for summary judgment have been granted? ”

Under statutory procedure an investigation to determine the prevailing rate of wages of a trade or occupation in a given locality, is made by the “ fiscal officer ” — in this instance the Comptroller of the City of New York — either on his own initiative or upon a “ verified complaint in writing ” filed with the fiscal officer by “ any person interested ”. In the latter event the fiscal officer “ must ” cause an investigation to be made. (Labor Law, § 220, subd. 7.). A “ verified complaint ” as applied to a complaint against a municipality, is defined as including “ a verified demand or verified notice of claim * * * filed with the fiscal officer * * * ” {id. § 220, subd. 5, par. d). The statute provides further (§ 220, subd. 8): “ * * * When a final determination has been reached, if the determination is in favor of the complainant and involves or relates to the rate of wages paid on such public work, the complainant or any other person affected may within three months after the service of notice of the filing of said final order institute an action against the person or corporation found violating this act for the recovery of the difference between the sum actually paid and the amount which should have been paid as determined by said final order, from and after the date of the filing of said verified complaint or of filing report of investigation made on bis own initiative with the fiscal officer as hereinbefore provided.” (Emphasis supplied.)

In the present case the Comptroller’s order of November 10, 1939, resulted from a statutory investigation conducted by that officer after five wiremen — not including the plaintiff — had duly filed on January 7, 1936, verified complaints relating to the prevailing rate of wages of wiremen. As the investigation thus prompted progressed, other wiremen — twenty-three in number — filed verified complaints with the Comptroller and thereby became parties to the proceeding. In due time, after the Comptroller had determined that the prevailing rate of wages for wiremen was $9 per day, the twenty-three wiremen who had filed complaints were paid the difference between $7J8 aüd $9 per day for the periods of time to which they were entitled as fixed by the effective dates mentioned in their verified complaints. The plaintiff is one of eight wiremen who filed no verified complaint.

Despite the plaintiff’s failure to file a verified complaint, he has instituted the present action to secure the difference between the prevailing rate of $9 a day, as fixed by the Comptroller’s order, and the per diem wage of $7.78 received by him from January 1, 1935, to December 31, 1937. In connection with the latter date it should be said that the plaintiff has been paid the difference in wages in arrears beginning the following day, January 1, 1938, on which date the city inaugurated the practice of providing in the budget that the compensation of employees such as wiremen be fixed “ at the prevailing rate ” of wages.

Although conceding that he was not one of those complainants whose verified complaints initiated the Comptroller’s investigation which in turn brought about the order of November 10, 1939, the plaintiff asserts that he is a “ person affected ” by such order and accordingly is entitled to recover the differential below the prevailing rate of wages, as determined by the Comptroller’s order, from the date when a verified complaint was filed by someone other than himself. We think the plaintiff’s argument disregards the language of a subsequent provision in section 220, subdivision 8, which allows ‘1 the recovery of the difference between the sum actually paid and the amount which should have been paid as determined by said final order, from and after the date of the filing of said verified complaint * * * (Italics supplied.) We construe the clause in italics as we did when the same statute was under consideration in Matter of Gaston v. Taylor (274 N. Y. 359, 366) — “ • * * under the statute the fiscal officer’s determination relates only to the enforcement of the city’s obligation from the date of the filing of the verified complaint. Favorable determination may form the basis fór a cause of action arising thereafter.” We do not construe the statutory clause the complainant or any other person affected ” as including a person ■ — such as the present plaintiff — who filed no verified complaint. (See Matter of Carr v. Kern, 279 N. Y. 42, 48.) As to that portion of the statute we have said — ‘ The meaning of the statute is hardly subject to doubt. An employee who initiates the invegtigation is a person ‘ affected ’ by the investigation who is entitled to notice. So is an employer who must pay the rate determined by the investigation. Other persons in similar employ are not, for though they may, if they choose, claim the benefit of a determination, yet if they receive no notice of the investigation they are not bound by the determination in the same sense as the employee who initiated the investigation. ’ ’ (Matter of Heaney v. McGoldrick, 286 N. Y. 38, 44.) The plaintiff has already received benefit from the Comptroller’s determination of November 10,1939, — a benefit prospective in character which entitled him as a wireman to be paid $9 per day from the date of the Comptroller’s determination.

