author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. Henry Vollmer, Appellant.
    Argued June 1, 1949;
    decided July 19, 1949.

      Chandler S. Knight for appellant.
    I. Defendant’s guilt was not established beyond reasonable doubt. II. Admission in evidence of an information in a misdemeanor case occurring several years before was reversible error. (People v. Davey, 179 N. Y. 345; People v. Wolf, 183 N. Y. 464.) III. The trial court erred in charging that the jury might convict defendant of manslaughter in the first degree under subdivision 1 of section 1050 of the Penal Law. (People v. Luscomb, 292 N. Y. 390; People v. Stacy, 119 App. Div. 743.) IV. The trial court erred in charging that the jury might convict defendant of manslaughter in the first degree under subdivision 2 of section 1050 of the Penal Law. (People v. Dinser, 121 App. Div. 738.)

      Charles S. Tracy, District Attorney, for respondent.
    I. The guilt of defendant was established beyond a reasonable doubt. II. The blows struck by defendant killed decedent. III. No reversible error was committed during the trial. (People v. O’Neill, 112 N. Y. 355; Greenfield v. People, 85 N. Y. 75; Fox v. Matthiessen, 156 N. Y. 691; Ankersmit v. Tuch, 114 N. Y. 51; People v. De Garmo, 179 N. Y. 130; Potter v. Browne, 197 N. Y. 288; People v. Enright, 221 App. Div. 26, 248 N. Y. 633.) IV. The trial court properly submitted to the jury the degrees of homicide of which defendant might be convicted. (People v. Willson, 109 N. Y. 345; People v. Cooke, 292 N. Y. 185; People v. Radcliffe, 232 N. Y. 249; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; People v. McCallam, 103 N. Y. 587; People v. Heineman, 211 N. Y. 475; People v. Dillon, 142 App. Div. 64, 204 N. Y. 678; People v. Ronalds, 259 App. Div. 1017; People v. Campanaro, 223 App. Div. 248, 249 N. Y. 545; People v. Stacy, 119 App. Div. 743, 192 N. Y. 577.)
   Desmond, J.

Defendant, proprietor of an Amsterdam, New York, tavern, indicted for murder, second degree, was convicted of the crime of manslaughter,' first degree, for the killing of Charles Amberger, a customer in the tavern. The Appellate Division, Third Department, affirmed the judgment, and its Presiding Justice granted defendant a certificate permitting an appeal to this court.

The County Judge’s charge told the jury that it might, if guilt had been shown beyond a reasonable doubt, convict defendant of murder in the second degree, manslaughter in the first degree, or manslaughter in the second degree. The jury’s finding against defendant as to the second of those listed crimes necessarily meant, under the language of the court’s charge and under the definition in section 1050 of the Penal Law, that defendant had killed Amberger: 1. While “ engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or, 2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon. ’ ’

The record contains no proof that defendant was committing, or attempting, any such misdemeanor as the statute contemplates, nor does it contain any proof of a killing either in a ‘‘ cruel and unusual manner ”, or “by means of a dangerous weapon.” The conviction, therefore, was unlawful.

1. The only misdemeanor defendant was committing, or attempting, was an assault on Amberger. But that was not a separate misdemeanor, but a component of, and merged into, the homicide, on trial. People v. Stacy (192 N. Y. 577, affg. 119 App. Div. 743) in 1908, seems to have held to the contrary, but People v. Stacy (supra) though not mentioned in People v. Grieco (266 N. Y. 48 [1934]) was necessarily overruled thereby. People v. Grieco (supra) cannot be read except as holding that, when an assault results in death, the assault misdemeanor is merged in the manslaughter. Whatever else the majority opinion said in the Grieco case, the court did flatly announce that it had reached the conclusion “ that the misdemeanor charge was merged in the charge of manslaughter in the first degree ” (p. 54) and, if that were true as to the misdemeanor there proved against Grieco, it is, a fortiori, true here; furthermore, Judge O’Bbiex’s dissenting opinion in the Grieco case (supra, p. 57) shows his realization that the Stacy case was being overruled on the question of merger. Finally, it should be noted that, a year later, in People v. Lazar (271 N. Y. 27, 29, 30) Judge Hubbs, who had written the Grieco majority opinion, cited it on behalf of a unanimous court, as a holding that an assault which results in a homicide, is merged in the homicide. The Lazar opinion (supra) expresses also the unanimous view of the court that the rule as to merger should be, and is, the same in manslaughter, first degree, as in felony murder (Penal Law, § 1044, subd. 2; see People v. Wagner, 245 N. Y. 143, 148; People v. Luscomb, 292 N. Y. 390, 395, 396).

2. There was nothing cruel and unusual ” about this assault, in the sense that the statute used those words. No applicable New York decisions define that statutory phrase (see 1937 Report of N. Y. Law Revision Commission, p. 73l et seq.) and it must be read as the average intelligent man would read it. To be ‘ ‘ cruel and unusual ’ ’ the manner of commission of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric (see State v. Knoll, 72 Kan. 237). Whatever be the limits of the phrase, it cannot be applied, we hold, to a case like this where a flurry of bloAvs from defendant’s fist sent the other man to the floor and to death.

3. Nor was there here' any ground for a holding that Amberger was done to death “ by means of a dangerous weapon.” We agree with the LaAV Revision Commission’s report, above cited, which, in a note at page 728, says that “ extended discussion or citation of authority ” is not needed to establish this point. When the Legislature talks of a “ dangerous weapon ”, it means something quite different from the bare fist of an ordinary man (see People v. Adamhiewicz, 298 N. Y. 176, construing Penal Law, § 1897; Bean v. State, 77 Okla. Cr. 73; State v. Colvin, 209 La. 257; People v. Munn, 65 Cal. 211).

Of various other alleged errors at the trial, we mention one only. It was plainly wrong to permit the prosecutor, after cross-examining defendant about his assault conviction some years before, to read to the jury the information in that other case, which contained most prejudicial matter (People v. De Garmo, 179 N. Y. 130, 135; People v. Perry, 277 N. Y. 460, 467; People v. Rosenthal, 289 N. Y. 482, 485, 486).

The judgments should be reversed and a new trial ordered.

Lotighkan, Ch. J., Lewis, Conway, Dye, Fuld and Bbomley, JJ., concur.

Judgments reversed,, etc.


source: Caselaw Access Project

author: Bromley, J. Fuld, J.

license: Public Domain

text:
    In the Matter of the Application of Celestine A. Thomson, Respondent, to Compel Accounting by Lawyers Trust Company, as Successor Trustee under a Trust Created by Celestine A. Burchell. Frank P. Nohowel, as Executor of Celestine A. Gardner (Formerly Celestine A. Burchell), Deceased, et al., Appellants; Josephine M. Burchell et al., Respondents. Alice M. B. Worm, Appellant, v. United States Trust Company of New York, Respondent.
    Argued April 11, 1949 and April 13, 1949;
    decided July 19, 1949.

      Frank P. Nohowel, executor-appellant in person, in above-entitled proceeding.
    I. The appointive power was exercised by will of testatrix. (Matter of Lynn, 261 App. Div. 513, 287 N. Y. 627; Matter of Neil, 238 N. Y. 138; Moffett v. Elmendorf, 82 Hun 470, 152 N. Y. 475; Hutton v. Benkard, 92 N. Y. 295; White v. Hicks, 33 N. Y. 383; Matter of Gallien, 247 N. Y. 195; Matter of Silsby, 229 N. Y. 396; Matter of Buechner, 226 N. Y. 440; Lockwood v. Mildeberger, 159 N. Y. 181; Matter of Title Guar. & Trust Co., 195 N. Y. 339; Fargo v. Squiers, 154 N. Y. 250; City Bank Farmers Trust Co. v. Meyn, 263 App. Div. 671.) II. The trust indenture creates an estate in reversion.

      Louis J. Merrell and Edward I. Goodman for Horatio S. Gardner, appellant in above-entitled proceeding.
    I. The very simplicity of the trust structure in the case at bar, with no one but the settlor specifically named to receive any benefits thereunder, indicates clearly the intention of the settlor to reserve a reversion. (Doctor v. Hughes, 225 N. Y. 305; Richardson v. Richardson, 298 N. Y. 135; Matter of Scholtz v. Central Hanover Bank & Trust Co., 295 N. Y. 488; Whittemore v. Equitable Trust Co., 250 N. Y. 298; Hussey v. City Bank Farmers Trust Co., 236 App. Div. 117, 261 N. Y. 533; Schoellkopf v. Marine Trust Co., 267 N. Y. 358; Culver v. Title Guar. & Trust Co., 296 N. Y. 74; Engel v. Guaranty Trust Co., 280 N. Y. 43; Matter of Ogsbury, 7 App. Div. 71; Hopkins v. Bank of New York, 261 App. Div. 465.) II. By use of the words “ a trust estate for her own benefit ” the settlor has indicated clearly and expressly an intention to create a reversion in the case at bar. (Matter of McGinnis, 44 N. Y. S. 2d 932, 268 App. Div. 966; Matter of Alderdice, 71 N. Y. S. 2d 84; Campbell v. Beaumont, 91 N. Y. 464; Crain v. Wright, 114 N. Y. 307; Whittemore v. Equitable Trust Co., 162 App. Div. 607; Berlenbach v. Chemical Bank & Trust Co., 235 App. Div. 170, 260 N. Y. 539.) III. The trust provisions in the case at bar are essentially different from those considered in Richardson v. Richardson (298 N. Y. 135) and nothing in the latter decision is at variance with the conclusion that the settlor here intended to reserve a reversion.

      Robert N. Errington for John A. Burchell, respondent in above-entitled proceeding.
    I. The intent of .the settlor at the time of the creation of the trust, expressed by the text and import of the instrument, was to set up a complete devisory program, reserving the income to herself, with remainder to her heirs at law and next of kin in default of testamentary appointment. (Dickey v. Goldschmidt, 60 Misc. 258; Richardson v. Richardson, 298 N. Y. 135; Whittemore v. Equitable Trust Co., 250 N. Y. 298; Engel v. Guaranty Trust Co., 280 N. Y. 43; Schoellkopf v. Marine Trust Co., 267 N. Y. 358; Fish v. Chemical Bank & Trust Co., 270 App. Div. 251.) II. The settlor made a full and formal disposition of the corpus of the fund, with no reservation of power to grant or assign, reserving only a testamentary power of appointment. (Richardson v. Richardson, 298 N. Y. 135; Schoellkopf v. Marine Trust Co., 267 N. Y. 358; Whittemore v. Equitable Trust Co., 250 N. Y. 298.) III. The settlor’s surrender of control over the trust property was so complete as to demonstrate an intent .to create a remainder. IV. The use of the phrase “ A trust estate for her own benefit ” in the preamble of the trust deed does not negative the settlor’s intention as expressed in the instrument as a whole. (Whittemore v. Equitable Trust Co., 162 App. Div. 607; Berlenbach v. Chemical Bank & Trust Co,, 235 App. Div. 170, 260 N. Y. 539.)

