author: Lewis, J.

text:
    Dry Dock Savings Institution, Appellant, v. 103 East 75th St. Apartments, Inc., Respondent.
    Argued January 8, 1947;
    decided April 17, 1947.

      Ralph M. Carson, John H. Van Surdam and Taggart Whipple for appellant.
    I. As a matter of construction the two letters are not agreements extending the maturity date, but constitute merely acts of leniency, remission and waiver on the part of the mortgagee. (Metropolitan Savings Bank v. Tuttle, 290 N. Y. 497; City Bank Farmers Trust Co. v. Ardlea Corp., 267 N. Y. 224; Becker v. Faber, 280 N. Y. 146; Johnson v. Meyer, 268 N. Y. 701; Rochester Trust & Safe Deposit Co. v. Hatch, 273 N. Y. 507; Bank of New York v. Blumenthal, 285 N. Y. 598; White v. Wielandt, 259 App. Div. 676, 260 App. Div. 871, 286 N. Y. 609; East River Savings Bank v. 245 Broadway Corp., 284 N. Y. 470; Greenwich Savings Bank v. Cabin Holding Corp., 176 Misc. 89.) II. As a matter of law the letters do not fall within the moratorium legislation because they are mere agreements to accept a lower rate of interest for a limited period of time. (Title Guarantee & Trust Co. v. 2846 Briggs Ave., 283 N. Y. 512; East River Savings Bank v. 245 Broadway Corp., 284 N. Y. 470.)

      George W. Martin for Bank of New York, amicus curiae, in support of appellant’s position.
    I. The letters cannot constitute an extension agreement. II. The judicial denomination of the letters is labored and works injustice. III. The effort of the Legislature to permit interim arrangements without penalty has been defeated. (Title Guarantee & Trust Co. v. 2846 Briggs Ave., 283 N. Y. 512.)

      George L. Allin and Joseph R. Shaughnessy for respondent.
    I. The letter of January 10, 1941, was both a modification of the then existing extension agreement and a further extension of the mortgage. (Mortgage Commission v. Fay, 255 App. Div. 622, 281 N. Y. 637 (Title Guarantee & Trust Co. v. 2846 Briggs Ave., 283 N. Y. 512; O’Brien v. Young, 95 N. Y. 428.) II. The letter of December 21, 1942, again modified the agreement as to interest rate and continues to bind plaintiff' to that rate until the end of the emergency period, July 1, 1946. (Klein v. Simons Mfg. Co., 288 N. Y. 482.) III. The existing mortgage moratorium legislation does not operate as an extension of the due date of a mortgage nor does it modify an existing contract. (Kress v. Central Trust Co., 246 App. Div. 76, 272 N. Y. 629; Royal Court Realty Co., Inc., v. Thomas, 259 App. Div. 313; Maguire & Co. v. Lent & Lent, 277 N. Y. 694; Gelfert v. National City Bank, 313 U. S. 221; City Bank Farmers Trust Co. v. Ardlea Corp., 267 N. Y. 224.)
   Lewis, J.

The plaintiff-appellant, Dry Dock Savings Institution, is the holder of a consolidated bond and mortgage — originally in the amount of $350,000 — which is a lien upon premises now owned by the defendant-respondent, 103 East 75th Street Apartments, Inc. By this action the plaintiff seeks a declaratory judgment fixing 4% as the interest rate due upon its mortgage and payable at that rate by the defendant since November 1, 1943.

At Special Term the plaintiff’s motion for judgment on the pleadings was denied and judgment was granted in the defendant’s favor dismissing the complaint and adjudging that, during the statutory emergency period provided by article 65 of the Civil Practice Act, the annual rate of mortgage interest due to the plaintiff from the defendant shall be 1% and additional interest, if earned, not to exceed 2% per annum from November 1, 1942, payable quarterly until the termination of the statutory emergency. At the Appellate Division the order of Special Term was unanimously affirmed and a judgment was entered accordingly. The case is here on appeal by the plaintiff by our leave.

Both parties concede that by a formal extension agreement dated February 2, 1937, the maturity date of the consolidated mortgage — the original interest rate of which was 5% —was extended to August 1, 1941, and the- interest rate was reduced to 4% conditioned upon the amortization of principal in stated amounts.

Thereafter two letters addressed by the plaintiff to the defendant gave rise to this action. Our problem is to determine whether those letters constituted instruments in the nature of extension agreements which, within the provisions of section 1Q77-CC of the Civil Practice Act, required the plaintiff to accept a lower rate of mortgage interest until the end of the statutory emergency.

The first of the two letters, written by the plaintiff to the defendant on January 10, 1941, contained the following statement by the plaintiff:

“ In accordance with a discussion with your representative, Mr. Bancroft, we will continue to carry the present default of $3,101 in interest payments to December 31st, 1941. We will also accept interest from November 1st, 1940 to November 1st, 1941 at 3% provided $1,625 is paid on February 1st, 1941 and a like amount on the first days of May, August and November 1941.
“ Upon the payment of an additional $3,500 in reduction of the principal on or before December 31st, 1941 we agree to waive the deferred interest arrears of $3,101.
“We would appreciate having your acceptance on this arrangement.”
Pursuant to that first letter annual interest at the reduced rate of 3% was paid by the defendant and accepted by the plaintiff until November 1, 1942 — a date after the maturity, of the mortgage as formally extended.

In the second of the two letters, written to the defendant on December 21, 1942, the following statement was made by the plaintiff:

“ We desire to set forth our understanding of the arrangement that is to be in force for the period from November 1st, 1942 to November 1st, 1943.
“A — on our part we are to accept interest at 1% the remainder being waived unless earned. The maximum interest rate is to be 3%. All surplus earnings are to be accepted as amortization but are not to exceed $6,500.
“ B — on your part it is our understanding thát all cash on hand and all income to the ownership regardless of source is to be used to meet the operating and fixed charges of the property. You are to furnish us with a monthly statement that we may observe the progress of the property.
“ We do not intend that the foregoing is an extension of the maturity of the loan. It is merely an arrangement, under which the loan is running past due — i.e. on an open basis — should it remain with us.”

In accord with the letter last quoted above payments of interest were made by the defendant until November 1, 1943, after which plaintiff claimed interest at the rate of 4% as fixed by the formal agreement of February 2, 1937, which extended the maturity date until August 1, 1941. When the defendant refused to pay more than the rate fixed by the plaintiff’s second letter, of December 21, 1942 — viz., 1% with 2% additional if earned — the present action was instituted.

The refusal by the defendant to pay 4% interest on the mortgage was put upon the ground that each of the two letters quoted above amounted to an extension agreement within section 1077-cc of the Civil Practice Act. That statute provides: “ § 1077-cc. Interest on evidence of indebtedness originally contracted for simultaneously with mortgage. Notwithstanding any inconsistent provisions of this act or of any other general or special law, the rate of interest upon any loan, indebtedness, bond, extension agreement, collateral bond, or other evidence of indebtedness or liability, if the indebtedness originated or was originally contracted for simultaneously with a mortgage upon real property and is secured solely by such mortgage, shall not be increased by reason of the maturity of such obligation during the emergency period as defined in section ten hundred seventy-seven-g of this act, but shall continue after such maturity at the rate specified in such obligation until the expiration of such emergency period.”

Considering the two letters separately we conclude that as to the first (the letter of January 10, 1941) the courts below were right in ruling that the plaintiff thereby extended the mortgage until November 1, 1941. Upon that branch of the case we must consider section 1077-a of the Civil Practice Act, which provides in part: “ § 1077-a. Foreclosure for principal defaults suspended. During the period of the emergency as defined in section ten hundred seventy-seven-g * * * no action or proceeding for the foreclosure of a mortgage upon real property * * * shall be maintainable, solely for or on account of a default in the payment of principal secured by such mortgage * * * although the payment of such principal * * # may be due by the terms of such agreement, bond or mortgage * * *.

Notwithstanding the foregoing provisions of this section, any installments or amortization of principal, or principal which, by the terms of such agreement, bond or mortgage, have become due or shall become due and payable prior to July first, nineteen hundred thirty-four shall become and be due and payable six months after the expiration of such emergenoy0 period • •

“ Notwithstanding the foregoing provisions of this section, any installments or amortization of principal, or principal which, by the terms of such agreement, bond or mortgage, shall become due and payable between July first, nineteen hundred thirty-four and July first, nineteen hundred thirty-seven, inclusive, shall become and be due and payable one year after the expiration of such emergency period ’ ’.

We have seen that a formal agreement between the parties had extended the mortgage in suit to August 1, 1941. Prom that fact it follows that neither the second nor the third paragraphs of section 1077-a, quoted in part above, applies in this case and that the only portion of section 1077-a which is here applicable is the first paragraph. However, the first paragraph does not extend the,maturity date of the mortgage. It does no more than forbid its foreclosure by reason of default in principal payments during the then existing emergency period which, on January 10, 1941 — the date of the first letter — extended only until July 1, 1941. (See § 1077-g as amd. by L. 1940, ch. 566.) It follows that on the date of plaintiff’s first letter (January 10, 1941), which stated the bank’s agreement to reduce the mortgage interest conditioned upon certain principal payments until November 1,1941, the statutory emergency then effective terminated on July 1, 1941 — before the date (August 1, 1941) to which the maturity of the mortgage had been formally extended and before the date (November 1,1941) when the period terminated within which the plaintiff had agreed to accept mortgage interest at a reduced rate conditioned upon principal payments. It thus appears that on the date (January 10,1941) when the plaintiff’s first letter was written, there was no moratorium statute which prevented foreclosure of the mortgage on or after July 1, 1941. (The statute which extended the emergency from July 1, 1941 to July 1, 1943 [L. 1941, ch. 782] did not become effective until April 27,1941.)

