text:
    Alice Garvin, Respondent, v. George K. Garvin, Appellant.
    Argued November 27, 1950;
    decided January 18, 1951.

      Eli E. Bronstein and Henry G. Van Veen for appellant.
    I. The jurisdiction of the courts of New York State over defendant has been obtained only in a separation action and the exercise of the court’s jurisdiction is limited to matters incidental to or part of a separation action. Special Term in granting the motion for an injunction granted relief which was in excess of the jurisdiction to which defendant was subjected by the institution of the pending action. (New York Life Ins. Co. v. Dunlevy, 241 U. S. 518; Ex parte Indiana Transp. Co., 244 U. S. 456; Reynolds v. Stockton, 140 U. S. 254; Smith v. Woolfolk, 115 U. S. 143; Long v. Long, 196 Misc. 982; Fox v. Fox, 263 N. Y. 68; Ravaud v. Ravaud, 273 App. Div. 507, 298 N. Y. 744.) II. The jurisdiction of the courts of this State, having been obtained only in a separation action, is limited to determining those matters which are relevant or incidental thereto. The orders of Special Term, having granted relief which was neither necessary to aid plaintiff in the prosecution of her action nor in the protection of her marital status, are improper orders and must be reversed. (Palmer v. Palmer, 268 App. Div. 1010; McDonald v. McDonald, 182 Misc. 1006; Goldstein v. Goldstein, 283 N. Y. 146; Williams v. North Carolina, 317 U. S. 287; Pereira v. Pereira, 272 App. Div. 281; Gaskell v. Gaskell, 189 Misc. 504; Newman v. Newman, 181 Misc. 256; Estin v. Estin, 334 U. S. 541; Evans v. Evans, 273 App. Div. 895.)

      Albert I. Edelman for respondent.
    I. Plaintiff was properly granted injunctive relief restraining defendant from proceeding, during the pendency of this action, with an action for divorce in the Virgin Islands. Defendant’s acts threatened impairment of plaintiff’s rights in her pending action and preclusion of the judgment of the court. (Greenberg v. Greenberg, 218 App. Div. 104; Oltarsh v. Oltarsh, 181 Misc. 255; Adams v. Adams, 180 Misc. 578; Palmer v. Palmer, 268 App. Div. 1010; Williams v. North Carolina, 317 U. S. 287; Matter of Holmes, 291 N. Y. 261 ; Lawrence v. Lawrence, 184 Misc. 515.) II. Plaintiff’s rights which are entitled to protection under the court’s order include her rights in her marital status as defendant’s wife. (Estin v. Estin, 296 N. Y. 308, 334 U. S. 541.) III. The motion for an injunction was part of, and incidental to, plaintiff’s pending separation action. The contention that the Supreme Court has lost jurisdiction over defendant is insupportable. (Pereira v. Pereira, 272 App. Div. 281; Palmer v. Palmer, 268 App. Div. 1010.) IV. The prima facie showing that defendant’s alleged residence in the Virgin Islands was sham, upon which the second question certified to this court is based, emphasizes the propriety of the orders below.
   Desmond, J.

This is a separation action brought by wife against husband. The appeal, by permission of the Appellate Division, First Department (which certified questions to us), is from a unanimous order of that court, which affirmed an order made at Special Term, which order enjoined defendant husband, during the pendency of this separation action, and until entry of final judgment herein, from proceeding with the prosecution of an action for divorce which the husband has instituted against the wife in the Virgin Islands, and from instituting or prosecuting, in the Virgin Islands or elsewhere outside this State, any action affecting the marital status of the parties. In granting plaintiff’s motion and denying a cross motion (made by defendant husband appearing specially ” although he had already appeared generally in the action) to strike the injunction motion from the calendar, the Justice at Special Term, noting that defendant had appeared generally in this separation action and had then left this State and allegedly become a resident of the Virgin Islands, stated that the Virgin Islands action “ would impair plaintiff’s right in the present action ” and that plaintiff properly sought an injunction to protect her rights therein as an incident to that action ”, citing Pereira v. Pereira (272 App. Div. 281) and Palmer v. Palmer (268 App. Div. 1010).