      Walter M. Hinkle, Robert G. Lind and Irving I. Goldsmith for Celestino A. Thomson, petitioner-respondent in above-entitled proceeding.
    I. The Court of Appeals has, in the ease of Richardson v. Richardson (298 N. Y. 135) finally laid down the criteria which determine when a settlor intends to create a remainder interest in an inter vivos trust indenture. II. The provisions of the trust indenture in the instant case bring it within the criteria of the Richardson case, and evidence a deliberate intent by the settlor to create a remainder. (Berlenbach v. Chemical Bank & Trust Co., 260 N. Y. 539; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134; Whittemore v. Equitable Trust Co., 162 App. Div. 607; Dickey v. Goldschmidt, 60 Misc. 258.) III. Neither the “ simple structure ” of the trust indenture nor the phrase “ for her own benefit ” nor the reservation of alleged “ managerial rights ” evidences an intent to reserve a reversion instead of creating a remainder. (Guaranty Trust Co. v. New York Trust, Co., 297 N. Y. 45.) IV. The intent of the settlor must be derived from the trust indenture itself, and cannot be determined by what she said sixteen years later or incorporated in a will executed fifty-two years later. (City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134; Whittemore v. Equitable Trust Co., 250 N. Y. 298; Guaranty Trust Co. v. New York Trust Co., 297 N. Y. 45; New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33.) V. In any event, the will of Celestine A. Gardner contains no language permitting the application of the trust property to general testamentary purposes. (Fargo v. Squiers, 154 N. Y. 250.)

      Martin Aigner for appellant in above-entitled action.
    The trust agreement, dated January 23, 1.923, has been validly terminated by the revocation dated December 8, 1948. (Doctor v. Hughes, 225 N. Y. 305; Richardson v. Richardson, 298 N. Y. 135; Matter of Scholtz v. Central Hanover Bank & Trust Co., 295 N. Y. 488; Julier v. Central Hanover Bank & Trust Co., 272 App. Div. 598, 297 N. Y. 1036; Matter of Gordon v. Chemical Bank & Trust Co., 272 App. Div. 565; St. George v. Fulton Trust Co. of N. Y., 273 App. Div. 516.)

      Robert A. West for respondent in above-entitled action.
    I. Determination of the nature of the future interest created by the deed of trust depends upon the settlor’s intention as expressed in the deed. (Whittemore v. Equitable Trust Co., 250 N. Y. 298; Hussey v. City Bank Farmers Trust Co., 261 N. Y. 533; Schoellkopf v. Marine Trust Co.. 267 N. Y. 358; Engel v. Guaranty Trust Co., 280 N. Y. 43.) II. The provisions of the deed of trust indicate an intention to create a remainder interest. (Richardson v. Richardson, 298 N. Y. 135.)
   Bromley, J.

We are again asked to determine whether a limitation over to the heirs of the grantor in an inter vivos conveyance created a remainder in the, heirs or left a reversionary interest in the grantor.

The instrument of conveyance in each case is a trust agreement. In Matter of Burchell the question arises in the course of the administration of the estate of the deceased settlor. In Worm v. United States Trust Co. the settlor has attempted to revoke the trust instrument under section 23 of the Personal. Property Law by a notice of revocation executed by her alone.

The provisions in each of the two instruments are similar. The settlor conveyed property to trustees who were directed to pay income therefrom to the settlor during her life and upon her death to convey the principal of the trust estate to the persons whom the settlor should appoint in her will, or, in default of appointment, to the settlor’s next of kin as in intestacy. In the Burchell case the trust instrument further provided that the settlor, as evidence of her consent and approval, should join in the execution of any conveyance or mortgage of any of the property, or of a lease for a period of more than three years, or of the appointment of a successor trustee or trustees.

The trustees, however, were authorized and empowered to sell, convey or mortgage the real estate and to invest and reinvest the trust funds. In the Worm case the trustee was given full power to- manage, invest and reinvest the trust property, except that approval of the settlor’s father was required during, his lifetime. No power of revocation was reserved in either agreement nor was there any provision for withdrawal of any of the principal of the trust fund.

In each case we reach the conclusion that the future interests limited in the instrument resulted in the creation of valid remainders.

In Richardson v. Richardson (298 N. Y. 135), decided only last year, we reaffirmed the rule, first announced in Doctor v. Hughes (225 N. Y. 305), that the nature of the future interest where an estate is limited to heirs of the grantor is dependent upon the intention of the settlor as expressed in the trust agreement. We stated (p.. 139): Thus direction to transfer trust property to one’s next of kin is insufficient in and of itself to create a remainder. There must be additional factors, i.e., other indications of intention in order that there may be found 6 sufficient ’ or ‘ clear expression ’ of intention on the part of the settlor to create a remainder to his next of kin.” We tabulated certain additional factors which had been considered of significance in earlier cases in pointing the intention of the grantor to create a remainder. The reservation of only a testamentary power of appointment, together with ‘ ‘ 1 full and formal disposition of the principal of the trust estate ’ ” (p. 141) and the failure to reserve a power to grant or assign an interest in the property, led us to conclude that the interest limited in that case was a remainder and the settlor’s attempt to revoke the instrument was ineffective since presumptive remaindermen were not parties to the revocation.

The trust agreement in the Richardson case (supra) differed only slightly from those now before us. There, the settlor, then unmarried and her mother, her sole next of Mn, directed the trustees named to pay the income to the settlor for life and at her death to pay over the corpus to such person or persons as the settlor should appoint by will, and in default of appointment the principal should be paid over to her mother, but should her mother predecease her the principal was to be paid to her next of kin as in intestacy. Settlor’s mother predeceased her and settlor attempted to revoke. The immediate power of appointment, followed by a limitation to a named person rather than a designation of a remainder followed by a power of appointment (cf. Engel v. Guaranty Trust Co., 280 N. Y. 43), was not deemed significant enough to warrant an opposite conclusion from that reached in the Engel case.

In the instant cases it is true there was no grant of a remainder interest to a named individual and the limitation to the heirs was only upon default in the exercise of the power of appointment. But whether a remainder is created or a reversion left in the grantor is not dependent upon the number of contingent or vested limitations created. A valid gift may be made to a designated class; so also may a valid remainder be created subject to be divested by a reserved power of appointment; and a valid remainder interest may be created though the naming of specific takers is reserved for future announcement under a testamentary power of appointment.

Confusion as to the nature of an estate when that estate .is limited to heirs of the grantor arises because of the existence in our modern jurisprudence of remnants of the ancient doctrine, of worthier title (46 Harv. L. Rev. .993). Prior to our decision in Doctor v. Hughes (225 N. Y. 305, supra), a conveyance by a grantor with a limitation over to his heirs was said to be governed by that doctrine, under which a limitation over to a grantor’s heirs resulted in an automatic reversion in the grantor and nullified the limitation over.

The doctrine had its origin in the feudal custom of awarding certain valuable incidents to the overlord upon the descent of property held by a feoffee. These incidents did not accrue if the property was acquired through purchase, and, in order to obviate this means of curtailing the payment of incidents, title by descent was declared to be more worthy than title by purchase. If a gift over might pass to an heir by descent rather than by gift, he took his title through inheritance. Although the reason for the rule disappeared with the disappearance of feudal customs, the rule itself remained as part of the common law. Its effect was to deny the intent of the grantor and to cut out entirely the limitation to the heirs, thus accelerating the reversion which remained in the grantor. (See Warren, A Remainder to the Grantor’s Heirs, 22 Tex. L. Rev. 22; Matter of Brolasky, 302 Pa. 439). The doctrine was abolished in England in 1833 by a statute which allowed an heir to take title as purchaser where property passed to. him by devise (3 & 4 Wm. IV, ch. 106, § 3). In this country the doctrine remained as part of the common law but has been principally applied where a limitation is made to heirs under an inter vivos conveyance. The intent of a grantor is said to be the controlling element and the common-law rule is not applied where the grantor clearly indicated his intention to grant a remainder to his heirs (3 Restatement, Property, § 314). Doctor v. Hughes (225 N. Y. 305, supra) announced that such was the rule of this State. We said in that case (pp. 311-312): “in the absence of modifying statute, the rule persists to-day, at least as a rule of construction, if not as one of property. * * * We do not say that the ancient rule survives as an absolute prohibition limiting the power of a grantor. * # # There may be times, therefore, when a reference to the heirs of the grantor will be regarded as the gift of a remainder, and will vest title in the heirs presumptive as upon a gift to the heirs of others. * * * But at least the ancient rule survives to this extent, that to transform into a remainder what would ordinarily be a reversion, the intention to work the transformation must be clearly expressed.”

The use of the old doctrine as a rule of construction results in either (1) a shift from an absolute rule against remainders to heirs of grantors to a rule that the grantor must expressly indicate his intention to create a remainder in his heirs; or (2) a presumption in favor of reversions which may be rebutted by indication of the grantor’s contrary intent gathered from the instrument as a whole. The practice adopted in the majority of States falls into the second classification. Some few States have entirely dispensed with the doctrine, allowing the gift of the grantor to take effect as a remainder. This has been accomplished by applying a statute abrogating some other ancient rule of property. For instance, a statute abrogating the rule in Shelley’s case (1 Coke Rep. 93b; 76 Eng. Rep. 206) has been said to apply to a situation involving the doctrine of worthier title (Gray v. Union Trust Co., 171 Cal. 637; Bixby v. California Trust Co., 190 P. 2d 321 [Cal.]). In other States the doctrine has on occasion been rejected (Mills v. Mills, 275 Ky. 431; Kennedy v. Rutter, 110 Vt. 332; Norman v. Horton, 344 Mo. 290). It has been said that the doctrine is ‘ ‘ more quaint than sensible ” and has “ no place under other than a feudal system ” (Nossaman, Trust Administration and Taxation, § 303, p. 285). Under the proposed Uniform Property Act, not yet adopted by any State, the doctrine is completely dispensed with by providing that a conveyance to heirs or next of kin operates by purchase and not by descent (Proposed Uniform Property Act, § 15; 9 U. L. A. 613, 616).