In those circumstances we cannot agree with the plaintiff’s assertion that its first letter did not extend the maturity date of the mortgage and was no more than an act of leniency extended to its debtor. The plaintiff had expressly provided in its letter of January 10, 1941, that it would “ accept ” payments of principal, and of interest at the reduced rate of 3% until November 1, 1941 — three months after the extended maturity date of the mortgage (August 1, 1941). Implicit in that first letter was an agreement by the plaintiff that payment of the entire principal would not be enforced until on or after November 1, 1941,

In its prayer for relief the plaintiff asks for a declaratory judgment that it is “ * # * entitled to interest on its mortgage at the rate of 4% since November 1, 1943 to date and thereafter.” The legal effect of plaintiff’s second letter (December 21, 1942) thus becomes important. In determining whether the second letter served to extend to November 1, 1943, the maturity date of the mortgage we may not disregard the closing statement by plaintiff — “ We do not intend that the foregoing is an extension of the maturity of the loan. It is merely an arrangement, under which the loan is running past due — i.e. on an open basis — should it remain with us;” Finding in the language thus chosen by the plaintiff a clear and unequivocal statement of its intention not to effect thereby an extension agreement, we regard the second letter as nothing more than an act of leniency by the plaintiff toward the defendant as its debtor by which the plaintiff waived performance by the defendant of part of the latter’s obligation. (See Becker v. Faber, 280 N. Y. 146, 150-151.) Our conclusion in that regard is reinforced by the last clause of the letter — * * # should it remain with us ” — which indicates clearly that if the mortgage is transferred by the plaintiff the arrangement will terminate. The provision in the plaintiff’s second letter which permits “ amortization ” in the amount of $6,500 does not deplete the.impelling force of plaintiff’s declaration, quoted above, that it did not intend the second letter to be an extension of the maturity of the loan. In that connection it should be noted that amortization in that specific amount is not required, nor is a rate of amortization or a time of payment specified.

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

Loughban, Ch. J., Conway, Desmond, Thacheb, Dye and Ftjld, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. Lehigh Valley Railway Company et al., Respondents, against William H. Woodworth, as Assessor of the City of Rochester, et al., Appellants.
    Argued January 14, 1947;
    decided April 17, 1947.

      William H. Emerson, Corporation Counsel (Frederick J. Wilkens of counsel), for appellants.
    I. The bridge is real property owned by Lehigh Valley, and taxable as such. (Tax Law, § 2, subd. 6; People ex rel. N. Y. C. R. R. Co. v. State Tax Comm., 292 N. Y. 130; People ex rel. N. Y. & H. R. R. Co. v. Commissioners of Taxes, 101 N. Y. 322; People ex rel. New York Central R. R. Co. v. Graves, 260 App. Div. 227, 286 N. Y. 580; People ex rel. Hudson River Day Line v. Franck, 257 N. Y. 69.) II. The contributions made by the city and State to the cost of the bridge do not serve to give them any interest in its ownership. (People ex rel. N. Y. O. & W. Ry. Co. v. Tax Comrs., 215 N. Y. 434; People ex rel. New York Central R. R. Co. v. Graves, 260 App. Div. 227, 286 N. Y. 580; Matter of New York Central R. R. Co. v. Ferris, 255 App. Div. 112, 280 N. Y. 658; People ex rel. N. Y. & H. R. R. Co. v. Commisioners of Taxes, 101 N. Y. 322.)

      William F. Gleeson and Vernon C. Byder for respondents.
    The bridge is the property of the municipality and therefore not taxable to the railroad. (People ex rel. N. Y. O. & W. Ry. Co. v. Tax Comrs., 215 N. Y. 434; Matter of City of New York [Saratoga Ave.], 226 N. Y. 128; Matter of City of New York [Newport Ave.], 218 N. Y. 274; Matter of Central Hudson G. & E. Corp. v. Morgenthau, 234 App. Div. 530, 259 N. Y. 569; N. Y. C. & H. R. R. R. Co. v. City of Buffalo, 200 N. Y. 113.)
   Lewis, J.

This is a certiorari proceeding by the Lehigh Valley Bail Way Company and Lehigh Valley Bailroad Company to review assessments of an item of real property listed upon the assessment rolls of the city of Bochester for the years 1940, 1941 and 1942. It appears of record that all railroads, lands and bridges owned by the Lehigh Valley Bail Way Company are leased to Lehigh Valley Bailroad Company. Accordingly, for the purposes of this opinion, it will be convenient to refer to the two respondent railroad corporations as a single entity under the name “ Lehigh

The property involved in this proceeding is a railroad bridge which carries the Lehigh tracks over Elmwood Avenue in the city of Bochester. A claim of overvaluation originally asserted by Lehigh has been withdrawn leaving for our consideration the single issue whether the bridge is properly assessed as real property owned by Lehigh. It is Lehigh’s position that the bridge is owned by the City of Bochester and hence that it is illegally assessed against the respondents.

The issue thus tendered was submitted to an official referee who, upon stipulated facts, concluded that the Elmwood Avenue bridge is not the property of Lehigh and ruled that the assessments here challenged are illegal. Thereafter, upon appeal by the respondents, the Appellate Division unanimously affirmed an order of Special Term confirming the referee’s report. The case comes to us upon appeal by the respondents by our leave.

In 1921 and for a period of years prior to that date the Lehigh tracks had crossed Elmwood Avenue at grade. Those tracks were laid upon land of which title in fee had been acquired by Lehigh’s predecessor in T903. The Lehigh right of way at and near its former and present crossings of Elmwood Avenue runs parallel to and adjoins the right of way of the Erie Bail-road. The order of the Public Service Commission, presently to be considered, which called for the relocation of Elmwood Avenue so that it passed under the rights of way of both Lehigh and Erie, also provided that a single underpass to accommodate traffic on Elmwood Avenue as relocated was to be spanned by two separate railroad bridges. Those bridges — designed and to be built as separate structures — were located parallel and close together, one of which was to support the tracks of Erie and the other, which is the bridge with which we are now concerned, was to support the right of way and tracks of Lehigh.

In December, 1921, the City Council of the City of Bochester adopted an ordinance declaring that public safety required the separation of the grades of the Lehigh and Erie tracks from the grade of Elmwood Avenue by depressing that street beneath the two railroad rights of way. The proposed change involved the relocation of Elmwood Avenue so that it would pass under the tracks of the two railroads at a point four hundred feet south of the existing crossing. On the same date a separate ordinance was adopted declaring the intention of the city to acquire property specified therein for the proposed change in the location of Elmwood Avenue. Subsequently the city acquired property necessary for the new street location’but the property thus acquired extended only up to and did not include any portion of the Lehigh right of way. In that connection the stipulated fact is that at all times from 1903 to date Lehigh or its predecessors have held title in fee, simple to land constituting its right of way including the site of its present Elm-wood Avenue bridge which is the subject of the assessments, now challenged.

On April 4, 1924, the city filed with the Public Service Commission a petition alleging, pursuant to section 91 of the Bail-road Law, that public safety required the elimination of the railroad grade crossing at Elmwood Avenue and to that end requested an order directing that the grade crossing at that point be closed and that traffic be diverted through an underpass along a relocation of Elmwood Avenue to be constructed below the grade of the railroads. Thereafter, at hearings held by the Public Service Commission to determine whether public necessity required such changes, a controversy arose between the city and Lehigh as to the width of the proposed Elmwood Avenue underpass. The city urged that the underpass should be one hundred feet wide to accommodate existing and contemplated traffic conditions on that street. Lehigh objected to a width in excess of sixty-six feet. These different views of the problem were composed by an agreement between the city and the two railroads — Lehigh and Erie — whereby the city agreed to bear a portion of the cost of the elimination in excess of its statutory share, in return for which Lehigh withdrew its objection to the additional width.

In May, 1927, the Public Service Commission issued its order directing that the elimination proceed pursuant to the Grade Crossing Elimination Act. (L. 1926, ch. 233, as amd. by L. 1927, ch. 445.) Under that order Lehigh and Erie were to prepare plans and specifications for the elimination and do all the work thereby authorized and directed. The plans for the two separate parallel bridges and for an underpass affording a depressed way for Elmwood Avenue under the tracks of the two railroads were approved by the commission in 1927. Thereafter Lehigh constructed its bridge, the cost of which was paid by the State of New York, the City of Rochester and Lehigh in proportions fixed by statute (Railroad Law, § 94), subject, to the assumption by the city of items of additional cost resulting from its demand for an underpass of width in excess of sixty-six feet.

Important to our present inquiry is the fact that the Lehigh bridge here in controversy — designed and used only for railroad traffic — was constructed upon the right of way owned in fee simple by Lehigh. That fact, we think, serves to differentiate our present problem from facts which became decisive in People ex rel. N. Y., O. & W. Ry. Co. v. Tax Comrs. (215 N. Y. 434) — hereinafter referred to as the Oswego case — upon the authority of which the respondents have thus far succeeded in the present litigation.

In the Oswego case — which involved the assessment of a special franchise — the tracks of the relator railroad had long occupied under a local franchise a part of Schuyler Street, an established public thoroughfare running east and west in the city of Oswego. One of the streets leading into Schuyler Street from the south, but not intersecting it, was Seventh Street. In an effort by the Oity of Oswego to accomplish a street improvement project which had as its objective the extension of Seventh Street northerly from Schuyler Street, the problem arose as to how to avoid the danger to traffic on Schuyler and Seventh Streets which would result if railroad traffic east and west along relator’s tracks in Schuyler Street was permitted to cross Seventh Street (extended) at grade. That problem was solved when the city depTessed the grade of Seventh Street to an extent permitting its traffic north and south to pass under Schuyler Street through an underpass built to carry over Seventh Street (extended) the east and west traffic on Schuyler Street — including railroad traffic on the relator’s tracks. After the underpass was built and the railroad had contributed its agreed share of the cost thereof, the taxing authorities attempted to increase the special franchise assessment against the relator railroad for the franchise right by which its tracks occupied a part of Schuyler Street, by including within such assessment the portion of the cost of the underpass paid by the railroad. From the opinion of this court, per Hiscock, J., it. appears (p. 436) that the inclusion by the taxing authorities of the relator’s share of the cost of the underpass was “ * * * on the theory that said subway * * * [was] ‘ tangible property ’ of the relator ‘ situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise,’ and, therefore [was] assessable as part of its special franchise. (Tax Law [Cons. Laws, ch. 60], section 3.) ” (Emphasis supplied.) After commenting on the fact that “ * * * in the case of each item- there has been included in the assessment of the relator an item for the cost or value of a structure carrying a street * * * under relator’s railroad on the ground that such structure was part of its tangible property ” the opinion states (p. 437) —“ The relator was compelled to contribute to the expense of construction under the taxing power of the state, which had authority to place this burden upon it, and this burden of taxation was so placed upon it for the benefit of the public as part of the price of the privileges which the relator enjoyed rather than on any theory that the structure was necessary to the operation of its railroad or that it would become.the owner or possessor thereof. Its only interest, so far as concerns the question now being discussed, was that of a contributor and not of an owner. The structure was part of a public street and the relator had no control over the same or power to change it except upon the authority of proper officials. If it should have attempted to take possession of or remove or alter the subway or bridges, as it ought to have had the power to do if they were its property, no one doubts that its activities in that direction would have been quickly and summarily enjoined.” (Emphasis supplied.) It is thus apparent that insofar as the decision in the Oswego case relates itself to our present problem, a decisive fact in that case, which served to relieve the relator railroad from the added tax burden which it resisted, was the circumstance that it did not own the portion of Schuyler Street on which its tracks were laid but occupied that street only under a local franchise right.