The complaint, verified in October, 1949, alleges the marriage of the parties, that both have been, and are, residents of this State, that since 1941 defendant has spent much time away from home in company with another woman and has on many occasions asked plaintiff to give defendant a divorce so he might marry the other woman, which request plaintiff refused, that in October, 1948, defendant abandoned plaintiff and left their New York City residence, announcing his intention not to return, that defendant since a stated date has entirely failed to support plaintiff, that plaintiff has no means of support except small wages from temporary employment and is living on the bounty of her sister, that defendant is a partner in a New York stock brokerage firm earning about $40,000 per year and owning valuable property and that until defendant’s abandonment of plaintiff, the parties “ lived in luxurious homes and in a very substantial manner.” The complaint closes with the usual prayer for a judgment of separation, and for temporary and permanent alimony, and for counsel fees. The answer denies most of the. allegations of the complaint except that it, in effect, admits that defendant abandoned plaintiff, but not without justification. Defendant’s membership in the brokerage firm is admitted by the answer, as is the allegation of the complaint that the parties have resided since marriage and, as of the date of the complaint, still reside in New York State. The answer consents to judgment of separation, prays that alimony be fixed in amount consonant with defendant’s means and prays that all other relief requested by the complaint be denied.

Plaintiff’s motion for an injunction was made in April, 1950, about five months after issue had been joined. In her moving affidavit she repeats some of the allegations of the complaint, alleges that, over her husband’s objection she had been granted temporary alimony of $75 per week which had been paid, that thereafter her husband’s attorney had proposed a permanent “ financial arrangement ” for her support, which she had refused as not affording her sufficient security, that plaintiff’s attorney had then put this action on the calendar where it is awaiting trial (and will not be reached for some months, counsel told us on the argument), that in April, 1950, plaintiff was informed by a friend that defendant husband had left for the Virgin Islands four weeks before; that plaintiff’s attorney, making inquiries, was informed by defendant’s attorney that such was the fact and that defendant had discussed with defendant’s attorney a possible Virgin Islands divorce, against which defendant’s attorney had advised defendant because of probable invalidity, and that plaintiff’s attorney believed defendant had gone to the Islands to get a divorce. The moving affidavit for an injunction goes on to state plaintiff’s belief that her husband’s stay in the Islands is temporary only, for divorce purposes, and that any alleged residence there is a sham; wherefore, plaintiff asks that any such divorce suit be enjoined because of the harmful effect on her rights, including the burden that would be hers of proving the invalidity of any such divorce, if obtained. Plaintiff’s attorney filed an affidavit in support of the motion, in which he confirmed his client’s statement. Later, plaintiff filed a supplemental affidavit in which she stated that, on April 25, 1950, at her home in Larchmont, N. Y., she had been served with the summons and complaint in an action for divorce brought by her husband against her in the District Court of the Virgin Islands.

The husband.made no affidavit in opposition to the injunction motion but his attorney did. The attorney’s affidavit says that defendant has been a resident of the Virgin Islands since March 4, 1950 (a purely conclusory and hearsay statement, it would seem). This affidavit points out (and it is the fact, of course) that plaintiff’s complaint in this separation action contains no prayer for an injunction (obviously because at that time she had no advance information of his impending trip to the Islands and of the purpose thereof). Defendant’s attorney argues, in that opposing affidavit, that this motion for an injunction seeks relief which is not incidental to the issues in a separation action, and that defendant’s general appearance in this separation action did not give the court jurisdiction to entertain such a motion. He agrees that if the motion for injunctive relief were really a valid part of the separation action, service of the summons on defendant would give the court jurisdiction to issue an injunction, on a proper factual showing.

The whole argument of appellant in this court is based on his contention that injunctive relief is not properly incidental to, or necessary in, this separation action. We do not think that position is well taken. Back in the days when Haddock v. Haddock (201 U. S. 562) made void foreign judgments of the kind being attempted here, our court held in Goldstein v. Goldstein (283 N. Y. 146), relying on the Haddock rule, that such injunctive relief was unnecessary for the protection of the rights and interests of the spouse who, staying at home and refusing to appear in the foreign suit, could not be bound thereby anyhow, under the Haddock rule. But all this has gone by the board since Williams v. North Carolina (317 U. S. 287, 325 U. S. 226) which held that a divorce decree granted by a State to one of its domiciliaries is entitled to full faith and credit in another State, even though there was no personal service of the divorce papers, and that the finding by the foreign State of domicile there is entitled to prima facie weight but is not conclusive in the sister State, and may be relitigated in the latter (see Supreme Court’s analysis of its Williams decisions in Estin v. Estin, 334 U. S. 541, 543).