It is clear from the cases in this State since Doctor v. Hughes (225 N. Y. 305, supra), as admirably analyzed in Richardson v. Richardson (supra), that, despite the language in that opinion that a reversion exists unless there is clear evidence to the contrary, the rule has been less limited in application. Where a clear intent exists, there is no problem in construing the instrument, since the doctrine no longer exists as a rule of property. But where the grantor’s intent is not expressed in unmistakable language, the rule comes into play. Then we look to the instrument for those indicia deemed significant in arriving at the intent of the grantor. In the first of the line of cases following Doctor v. Hughes (supra), (Whittemore v. Equitable Trust Co., 250 N. Y. 298), we applied the rule of construction in the manner indicated in the second interpretation above. We discovered the intent of the grantor from other factors, as shown by the instrument, in order to give full effect to the words of limitation.

While we have not yet adopted a rule, either by statute or judicial construction, under which language limiting an interest to heirs is unequivocally given its full effect, the presumption which exists from the use of the common-law doctrine as a rule of construction has lost much of its force since Doctor v. Hughes (supra). Evidence of intent need not be overwhelming in order to allow the remainder to stand. Whether the rule should be abrogated completely is a matter for the Legislature.

The instant cases furnish sufficient additional indications of the settlor’s intent to justify our giving effect to the language of the instrument limiting an estate to the grantor’s heirs. Not the ’ least among those indications was the reservation of a testamentary power of appointment as the sole control over the subsequent disposition of the corpus of the trust estate. We do not think that the reservation of a veto power over certain conveyances, as provided in the trust instrument in Matter of Burchell, was sufficient to give the settlor control over the trust property where the trustees otherwise had full power to invest and reinvest the trust funds. The fact that the trust agreement reserved a power of appointment is evidence that the settlor believed she had created an interest in the property on the part of others and reserved the power in order to defeat that interest or to postpone until a later date the naming of specific takers (Whittemore v. Equitable Trust Co., 250 N. Y. 298, supra; Engel v. Guaranty Trust Co., 280 N. Y. 43, supra; Sands v. Old Colony Trust Co., 195 Mass. 575; Fehr Brewing Co. v. Johnston, 30 Ky. L. 211). Where we have held that a reversion was intended although a testamentary power of appointment was reserved, the instruments have provided that the trust principal would revert to the grantor upon some contingency (Berlenbach v. Chemical Bank & Trust Co., 235 App. Div. 170, affd. 260 N. Y. 539; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134) or that the grantor retained control over the principal (Guaranty Trust Co. v. Armstrong, 294 N. Y. 666).

In analyzing an instrument and attempting to explore the almost ephemeral qualities which go to prove the necessary intent, many single factors may be considered. Some considered significant in one case may be deemed minimal in another, since their effect may be counteracted by the presence of other factors. It is impossible to set up absolute criteria to serve as a measuring standard for all cases. In the last analysis, the ultimate determination rests on the particular instrument under consideration, aided by the rule which has grown out of the old common-law doctrine and developed over a long line of cases as a rule which allows the language of the instrument creating a remainder to take effect provided some additional evidence pointing the intent of the grantor is present to buttress the language which would create the remainder.

The order in Matter of Burchell should be affirmed, with costs to ail parties appearing separately and filing separate briefs, payable out of the fund; the judgment in Worm v. United States Trust Co. should be affirmed, without costs.

Fuld, J.

(dissenting). In each of these cases, the trust agreement provided, in essence, that the trustees to whom the property had been conveyed were to pay the income to the settlor for life, and that, upon her death, the principal was to be paid over by the trustees to such persons as the settlor might appoint by will, or, in default of such appointment, to the settlor’s heirs at law and next of kin as in intestacy. In addition, in Matter of Burchell, the settlor reserved to herself the right and power to approve and join in the execution of any conveyance or mortgage of the property, of any lease for a period of more than three years or of the appointment of a successor trustee or trustees.-

The rule has long been established that “ to transform into a remainder what would ordinarily be a reversion, the intention to work the transformation must be clearly expressed. ’ ’ (Doctor v. Hughes, 225 N. Y. 305, 312; see, also, Richardson v. Richardson, 298 N. Y. 135, 139; Matter of Scholtz v. Central Hanover Bank & Trust Co., 295 N. Y. 488; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134.)

Had the agreement not reserved to the settlor a power to appoint by will, no one would question or dispute that a reversion had been created. To find, in the retention of such a power — to appoint by will — the “ clearly expressed ” intention which is essential to transform a reversion into a remainder, impresses me as illogical and unreal. Even without such a reservation, the property would have passed, upon the settlor’s death, to whomever she had designated by will or to her heirs and next of kin as upon intestacy (see, e.g., City Bank Farmers Trust Co. v. Miller, supra, 278 N. Y. at p. 145); the circumstance that the settlor specifically reserved a power to appoint a taker means, if it means anything, that she wanted to affirm and emphasize that she desired to retain control of her property up to the time of her death and to direct its devolution thereafter.

We carry form and the accident of language too far if we conclude that the insertion of such a power can accomplish the transformation of that reversion into a remainder. Certainly, nothing held or said in the Richardson case (298 N. Y. 135, supra) — wherein the settlor had provided for an intervening contingent remainder in fee to her mother — requires that result. I cannot believe that the court ever meant, in listing the criteria that usually attend the creation of a remainder (pp. 140, 144), to express an inflexible rule or an inexorable juridical formula by the use of which we would he able to derive an automatic answer in all cases. Just as before the Richardson case, so today — unless the court by its present decision is overruling what has long been settled law — the interest created depends upon the intention of the settlor as expressed in the trust indenture as a whole. In my view, the language employed in the agreements before us plainly points a reversion: entirely lacking is any “ clear expression ” to justify changing it into a remainder. (See Doctor v. Hughes, supra, 225 N. Y., at p. 312.)

Reversion or remainder, however, the volume of litigation on the subject, the diversity- of opinion, not to mention the difficulty, frequently, of decision, point the advisability, if not the urgency, of clarifying legislation.-

In my opinion, the determination in each case should be reversed.

Lotjghran, Ch. J., Lewis, Conway, Desmond and Dye, JJ., concur with Bromley, J.; Fttld, J., dissents in opinion.

Order and judgment affirmed.


text:
    The State of Rio de Janeiro, Appellant, v. E. H. Rollins & Sons, Incorporated, et al., Respondents.
    Argued May 26, 1949;
    decided July 19, 1949.

      Wilmurt B. Linker, Ramon Siaca and James Harper, Jr., for appellant.
    I. Even if the recovery of a judgment by plaintiff against Old Rollins is barred by the six-year Statute of Limitations, the enforcement of its equitable rights against New Rollins is not barred. (Hulbert v. Clark, 128 N. Y. 295; Albany N. R. Iron & Steel Co. v. Southern Agric. Works, 76 Ga. 135; American Sur. Co. v. Conner, 251 N. Y. 1; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Buttles v. Smith, 281 N. Y. 226; Hanover Fire Ins. Co. v. Morse Dry Dock & Repair Co., 270 N. Y. 86; Northern Pacific Ry. v. Boyd, 228 U. S. 482; House v. Carr, 185 N. Y. 453.) II. The trial court erred in holding that plaintiff did not have an enforcible claim against Old Rollins at the time this suit was instituted. (Rogers Locomotive & Mach. Works v. Kelley, 88 N. Y. 234; Schneider v. National City Bank of N. Y., 180 Misc. 426, 272 App. Div. 1000; Sayer v. Wynkoop, 248 N. Y. 54; Shawmut Corp. v. Bobrick Sales Corp., 260 N. Y. 499; Genesee Wesleyan Seminary v. United States Fidelity & Guar. Co., 247 N. Y. 52; American Sugar Refining Co. v. Fancher, 145 N. Y. 552; President & Directors of Manhattan Co. v. Newberry, 265 N. Y. 588; Ochs v. Woods, 221 N. Y. 335; Matter of Pirie, 198 N. Y. 209.) III. Plaintiff’s rights as against the individual defendants under section 15 of the Stock Corporation Law and section 60 of the General Corporation Law are enforcible only in equity, and, therefore, the ten-year Statute of Limitations is applicable. (Darcy v. Brooklyn & N. Y. Ferry Co., 196 N. Y. 99; Sialkot Importing Corp. v. Berlin, 295 N. Y. 482; Equity Corp. v. Groves, 294 N. Y. 8; Buttles v. Smith, 281 N. Y. 226; Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Coane v. American Distilling Co., 298 N. Y. 197.) IV. Even if the six-year Statute of Limitations bars appellant from a recovery against Old Rollins, it does not bar the enforcement of appellant’s rights against New Rollins and the individual respondents. (American Sur. Co. v. Conner, 251 N. Y. 1; Carl v. Settegast, 211 S. W. 506; McKeon v. Chicago, M. St. P. & P. Ry.

      Co., 69 N. W. 175; Manchester v. Tibbetts, 121 N. Y. 219; Hale v. Stewart, 7 Hun 591; McConnell v. Barber, 86 Hun 360.) V. This action was commenced before the running of the ten-year Statute of Limitations.

      William F. Bleakley, John F. Kiernan and Louis Haimoff for respondents.
    I. Plaintiff, its claim against Old Bollins barred by the Statute of Limitations, has no right to realize on any of the assets of Old Bollins in the possession of a third person. (M’Clenney v. M’Clenney, 3 Tex. 192; Pace’s Trustee v. Pace [Ky.], 172 S. W. 925; DeLacey v. Hurst, 83 Ga. 223; Hanover Nat. Bank v. Moyses, 186 U. S. 181; Briggs v. Austin, 129 N. Y. 208; American Sur. Co. v. Conner, 251 N. Y. 1; Guild v. Hopkins, 271 App. Div. 234, 297 N. Y. 477; Hopkins v. Lincoln Trust Co., 233 N. Y. 213.) II. Even if the claim of plaintiff to set aside a fraudulent conveyance survived, it was barred by the ten-year Statute of Limitations. (Buttles v. Smith, 281 N. Y. 226; Corash v. Texas Co., 264 App. Div. 292; Frank v. Carlisle, 261 App. Div. 13, 286 N. Y. 586.) III. There is no evidence to support the finding that the financial plan of December, 1930, constituted a fraudulent conveyance. (Northern Pacific Ry. Co. v. Boyd, 228 U. S. 482; Galveston, Harrisburg & San Antonio Ry. Co. v. Texas, 210 U. S. 217; Halsey v. Winant, 258 N. Y. 512; Peterson v. Wilson, 199 P. 2d 757; Brown v. Chubb, 135 N. Y. 174.) IV. Plaintiff, not being a judgment creditor, has no claim against the individual defendants under section 60 of the General Corporation Law or section 15 of the Stock Corporation Law. (Levy v. Paramount Publix Corp., 149 Misc. 129, 265 N. Y. 629; Steele v. Isman, 164 App. Div. 146; White on New York Corporations [1948 ed.], § 61, p. 152.) V. The six-year Statute of Limitations bars any claim of plaintiff against the individual defendants under section 15 of the Stock Corporation Law and section 60 of the General Corporation Law. (Luke v. Polstein, 268 App. Div. 921, 294 N. Y. 896; Shepard Co. v. Taylor Pub. Co., 234 N. Y. 465; Hastings v. Byllesby & Co., 265 App. Div. 643, 293 N. Y. 404; Scott v. Allen, 264 App. Div. 424.) VI. Plaintiff’s claim against the individual defendants was barred in any event by the ten-year Statute of Limitations. (Frank v. Carlisle, 261 App. Div. 13, 286 N. Y. 586; Corash v. Texas Co., 264 App. Div. 292; Kalmanash v. Smith, 291 N. Y. 142; Buckley v. Stans

      field, 155 App. Div. 735; Curran v. Oppenheimer, 164 App. Div. 746; Willcox v. Goess, 22 F. Supp. 841; Doehler v. Real Estate Bd. of N. Y. Bldg. Co., 150 Misc. 733; Paulding v. Chrome Steel Co., 94 N. Y. 334; Todarelli v. Visigraph Co., 34 F. Supp. 762; Turner v. American Metal Co., 268 App. Div. 239; Blaustein v. Pan American Petroleum & Transport Co., 293 N. Y. 281.)
   Desmond, J.