In the case at hand the stipulated facts, as we have seen, are to the contrary. Here, significantly, two separate bridges span the new Elmwood Avenue underpass, one of which — the only bridge with which this proceeding is concerned — is constructed wholly upon the right of way owned in fee by Lehigh and used solely by Lehigh for railroad purposes. In view of differing relevant facts upon which rests the decision in the Oswego case we do not regard that ruling as supporting the position of Lehigh in this proceeding. Indeed, in the opinion in that case there are Statements which strongly support the position now taken by the appellants.

A decision which gives direction to our view of the proceeding now before us is People ex rel. N. Y. C. R. R. Co. v. Graves (260 App. Div. 227, affd. 286 N. Y. 580). That litigation was “an outgrowth of an extensive project for the elimination of railroad grade crossings in the city of Syracuse, the purpose of which was to promote public safety and convenience. By that proceeding the relator railroad challenged the legality of special franchise taxes based upon the assessed values of railroad bridges which it had been directed to erect to carry its tracks across twenty-seven public streets. Although the relator conceded that it or its lessor owned in fee the lands abutting on both sides of twenty-three of those street occupations, it contended that the structures within the streets were not its tangible property, within provisions of subdivision 6 of section 2 of the Tax Law, and that accordingly they did not afford legal bases for the assessment of special franchise taxes against the relator. That conclusion, it was argued, followed from the fact that at a time when its tracks and railroad facilities within the city of Syracuse were ample for local operating needs, the Public Service Commission l^ad ordered the elimination of local railroad grade crossings solely for the public benefit, the cost of which had been borne — 49% by the State of New York, 1% by the County of Onondaga and 50% by the railroad. (L. 1928, ch. 825, § 6, as amd. by L. 1929, ch. 656, § 6.) The ruling by the Appellate Division (260 App. Div. 227) affirmed by this court (286 N. Y. 580) was that the special franchise taxes there involved had been legally assessed. (See, also, Matter of N. Y. C. R. R. Co. v. Ferris, 255 App. Div. 112, affd. 280 N. Y. 658; People ex rel. Western N. Y. & Penn. Ry. Co. v. Tax Comrs., 256 App. Div. 104, affd. 281 N. Y. 639.)

We recognize that in the Graves case {supra) — a special franchise proceeding — the relator railroad resisted taxes imposed by reason of its occupancy of certain public streets, while by the present proceeding Lehigh resists the assessment of the bridge in suit as an item of real property which the city asserts is owned by Lehigh. However, we find that point of difference in the two cases to be a circumstance favorable to the appellants7 position: In the case at bar Lehigh owned and had prior occupancy of the land spanned by the new bridge over the new Elmwood Avenue underpass; while in the Graves case (supra) the lands spanned by the new bridges involved had previously been dedicated to public use for street purposes. In each case the question of prior ownership or occupancy is decisive of the particular issue to be determined. (Cf. People ex rel. N. Y. C. & H. R. R. Co. v. Woodbury, 203 N. Y. 167, 179-180; People ex rel. Western N. Y. & Penn. Ry. Co. v. Tax Comrs., 256 App. Div. 104, affd. 281 N. Y. 639.)

In its brief before us Lehigh has conceded that the fact that the City contributed to the cost of constructing the improvements does not of itself confer ownership on the City.7’ (See, also, People ex rel. N. Y., O. & W. Ry. Co. v. Tax Comrs., supra, pp. 437-438; People ex rel. N. Y. & H. R. R. Co. v. Comrs. of Taxes of N. Y., 101 N. Y. 322, 327.)

By subdivision 6 of section 2 of the Tax Law — “ The terms ‘ land,7 ‘ real estate,7 and ‘ real property,7 as used in this chapter, include the land itself above and under water, all buildings and other articles and structures, substructures and superstructures, erected upon, under or above, or affixed to the same; * * * all bridges, * # * all railroad structures, substructures and superstructures * * *.”

In People ex rel. N. Y. & H. R. R. Co. v. Comrs. of Taxes of N. Y. (supra) certain railroad viaducts and structures were erected pursuant to “ 'An Act to improve and regulate the use of the Fourth Avenue in the city of New York 77 to carry the tracks of the relator railroad company over Fourth Avenue (L. 1872, ch. 702). The railroad urged that these structures formed “ part of a public work 77 and belonged not to the railroad company, but to the city ”. Holding them taxable as real estate against the railroad company, this court stated (pp. 325-326): “ That the things in question form an essential and necessary part of the relator’s railroad, as now constructed within the city of New York, cannot be doubted; that of themselves they constitute land within the definition of that term, given in the statute relating to property liable to taxation (1 R. S., tit. 1, chap. 13, art. 1, § 2), is equally clear (People, ex rel. Elevated R. R. Co. v. Comrs. of Taxes, 82 N. Y. 459), and if so, they are liable to assessment to whomsoever has that interest in the real estate which will protect the erection or affixing thereon of these structures, and their possession.”

These considerations have led us to conclude that the Elmwood Avenue bridge erected by Lehigh on its own land to carry only its own railroad traffic is a railroad bridge owned by Lehigh. As such it is taxable against Lehigh under section 3 of the Tax Law which provides — “ All real property within the state is taxable unless exempt from taxation by law.”

The orders should be reversed and the petitions denied, with costs in all courts.

Lotjghrax, Oh. J., Coxway, Desmoxd, Thacher, Dye and Fuld, JJ., concur.

Orders reversed, etc.


author: Thacher, J. Fuld, J.

text:
    George W. Hartmann, Respondent, v. Walter Winchell, Appellant.
    Argued January 17, 1947;
    decided April 17, 1947.

      Walter B. Barry and Alexis Coudert for appellant.
    I. Broadcasting from a written script, if actionable, should be treated as slander rather than as libel. (Loche v. Gibbons, 164 Misc. 877, 253 App. Div. 887; Loche v. Benton & Bowles, Inc., 253 App. Div. 369; Polakoff v. Hill, 261 App. Div. 777; Meldrum v. Australian Broadcasting Co., [1932] Vict. L. R. 425; Sorenson v. Wood, 123 Neb. 348; Summit Hotel Co. v. National Broadcasting Co., 36 Pa. 182; Ostrowe v. Lee, 256 N. Y. 36; Hryhorijiv v. Winchell, 180 Misc. 574, 267 App. Div. 817.) H. The words uttered are not actionable as slander per se. (Kinney v. Nash, 3 N. Y. 177; Ireland v. McGarvish, 1 Sandf. 155; Weidberg v. La Guardia, 170 Misc. 374; Purdy v. Rochester Printing Co., 96 N. Y. 372; Oakley v. Farrington, 1 Johns. Gas. 130; Van Tassel v. Capron, 1 Denio 250; Moore v. Francis, 121 N. Y. 199.) III, The complaint contains no suEcient allegation of special damage. (Reporters Assn. v. Sun Printing & Publishing Assn., 186 N. Y. 437; Tower v. Crosby, 214 App. Div. 392.) IV. The words were not spoken of plaintiff and are not defamatory. (Hays v. American Defense Society, 252 N. Y. 266; Feely v. Vitagraph Co., 184 App. Div. 527; O’Connell v. Press Publishing Co., 214 N. Y. 352; Burton v. Crowell Publishing Co., 82 F. 2d 154; Garriga v. Richfield, 174 Misc. 315; Levy v. Gelber, 175 Misc. 746.)

      Sigmund Goldstein for respondent.
    I. The broadcast matter is libelous per se. (Cross v. Sylvia Silk Co., Inc., 222 App. Div. 134; Dansig v. Lacks, 235 App. Div. 189; O’Connor v. O’Connor, 263 App. Div. 820; Balabanoff v. Hearst Consolidated Publications, 294 N. Y. 351.) II. Beading defamatory matter from a prepared script, over the radio, constitutes a libel. (Hryhorijiv v. Winchell, 180 Misc. 574, 267 App. Div. 817;
      Metropolitan Life Ins. Co. v. Knickerbocker Broadcasting Co., 172 Misc. 811; The Mayflower Broadcasting Corp., 8 F. C. C. Rep. 333.) III. Holding that reading defamatory matter from a prepared script over the radio is libelous is neither novel nor new. (Hryhorijiv v. Winchell, 180 Misc. 596, 267 App. Div. 817; Metropolitan Life Ins. Co. v. Knickerbocker Broadcasting Co.,.172 Misc. 811; Polakoff v. Hill, 261 App. Div. 777; Curran v. Winchell, N. Y. L. J., March 13, 1941, p. 1141, col. 2; King v. Winchell, 248 App. Div. 809; Merle v. Sociological Research Film Corp., 166 App. Div. 376; Brown v. Paramount Publix Corp., 240 App. Div. 520; Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L. R. 581.) IV. The defamatory matter is libelous per se. In addition plaintiff. alleged the loss of his teaching and lecturing position with a loss to him of upwards of $7,000. V. Assuming, arguendo, that the broadcast references to plaintiff, read from the prepared script, do not constitute what is commonly termed a libel, nonetheless the complaint states a good cause of action. (Gale v. Ryan, 263 App. Div. 76.)
   Thacher, J.