Accordingly, in the two decisions cited by the Special Term here, the First Department (Pereira v. Pereira, 272 App. Div. 281, supra) and Third Department (Palmer v. Palmer, 268 App. Div. 1010, supra) both have held that, when a wife sues for separation and the husband goes to another jurisdiction and attempts there to get a divorce without appearance by the wife, there is ground and necessity for intervention by our courts of equity in favor of the wife and for her protection, by injunction. As the First Department said in the Pereira case (supra, p. 288): ‘1 Certainly there is every reason for a wife in plaintiff’s position to fear the result of a foreign divorce proceeding prose.cuted by the husband.” (The Pereira case was a separate suit for an injunction, commenced when, after bringing contempt proceedings after a separation judgment, the wife learned the husband had gone to Nevada for a divorce; in the Palmer case the situation was just like ours in the present case.) The bases for plaintiff’s fear are the 1 full faith and credit ’ ’ and ‘ ‘ prima facie weight ” holdings of Williams v. North Carolina (supra). If the husband be allowed to prosecute his foreign suit to judgment, the wife, to save her rights as wife, will have to bring a new suit to set aside the foreign decree and in that suit will have to bear the heavy burden of striking down the prima facie effect of the foreign court’s finding of residence.

Much is said in appellant’s brief about Estin v. Estin (296 N. Y. 308, affd. 334 U. S. 541). But Estin v. Estin does not control this case. There the Nevada divorce’s validity was not in question but only the issue as to whether it had destroyed the wife’s rights to alimony under an earlier New York separation judgment. It is not at all in point here, as the Appellate Division pointed out in the Pereira decision (272 App. Div., p. 288, supra).

Both parties cite, besides Pereira v. Pereira and Palmer v. Palmer (supra) numerous lower court decisions, to which it is unnecessary to refer. Defendant argues also from the language of section 878 of the Civil Practice Act which authorizes, in subdivision 1, an injunction where, during the pendency of an action, it appears that the defendant “ is doing or procuring or suffering to be done, or threatens, or is about to do, or to procure or suffer to be done, an act in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual ”. We do not see what comfort defendant can get from that, since the language authorizes an injunction in just such a situation as this.

Both parties seem to assume that Williams v. North Carolina (supra) and its requirements as to “ full faith and credit ” cover Virgin Islands judgments, although the Virgin Islands are not a State ” but an insular possession of the United States ” (see U. S. Code, tit. 48, § 1405 et seq.), the courts thereof being United States courts. We agree that “ full faith and credit ” under the Constitution, must be given to the courts of our territories and possessions as well as of our States, and must be given to the judgments of all Federal courts (see U. S. Code, tit. 28, § 1738; Alaska Packers Assn. v. Industrial Accident Comm., 294 U. S. 532, 546; Stoll v. Gottlieb, 305 U. S. 165, 170).

We attach no importance to the filing by defendant, when opposing the motion for an injunction, of a notice of “ special appearance ”. He had already appeared generally in the action, and the notice of motion had been properly served on his attorney (see Civ. Prac. Act, §§ 163, 878, subd. 1).

The order should be affirmed, with costs, and both certified questions answered in the affirmative.

Loughran, Ch. J., Lewis, Conway, Dye, Fuld and Froessel, JJ., concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Lewis, J. Desmond, J.

license: Public Domain

text:
    Rose M. Weintraub, Appellant, v. Max W. Weintraub, Respondent.
    Argued November 15, 1950;
    decided January 18, 1951.

      Jóhn B. Wheeler for appellant.
    I. The court has jurisdiction of the subject matter of this action which is brought to recover damages for fraud committed by defendant in order to induce plaintiff to enter into a contract. (Goldsmith v. National Container Corp., 287 N. Y. 438; Johnson v. Johnson, 206 N. Y. 561; Calderon v. Calderon, 193 Misc. 37, 275 App. Div. 251.) II. The complaint states facts sufficient to constitute a cause of action. (Matter of Ensign, 103 N. Y. 284; Livingston v. Livingston, 173 N. Y. 377; Goldman v. Goldman, 282 N. Y. 296; Hoops v. Hoops, 292 N. Y. 428; Goldsmith v. National Container Corp., 287 N. Y. 438.)