E. H. Bollins & Sons (as its corporate name then was, being now United Associates, Incorporated, defendant above named), failed, in January, 1932, to pay to plaintiff, the State of Bio De Janeiro, a balance which then became due from the former to the latter, on a contract for the sale and purchase of the State’s bonds. This suit was commenced in December, 1940, nearly nine years after the default. Special Term, as affirmed by the Appellate Division, arrived at these conclusions:

1. That, since the relationship between the two parties to the bond sale agreement was contractual only, and involved no trust, actual or constructive, the six-year Statute of Limitations (Civ. Prac. Act, § 48) applied, and had barred the action (on the debt) before it was started.
2. That claims, asserted in this suit, against certain individual defendants (former officers or directors of the debtor corporation and/or another corporation which had acquired certain of its assets) for alleged unlawful diversion of the debtor’s assets, were likewise barred by the applicable statutes of limitation.
3. That a transfer of assets from the debtor corporation to a new corporation (defendant E. H. Bollins & Sons, Incorporated) attacked in a separate count in this complaint, was, under sections 271-273 of the Debtor and Creditor Law, fraudulent as to creditors of the “ Old Bollins ” Corporation, including plaintiff, despite lack of actual intent to cheat.
4. That, although the statutory period of limitations as to setting aside such a fraudulent conveyance is ten years (Civ. Prac. Act, § 53) and although ten years did not elapse here between conveyance and suit, nevertheless, the right to set aside such a transfer is based on the existence of a valid enforcible claim and, since plaintiff, because of the running of the six-year statute on its contract debt, had no enforcible claim thereon when this suit was brought (see No. 1 above), the suit, insofar as it challenged the fraudulent conveyance, was likewise barred.

We agree with all of the above conclusions, but comment further on No. 4 above, since there seems to be no New York decision on the point.

If A’s liability to B on contract" matured on January 3, 1940, but, remained unpaid, and if A on that same date made to C a transfer of assets deemed fraudulent under the Debtor and Creditor Law, the time for suing on the contract claim expired January 1, 1946. The period for bringing a suit to set aside the unlawful transfer would, however, run to January 1, 1950 (Buttles v. Smith, 281 N. Y. 226, 236). But after B had failed, Avithin the fixed six-year time, to sue on his contract, he was thereafter no creditor of A, at all, and had no right or position as to contesting his former debtor’s act of divesting himself of his assets. A creditor’s bill attacking his debtor’s transfer is adjective and ancillary only, to the creditor’s right to collect his original debt. In the case relied on at Special Term (Remington-Rand v. Emory Univ., 185 Ga. 571) the rule is explained thus: ‘1 where the debt is barred, equity will not proceed to make the vain and empty gesture of setting the con-A7eyance aside, or of attempting to subject the property to such barred debt. The right to equitable relief in such instances is dependent upon the right to enforce the debt.”

The conclusion arrived at in the paragraph just above is not in conflict with the holding of American Surety Co. v. Conner (251 N. Y. 1, 7) that article 10 of the Debtor and Creditor Law has abrogated the ancient rule (Briggs v. Austin, 129 N. Y. 208) that a judgment and lien were essential preliminaries to equitable relief against a fraudulent conveyance, and the further holding of that case that the debt may be established and the conveyance challenged, in a single suit. But plaintiff here, combining its two counts in one complaint as it had a right to do, waited too long to sue its debtor for the moneys due on the bond purchase, and so abandoned every right to enforce it, directly or by creditor’s bill against the debtor’s wrongfully transferred property. Section 270 of our Debtor and Creditor Law, construed in American Surety Co. v. Conner (supra) to mean that one suit may contain both law and equity counts, that is, on the debt and to set aside a transfer, is identical with section 1 of the Uniform Fraudulent Conveyance Act. In Massachusetts, where the Uniform Law is in effect, the Supreme Court has held that the essential bases of a statutory proceeding to set aside a fraudulent conveyance is a presently enforcible indebtedness, since a suit to reach and apply transferred property to the satisfaction of a plaintiff’s claim, is incidental to that claim, and if the underlying claim be not established, for any reason, the whole suit fails and must be dismissed (Blumenthal v. Blumentlml, 303 Mass. 275; to the same effect see 1 Glenn on Fraudulent Conveyances and Preferences [Rev. ed.], § 88).

It follows that the courts below were correct in dismissing this complaint, in its entirety.

The judgment should be affirmed, with costs.

Loughran, Ch. J., Lewis, Conwat, Dye, Fuld and Bromley, JJ., concur.

Judgment affirmed.


author: Loughran, Oh. J.

text:
    In the Matter of Leo J. Palmer, Respondent, against Francis T. Spaulding, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued May 20, 1949;
    decided July 19, 1949.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for appellants.
    I. The finding that Dr. Palmer is or has been addicted is supported by substantial evidence. II. The medical grievance committee used the special competencies of its members to evaluate the evidence, not as a substitute for it. (Matter of Tompkins v. Board of Regents, 274 App. Div. 354.)

      Lawrence Conboy for respondent.
    I. The record contains no competent proof that petitioner is a narcotic addict which was the basis of the suspension order. II. The finding of the department as to drug addiction is opposed to the clear preponderance of the evidence.
   Loughran, Oh. J.

Upon a report of its Committee on Discipline, the Board of Regents on January 16, 1948, accepted and approved so much of an earlier report of its Medical Committee on G-rievances as (1) found the petitioner — a physician — to he addicted to the use of narcotic drugs and (2) recommended suspension for two years of his license to practice medicine in this State. An order directing such suspension of -that license was accordingly issued by the State Commissioner of Education on behalf of the State Education Department and the Board of Regents.

This proceeding to review that disciplinary action was instituted by the petitioner under article 78 of the Civil Practice Act and conformably to section 1296 of that article was in due course transferred to the Appellate Division where the determination of the Board of Regents was annulled on the law. Dissatisfied with that declaration of nullity the Board of Regents and the Commissioner of Education then brought the case here by an appeal which we now undertake to decide.

The applicable statute is paragraph (c) of subdivision 2 of section 6514 of the Education Law of this State. It is thereby provided: The license or registration of a practitioner of medicine may be * * * suspended * * * upon decision after due hearing in any of the following cases: * * ’* (c) That a physician is an habitual drunkard, or is or has been addicted to the use of morphine, cocaine or other drugs having similar effect, or has become insane The construction that should be put upon the word addicted ” as thus employed by the New York Legislature is the single question that is here presented.

Addicted ” is not a word of art. It is not a technical word at all. According to the lexicographers, it means strongly disposed to some taste or practice or habituated, especially to drugs. But resort to dictionaries in situations like that now before us has for some reason been judicially deprecated at times and so we go on to the case law where occasions for defining the word addicted ” have often occurred in the course of controversies respecting applications for insurance. Thus in Aetna Life Ins. Co. v. Davey (123 U. S. 739, 742) the court said: “ The inquiry as to whether the insured had ever been addicted to the excessive or intemperate use of alcoholic stimulants, and, whether, at the time of the application, he used alcoholic stimulants ‘ often or daily ’ was, in effect, an inquiry as to his habit in that regard; not whether he used such stimulants or opium at all, but whether he used any of them habitually. If he was addicted to the excessive use of them, he was habitually intemperate; and to use them often or daily is, according' to the ordinary acceptation of those words, to use them habitually.” Law writers ascribe to addicted ” the same significance. Mr. Apple-man says:1 ‘ After all, a man is either temperate or intemperate, and in common parlance, a man is not intemperate unless he frequently drinks to excess. Even more elastic is the word ‘ addicted ’. This, also in layman’s language, means a slave to ”. (1 Appleman, Insurance Law and Practice, § 281, pp. 304-305. So, 4 Couch, Cyclopedia of Insurance Law, § 884a, p. 2909.)

For years this petitioner used large quantities of morphine, cocaine and demerol, as he confesses or does not deny. During the period 1945-1946, he procured from six doctors prescriptions for (a) 3,832 one-quarter grain and 12 one-half grain morphine sulphate hypodermic tablets; (b) 96 one-quarter grain, 896 one-half grain and 1,588 one grain codeine hypodermic tablets; (c) 8 pantopon tablets; (d) 3,032 cc of demerol solution. The petitioner consumed those drugs, as he concedes. More than that: In the period 1941-1946 he used narcotics in amounts which at the hearing herein were characterized by him as “ heroic ” and by one of his physicians as “ excessive ”, although during that time he suffered acute physical pain.

On the undisputed evidence, then, the suspension of the medical license of the petitioner was fully warranted — unless the word 11 addicted ’ ’ in the above text of our Education Law is not to be construed in its common and popular meaning.

As read by the Appellate Division that text does not sanction suspension of a medical license except upon proof of “ some deleterious effect or a deterioration ” in a practitioner ‘ ‘ rendering it unsafe or improper for him to practice his profession ” (275 App. Div. 5, 8). Since there was no proof to that effect in this record, it followed that the discipline here visited upon the petitioner was unauthorized, and so the Appellate Division held.