We hold that it is the plaintiff’s failure to file a verified complaint which prevents his recovering benefits antecedent to the Comptroller’s order.

The orders and the judgments should be reversed and the defendant’s motion granted, without costs. The certified question is answered in the affirmative.

Conway, J.

(dissenting). On November 10, 1939, the Comptroller of the City of New York, pursuant to the provisions of subdivisions 7 and 8 of section 220 of the Labor Law made and filed an order in his department fixing and determining the prevailing rate of wages of wiremen, effective January 1,1935. The names of no particular employees were mentioned in said order which reads in part as follows: “ Determined, that the sum of $1.12% per hour or $9.00 per day for an eight hour day is and has been since January 1, 1935 the prevailing rate of wage for wiremen holding positions of steady employment in the City of New York.”

At Special Term the plaintiff was granted judgment for the difference between the prevailing rate of wages as fixed by the Comptroller and the sum actually received by him from January 1, 1935 to December 31, 1937. The Appellate Division modified that judgment so as to provide that the plaintiff’s recovery be limited to the period commencing January 7, 1936, and ending December 31,1937. Apparently the Appellate Division decided that the plaintiff was entitled to the benefits accruing from the Comptroller’s order only from the date of the filing of a verified complaint by any one of the wiremen affected, namely January 7,1936.

Labor Law, section 220, subdivision 8, provides in part: * * * When a final determination has been reached, if the determination is in favor of the complainant and involves or relates to the rate of wages paid on such public work, the complainant or any other person affected may within three months * * * institute an action * * * for the recovery of the difference between the sum actually paid and the amount which should have been paid as determined by said final order, from and after the date of the filing of said verified complaint or of filing report of investigation made on his own initiative with the fiscal officer as hereinbefore provided.” (Italics supplied.)

The persons “ affected ” must necessarily be employees in similar employment, who have not filed complaints. To hold otherwise, it seems to us, would render meaningless the phrase or any other person affected ”. Every phrase in the statute must be given a meaning and a purpose if it be possible. (People v. Dethloff, 283 N. Y. 309, 315.) The statute gives a right of action against the employer and if that right of action was to be limited to persons who had actually filed a complaint, the words “ or any other person affected ” would not have been placed there by the Legislature. Labor Law, section 220, subdivision 7, makes this clear. It provides in part: ‘ ‘ The fiscal officer as herein defined (the Comptroller) may, on his own initiative and must, on a verified complaint in writing of any person interested, cause an investigation to he made to determine the prevailing rate of wages in the same trade or occupation * * *by the workmen, laborers and mechanics employed on such public work * * The verified complaint here was filed by a person interested. After the determination by the Comptroller, the plaintiff here was one of those affected ”. By necessary implication such was the basis of the decision in Matter of Carder Realty Corp. v. Perkins (237 App. Div. 152, affd. 261 N. Y. 634) although it was not the specific point litigated.

Moreover, it seems to us that we said as much in express language in Matter of Heaney v. McGoldrick (286 N. Y. 38, 44) although the construction of a provision of subdivision 8 other than the one on which plaintiff sued was in issue: ‘ ‘ The meaning of the statute is hardly subject to doubt. An employee who initiates the investigation is a person * affected ’ by the investigation who is entitled to notice. So is an employer who must pay the rate determined by the investigation. Other persons in similar employ are not, for though they may, if they choose, claim the benefit of a determination, yet if they receive no notice of the investigation they are not bound by the determination in the same sense as the employee who initiated the investigation.” (Italics supplied.)

In that case we construed the first sentence of Labor Law, section 220, subdivision 8, which reads as follows: “ Before proceeding under a complaint presented as provided in subdivision seven, or before making any order or determination upon an investigation made upon his own initiative, the fiscal officer shall order a hearing thereon at a time and place to be specified, and shall give notice thereof, together with a copy of such complaint or the purpose thereof, or a statement of the facts disclosed upon such investigation, which notice shall be served personally or by mail on any person or corporation affected thereby * * (Italics supplied.) We held that an employee who initiated the investigation was a “ person affected ” and was entitled to notice, but that other persons similarly employed were not.