      William E. Friedman and Leonard L. Berliner for respondent.
    I. The court does not have jurisdiction of the subject of the action, which is one to increase the amount of alimony fixed by written agreement of the parties during the pendency of the New Jersey divorce action brought by plaintiff against defendant. (Johnson v. Johnson, 206 N. Y. 561; Stoddard v. Stoddard, 227 N. Y. 13; Ramsden v. Ramsden, 91 N. Y. 281; Ainsworth v. Ainsworth, 239 App. Div. 258; Red Robin Stores, Inc., v. Rose, 274 App. Div. 462; Glahn v. Clark, 251 App. Div. 747; Walsh v. Walsh, 276 App. Div. 753; Zimmerman v. Zimmerman, 275 App. Div. 1030.) II. The complaint does not state facts sufficient to constitute a cause of action because it does not contain any allegations of fact to support the claim for damages, and such allegations are essential in a fraud action. (Schmoltz v. Schmoltz, 116 Mich. 692.)
   Lewis, J.

Our inquiry goes to the legal sufficiency of the complaint. The action is one by which the plaintiff demands of the defendant, her former husband, $100,000 damages based upon his alleged fraud in inducing her to enter into an agreement during the pendency of a divorce action which she successfully prosecuted in 1944 in the Chancery Court of New Jersey.

The fraud alleged is that, for the purpose of inducing the plaintiff to enter into a contract by which in consideration of the defendant’s payment to her of sums therein specified she would release the defendant from all rights or claims by her for alimony, support and maintenance and for the support of their infant daughter, the defendant falsely and fraudulently represented his net financial worth to be $50,000 when in truth his net worth was $500,000.

As our decision will be influenced by the relation, if any, which the contract in suit bears to the 1944 divorce action, we examine that agreement which is annexed to and made a part of the complaint. Although in her brief before us upon this appeal the plaintiff refers to the contract of 1944 as “ * * * strictly a property settlement agreement ”, the further significant statement is made that the agreement was “ * * * entered into in contemplation of the pending divorce action which terminated the marriage relationship and the plaintiff’s right to support.” (Emphasis supplied.) That fact is reinforced by the allegation in the complaint that the agreement was entered into during the pendency of said [divorce] action ”. In addition, after reciting the fact that the wife had instituted in New Jersey an action for divorce in which she demanded alimony for herself and maintenance for the child of her marriage to defendant, the contract itself contains the husband’s agreement to pay during the pendency of the divorce action ” a stipulated weekly sum in full satisfaction of his obligation to support the wife and their daughter until the entry of a final decree of divorce; that — depending upon when a final decree of divorce was entered — the husband would pay to the wife certain stipulated sums for her own use, for the use of their daughter and to the attorneys who had rendered legal services to the wife in the divorce action. Finally the contract — which was not referred to in the final decree of divorce — contained the following provision which we regard as an important factor: 3. The parties agree that in the event that either party shall hereafter obtain a valid final decree or judgment of divorce from the other in any jurisdiction, this agreement and its provisions shall have the same force and effect as though inserted at length in any such final decree.”

It should also be noted that by the plaintiff’s brief upon this appeal we are told that plaintiff “ * 0 * does not seek to attack the validity of the agreement nor does she seek its rescission or modification in any respect, but in this action she simply seeks to recover the damages sustained by reason of the respondent’s deceit.” In that connection the argument is made in plaintiff’s' behalf that as a matter of law she may retain whatever benefits have accrued or may hereafter accrue to her under the 1944 contract and that •— independent of the divorce action successfully prosecuted in New Jersey in 1944 — she may maintain against the defendant the present action at law in which damages in a substantial amount are demanded based upon her allegation that she was induced by the defendant’s fraud to enter into the 1944 agreement.