We cannot agree to that decision. It seems to us to be an undue departure from the elementary rule which requires judges to give to nontechnical words in a statute their ordinary meaning. The Appellate Division read into the above text of our State Education Law that part of the United States Public Health and Welfare Law which declares an “.addict ” to be any person who is or has been so far addicted to the use of habit-forming narcotic drugs “ as to have lost the power of self-control with reference to his addiction ”. (See U. S. Code, tit. 42, § 201, subd. [k].) This technique of the court was, we think, a misapplication of the rule as to the exposition of one statute by the language of another. (Cf. 27 Halsbury’s Laws of England [1st ed.], pp. 138-140.) In the relevant New York legislation, the word “ addicted ” has had a place for more than four decades. The Federal Public Health and Welfare Law became law in 1944. Hence by an attempt here to fasten Federal legislation to a State statute the court imposed upon the New York statutory use of the word ‘ ‘ addicted ’ ’ a meaning which it certainly did not have for a generation or more theretofore. It is a strong thing so to read into a statute, words which are not there and, in the absence of a clear necessity, it is a wrong thing to do (see Maxwell on Interpretation of Statutes [9th ed.], p. 14). Nor would such a construction be beneficial in this instance. For as a matter of practical good sense, a physician who daily stands in need of inordinate supplies of narcotic drugs ought not to be allowed to practice his profession, no matter how blameless he may be and irrespective the extent to which he may exhibit any debasement.

In short, we see no ground either in the history of the above provision of our Education Law or in its context for reading it otherwise than in its natural and usual sense.

' The order of the Appellate Division should be reversed and the determination of the Board of Regents and the order of the Commissioner of Education reinstated, with costs in this court and in the Appellate Division.

Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Order reversed, etc.


author: Loughran, Ch. J.

text:
    Max Loewinthan, Appellant, v. Arthur I. Le Vine, Respondent.
    Argued May 16, 1949;
    decided July 19, 1949.

      Eugene L. Bondy, David E. Nierenberg and Jacob M. Bosenfeld for appellant.
    I. The Justice at Trial Term was without jurisdiction to direct a verdict for defendant after the jury had been discharged, notwithstanding its verdict for plaintiff. (N. Y. Const., art. I, § 2; Civ. Prac. Act, § 457-a; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Matter of Whipple, 294 N. Y. 292; Pockrass v. Kaplan, 163 App. Div. 209; Bank of United States v. Manheim, 264 N. Y. 45; Sadowski v. Long Island R. R. Co., 292 N. Y. 448; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66; Callery v. Lyons, 292 N. Y. 15.) II. It was fundamental error for the court to charge that there was a qualified privilege in the publication of the slanders and that plaintiff must establish malice in order to succeed. (Taylor v. Church, 8 N. Y. 452; Hamilton v. Eno, 81 N. Y. 116; Sunderlin v. Bradstreet, 46 N. Y. 188; Ormsby v. Douglass, 37 N. Y. 477; Lewis v. Chapman, 16 N. Y. 369; Gangi v. Fradus, 227 N. Y. 452; Pangburn v, Buick Motor Co., 211 N. Y. 228.)

      Alfred McCormack, Albert Rosenblum and David J. Rosen for respondent.
    I. The trial court properly directed a verdict for defendant on the ground that plaintiff’s testimony on the issue of malice was incredible ás a matter of law. (Civ. Prac. Act, § 457-a; Richardson v. City of Boston, 19 How. [U. S.] 263; Toomey v. London Ry. Co., 140 Eng. Reprints 694; Improvement Co. v. Munson, 14 Wall. [U. S.] 442; Baulee v. New York & Harlem R. R. Co., 59 N. Y. 356; Linkhauf v. Lombard, 137 N. Y. 417; Dwight v. Germania Life Ins. Co.., 103 N. Y. 341; Hemmens v. Nelson, 138 N. Y. 517; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66; Matter of Case, 214 N. Y. 199; Getty v. Williams Silver Co., 221 N. Y. 34; Bank of United States v. Manheim, 264 N. Y. 45; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Cruz v. City of New York, 179 Misc. 1031.) II. Defendant’s remarks were qualifiedly privileged, and the privilege was not destroyed by the fortuitous presence of a third person when the remarks were uttered. (Byan v. Collins, 111 N. Y. 143; White v. Nicholls, 3 How. [U. S.] 266; Lewis v. Chapman, 16 N. Y. 369; Sunderlin v. Bradstreet, 46 N. Y. 188; Hamilton v. Eno, 81 N. Y. 116; Ashcroft v. Hammond, 197 N. Y. 488; McCarty v. Lambley. 20 App. Div. 264; Batsel v. New York News Pub. Co., 67 App. Div. 598.)
   Loughran, Ch. J.

The action is for slander. The issue has been tried three times. On the first trial, the Trial Judge set aside a verdict for the plaintiff as contrary to the weight of the evidence and as excessive, and the Appellate Division affirmed that order. (2G3 App. Div. 982.) On the second trial, the plaintiff again had a verdict, but the Appellate Division reversed the judgment on the grounds that the verdict was against the weight of the evidence and was excessive. (270 App. Div. 512.) On the third trial, the jury again found for the plaintiff and again the verdict was set aside; but this time a new trial was not ordered; on the contrary, the jury, at the command of the Trial Judge, returned a verdict for the defendant upon which judgment was entered dismissing the complaint on the merits. The Appellate Division affirmed. Whether that ruling was right is the question for decision.

In October, 1935, the plaintiff, a physician and surgeon, was dismissed from his position on the staff of Beth David Hospital in the city of Hew York and shortly thereafter the defendant, as the then president of the hospital, twice undertook to account for that occurrence by saying: “ Dr. Loewinthan charged a charity patient and we suspended him.” These defamatory statements were not actionable without proof of malice, because the defendant and his auditors had a common interest in the subject matter of his communications. In other words, he had the protection of a qualified privilege and he was not liable unless he spoke from an improper motive. (See Loewinthan v. Beth David Hosp., 290 N. Y. 188, 190; Bingham v. Qaynor, 203 N. Y. 27, 31; Pecue v. West, 233 N. Y. 316.) The law was here stated to that effect by the trial court in its charge to the jury.

As a basis for a finding of such actual or express malice, the plaintiff here presented evidence (not offered on the former trials) which tended to establish the three following incidents. (1) On an occasion in the autumn of 1933, after the defendant had urged the Junior Medical Board to purchase tickets for the annual dinner of the hospital, the plaintiff took the floor and expressed his desire to have the board of directors “ carry the financial end of the hospital and let the doctors take care of the poor sick ” — a commentary that led the defendant to say to the plaintiff, “You will regret your speech of this evening.” (2) In September, 1935, the plaintiff by refusing to perform an operation displeased the defendant who then said to him, “ You are too fresh and I will show you who is boss of the hospital.” (3) In October, 1935, the person who had accused the plaintiff of collecting money from a charity patient was said by the defendant to be more important to the hospital financially than the plaintiff ever would be.

The defendant flatly denied making any of the statements so attributed to him.

In respect of the above three items of evidence of malice, the Trial Judge said: “ From that evidence, if it be believed by a jury or by any trier of the facts, the inference might reasonably and logically flow that in making the utterances complained of the defendant was actuated by express malice, hatred or ill will.” The jury believed that evidence. Hence the reason why the Trial Judge set aside their verdict and directed a contrary verdict for the defendant is now the crucial factor in this controversy.

As to the first of the above-mentioned incidents — the words that assertedly passed between the parties at the meeting of the Junior Medical Board of the hospital — the Judge said: “ Neither side, as I recall it, called any witnesses to support the testimony respectively of the plaintiff and the defendant with respect to this incident. But the fact that no use was made of it upon either of the two preceding trials by the plaintiff, although having knowledge of the incident * * * is a circumstance which must be considered by the trier of the facts in determining where the truth lies as between the plaintiff and the defendant with respect to their testimony concerning that alleged incident.” (2) As to the second incident — the claimed declaration by the defendant of his intent to show the plaintiff who was boss of the hospital — the Judge said: In determining the issue of veracity as between the two principals in this case with respect to that incident, the fact that the defendant’s version or testimony is supported by the testimony of four disinterested witnesses * * * plus the hospital record, to my mind tips the scales very heavily in favor of the acceptance of the testimony of the defendant.” As to the third incident — the alleged disparagement by the defendant of the plaintiff’s worth to the hospital in a money sense — the Judge said: There again we have a situation where one must choose on the issue of veracity as between the plaintiff and the defendant. From the nature of this incident, as testified to by the plaintiff, it does not seem that either party could have called any witnesses to corroborate his testimony * * *. But again we have the circumstance that that evidence, the existence of which was known * * to plaintiff’s counsel on both the first and second trials, was not availed of by either of them on those occasions.”

As a witness for the plaintiff, one of his counsel took responsibility for having withheld the evidence of malice on the former trials. The witness said: I felt that the slander was per se, and because of that, and the fact that I did not feel there was any privilege, I did not want to unnecessarily encumber the record ”. Respecting that testimony the Trial Judge said: The explanations that were made on the trial before me as to the failure to use that essential evidence on the first and second trials of this action are of a character that strike me very forcefully as being of such a tenuous nature that I cannot accept the testimony embodying those explanations as credible or worthy of any belief whatsoever.”

Finally the Trial Judge said this: Persons seized with ill will, hatred or malice toward another, which would cause them to seek to destroy the reputation of that other, are going to invent their own opportunities for the spreading of the defamation, and as a rule they make their defamatory statements with embellishments. Those circumstances are not disclosed by anything in the plaintiff’s case to have attended the making of the defamatory utterances alleged in this litigation. * * * The rejection of the evidence designed to show express malice leaves the plaintiff without any right of recovery.”

In thus handling the case the Judge, we believe, did violence to the principle that the judgment upon the facts must be the judgment of the jury and not the judgment of any other tribunal. To be sure, subdivision 1 of section 457-a of our Civil Practice Act says: “ The judge may direct a verdict when he would set aside a contrary verdict as against the weight of the evidence.” Whether a literal interpretation of that text would deprive a party of the right to the jury trial guaranteed by section 2 of article I of our State Constitution was once a question. But it is now settled by decisions of this court that subdivision 1 of section 457-a empowers a trial court to direct a verdict only when it would be required to set aside a contrary verdict for insufficiency of evidence (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; see, too, the Fifteenth Annual Report of N. Y. Judicial Council, 1949, pp. 66-68, 249-251, and L. 1949, ch. 604, which will take effect Sept. 1,1949).

In the present case, the Trial Judge did not find the plaintiff’s evidence of malice to be inadequate. Indeed he said it was sufficient, if credited. The issue, as he said, was one of veracity as between the two principals in this case ”. He set aside the verdict for the plaintiff and directed a contrary verdict for the defendant merely because he did not believe the plaintiff and his witnesses. It is impossible to sustain that ruling.