The,motion to dismiss the amended complaint, pursuant to rule 106 of the Rules of Civil Practice, was denied, and this determination has been affirmed on appeal to the Appellate Division with leave to appeal to this court upon the following certified questions:

“ 1 — Does the utterance of defamatory remarks, read from a script into a radio microphone and broadcast, constitute publication of libel?

“ 2 — Does the further amended complaint state facts sufficient to constitute a cause of action? ”

The words of the broadcast were defamatory and were spoken of and concerning the plaintiff; they did not, however, defame, him in his professional character and were not slanderous per se (Kleeberg v. Sipser, 265 N. Y. 87, 91; Moore v. Francis, 121 N. Y. 199, 203; Kober v. Lyle, 173 App. Div. 655; Armstrong v. Sun Printing & Pub. Assn., 137 App. Div. 828, 831-832). Nor is the general allegation that plaintiff suffered a loss of earnings upwards of seven thousand ($7,000) dollars ” sufficiently specific to constitute an allegation of special damage — indispensible if reading from the script was not libel (Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377, 390; King v. Sun Printing & Pub. Assn., 84 App. Div. 310, affd. 179 N. Y. 600). If it was libel, both questions .must be answered in the affirmative; if not, both must be answered in the negative.

In Snyder v. Andrews (6 Barb. 43 [1849]), it was held that reading a defamatory letter in the presence of a stranger was a sufficient publication to sustain an action for libel (citing De Libellis Famosis, 5 Co. Rep. 125a [1605]; John Lamb’s Case, 9 Co. Rep. 59b [1610]). These decisions in Coke’s Reports were cited in Forrester v. Tyrrell (9 Times L. R. 257 [1893]), where the defendant, in the presence of others, read out an anonymous letter defaming the plaintiff, and Lord Esheb, in announcing the unanimous decision of the Court of Appeal, said: “In ‘ Anon ’ (5 Rep., 125a) and ‘ John Lamb’s Case ’ (9 Rep., 60) it was laid down that if a man read a libel on another to himself and then read it out that made him a libeller. It would be strange if it were not so. What was so laid down has been treated as clear law by books of authority ever since, and it showed that the publication here made the defendant a libeller of the plaintiff.” There are dicta to the contrary in Osborn v. Thomas Boulter & Son ([1930] 2 K. B. 226) but that decision went upon a question of privilege, which perhaps explains the fact that Forrester v. Tyrrell (supra) was not mentioned in the opinions of the judges or in the briefs of counsel as summarized by the reporter. By the great weight of authority in other States this rule coming down from Coke’s time and declared in Forrester v. Tyrell (supra) is the law today (M’Coombs v. Tuttle, 5 Blackf. [Ind.] 431; Bander v. Metropolitan Life Ins. Co., 313 Mass. 337; Peterson v. Western Union Telegraph Co., 72 Minn. 41; Ohio Public Service Co. v. Myers, 54 Ohio App. 40; Adams v. Lawson, 17 Grat. [Va.] 250).

We accept Snyder v. Andrews (supra) as a correct statement of the rule which still prevails in this State but it is said that this rule can have no application to radio broadcasting because the persons who hear the broadcast do not know that the spoken words are being read from a writing. This distinction was discussed in Meldrum v. Australian Broadcasting Co., Ltd. ([1932] Vict. L. B. 425) where broadcasting from a written script was held by the Supreme Court of Victoria to be a slander and not a libel. Cussen, Acting Chief Justice, rejected Forrester v. Tyrell (supra) upon this distinction. Upon appeal to the full court the judgment was affirmed, one of the judges holding the distinction quite immaterial, another repudiating the cases in Coke’s Reports cited in Forrester v. Tyrrell (supra) and the third expressing the view that the publication of a libel must convey to the mind of the person to whom it is published the permanent form in which it is expressed and recorded, citing, by analogy, defamation by statue, effigy or picture which may not be published by oral description. Defamatory words read from a script are published precisely as written. Mere description is in no sense a reproduction of pictorial defamation, which no doubt may be published by copy or photograph; but with that we are not concerned in this case.

Unless in the case of broadcasting we are prepared to do what Mansfield, Ch. J., in 1812 declared he could not do in Thorley v. Kerry (4 Taunt. 355, 364-365) namely, abolish the distinction between oral and written defamation, we must hold to the reason for the distinction so well expressed in a single phrase in Ostrowe v. Lee (256 N. Y. 36, 39): “ What gives the sting to the writing is its permanence of form;” This is true whether or not the writing is seen. Visibility of the writing is without significance and we hold that the defendant’s defamatory utterance was libel, not slander. We do not reach "the question, which has been much discussed, whether broadcasting defamatory matter which has not been reduced to writing should be held to be libellous because of the potentially harmful and widespread effects of such defamation. (See Restatement, Torts, § 568, subds. [1], [3], comments e, f, g.)

The order should be affirmed, with costs, and each certified question answered in the affirmative.

Fuld, J.

(concurring). Though I concur in the conclusion reached — that defendant’s utterance over the radio is actionable per se, without allegation or proof of special damage — I cannot agree with the court’s rationale. It impresses me as unreal to have liability turn upon the circumstance that defendant read from a script when, so far as appears from the complaint before us, none of his listeners saw that script or, indeed, was even aware of its existence. As I see it, liability; cannot 1 be determined here without first facing and deciding the basic question whether defamation by radio, either with or without a script, should be held actionable per se because of the likelihood of aggravated injury inherent in such broadcasting.

Traditionally, the distinguishing characteristic of a libel has been its expression in “ some permanent and visible form, such as writing, printing, pictures, or effigies ”, whereas a slanderous statement “ is made in spoken words or in some other transitory form, whether visible or audible, such as gestures or inarticulate but significant sounds.” (See Salmond on Torts [10th ed.], p. 370; 1 Street, Foundations of Legal Liability, p. 291.) Since “ the material part of the cause of action in libel is not the writing, but the publication of the libel ” (Hebditch v. MacIlwaine, [1894] 2 Q. B. 54, 58; Sheffill v. Van Deusen, 79 Mass. 304), logically consistent application of the classic criteria of libel would seem to require that the publication itself — by which the defamation is made known to third persons — be by writing or other visible or permanent instrumentality, rather than by mere speech. (See Osborn v. Thomas Boulter & Son, [1930] 2 K. B. 226, 231, 237; Meldrum v. Australian Broadcasting Co., Ltd., [1932] Vict. L. R. 425, 435, 438; Salmond on Torts [10th ed.], pp. 387-388; cf. also, Penal Law, § 1340,- defining a libel as “ a malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech * * [Emphasis supplied.])

Where, as here, the contents of a defamatory writing reach a third person only in the form of spoken words, of “ speech 8 * * upon the wing ” (Ostrowe v. Lee, 256 N. Y. 36, 39), and with no hint of the existence of a writing, there is a publication of words, not of writing, which, considered apart from Ahe distinctive features of radio broadcasting, would, by traditional standards, constitute slander rather than libel.

Our attention is directed to the decision of the English Court of Appeal in Forrester v. Tyrrell (9 Times L. R. 257 [1893]), and to American cases in accord, that the reading aloud of a libelous document in the hearing and presence of a third person amounts to the publication of a libel. Those decisions, however, rest upon the dubious authority of general propositions enunciated by the English Court of Star Chamber in two early seventeenth-century criminal cases (De Libellis Famosis, 5 Co. Rep. 125a [1605] ; John Lamb’s Case, 9 Co. Rep. 59b [1610]) long before the advent of the civil action of libel. (See 8 Holdsworth, History of English Law, pp. 364-365.) Extremely broad rules of criminal liability were formulated upon those two occasions: thus, in John Lamb’s Case (supra), it was announced that one who repeated in the hearing of others a libel which he had read or even had merely heard, was himself guilty of publishing a libel. Both cases involved prosecution for libel directed against certain ecclesiastical officials. Doubtlessly designed to aid the then purpose of the Crown to repress libels on Crown and Church officials (cf. 8 Holdsworth, History of English Law, pp. 337-341), and perhaps influenced by the policy of the Star Chamber to punish as a crime even speech of an allegedly seditious character (cf. 5 Holdsworth, History of English Law, p. 211; 8 Holdsworth, History of English Law, pp. 339-340), the broad rules of criminal liability thus declared by the Star Chamber are of highly questionable validity when applied to a civil remedy developed many years later and serving other ends.

It is significant that the most recent expressions on the subject by an English appellate court, albeit by way of dictum, are contrary to the view taken in Forrester v. Tyrrell (supra). (See Osborn v. Thomas Boulter & Son, supra, at pp. 231, 237.) Moreover, even were we to accept the decision in Forrester v. Tyrrell (supra) — that the reading aloud of a libelous document in the hearing and presence of a third person constitutes the publication of a libel — the same result would not necessarily follow when the hearer is unaware that the words are being read. There might, perhaps, be some basis for urging that where such a third person actually witnesses the reading of a written defamation, the extent of the consequent damage to reputation in the hearer’s estimation is the same as if he had himself read the document. But certainly, where he does not know, and is not made aware, of the existence of a writing, and the scandalous matter reaches him only in the form of spoken words, the resultant injury is essentially the same as if the defamatory words had been uttered without any writing. (See Lowe, J., in Meldrum v. Australian Broadcasting Co., Ltd., supra, p. 443; Davis, Law of Radio Communication, pp. 16Q-162.) The writing in such circumstances can have no “ sting ”. (See Ostrowe v. Lee, supra, p. 39.)

If the base of liability for defamation is to be broadened in the case of radio broadcasting, justification should be sought not in the fiction that reading from a paper ipso facto constitutes a publication by writing, but in a frank recognition that sound policy requires such a result. (Cf. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 9.) Abolition of the line between libel and slander would, I agree, be too extreme a break with the past to be achieved without legislation. (Cf. Ultramares Corp. v. Touche, 255 N. Y. 170, 187.) It is, however, the function of the courts, when called upon to determine which of two competing standards of liability shall be applied in a novel situation, to re-examine and reapply the old rules and to give them new content in the light of underlying vital principles. (See Oppenheim v. Kridel, 236 N. Y. 156, 164.)