, The employee who initiates the proceeding is, of course, the complainant and a party. As such he is entitled to notice. The employer is also a person or corporation affected and a party to the proceeding and is likewise entitled to notice. The thought that a party to the proceeding has rights which other persons do not have is further carried out in the fifth sentence of the subdivision, which reads as follows: “ Upon the entry of such order affecting either the hours of labor or rate of wages any party to the proceeding aggrieved thereby may review the said proceedings by a writ of certiorari within thirty days from the notice of the filing of the said order in the office of the fiscal officer.” (Italics supplied.)

The next sentence, however, carries a different thought: “ When a final determination has been reached, if the determination is in favor of the complainant and involves or relates to the rate of wages paid on such public work, the complainant or any other person affected may within three months after the service of notice of the filing of said final order institute an action against the person or corporation found violating this act for the recovery of the difference between the sum actually paid and the amount which should have been paid as determined by said final order, from and after the date of the filing of said ■ verified complaint or of filing report of investigation made on his own initiative with the fiscal officer as hereinbefore provided.” (Italics supplied.) If the determination is in favor of complainant (a party) he or any other person affected (not a party) may institute an action against the person or corporation found violating the act. The complainant in the last quoted sentence must be the employee, since the suit is to recover a difference in wages. Neither the complainant nor “ any other person affected ” could be the employer. Therefore the “ other person affected ” must be another employee. '

In the first sentence of subdivision 8 “ person or corporation affected thereby” means, as we read the Heaney case, the complainant who initiated the proceeding and the employer. In the sixth sentence the words “ complainant or any other person affected ” refers only to employees and must therefore refer to other employees than the complainant who initiated the proceeding.

Were the words “person affected” in the sixth sentence construed in the same manner as in the first sentence, i', e., as limited to parties to the proceeding, an unreasonable result would follow, thus: The sixth sentence provides that a suit maybe brought for the difference between the wages actually paid and the amount which should have, been paid after the date of the filing of a verified complaint or from the date of the filing of a report of an investigation made by the fiscal officer on his own initiative. In the latter instance there would be no complainant and the only parties would be the fiscal officer and the employer. Since neither of them may be the “ other person affected ” who may sue for wages, unless the “ other person affected ” is an employee in the trade or occupation for which the prevailing rate has been determined, the latter part of the sixth sentence would be meaningless.

In McAvoy v. City of New York, (52 App. Div. 485, 490, affd. 166 N. Y. 588) the proper rule of construction was indicated as follows; ‘ ‘ The policy of the law is that laborers, mechanics and workmen employed upon public work shall receive the prevailing rate of wages paid in the locality where they are employed. That policy is just as important with respect to men who are employed by a city as it is with reSpect to men who are employed by a contractor on work for the city. In each case the intent is to insure those laborers the same amount of wages which it has been found necessary to pay to secure the services of other men at the same sort of work, and to insure the payment to public laborers of the same wages which other men in the same locality at similar work, are accustomed to receive. The intention of the law is the thing to be sought and that is to be ascertained from the cau/se of the statute, and the policy as indicated by prior statutes, and where that is found no mere form of words should prevent its adoption, unless the form forbids such a construction(Italics supplied.)

A construction of the statute which would prevent a member of a class of employees entitled to payment of a prevailing rate of wages from receiving the same unless he had himself filed a verified complaint would be unreasonable and contrary to the purpose of the statute, which is to fix a prevailing rate of wages for all persons employed in the same trade or occupation in the same locality. (Labor Law, § 220, subd. 3.)

Any other construction would have the further unreasonable result of requiring the fiscal officer to determine separately the prevailing rate payable to each member of the class.

We must therefore hold that the plaintiff is one of those affected by the determination and may bring an action to recover the difference between the sum paid to him and the amount which should have been paid to him. He is entitled to recover that difference from the date of the filing of the verified complaint by the complainant in the proceeding instituted for the purpose of fiving the prevailing rate of wages. The “ verified complaint ” referred to in subdivision 8 is the verified complaint on which the final determination was made, since no other or different verified complaint is mentioned therein.

The judgment should be affirmed, with costs and the certified question answered in the negative.

Lehman, Ch. J., Loughran, Desmond and Crosby, JJ., concur with Lewis, J.; Conway, J., dissents in opinion in which Kippey, J., concurs.

Judgments reversed, etc.

       Designated pursuant to section 5 of Article VI of State Constitution in place of Thaoher, J., disqualified.