The judgments should be reversed and a new trial granted, with costs in all courts to abide the event.

Lewis, Conway, Desmond, Dye and Fuld, JJ., concur; Bromley, J., talcing no part.

Judgments reversed, etc.


author: Dye, J.

text:
    The People of the State of New York, Respondent, v. Walter H. Koch, Appellant.
    Argued May 24, 1949;
    decided July 19, 1949.

      Joseph Aronstein for appellant.
    Appellant was denied due process of law by failure of the court properly to advise him of his right to counsel. (Code Crim. Pro., § 308; N. Y. Const., art. I, § 6; Johnson v. Zerbst, 304 U. S. 458; People v. McLaughlin, 291 N. Y. 480.)

      Charles P. Sullivan, District Attorney (Howard R. Lonergan of counsel), for respondent.
    I. The due process clause of the United States Constitution or of the State Constitution did not require the State to furnish counsel to defendant in this case. (Betts v. Brady, 316 U. S. 455; Foster v. Illinois, 332 U. S. 134; Bute v. Illinois, 333 U. S. 640; Central Sav. Bank v. City of New York, 280 N. Y. 9.) II. Failure to appoint counsel for defendant in this case did not violate any other provision of the United States Constitution or of the State Constitution. (Johnson v. Zerbst, 304 U. S. 458; Betts v. Brady, 316 U. S. 455.) III. Defendant was advised of his constitutional right to counsel. (Matter of Hogan v. Court of General Sessions, 296 N. Y. 1.) IV. The trial court was not required by statute to appoint counsel for defendant. (People ex rel. Brown v. Board of Supervisors of Co. of Onondaga, 102 N. Y. 691; People v. Price, 262 N. Y. 410; People ex rel. Acritelli v. Grout, 87 App. Div. 193, 177 N. Y. 587.) V. The trial court had no power to appoint counsel. (People v. Price, 262 N. Y. 410.) VI. Defendant was not forced to try his case without counsel.
   Dye, J.

Following a jury trial in Queens County Court, the petitioner-appellant, who was tried with a codefendant, Joseph Blunnie, was convicted of the crime of burglary, third degree, and grand larceny, second degree, and sentenced to a term of not less than two years and not more than four years in Sing Sing prison.

The defendant, Koch, now brings this proceeding in the nature of a-writ of error coram, nobis to vacate the conviction and sentence based on an alleged denial of due process in that he was compelled to proceed to trial without the benefit of counsel and was thus deprived of the fair and impartial trial guaranteed to him by the State and Federal Constitutions (N. Y. Const., art. I, § 6; U. S. Const., 6th Amendt.). When the petitioner-appellant was arraigned under the indictment he was at liberty on bail. He appeared without counsel. Following his plea of “ not guilty ” he was asked by the assistant district attorney if he had an attorney. His reply being in the negative, the court interposed, saying: ‘ You will have to have your own lawyer as long as you are on bail. It is only when a defendant is in jail that we assign counsel.” 0On an adjourned date a lawyer filed a notice of appearance which he later withdrew. Other adjournments were had in the course of which the court peremptorily revoked the bail and remanded defendant to custody. Thereafter at an adjourned date the case was set down for trial at which time the following colloquy occurred:

The court: Koch, your case is down for trial today and I want to know if you are still of the same opinion that you want to defend yourself.”

Defendant: Tour Honor, the last counsel— ”

The court (interposing): Don’t hold me any chatter. Just answer my question. Are you still of the opinion that you want to defend yourself? ”

DefendantI am willing to go on trial right now ’ ’.

The case did not go on trial that day but was held a few days later, resulting in a verdict and judgment of conviction from which no appeal was taken.

A defendant, of course, has the right under hoth the Federal and State Constitutions to defend in person or with counsel who may be either of his own choosing or under appropriate circumstances, by assignment by the court (U. S. Const., 6th Amendt.; N. Y. Const., art. I, § 6; Code Crim. Pro., § 308; People v. Price, 263 N. Y. 410), which fundamental right the court must accord to him (Glasser v. United States, 315 U. S. 60) and which we. have said includes a reasonable time to obtain counsel (People v. McLaughlin, 291 N. Y. 480). The State constitutional guarantee has been implemented by the legislative act which makes it mandatory upon the court to inquire of the defendant upon arraignment if ‘ ‘ he desire the aid of counsel, and if he does the court must assign counsel ” (Code Crim. Pro., § 308). There is no longer any doubt as to the scope and meaning of the provision. Failure to comply with it constitutes denial of a fundamental right and a conviction so had will be set aside (People v. McLaughlin, supra; Matter of Bojinoff v. People, 299 N. Y. 145; Johnson v. Zerbst, 304 U. S. 458). Such omission is sought to be justified on the theory that the defendant being at liberty on bail at the time of arraignment, an inference arose that he had the ability to procure and pay counsel of his own choosing and nullified any necessity for either inquiry or assignment of counsel. Such circumstance does not justify omission to observe fundamental constitutional safeguards designed to assure a fair trial in a criminal case. The fact of the matter is that the defendant was not accorded his rights either on arraignment or at a later time when bail had been revoked and the defendant had beeti, remanded to custody. The court had a continuing opportunity at any time before trial to correct the previous omission and to accord defendant his rights. However, he chose not to do so but cut defendant off with a summary and arbitrary ruling calculated to discourage further comment by him and left him with no other alternative than to defend in person. This deprived him of his constitutional right to a fair trial. In principle, the situation here is no different than that presented in Matter of Bojinoff v. People (supra, p. 150). There we disapproved as constituting a denial of a fair trial the practice of the trial court not to inquire of defendant if he desired the aid of counsel, or to assign counsel, unless “ ‘ the defendant pleaded not guilty ’ ” (cf. People ex rel. Moore v. Hunt, 258 App. Div. 24, 26).

The orders should be reversed and the matter remitted to the Queens County Court with direction to vacate the judgment of conviction and to take such further proceedings as may be necessary not inconsistent with this opinion.

Lotjghran, Ch. J., Lewis, Conway, Desmond, Fold and Bromley, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of the Claim of John M. Casey, Respondent, against Hinkle Iron Works et al., Appellants, and Fund for Reopened Cases, Respondent. Workmen’s Compensation Board, Respondent.
    Argued June 2, 1949;
    decided July 19, 1949.

      Bryan Strieker for appellants.
    I. The employer and carrier should have been relieved of further liability and the award should have been made against the Fund for Reopened Cases under section 25-a of the Workmen’s Compensation Law. (Matter of Becker v. Marcy State Hosp., 264 App. Div. 643; Matter of Riddle v. General Ice Cream Corp., 262 App. Div. 353.) II. Claimant’s request for these special shoes is an application for compensation under and within the reach or meaning of section 25-a. (Matter of Wyski v. Brewer Dry Dock Co., 251 App. Div. 769; Matter of Patti v. Knickerbocker Fireproofing Co., 255 App. Div. 732, 280 N. Y. 609; Matter of Nylander v. Hilt Co., 259 App. Div. 766.) III. The employer’s liability to provide the replacement of the orthopedic shoes is not mandated by section 13 of the Workmen’s Compensation Law.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    The decision of the board directing the employer to furnish a pair of orthopedic shoes to claimant was proper. The Fund for Reopened Cases was not liable for this obligation under section 25-a of the Workmen’s Compensation Law. (Matter of Murin v. Berry, 295 N. Y. 695; Matter of Cook v. New York Central R. R. Co., 296 N. Y. 576; Matter of Kloberdanz v. Sheffield Farms Co., 260 App. Div. 823; Matter of Albright v. Buffalo Niagara Elec. Corp., 270 App. Div. 868; Matter of Kiriloff v. A. G. W. Wet Wash Laundry, 293 N. Y. 222; Blatter of Neuman v. North Riv. Garnet Co., 279 N. Y. 702; Matter of Ryan v. American Bridge Co., 268 N. Y. 502; Matter of Naylor v. Carey, 250 App. Div. 792.)
   Bromley, J.

Ordered by the board to furnish a pair of orthopedic shoes for claimant, the employer and carrier contend that liability should rest with the Fund for Reopened Cases under section 25-a of the Workmen’s Compensation Law. Their appeal poses two questions: whether a case referred by the board to its “ abeyance file ” has been closed so that a further request for compensation is an application to reopen within the scope of section 25-a; and whether the employer’s duty to furnish replacements for orthopedic shoes is the sort of liability which may be shifted to the fund.

The disability, caused by chronic osteomyelitis of the left leg, is the result of an accident which occurred in 1924. Since that time claimant, who received an initial award based upon 100% loss of use of the leg, has been furnished medical treatment and the special shoes which he requires at infrequent intervals by the employer or carrier.

During the period 1930-1935, the case was open and continued in the files of the board pending further necessary medical treatment. In May, 1935, the case was closed on the previous award, and claimant was directed to seek any necessary medical treatment from his employer. In 1939, the case was reopened and, after a number of hearings which disclosed that no issues remained undecided, the matter was referred to an abeyance file until claimant requested additional medical treatment. In 1943, appellants voluntarily provided a new pair of shoes for claimant. More than three years later he requested another pair, which appellants have been directed to provide.

Insofar as pertinent, section 25-a provides: when an application for compensation is made by an employee * * * after a lapse of seven yeárs from the date of the injury or death and also a lapse of three years from the date of the last payment of compensation * * * testimony may be taken * * * and if an award is made it shall be against the special fund provided by this section.”

Liability of the Fund for ¡Reopened Cases is to be conditioned upon the lapse of time as provided by the statute. It may be imposed only in a case which has been closed and is reopened by fresh application (cf. Matter of Kiriloff v. A. G. W. Wet Wash Laundry, 293 N. Y. 222). The fund is maintained by assessments upon employers and carriers (Workmen’s Compensation Law, § 25-a, subd. 3) and its purpose is patent: that the risk of claims recurring beyond the statutory periods shall be borne by all.

When this case was closed in 1935, both board and employer were aware of the claimant’s condition and of the employer’s statutory duty to furnish any medical treatment or equipment necessary to the treatment of his injured leg (Workmen’s Compensation Law, § 13). The closing of the case in 1935, and the transfer to the abeyance file in 1939, were ordered because no further proceedings then were contemplated. The only substantial basis for distinction between a closed case and one in abeyance is said to be that the latter may be restored to the active calendar by request of the parties, while an application to reopen the former is addressed to the discretion of the board. Neither that distinction nor the labels upon the files of the board can be determinative (cf. Matter of Fallon v. New York Color & Chemical Co., 275 N. Y. 573). For the purpose of section 25-a, a case is closed when it has been referred to the abeyance file because no further proceedings were foreseen. Such a case is to be distinguished from one held in abeyance pending the completion of a defective application for compensation, when hearings are to be held (Matter of Ludgen v. Jamestown Asphalt Paving Materials Corp., 257 App. Div. 881; Matter of Buddenborg v. Gilman Constr. Co., 255 App. Div. 903).