The common-law action on the case for slander, in its sixteenth-century origin, embraced written as well as oral defamation, and the same rules were applicable to both. Certain classes of words — those charging the commission of a crime, those reflecting on one in his trade or profession, for instance — were held actionable per se, damage being presumed from the nature of the words used. All other defamation was actionable only upon allegation and proof of special damage. The newer tort of libel — adapted by the common-law judges in the latter part of the seventeenth century from the criminal law of libel administered in the Star Chamber — eliminated these refinements as regards written defamation, and made the writing itself presumptive proof of damage. (See Veeder, The History and Theory of the Law of Defamation, 3 Col. L. Rev. 546, 558; 8 Holdsworth, History of English Law, pp. 365-367.)

This emphasis on the form of publication was apparently designed to cope with the new conditions created by the development of the printing press. (See Jones v. Jones, [1916] 2 A. C. 481, 489; see, also, Veeder, The History and Theory of the Law of Defamation, 3 Col. L. Rev., pp. 561-563.) Another development, another invention — here the radio — invites a similar reappraisal of the old rules. (Cf. the decisions involving talking ” motion pictures, Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L. R. 581 [1934]; Brown v. Paramount Publix Corp., 240 App. Div. 520.)

Though some have said that the differentiation between libel and slander is the result of historical accident, without rational basis (see Carr, The English Law of Defamation, 18 L. Q. Rev. 255,388; Veeder, The History and Theory of the Law of Defamation, 3 Col. L. Rev. 571-573), this court, disagreeing, has regarded the “ schism ” as founded upon policy and “ not the product of mere accident (See Ostrowe v. Lee, supra, p. 39, per Cardozo, Ch. J.) If considerations of principle are to control, there is no valid reason why the same consequences should not attach to publication through the medium of radio broadcasting as flow from publication through the medium of writing.

The primary reason assigned by the courts from time to time to justify the imposition of broader liability for libel than for slander has been the greater capacity for harm that a writing is assumed to have because of the wide range of dissemination consequent upon its permanence in form. (See Pollard v. Lyon, 91 U. S. 225, 235; Ratcliffe v. Evans, [1892] 2 Q. B. 524, 530; see, also, Gatley on Libel and Slander, pp. 3-4.) When account is taken of the vast and far-flung audience reached by radio today — often far greater in number than the readers of the largest metropolitan newspaper (cf. Seelman on The Law of Libel and Slander, p. 3) —it is evident that the broadcast of scandalous utterances is in general as potentially harmful to the defamed person’s reputation as a publication by writing. That defamation by radio, in the absence of a script or transcription, lacks the measure of durability possessed by written libel, • in nowise lessens its capacity for harm. Since the element of damage is, historically, the basis of the common-law action for defamation (see Jones v. Jones, supra, p. 500), and since it is as reasonable to presume damage from the nature of the medium employed when a slander is broadcast by radio as when published by writing, both logic and policy point the conclusion that defamation by radio should' be actionable per se. (See e.g., Restatement, Torts, § 568, subd. [3] ; Vold, The Basis for Liability for Defamation by Radio, 19 Minn. L. Rev. 611, 639 et seq.; Finlay, Defamation by Radio, 19 Can. B. Rev. 353.)

The order should be affirmed, with costs, and the second question certified should be answered in the affirmative. The first question is not decisive of the appeal and should not be answered.

Loughban, Ch. J., Lewis, Conway, Desmond and Dye, JJ.> concur with Thachee, J.; Fuld, J., concurs in separate opinion.

Order affirmed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Eugene Onody, Appellant.
    Argued February 27, 1947;
    decided April 17, 1947.

      Michael M. Platsman for appellant.
    I. The information and proof did not establish a violation of section 483 of the Penal Law. (People v. Hopkins, 208 App. Div. 438, 239 N. Y. 589; People v. Lindloff, 259 App. Div. 749; Manhattan Co. v. Kaldenberg, 165 N. Y. 1; People ex rel. Hunt v. Lane, 132 App. Div. 406, 196 N. Y. 520; People v. Schwarts, 183 App. Div. 367; Cowley v. People, 83 N. Y. 464; Stenson v. Flick Construction Co., 146 App. Div. 66, 203 N. Y. 553.) II. Even if guilty of one of the crimes charged, the sentence should be reviewed. (Fitsgerrold v. People, 49 Barb. 122, 37 N. Y. 413; People v. Bork, N. Y. Crim. Rep. 393; Matter of Mix, 274 N. Y. 183.)

      Samuel J. Foley, District Attorney (George Tilser and Herman J. Fliederblum of counsel), for respondent.
    I. The information properly charged, and the evidence established, that defendant violated the provisions of section 483 of the Penal Law. (People v. Farson, 244 N. Y. 413; People v. Gibson, 232 N. Y. 458; People v. Hopkins, 208 App. Div. 438, 239 N. Y. 589; People v. Reger, 290 N. Y. 641; People v. Jaffe, 256 App. Div. 915; People v. Cummins, 209 N. Y. 283; People v. Dimick, 107 N. Y. 13; Hope v. People, 83 N. Y. 418; Phelps v. People, 72 N. Y. 365.) II. The sentence was proper and should not be disturbed. (People v. Thompson, 251 N. Y. 428.)
   Per Curiam.

There was ample proof to sustain the defendant’s conviction under the second count based on subdivision 2 of section 483 of the Penal Law for having placed a child of eleven years in such a situation that her morals were likely to be impaired. The defendant contends that such a conclusion is in conflict with People v. Lindloff (259 App. Div. 749). We do not think the statute can be so narrowly construed as to exclude from its terms the indecent treatment to which the child was subjected in this case, and if the decision in the Lindloff case (supra) is to the contrary we disapprove it. The defendant in this ease was also charged in the third and fourth counts with assault in the third degree. These counts were sufficient and were amply sustained by the evidence (People v. Gibson, 232 N. Y. 458).

The first count of the information charged a violation of subdivision 1- of section 483 of the Penal Law alleging that the defendant caused the morals of the child ‘ ‘ to become depraved ’ ’. There was no evidence that the child’s morals actually did become depraved, and accordingly the evidence was not sufficient to warrant conviction under this count (People v. Hopkins, 20App. Div. 438). The sentence was authorized and there is no reason for remitting the case to Special Sessions for review thereof (Correction Law, § 203, subds. [a], [b]).

The judgment should be affirmed.

Lotjghban, Oh. J., Lewis, Conway, Desmond, Thacheb, Dyb and Fuld, JJ., concur.

Judgment affirmed.


author: Loughkan, Ch. J.

text:
    Gertrude Estin, Respondent, v. Joseph Estin, Appellant.
    Argued February 20, 1947;
    decided April 18, 1947.

      James G. Purdy and George 8. Wing for appellant.
    I. Defendant was bona fide domiciled in the State of Nevada for a period of considerably over one year prior to the commencement of his action for divorce in that State against this plaintiff, is still domiciled there, and the judgment of divorce granted therein must be recognized as valid by the courts of this State. (Matter of Holmes, 291 N. Y. 261; Williams v. North Carolina, 317 U. S. 287; Matter of Franklin v. Franklin, 295 N. Y. 431; Schoen v. Schoen, 181 Misc. 727; Dalton v. Dalton, 270 App. Div. 269.) II. The divorce decree entered by the Nevada court dissolved the marriage between the parties, superseded the alimony provisions of the separation decree in this State, and ended defendant’s liability to make payments accruing after the entry of the decree in Nevada. No common-law power exists in our courts to continue those payments. (Esenwein v. Commonwealth, 325 U. S. 279; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Romaine v. Chauncey, 129 N. Y. 566; Matter of Franklin v. Franklin, 295 N. Y. 431; Scheinwald v. Scheinwald, 231 App. Div. 757; Richards v. Richards, 87 Misc. 134; Tax Lien Co. v. Schultze, 213 N. Y. 9; Cohen v. Cohen, 64 N. E. 689; Durlacher v. Durlacher, 123 F. 2d 70; Bassett v. Bassett, 141 P. 2d 954.) III. The Court of Appeals has certified that a constitutional question is directly involved. That question is “ What effect does Art. IV, Section 1, of the United States Constitution require the Courts of this State to give to the divorce decree obtained by Mr. Estin in Nevada? ” If the action at Special Term was decided upon nonconstitutional grounds, it is also obvious that does not preclude the Court of Appeals from considering the constitutional question involved. (People v. Bruce, 129 P. 2d 421; Matter of Holmes, 291 N. Y. 261; Karlin v. Karlin, 280 N. Y. 32; Van Dusen v. Van Dusen, 258 App. Div. 1020; Lynde v. Lynde, 181 U. S. 183; Norton & Siegel, Inc., v. Nolan, 276 N. Y. 392.)

      Roy Guthman for respondent.
    I. The decision of the court below was based on nonconstitutional grounds adequate to sustain it. The Court of Appeals is therefore without jurisdiction upon a direct appeal. (Gewirtz v. Gewirtz, 189 App. Div. 483; Hobby v. Hobby, 5 App. Div. 496; Schirmer v. Schirmer, 260 App. Div. 1057; Durlacher v. Durlacher, 123 F. 2d 70, 315 U. S. 805; Raymond v. Squire, 11 Johns. 47; Braunworth v. Braunworth, 260 App. Div. 113; Goldman v. Goldman, 282 N. Y. 296; Matter of Haydorn v. Carroll, 225 N. Y. 84; People ex rel. Moss v. Supervisors, 221 N. Y. 367; Lewis v. Board of Education, 275 N. Y. 480.) II. The District Court of Nevada did not have and could not assume jurisdiction of the subject matter in the divorce action. (Barber v. Barber, 21 How. [U. S.] 582; Atherton v. Atherton, 181 U. S. 155; Harding v. Harding, 198 U. S. 317; Sistare v. Sistare, 218 U. S. 1; Michigan Trust Co. v. Ferry, 228 U. S. 346; Grubb v. Public Utilities Comm., 281 U. S. 470; Magnolia Petroleum Co. v. Hunt, 320 U. S. 430; Durlacher v. Durlacher, 123 F. 2d 70; Bassett v. Bassett, 141 F. 2d 954; Harding v. Harding, 198 U. S. 317.)
   Loughkan, Ch. J.