It is of course true, as asserted by the plaintiff-appellant, that one of the three traditional remedies ordinarily available to a person who has parted with something of value as the result of a contract induced by fraud, is that * * * he may retain what he has received and bring an action at law to recover the damages sustained.” (Vail v. Reynolds, 118 N. Y. 297, 302-303; Goldsmith v. National Container Corp., 287 N. Y. 438, 442-443.) However, where as in the present case, the plaintiff frankly states that the agreement in suit was entered into in contemplation of a divorce action instituted by her in New Jersey, which statement, as we have seen, is supported by allegations of the complaint and by provisions of the agreement which serves as the basis of the present action, such agreement was not only related to the divorce action but at the time was an incidental and potent factor by which was attained the end then sought by the plaintiff. And where, as here, the plaintiff asserts that she neither attacks the validity of the agreement of 1944 nor asks for its rescission or modification, but demands of the defendant damages by reason of his alleged deceit, we think the law of this jurisdiction is opposed to her position.

As the case comes to us the complaint has been dismissed. Accordingly, we assume the truth of plaintiff’s allegations therein that she was induced, by the defendant’s false representations of his financial worth, to accept under the 1944 agreement a sum inadequate for her proper maintenance during the pendency of the contemplated New Jersey divorce action and in full satisfaction of any and all of the defendant’s obligations to her which might survive the decree in that action. In those circumstances it is difficult to conceive of a measure of plaintiff’s damages which could be applied under the complaint herein other than a determination by the court of the proper amount for plaintiff’s maintenance and support based upon the defendant’s true financial worth.

We regard the law to be established in this jurisdiction that if a dispute over the amount to be paid by . a husband for the support of his wife reaches the stage of court action, resort must be had to the appropriate statutory action applicable to the type of matrimonial litigation involved (Ramsden v. Ramsden, 91 N. Y. 281, 283-284; Matter of Stern, 285 N. Y. 239, 241; and see Civ. Prac. Act, arts. 67, 68, 69, 70). Upon that subject this court has had occasion to say (per Rippey, J.): “ The wife’s right to alimony is not a private claim or demand ’ arising out of the marriage of the parties. That right comes from the statute and not from the common law (Romaine v. Chauncey, 129 N. Y. 566, 571). Such a claim in itself furnishes no foundation for a cause of action; it is a mere incident of the judgment in a matrimonial action (Galusha v. Galusha, 138 N. Y. 272; Fox v. Fox, 263 N. Y. 68; Civ. Prac. Act, §§ 1169, 1170). * * * The parties by themselves were without power permanently to fix or to alter their marital status or the scope of the obligations arising from the marriage relationship by consent, stipulation or their own conduct (Stevens v. Stevens, 273 N. Y. 157, 159; Goldman v. Goldman, 282 N. Y. 296, 299).” (Querze v. Querze, 290 N. Y. 13, 18.) (Emphasis supplied.)

Mindful that the decree by which the parties to the present action were, divorced in 1944 was granted by the Court of Chancery of New Jersey, we exercise the power given to us by section 344-a of the Civil Practice Act and note judicially the following New Jersey statute which — as in our own jurisdiction by section 1170 of the Civil Practice Act — empowers a court granting a divorce decree to retain jurisdiction to alter and amend the provisions thereof with respect to alimony: “ Pending a suit for divorce or nullity, brought in this State or elsewhere, or after decree of divorce, whether obtained in this State or elsewhere, the court may make such order touching the alimony of the wife, and also touching the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just * * *; orders so made may be revised and altered by the court from time to time as circumstances may require.” (N. J. Stat. Ann., 2:50-37; and see Williams v. Williams, 12 N. J. Mis. Rep. 641; Glassman v. Essex Co. Juvenile Court, 9 N. J. Mis. Rep. 519.)