Section 13 of the Workmen’s Compensation Law establishes the duty of an employer to furnish medical treatment and any equipment required for a compensable disability ££ for such period as the nature of the injury or the process of recovery may require.” The employer must provide replacements or repairs for any necessary equipment; and ■ neithér replacement nor medical treatment shall “ constitute the payment of compensation under section twenty-five-a ’ ’. Manifestly the last provision' was not intended to limit the nature of the liability which may be shifted to the fund. It serves only to define the words “ payment of compensation ’ ’ as they appear in section 25-a, and thus to provide that such expenditures shall not toll the three-year limitation under that statute.

The duty to furnish any necessary medical treatment, as well as the duty to replace orthopedic shoes, is derived from section 13. To hold that satisfaction of those duties cannot be imposed upon the fund would reduce its function to negligible importance. There is nothing in either statute to indicate that the potential liability of the fund is to depend upon the relative probability of the claimant’s future need (Matter of Becker v. Marcy State Hosp., 264 App. Div. 643). The sole criterion under section 25-a is the passage of time. In this case seven years had elapsed since claimant’s accident and three years bad elapsed since the last payment of compensation. The award should have been against the Fund for Reopened Cases.

The order of the Appellate Division should be reversed, and the award of the Workmen’s Compensation Board annulled, with costs in this court and in the Appellate Division, and the matter remitted to the board for further proceedings in accordance with this opinion.

Fuld, J.

(dissenting). Section 25-a of the Workmen’s Compensation Law provides, in part, that, when “ an application for compensation ” is made by an employee seven years after the injury and three years after the last payment of compensation, “an award”, if any, “shall be against the special fund ”. All agree that the section was designed to immunize the-employer and the carrier from old and stale claims and to shift the burden of such charges to the Special Fund for Reopened Cases. 1 do not believe that it was any part of that purpose to relieve the employer of the burden of periodically replacing worn out prosthetic devices or appliances necessitated by a compensable injury.

The decisions leave’ no doubt that the only claims which are truly “ stale ” and deserving of being shifted from employer to special fund by the lapse of time are those which the employer could not have expected to recur after the passage of seven years from the date of injury and three years from the last payment of compensation. (See, e.g., Matter of Ryan v. American Bridge Co., 243 App. Div. 496, 498, aifd. 268 N. Y. 502.) In the Ryan case {supra), the court correctly stated that “ The statute in question [§ 25-a] deals only with stale ’ claims of injured employees, that is, those where after extended periods, there, has been a recurrence of malady, a progress in disease not anticipated, or a pathological development not previously prognosticated, arising out of the injury. ’ ’ (243 App. Div., at p. 498.) Applications for the replacement or repair of orthopedic shoes are obviously not unforeseeable. On the contrary, in a case of total disablement of a leg, the need for their replacement or repair is not only foreseeable but inevitable, and, in view of the design of section 25-a, such matters are not the responsibility of the special fund.

Moreover, what reason and the design of section 25-a so strongly suggest, the statute elsewhere confirms. By section 13 of the Workmen’s Compensation Law, the employer’s obligation to repair or replace prosthetic devices, no matter how long a .time may intervene between the award and the repair or replacement of such articles, is unalterably and unequivocally fixed. That section, in so many words, renders the employer liable to furnish, “ for such period as the nature of the injury * * * may require ”, not only “ artificial members of the body or other devices or appliances necessary in the first instance to replace, support or relieve a portion or part of the body resulting from and necessitated by the injury of an employee ”, but also replacements or repairs of such artificial members of the body or such other devices or appliances necessitated by ordinary wear.” And, most significantly, the statute continues, such a replacement or repair * * * shall not constitute the payment of compensation under section twentv-five-a ”.

That, it seems to me, ends the matter, for, since section 25-a applies only to a long-delayed “ application for compensation ” and since the replacement or repair of devices such as orthopedic shoes is — by legislative definition — not “ compensation ”, it necessarily follows that section 25-a may not here be properly invoked by employer or carrier to shift liability to the special fund.

That being so, it is unnecessary to consider whether the board’s action in placing this claim in “ abeyance ” in its pending file ” effectively closed ” the case for present purposes.

I would affirm the determination of the Appellate Division.

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

Order reversed, etc.


author: Bromley, J.

text:
    In the Matter of the Will of Jacob Mayers, Deceased. Martha Mayers et al., Appellants; Empire Trust Company et al., Executors and Trustees under the Will of Jacob Mayers, Deceased, et al., Respondents.
    Argued May 16, 1949;
    decided July 19, 1949.

      Arnold J. Brock, Manfred Nathan and William P. Balaban for Martha Mayers, appellant.
    I. The rule that a violation of section 17 of the Decedent Estate Law transforms a residuary gift to charity, uncertain in amount, into a general legacy in the amount of the permissible maximum, is controlling. (Matter of Skillman, 247 App. Div. 327; Hollis v. Drew Theol. Seminary, 95 N. Y. 166; Matter of Seymour, 239 N. Y. 259; Matter of Brooklyn Trust Co., 179 App. Div. 262; Matter of Lord, 155 Misc. 628; Matter of Kaufman, 158 Misc. 102; Matter of Buck, 158 Misc. 111; Matter of Miranda, 151 Misc. 459; Matter of Gaubert, 158 Misc. 444; Matter of Sonderling, 155 Misc. 403; Matter of Sugden, 249 N. Y. 541.) II. There was a violation of section 17 by virtue of the fact that the charities receive more than one half of the gross estate after the payment of debts. (Hollis v. Drew Theol. Seminary, 95 N. Y. 166; Matter of Seymour, 239 N. Y. 259.) III. For the purpose of calculating' whether section 17 has been violated, estate taxes must be calculated as if the will were administered as written. (Blair v. Commissioner of Internal Revenue, 300 U. S. 5; Uterhart v. United States, 240 U. S. 598; Freuler v. Helvering, 291 U. S. 35.) IV. The court below had a sufficient basis to determine the amount of attorneys’ fees to be used in the calculation to determine whether section 17 had been violated. In failing to use those figures and to make a determination based thereon the Surrogate erred. (Matter of Westurn, 152 N. Y. 93; Matter of Sanford, 66 Misc. 395; Matter of Durand, 194 N. Y. 477; Matter of Rathbone, 170 Misc. 1030, 262 App. Div. 706, 287 N. Y. 708.) V. Section 17 of the Decedent Estate Law is a Statute of Limitations. In determining whether the statute has been violated the court must apply the statute as it is written. The Surrogate erred in failing to do so and in attempting to rewrite the statute. (Hollis v. Drew Theol. Seminary, 95 N. Y. 166; Matter of Buck, 158 Misc. 111.)

      Frederick W. Scholem for Isabel M. Anspach, appellant.
    Paragraph “ Sixth ” of the will violates section 17 of the Decedent Estate Law. (Matter of Seymour, 239 N. Y. 259.)

      James E. Bennet, Jr., and Helen F. Tuohy for Empire Trust Company and another, as executors and trustees under the will of Jacob Mayers, deceased, respondents.
    I. The decree of the Surrogate correctly carries out the intent of section 17 that charity’shall receive one half and no more. (Hollis v. Drew Theol. Seminary, 95 N. Y. 166; Matter of Apple, 141 Misc. 380; Matter of Kaufman, 158 Misc. 102.) II. The effect of the 1929 amendment was to abolish the rule of Matter of Seymour (239 N. Y. 259). (Matter of Kaufman, 158 Misc. 102.) III. In any event, the general legacy theory should not be extended to the instant case. (Matter of Miranda, 151 Misc. 459; Matter of Sonderling, 155 Misc. 403; Matter of Gaubert, 158 Misc. 444; Matter of Morris, 175 Misc. 773, 261 App. Div. 950, 287 N. Y. 624; Matter of Brooklyn Trust Co., 179 App. Div. 262.)

      Robert D. Steefel, Davis S. Galton, Boyers H. Bacon and Louis S. Posner for St. Luke’s Hospital and others, respondents.
    I. The Kings County rule by which a violation of section 17 transforms a residuary gift to charity, uncertain in amount, into a general legacy in the amount of the permissible maximum is not the law. (Matter of Brooklyn Trust Co., 179 App. Div. 262; Matter of Seymour, 239 N. Y. 259; Matter of Kaufman, 158 Misc. 102; Matter of Buck, 158 Misc. 111; Matter of Lord, 155 Misc. 628; Matter of Voelker, 158 Misc. 97; Matter of Schalkenbach, 155 Misc. 332; Hollis v. Drew Theol. Seminary, 95 N. Y. 166; Matter of Morris, 175 Misc. 773, 261 App. Div. 950, 287 N. Y. 624.) II. The decision of the Surrogate correctly carries out the purport of section 17 of the Decedent Estate Law that the charities shall receive the maximum permissible gift, no more and no less. (Hollis v. Drew Theol. Seminary, 95 N. Y. 166.) III. If a violation of section 17 transforms a residuary gift to charity into a general legacy payable on the death of the life tenant, such general legacy must be in an amount which has a present value equal to one half of the gross estate less debts, computed upon the life expectancy of the life tenant. IV. The court below was correct in determining that the estate taxes actually due and payable must be used in calculating whether or not section 17 has been violated. (Matter of Sonderling, 155 Misc. 403; Matter of Lord, 155 Misc. 628; Matter of Gray, 176 Misc. 829, 266 App. Div. 732, 292 N. Y. 532.) V. The actual allowances made to the attorneys for the charitable remainder-men must be considered for purpses of determining whether or not there has been a violation under section 17. (Matter of Watson, 149 Misc. 235; Matter of Williams, 148 Misc. 14; Matter of Billings, 141 Misc. 84; Matter of James, 264 App. Div. 885; Matter of Sayre, 179 App. Div. 269.)