The parties were married in 1937, and thereupon took up their home in this State where they lived together until April, 1942, when the husband left the wife. In February, 1943, she brought against him in the New York Supreme Court this action for a separation. (See Civ. Prac. Act, art. 69.) He entered a general appearance but offered nothing in the way of denial or defense. Upon a finding that he had abandoned her in April, 1942, a judgment of separation was granted to her in October, 1943, and thereby she was awarded permanent alimony of $180 per month — an amount that had been recommended in a stipulation filed with the court by the respective counsel for both parties. There was no issue of the marriage.

In January, 1944, the husband went to the State of Nevada where in April, 1945, he instituted an action against the wife for an absolute divorce. The summons and complaint therein were delivered to her in this State where she remained domiciled. After she had failed to respond to that constructive service, and in May, 1945, a final decree of divorce — without any award of alimony — was granted to the husband by the Nevada court, on the ground of three years continual separation, without cohabitation ”.

Up to that time, payments ,of alimony had been made by the husband pursuant to the prior New York judgment of separation. Upon the recording of his Nevada decree, however, he stopped such payments, with the result that in February, 1946, the wife sought an order directing entry in this action of a supplementary judgment “ for the amount of such arrears ”. (See Civ. Prac. Act, § 1171-b.) In opposing that application, the- husband, invoking the full faith and credit clause of the Constitution of the United States (art. IV, § 1), demanded (1) a declaration of the unqualified superiority of his Nevada divorce decree over the prior New York judgment of separation, and (2) an order eliminating the support provisions of that prior judgment as of May 24,1945, the date of the Nevada decree.

At Special Term the motion made by the wife was granted, the cross motion made by the husband was denied, and accordingly judgment in her favor was directed against him for arrears of alimony amounting to $2,340. An affirmance by the Appellate Division followed. The husband then applied to this court for leave to bring the determination of the Appellate Division here for review; leave was denied as unnecessary, since the award of arrears of alimony to the wife was in effect a new final judgment and the construction of the. full faith and credit clause was directly involved (see 296 N. Y. 828); so the case is now before us on an appeal which the husband has taken as of right from the affirmance of the Appellate Division. (See Civ. Prac. Act, § 588, subd. 1, par. [a].)

Special Term found that “ the defendant is now and since January, 1944, has been a bona fide resident of the State of Nevada ”. The proof upon which this finding rests is ample. Hence we are concluded by the affirmance thereof. Hence, too, there is no denying the jurisdictional validity of the Nevada divorce decree, because the domicile of one .spouse within a State gives power to that State to dissolve a marriage wheresoever contracted (Williams v. North Carolina, 325 U. S. 226, 229-230). Although in this New York separation action, the husband was adjudged to have been solely to blame when he abandoned the wife in April, 1942, yet the Nevada court was not thereby disabled from granting him an absolute divorce in May, 1945, upon the ground of his having then lived apart from the wife for a period of three years, without cohabitation. For the Nevada statutes authorize the granting of a divorce upon that ground no matter where the fault may lie (Nevada Compiled Laws, § 9467.06), and it is not for us to inquire into the merits of such an exercise of State power. (Williams v. North Carolina, 317 U. S. 287, 300-301, 325 U. S. 226.)

We have then this situation: The full faith and credit clause commands us to accord recognition to so much of the Nevada decree as pronounced the dissolution of the marriage; and the only remaining question is whether the Nevada decree must also be taken to have cancelled the alimony provision made for the wife through the prior judgment in this New York separation action.

A divorce decree (whether foreign or domestic) granted by a court having jurisdiction of the persons of both parties may very well be held to override any incongruous alimony provision of an earlier domestic judgment of separation. (See Scheinwald v. Scheinwald, 231 App. Div. 757; Richards v. Richards, 87 Misc. 134, affd. 167 App. Div. 922; Holmes v. Holmes, 155 F. 2d 737.) But the res judicata principle of the cases just cited — that as between two conflicting adjudications the last must control — has no application where, as in the present case, the court which granted the last judgment was without jurisdiction of the person of the defendant (cf. Miller v. Miller, 200 Iowa 1193; Wagster v. Wagster, 193 Ark. 902; 2 Freeman on Judgments [5th ed.], § 629). For like reasons of estoppel, a wife who procures a foreign divorce decree may in that way perhaps relieve her husband from any further obligation to support her. Harris v. Harris (197 App. Div. 646) was a case of that kind; it does not reach the issue now before us. (See Krause v. Krause, 282 N. Y. 355.)

For is that issue ruled by Esenwein v. Commonwealth (325 U. S. 279), as we see-it. In the Esenwein case, a husband, relying upon a Fevada divorce decree, granted upon constructive service, applied to a Pennsylvania court for revocation of a prior Pennsylvania order for the support of his wife. According to Pennsylvania law, such a support order did not survive divorce. With that rule of the local law as a premise, the Supreme Court of the United States said: “ The Full Faith and Credit Clause placed the Pennsylvania courts under duty to accord prima facie validity to the Fevada decree. * * * The Pennsylvania Supreme Court rightly indicated that if merely the Fevada decree had been in evidence, it was entitled to carry the day.” (325 U. S. at pp. 280-281.) Hence in the Esenwein case, as the court said, the efficacy of the Fevada divorce in Pennsylvania was the decisive question.

On the other hand, Barber v. Barber (21 How. [U. S.] 582) is here an authority much in point, as we believe.' In that case, a wife was granted a judgment of separation by the Court of Chancery of this State where both parties were domiciled at the time. The judgment directed payment of alimony in quarterly installments. Without making any payment thereof, the husband went to Wisconsin where he procured an absolute divorce. Thereafter the wife had judgment for the unpaid alimony in a suit brought by her in the District Court of the United States for the District of Wisconsin. On appeal by the husband, the Supreme Court of the United States rejected his claim that his Wisconsin divorce decree had extinguished his liability for alimony under the Few York judgment of separatian. The court said: It is not necessary for us to pass any opinion upon the legality of the [Wisconsin divorce] decree, or upon its operation there or elsewhere to dissolve the vinculum of the marriage between the defendant and Mrs. Barber. It certainly has no effect to release the defendant there and everywhere else from his liability to the decree made against him in the State of New York, upon that decree being carried into judgment in a court of another State of this Union, or in a court of the United States, where the defendant may be found, or where he may have acquired a new domicle different from that which he had in New York when the decree was made there against him.” (P. 588.)

The ruling so laid down by the highest court in the land is akin to decisions of our own. In Livingston v. Livingston (173 N. Y. 377), we held that alimony unconditionally and finally owing to a wife under a matrimonial decree is a vested property right of which she may not be deprived even by way of an act of the Legislature; and in Jackson v. Jackson (290 N. Y. 512), we held that a court which lacked jurisdiction over the person of a husband was powerless to set aside a separation agreement in an action brought against him by his wife. Counsel have cited no Nevada statute or decision to the contrary nor any Nevada case in which a divorce granted in that State, against an absent wife was held to have cancelled an earlier provision for alimony awarded to the wife in the State of her domicile. Consequently, as we shall assume, the common law of Nevada does not differ in that regard from the common law of New York. (See Read v. Lehigh Valley R. R. Co., 284 N. Y. 435, 441-442; Restatement, Conflict of Laws, § 622.) On that basis and in the light of Barber v. Barber (supra) we conclude that the full faith and credit clause affords no reason for disapproval by us of the decision reached herein by the courts below.

The judgment should be affirmed, with costs.

Lewis, Conway, Desmond, Teacher, Dye and Feld.. JJ., concur.

Judgment affirmed.


author: Coitway, J.

text:
    The People of the State of New York, Respondent, v. Valere L. Minet, Appellant.
    Argued February 24, 1947;
    decided May 22, 1947.

      George J. Skivington for appellant.
    I. The trial court erred in denying defendant’s motion to dismiss the indictment under section 313 of the Code of Criminal Procedure. (People v. Fuller, 156 Misc. 404; People v. Kramer, 33 Misc. 209; People v. Scannell, 36 Misc. 40; Ward Baking Co. v. Western Union Telegraph Co., 205 App. Div. 724; United States v. Edgerton, 80 F. 374; People v. Bauch, 140 Misc. 691; People v. Cahill, 193 N. Y. 232; United States v. Rosenthal, 121 F. 862; United States v. Philadelphia & R. Ry. Co., 221 F. 683; United States v. Rubin, 218 F. 245; United States v. Heinze, 177 F. 770; Federal Rules of Criminal Procedure, rule 6, subd. [d]; State v. Bower, 191 Iowa 713; People v. Tru-Sport Publishing Co., Inc., 160 Misc. 628.) II. The motion for dismissal of the indictment was timely. (People v. Judson, 11 Daly 1; People v. Fuller, 156 Misc. 404.)

      Thomas Croucher, District,, Attorney, for respondent.
    I. No error was committed by the trial court in denying defendant’s motion to dismiss the indictment. (People v. Sexton, 187 N. Y. 495; State v. Wood, 112 Iowa 484; Cochrane v. State, 119 Md. 539; Tinker v. State, 95 Tex. Cr. Rep. 143; People v. Arnold, 248 Ill. 169; State v. Bacon, 77 Miss. 366; Mason v. State, 81 S. W. 718; Commonwealth v. Harris, 121 N. E. 409; Middleton v. State, 16 Okla. Cr. 320; Bennett v. State, 62 Ark. 516; State v. Justus, 8 P. 337; McElroy v. State, 49 Tex. Cr. Rep. 604.) II. Defendant’s motion to dismiss the indictment was not timely. (Code Crim. Pro., §§ 314, 315.)
   Coitway, J.

There is presented for our consideration the problem whether a district attorney may call two witnesses before the grand jury at one and the same time. It arises because the complaining witness, Camille Harris, who was under the age of eighteen, after being subpoenaed to attend, made representations to the District Attorney through her father and sister, Hilma, aged twenty-two, that she was “ somewhat afraid or nervous They thereupon requested that both sisters be permitted to enter the grand jury room together. The District Attorney, after first demurring, consulted the grand jurymen and returning said that the latter would permit it. Thereupon both entered the room, were sworn and both testified. The County Judge after an inspection of the minutes found that the sister Ililma was a witness ”. The District Attorney, however, concedes that she ‘ ‘ had nothing of probative valué to add to the People’s case.” An indictment charging statutory rape was found. against the defendant. Thereafter the defendant married complainant and her testimony was again given, unwillingly, by direction of the court.

Prior to the trial and conviction of the defendant, a motion was made to set aside the indictment on the ground that an unauthorized person was permitted to be present during a session of the grand jury while the charge embraced in the indictment was under consideration. It was not made, however, until March 8,1946, although the defendant was arraigned on February 15th. That was by reason of the fact that counsel did not learn of the presence of the sisters together as witnesses until March 7th. The statute (Code Crim. Pro., § 315) provides: The motion to set aside an indictment must he heard at the time of the arraignment, unless, for good cause, the court postpone the hearing to another time.” Preliminary to discussing the merits, it is thus necessary to consider the argument of the prosecutor that the motion to dismiss was not timely. In the first place the defendant did not learn of the true situation until March 7th and the County Judge said very frankly that if he thought the motion had merit he would exercise his discretion to permit the plea to be withdrawn and would entertain it. Apart from that, however, it is clear that there was no willful delay. Most of the authorities on matters involving grand jury practice are found in opinions of courts of original jurisdiction and this question of timeliness was properly disposed of, favorably to a defendant, under similar circumstances in People v. Fuller (156 Misc. 404).

We pass then to the principal question. The judgment was affirmed below upon the grounds that there was no prohibition in the statute against the presence of two witnesses simultaneously in the grand jury room and that it was not made to appear in the affidavits that there was any undue influence exerted by the presence of the additional witness which adversely affected the defendant. In order to direct attention to the precise question at issue it may be well to point out that no one except grand jurors may be present during their deliberations and while they are voting (Code Crim. Pro., § 265)° and that no one may assist or advise them or examine witnesses before them unless specifically authorized by statute. (Code Crim. Pro., §§ 262, 263, 264.) Those identical situations are not here presented and yet the instant one is not entirely inapposite. Here the allegedly unauthorized person was present during the reception of the testimony of a witness. A dismissal of the indictment must be supported, if at all, on the sole ground that the procedure contravened section 313 of the Code of Criminal Procedure which, so far as material, provides:

“ § 313. Indictment, when set aside on motion. The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other: * * *

2. When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixty-four.” The exceptions do not touch our problem. It has been properly held that the charge is under “ consideration ” during the period of the taking of the testimony. (See People v. Tru-Sport Publishing Co., Inc., 160 Misc. 628.)

No case has been cited to us in our State or in England which has passed upon the question whether two witnesses may be called into the grand jury room together to give their testimony in the presence of each other. This in itself is some indication that it was never the practice so to do either at common law or under our statutes. That the contrary is the law of England is attested by 1 Stephen, History of the Criminal Law of England [1883], 274 where it is written: “ The grand jury sit by themselves and hear the witnesses one at a time, no one else being present except the solicitor for the prosecutor if he is admitted.” (Emphasis supplied.) Some evidence of our practice is found in a general discussion of grand jury procedure in Ward Baking Co. v. Western Union Telegraph Co. (205 App. Div. 724) where it was written (p. 728): “ No person may be admitted to the presence of a grand Jury except the district attorney of the county, his assistant, a witness, and the stenogrpaher who keeps the minutes. (Code Crim. Proc., §§ 264, 952-p.) ” (Emphasis supplied.) That this has always been the Federal practice appears from subdivision (d) of rule 6 of the recently adopted Federal Rules of Criminal Procedure and the note appended by the revisers reading: “ This rule generally continues existing law.” The rule is as follows: “ (d) Who may be present. Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.” (Emphasis supplied.) See, also, discussion on the report to the Institute on Federal Rules of Criminal Procedure at N. Y. University School of Law, February 15, 1946, by the Honorable George Z. Medalie at that time an Associate Judge of this court. (New York University School of Law Institute — Proceedings, Vol. VL, pp. 153-154 [1946].) (See, also, United States v. Edgerton, 80 F. 374, 375.) Finally, the proposed American Law Institute Code of Criminal Procedure, section 133, provides as follows, and it is significant that the notes of the drafter do not indicate that any change in the established law was made or contemplated: “No person shall be present at the sessions' of the grand jury except the witness under examination, the prosecuting attorney, the stenographer, if any, and the interpreter, if any. No person shall be present while the grand jurors are deliberating or voting.” (Emphasis supplied.) (See, also, Edwards, The Grand Jury [1906], 139; Housel & Walser, Defending and Prosecuting Federal Criminal Cases [1938], § 228; [2d ed., 1946], § 212.)

Some of the cases cited to us from other jurisdictions arose under statutes materially different from our Code of Criminal Procedure. That is true of Tinker v. State (95 Tex. Cr. Rep. 143), Mason v. State (81 S. W. 718), Middleton v. State (16 Okla. Cr. 320), State v. Justus (11 Ore. 178, 8 P. 337). Two other cases are strongly urged upon us by the District Attorney. They are State v. Wood (112 Iowa 484) and People v. Arnold (248 Ill. 169).

In the Wood case, a father accompanied his daughter, the complainant, who .was “ very nervous and fearful ”, before the grand jury. Only the girl testified, but both were sworn as witnesses. The court said, “ There is no showing that he [the father] did or said anything to influence the witness, or that defendant was in any manner prejudiced, otherwise than by McNeley’s [the father’s] presence in the room.” (P. 485.) The court seems to have relied upon the provision of the Iowa statute which prohibited unauthorized persons before the grand jury “ except as required or permitted by law.” The court apparently considered that the grand jury in calling the father as a witness required, his presence and so satisfied the statute. In New York we have said in People v. Sexton (187 N. Y. 495,513-514): “ For all the ordinary purposes of procuring evidence a grand jury is a distinct body clothed with authority to conduct the examination of witnesses in any way that does not conflict with established legal rules.” (Emphasis supplied.) Thus, in our State, the grand jury has no power to compel the attendance of two witnesses simultaneously unless that is the established practice and procedure. Under that view, the reasoning of the Wood case would not be persuasive. Iu any event, we think that State v. Bower (191 Iowa 713) has weakened if not destroyed the force of the Wood case in Iowa. While, as the District Attorney points out in his brief, the second witness present in the Bower case not only remained in the room but also asked questions of later witnesses, the opinion leaves no doubt that the court disapproved of the presence of more than one witness at a time under any circumstances.

People v. Arnold (supra) was a prosecution for rape in which the father of the complainant accompanied his daughter into the grand jury room while she identified certain garments. The court recognized the rule that one witness must never be permitted to be present at the examination of another ” but found that “ there was practically no examination of witnesses in the presence of each other.” (P. 172.) That seems inconclusive. The court then proceeded directly to the merits and reversed the conviction because of errors in the admission of evidence and in the instructions to the jury.

We think that historically and on principle an indictment should be dismissed when two witnesses have been presented together while the testimony of one or both was heard by the grand jury and that the decision should not be made to depend upon whether or not a defendant was actually prejudiced thereby. Where the Legislature has wished to make prejudice a material determinant it has so provided, as for instance in section 362 of the Code of Criminal Procedure. We should not write it into section 313. That is for the Legislature to do if it is to be done at all. It is true that in some jurisdictions it must be shown that the grand jury was influenced and the defendant prejudiced in his substantial rights before the indictment will be invalidated by reason of the presence of an unauthorized person. Cases so deciding will be found collected in note 13 in 28 Corpus Juris, Grand Juries, section 99, page 805 and in 38 Corpus Juris Secundum, Grand Juries, section 40. We do not think that that distinction should be made under our statute. Except in the clearest situations it would be practically impossible to show influence or prejudice. Even an inspection of the minutes, which it is difficult for a defendant to obtain since it is granted only in order to enable him to move to set aside the indictment (People ex rel. Hirschberg v. Supreme Court, 269 N. Y. 392, 395) would not show it in all probability. A change in expression, a pressure on the hand or a warning glance would not be shown upon the minutes but might well influence, suppress or alter testimony to the prejudice of the defendant. There may have been prior expressions or conversations between the two witnesses which the one then giving testimony might well hesitate to repudiate or modify in the presence of the other. The District Attorney here contends, and we are told that defendant’s counsel conceded on the argument of the motion to dismiss, that defendant suffered no prejudice by the joint presence of the two sisters, but as was said in United States v. Edgerton (supra, p. 375): The court cannot know that this suggestion represents the fact.” We think the practice offers too great a possibility for the exercise of undue influence to be condoned. Approval of it would open the door to grave abuses and jeopardize safeguards with which the cumulative wisdom of our legislators, lawyers and judges has surrounded the institution of the grand jury. It is an institution which protects both the community and the individual. It is a serious matter for any individual to be charged with crime whether the charge' be true or false. As was said in Matter of Gardiner (31 Misc. 364, 375) j “ It is as important to a person that he be fairly and justly accused of crime as that he be fairly and impartially tried therefor.”

The District Attorney refers to one who takes no active part in the proceedings as an automaton. In our State it will be found that generally speaking no person other than the District Attorney, the stenographer and, if necessary, an interpreter is ever permitted to be present in the grand jury room during the examination of a witness with one exception. When a prisoner is called to testify against an accused or, under a waiver of immunity, in his own behalf, a warden of the grand jury — a county official — stands beside him to prevent an escape, bic case disclosing any other exception has been cited to us and we have found none. The warden might properly come within the District Attorney’s concept of an automaton under the circumstances. That, of course, is not the role required of or occupied by one called upon to accompany a fearful or nervous witness before a grand jury. On such occasion the presence of the companion is to attempt to insure the giving of testimony which might not otherwise be uttered. Such presence might also improperly suppress as well as elicit testimony, as we have pointed out (supra).

There is still a further danger to the true administration of justice in the practice here attempted. In Matter of Opinion of Justices (232 Mass. 601, 603) it was said: “ 1 The law of the land ’ implies an indictment or presentment by the grand jury in instances to which that proceeding is necessary.