      Joseph V. McKee for St. Vincent’s Hospital, respondent.
    I. No determination can be presently had that paragraph “ Sixth ” of the will violates section 17 of the Decedent Estate Law. (Matter of Gray, 176 Misc. 829, 266 App. Div. 732, 292 N. Y. 532; Matter of Rathbone, 170 Misc. 1030, 262 App. Div. 706, 287 N. Y. 708.) II. A residuary gift to charity is an actual remainder interest; if it is in excess of the permissible statutory amount, section 17 of the Decedent Estate Law does not theoretically transform this residuary gift, uncertain in amount, into a general legacy for a fixed sum. It merely limits the portion of the residuary estate payable to charity to the statutory maximum. (Matter of Brooklyn Trust Co., 166 N. Y. S. 513.) HI. Where there is a demonstrated excess over the permissible maximum gift to charities the formula for distribution set up by the Surrogate should be applied. IV. The statute requires that the present value of the actual amount which will ultimately go to charity shall not exceed the permissible maximum. V. The Surrogate was correct in instructing and directing the executors, in determining the actual residue, to deduct administration expenses actually paid.
   Bromley, J.

On this appeal we must determine the appropriate rule for the ultimate disposition of trust assets under section 17 of the Decedent Estate Law when a testamentary-gift in remainder to charity has been found to violate the statute.

Jacob Mayers, a resident of New York County, died on November 15, 1943, survived by a widow and a sister, appellants herein. He left an estate which the parties agree amounted to $2,453,069.39 and debts amounting to $93,592.56. By his will Mayers gave a number of small legácies and directed that the residue was to pass in trust to his wife and sister for their lives. Paragraph sixth of the will directed that upon the death of the surviving beneficiary the residue is to paid to eight charitable institutions.

Section 17 of the Decedent Estate Law provides: “ No person having a husband, wife, child, or descendant or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, aftei; the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. The validity of a devise or bequest for more than such one-half may be contested only by a surviving husband, wife, child, descendant or parent. When payment of a devise or bequest to such society, association, corporation or purpose is postponed, in computing the one-half part of such society, association, corporation or purpose, no alloicance may be made for such postponement for any interest or gams (or losses) which may accrue after the' testator’s death. (The value of an annuity or life estate, legal or equitable, shall not be computed upon the actual duration of the life, but shall be computed upon the actuarial value according to the American Experience Table of Mortality at the rate of five per centum per annum. Such value shall be deducted from the fund or property, which is subject to the annuity or life estate, in order to ascertain the value of a future estate or remainder interest passing to such society, association, corporation or purpose.)

The widow and sister commenced this proceeding to obtain a construction of paragraph “ Sixth ” and a determination of the extent to which the gift to the charities violates section 17. Since the amount of the Federal estate tax and the allowances to attorneys, for services in connection with the tax proceedings and in the final accounting, have not been fixed, the Surrogate refused to determine whether the will now presents a violation of the statute. However, in order to permit the determination of the estate tax, the court granted the relief requested to the extent of instructing the executors as to the formulas to be employed (1) in measuring the maximum permissible gift to charity and (2) if a violation be found in distributing the corpus upon the termination of the trust. The necessity for the order at this time springs from the existence of two distinct rules for the determination of the amount which will pass to charity upon termination of the intervening interests, neither of -which has hitherto been considered by an appellate court.

After directing that the executors compute the maximum permissible gift to the charities and assess the present value of the charitable remainder in accordance with the explicit statutory formulas, the Surrogate’s decree correctly stated that if the present value of the remainder does not exceed the permissible gift the entire remainder is to pass to the charities upon termination of the trust. The controversial portions of that decree then provided as follows:

“2. If the said present value of the whole remainder exceeds the maximum permissible gift, the excess represents the present value of the future interest vesting in the distributees of the testator and the amount of the maximum permissible gift represents the present value of the future interest vesting in the charities named in Paragraph 1 Sixth ’ of the Will.
“3. If an excess is found as computed above, then at the termination of the trust, the distribution by the Trustees is t.o be made as follows:
“ To the charities, actual trust assets in the proportion that the maximum permissible gift bears to the said present value of the whole remainder.
“ To the distributees, actual trust assets in the proportion that the excess bears to the said present value of the whole remainder. ’ ’

The primary question here concerns the proper method for measuring the amount ultimately to be distributed to the charities. It has long been the rule that computation of the maximum permissible gift and the determination of a violation are to be made upon values of the several interests as of the testator’s death (Hollis v. Drew Theol. Seminary, 95 N. Y. 166, 380; Matter of Durant, 194 N. Y. 477), and that is now the express command of the statute. The statute commands that a testamentary gift in violation of its provisions shall be valid to the extent of one-half, and no more. * * * [and] * * * When payment of a devise or bequest to such society * * * is postponed, in computing the one-half part. of such society * * * , no allowance may be made for such postponement for any interest or gains or losses which may accrue after the testator’s death.”

Under the first of the conflicting rules applied prior to this proceeding, the ultimate disposition of the trust corpus has been determined by fixing a certain amount, equivalent to the excess over the permissible gift as of the testator’s death, which was to be paid to the distributees of the testator upon termination of the trust, while the balance of the corpus was to paid to the charity (Matter of Voelker, 158 Misc. 97; Matter of Buck, 158 Misc. 111, 114). Under the second rule the maximum permissible value of the charitable gift has been used to fix the sum to be paid to the charity, and the statutory distributees were to receive the balance (Matter of Gaubert, 158 Misc. 444; Matter of Sonderling, 155 Misc. 403; Matter of Miranda, 151 Misc. 459). Herein the Surrogate has followed a third formula in ruling that the charities and the statutory distributees, respectively, upon termination of the life interests shall receive shares of the corpus in the same proportions as the present values of their interests bear to the present value of the entire future interest. Thus the charities will receive four fifths, and the distributees one fifth, of whatever assets are distributed.

The results reached under the several formulas will vary widely. Since the final figures for this estate have not been calculated, it will be clearer to follow the Surrogate and employ for comparison a hypothetical residuary estate of $72,000 in which the present value of the maximum permissible gift to charity is $40,000, the life interests are valued in accordance with the statute at $22,000 and thus the present value of the charitable remainder is $50,000, an excess of $10,000. Assuming that the trust assets remain constant in value, the amounts payable upon termination of the intervening interests would vary as follows:

Miranda Buie Buck Buie Mayers Buie
To charities ................ $40,000 $62,000 $57,600
To distributees ............. 32,000 10,000 14,400

Appellants contend that the court should have followed the formula employed in Matter of Miranda (supra), relying upon the statutory prohibition against allowance for interest, gains or losses in computing the charities’ share. In support of the Surrogate, respondents urge that the charitable gift is to be valid “ to the extent of one-half, and no more.”

The issue turns upon the effect of the 1929 amendment, upon which all parties rely. Prior to that year the statute expressed a simple command, without express direction as to the matter of its satisfaction. In Matter of Seymour (239 N. Y. 259), decided in 1925, the question was whether a charity whose testamentary remainder had been limited in accordance with section 17 might share in the increase to the corpus which had accrued during the life interest. We held that the charity was not entitled to a share of this increase, under the theory that its residuary legacy had been transformed by operation of the statute into a general legacy in a fixed amount equivalent to the maximum permissible gift valued as of the testator’s death. That theory had been expressed in only one previous case (Matter of Brooklyn Trust Co., 179 App. Div. 262), where the question had been whether the charitable legatees should bear any of the expenses of administration. However, theory could not obviate the bald fact that One hundred thousand dollars presently due is of more value than one hundred thousand dollars payable ten years hence ” (239 N. Y., at p. 262). Thus we approved an allowance to the charity of interest for the actual period of the intervening estate, noting that it would have been equally proper to have computed the charity’s permissible interest as the present value of a legacy payable in the future ”, so as to add interest for the actuarial duration of the left estate.

The amendment of 1929 clearly abrogated the rule of the Seymour case (supra) to some extent. That amendment was drafted by the Commission to Investigate Defects in the Laws of Estates, and a note of the commission was printed with the bill as enacted. It reads (Combined Reports of Decedent Estate Comm., Reprint, p. 185): “ Also supersedes the ruling in Matter of Seymour, 239 N. Y. 259, that interest shall be added when payment is postponed, and declares the rule in that case that gains shall not be added. The amendment is in accord with the legislative intent that only one-half shall be paid over, and no more. The authorities hold that the computation of the one-half payable to the charitable or other corporations named must be computed as of the death of the decedent and upon the same basis as if it had then been turned into cash. By the amendment the Commission seeks to continue this rule as to the time of computation but intends to avoid any allowance to the charity by reason of a postponement occasioned by the terms of the will. The statute, it has been held, transforms a residuary gift to the corporation uncertain in amount into a general legacy for a fixed sum. Where a precedent trust has existed, and the income has been applied to the use of the beneficiary, a postponement of payment to the corporation would result under the decision cited, in a charge against the persons, who would be entitled to the other half, of the amount of interest on the postponed legacy to the corporation; interest was allowed under that decision at five per cent, compounded annually. A continuance of the trust for a substantial period of years might largely cut down the one-half share to such other persons, against whom would also be charged any losses incurred during the interim.”

In determining the effect of the amendment, we should note also the first case in which it was considered (Matter of Apple, 141 Misc. 380). There the court was confronted with a legal life interest and a charitable remainder which exceeded the statutory limit by $1,449.20. That amount was paid outright to the life tenant, since it became merged with his life interest, and the residue was to pass to the charity upon his death. Clearly Surrogate Foley, who had been chairman of the commission, felt that the general legacy theory had been abrogated entirely, for the charity was to receive all of the residue less the fixed amount of the excess at date of the testator’s death.

It is obvious that the amendment of 1929 has done away with the theoretical transformation of an excessive gift to charity into a general legacy in a fixed amount. It is also clear that under either of the two rules evolved since 1929 the charity will receive eventually a gift whose value at the date of the testator’s death is either more (Matter of Buck, supra) or less (Matter of Miranda, supra) than one half the gross estate less debts. Apart from the anomalous consequences noted by the Surrogate which would result from the rule which appellants advocate, we cannot burke the fact that the charities would receive less than one half, when the statute commands that the charitable legacy shall be valid to the extent of one-half, and no more.” In fact, the Federal tax deduction would then be based upon the discounted present value of a gift in the fixed amount payable on termination of the life interest.

• Only the most explicit statutory command should compel that result. We are agreed that the prohibition against any allow anee * * * . for * * * gains or losses ’ ’ in computing the share of the charities does not forbid the result below, which validates the charitable remainder precisely “ to the extent of one-half ”.

Appellants’ other contentions are without merit.

The order of the Appellate Division should be affirmed, with costs payable out of the estate. The questions certified are answered in the affirmative.

Lotjghran, Oh. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Order affirmed, etc.

         The first sentence is the statute as it read prior to 1929. The language in italics was added in that year (L. 1929, eh. 229); and the language within the parentheses was added in 1936 (L. 1936, eh. 288).