<< The grand jury is an ancient institution. It has always been venerated and highly prized in this country. It has been regarded as the shield of innocence against the plottings of private malice, as the defence of the weak against the oppression of political power, and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source. These blessings accrue from the grand jury because its proceedings are secret and uninfluenced by the presence of those mot officially and necessarily connected with it. It has been the practice for more than two hundred years for its investigations to be in private, except that the district attorney and his assistant are present.

“ Secrecy is the vital requisite of grand jury procedure.’*

There is no secrecy imposed upon a witness before a grand jury either as to the fact that he has testified or as to the testimony given by him. (People v. Naughton, 38 How. Pr. 430, 7 Abb. Prac. [N. S.] 421, 440.) To that extent, of course, the secrecy of grand jury proceedings is lessened. Were a second witness to be permitted to be present while another witness was giving testimony that same rule would apply for the same reason, namely, that there was no statutory prohibition. Thus, both witnesses would have it within their power to divulge the testimony of both without restraint. It may readily be understood that a witness might either exaggerate his story or fail to make a full and complete disclosure to a grand jury of information in his possesesion as to the commission of a crime if there were present a person who was free to publish his testimony immediately.

The judgments should be reversed and the indictment dismissed.

Loughran, Oh. J., Lewis, Desmond, Thacher, Dye and Fuld, JJ., concur.

Judgments reversed, etc.


author: Desmond, J. Conway, J.

text:
    The People of the State of New York, Appellant, v. Neil Palmer, Also Known as Neal Palmer, Respondent.
    Submitted April 7, 1947;
    decided May 22, 1947.

      Daniel J. O’.Mara, District Attorney (Harry L. Rosenthal of counsel), for appellant.
    I. Respondent was duly advised of his right to counsel, and to an adjournment to procure counsel as required by the provisions of section 699 of the Code of Criminal Procedure. II. The conviction was based upon an unequivocal plea of guilty. (Moore v. Hudspeth, 110 F. 2d 386; Buckner v. Hudspeth, 105 F. 2d 396, 308 U. S. 553.)

      John P. Lomenzo for respondent.
    The trial court did not comply with constitutional and statutory requirements. (Code Crim. Pro., § 699.)
   Desmond, J.

Defendant, arrested on a misdemeanor charge (of violating section 1140 of the Penal Law), was, on Tuesday, October 1, 1946, brought before a judge of the City Court of Rochester, for arraignment. After he had been told what the complaint was, defendant was informed by the judge that he was “ entitled to counsel and an adjournment to procure counsel.” Asked if he understood the charge, he answered “ Yes.” Asked whether he pleaded guilty or not guilty, he replied that he did not know how to plead.” If defendant at that point had pleaded guilty, .there would, probably, have been a violation of the second subdivision of section 699 of the Code of Criminal Procedure, which requires a magistrate to allow the defendant a reasonable time to send for counsel, and adjourn the proceedings for that purpose.” But defendant did not enter any plea at all at that time. Instead, he engaged in a colloquy, of considerable length, with the judge, in the course of which the court thrice told defendant that he might have time to get a lawyer, telling him also that sentence would not be passed until you get a lawyer.” After all this discussion, which included a statement by the court that defendant would not be released unless he should put up substantial bail ”, defendant pleaded not guilty. The court thereupon announced an adjournment of the case until October 10th, nine days later, commenting that defendant “ ought to be ready for trial ” then. Defendant, however, asked for an earlier date but the judge told him that he ought to have time for your lawyer to talk it over with you.” Defendant repeated his request for an earlier trial date. The judge offered to adjourn the matter till Monday, which would have been six days after the arraignment. Defendant inquired as to whether it could be Saturday (October 5th). He was told that no trials were held on Saturday. Then, apparently with defendant’s concurrence and that of the mother of the complaining witness, the trial was definitely set for Monday, October 7th, and bail was fixed at $500. The court then again brought up the matter of representation of defendant by counsel and offered to let defendant use the telephone, whereupon defendant said that he had notified his brother, who, he said, was on his way to-court.

The above summary makes it clear that at this juncture there had been accorded to defendant all the rights declared by section 699 (supra) and that the City Court Judge had obeyed all the commands of that statute. Later the same day, however, defendant changed his plea to guilty ” and was sentenced to serve one year in the penitentiary. The County Court, on appeal by defendant, reversed that judgment, holding that defendant-appellant was not advised of his right to counsel as required by Section 699 of the Code of Criminal Procedure.” That holding by the County Court, from which the People appeal, requires us to examine into the proceedings had, later in the day on October 1st, when defendant changed his plea and was sentenced to imprisonment.

After, as aforesaid, defendant had pleaded his innocence, and after the amount of bail had been decided on, after trial had been set for a date six days later and defendant had been ordered held in confinement till'bail could be arranged for, a court attendant notified the judge that defendant wished “ to ask the Court some questions.” Defendant, again appearing-before the bench, told the court that he had to see about my wife ”, saying that he had to pay rent on his house and that he did not know how his wife would get along if he were “ sent up ”. The judge who had, as we have pointed out, previously instructed defendant fully as to his rights in regard to counsel, bail and adjournment, now told defendant that if defendant should plead guilty, he would be sentenced that same day. However, said the judge, no bargains ” could be made and no advance information given as to what that sentence would be. Asked if he had any more questions, defendant instead volunteered: “ I am sure it will never happen again.” The court asked defendant: “ What were you doing?” — that being, apparently, an inquiry as to what defendant meant" by saying “ it will never happen again.” The court then asked whether defendant pleaded guilty or not guilty. Defendant answered not guilty.” The court, probably puzzled by all this, asked defendant whether he had come back into court to change his plea. Defendant then announced he pleaded guilty. The court was careful to ask defendant whether he had committed the alleged criminal act, and if there was “ no question about it ”, to both of which questions defendant gave affirmative answers. Defendant then went on to tell the court that Ms wife and child had no money, and promised that he would go to church every Sunday. The court again read the information to defendant, mentioned defendant’s several previous convictions on the same or similar charges, and pronounced sentence. There is not a word in this record suggesting that defendant was not fully apprised of all his rights, or that he did not understand exactly what those rights were and what was going on in the courtroom. Offered and given an adjournment to get bail and counsel and to prepare his defense, he voluntarily came back into court, and on his own initiative, confessed his guilt and changed his plea. We do not see what the City Court Judge could have done except enter judgment. It is only in capital eases (Code Crim. Pro., § 332) that a plea of guilty must be.refused.

This court has properly gone to great lengths in seeing to it that defendants are informed of their right to retain counsel or have counsel assigned to them, and to a fair allowance of time for preparation for trial, with the aid of counsel (People v. McLaughlin, 291 N. Y. 480). But the court does not have to force counsel on a defendant, or forcibly prevent him from pleading guilty. A defendant’s right to be assisted by counsel (N. Y. Const., art. I, § 6.) may be waived by him, if the waiver be a knowing, deliberate and informed relinquishment of the right (see Johnson v. Zerbst, 304 U. S. 458). This defendant, after having been on five separate occasions plainly told by the court that he could and should have counsel, changed his mind and his plea.

The order of the County Court of Monroe County should be reversed and the judgment of the City Court of Rochester affirmed. ■

Conway, J.

(dissenting). This is an appeal by the People by permission of the Presiding Justice of the Appellate Division, Fourth Department, from an order of the County Court of Monroe County reversing a judgment of conviction rendered on a plea of guilt to a charge of violation of section 1140 of the Penal Law in the City Court of Rochester.

Upon his arraignment on October 1st the defendant obtained an adjournment so as to secure the services of counsel. Such adjournment was at first granted to October 10th. Then upon the application of the defendant for an earlier date, the case was adjourned to October 7th and bail fixed at $500. The statute, Code of Criminal Procedure, section 699, subdivision .3, requires that immediately after the appearance of counsel the charge must be distinctly read to the defendant and he must be required to plead thereto.

After the adjournment and later in the morning the following occurred:

“ Later: Court Attendant: Mr. Palmer wants to ask the Court some questions. Deft.: I want to see about my wife. I am living in a house and have to pay rent. If I am sent up I don’t know how she would get along. Court: As I explained to you, if you plead guilty you will be sentenced today. I cannot tell you what the sentence would be. In other words, I am not going to make any bargains with you. Deft.: I can promise you — Court: No, I don’t want any promises. You came out I understood to ask me some questions. Anything else? Deft.: I am sure it will never happen again. Court: What were you doing? Deft.: I am going to join the .church. Court: How do you plead, guilty or not guilty? Deft: I plead not guilty. Court: What are you talking about you will not do it again for? Do you want to change your plea? Is that what you came up here for? Deft.: Yes. Court: How do you plead? Deft.: I plead guilty. Court: You did do this thing you are charged with, exposed yourself? Deft: Yes. Court: There is no question about it? ” (Emphasis supplied.)

That procedure was violative not only of the statute but of defendant’s constitutional rights both under the Federal and our State Constitutions (U. S. Const., 6th and 14th Amendts. ; Powell v. Alabama, 287 U. S. 45, 67, 68; N. Y. Const., art. I, § 6; People v. McLaughlin, 291 N. Y. 480, 482). The right to counsel is based upon a fundamental principle of justice and must be protected by the court. (Glasser v. United States, 315 U. S. 60, 71.) The lower in type and more abject the prisoner, the more does he need protection in order that the administration of justice be evenhanded. Here the defendant had been granted a reasonable time to obtain counsel of Ms own choice. The case had been adjourned for that purpose. He was entitled to consult that counsel before being asked to plead to the charge. (Code Crim, Pro., § 699, subd. 3.) Thereafter the adjournment was disregarded and not only was the right to counsel not protected by the court but, what was much worse, a prisoner, unrepresented by counsel, was interrogated by the court as to his guilt after he had been asked to plead and had pleaded not guilty. As we said in People v. McLaughlin (supra, at p. 483). “ The record before us does not show adequate protection of this defendant’s rights, and so his conviction cannot stand.”

The order should be affirmed.

Loughran, Ch. J., Dye and Fuld, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lewis and Thacher, JJ ., concur.

Ordered accordingly.