We agree with the Appellate Division that the case is ruled by Johnson v. Johnson (206 N. Y. 561). In that action — instituted by a plaintiff wife to increase the alimony previously fixed by a separation agreement between herself and her husband — this court reversed an Appellate Division order which in turn had reversed an order of Special Term denying plaintiff’s motion for counsel fees, and granted said motion. Two questions were certified by the Appellate Division: Did (1) Special Term or (2) the Appellate Division have power in that case to award plaintiff counsel fees? Concluding that each question should be answered in the negative this court gave as reasons for its answers (1) that the action was not a matrimonial action and therefore there was no authority for awarding counsel fees; and (2) plaintiff was not entitled to counsel fees because she had failed to plead facts which entitled her to the relief sought. As to the latter reason the opinion by Judge Hiscook (as he then was) stated (p. 568): “ * * * But assuming without deciding that the coinplaint does contain certain allegations showing a right to have the entire agreement set aside for fraud and duress, the plaintiff intentionally and deliberately, as shown not only by the complaint but by her counsel’s argument upon this appeal, confines her request simply to a prayer for modification of the amount of allowance for support. She has the power to take this position, and evidently for some reason prefers to preserve the agreement so far as it provides for separation. The question thus becomes whether where parties do enter into a separation agreement which provides as one of its features for an allowance to the wife, the court can annul this latter provision leaving the rest of the agreement intact, and then substitute its decision for the agreement of the parties as to the amount of allowance. It is very clear that this cannot be done. In the first place, the amount of allowance for support to be paid by the husband is so far an integral part of the agreement for separation that I doubt whether it could be set aside without annulling and canceling the entire agreement. But beyond this the court cannot reform an agreement entered into by parties by making a new agreement or provision for them in the place of the one which they have adopted. (Hughes v. Cuming, 165 N. Y. 91, 96, 97.) ” (See, also, Calderon v. Calderon, 275 App. Div. 251.)

The judgment entered upon the order of the Appellate Division shpuld be affirmed, with costs. The certified questions are not answered.

Desmond, J.

(dissenting). The complaint alleges that while the parties were wife and husband, the latter, by means of intentionally false statements as to the value and amount of Ms property, induced plaintiff to consent to a separation agreement by the terms of wMch she agreed to accept, and accepted, $20,000 in satisfaction of all her property rights against her then husband, including support and maintenance. The action is at law, and money damages are demanded. The question is as to whether such a suit lies. That question Special Term answered in the affirmative, but the Appellate Division in the negative. I see no impediment to the bringing of such an action.

The complaint avers further that the parties are residents of this State, that they were married here in 1917, that plaintiff obtained a decree of divorce against defendant in New Jersey in 1944, and that, while that action was pending, the parties entered into a written agreement, a copy of wMch is annexed to the pleading. That agreement recited the pendency of the divorce suit and that the parties desire to settle their property rights for all time. The husband therein promised to pay the wife various sums of money on stated dates, the total thereof being $20,000, and the wife covenanted, in consideration of those sums, to release all claims as to support, dower or community rights, or to elect against defendant’s will. There was a clause in that agreement that the wife was to have the custody of the infant daughter of the marriage, and that the husband would pay a weekly sum for the child’s support. Another paragraph of that separation agreement said that if either party should thereafter obtain a valid decree of divorce against the other, then the agreement should “ have the same force and effect as though inserted at length in any such final decree.” However, the New Jersey divorce decree thereafter granted to plaintiff (copy annexed to the complaint in the present action) contained no reference of any kind to the separation agreement nor any allowance for support, so the language just above quoted from the separation pact, has no legal effect at all. Elsewhere in the complaint are further allegations, referred to more fully at the end of this opinion, that defendant stated his financial worth, to plaintiff, at a figure one tenth as large as the actual sum thereof.

It seems to me that the complaint, summarized above, includes all the necessary elements of a suit in fraud for money damages. That it is of an unusual type should not be an argument against its sufficiency (see discussion in Rozell v. Rozell, 281 N. Y. 106, 114). That a support agreement like the one annexed to this complaint creates binding contractual obligations is undisputed (see Goldman v. Goldman, 282 N. Y. 296, 300). It is equally well settled that where “ a person has parted with something of value as the result of a contract induced by fraud ”, he has his choice of three courses, one of which is to “ ‘ retain what he has received and bring an action at law to recover the damages sustained ’ ” (Goldsmith v. National Container Corp., 287 N. Y. 438, 442, 443). I see no reason why that choice is not as open to this plaintiff as to any other contracting party, who, by misrepresentations, has been persuaded to assign or release a claim, or right, or chose in action, for an inadequate consideration.

Section 57 of our Domestic Relations Law, as amended in 1937 (L. 1937, ch. 669) to overrule such cases as Schultz v. Schultz (89 N. Y. 644) and Allen v. Allen (246 N. Y. 571), announces that a married woman has a right of action against her husband for his wrongful or tortious acts resulting in injury to her property, as if they were unmarried. That radical change in our State’s public policy conferred on married women a new substantive right to maintain such suits, and to recover damages therein (see Coster v. Coster, 289 N. Y. 438, 442). The right to fair and adequate support is a property right, and one of great value and importance. Procurement of a release thereof, by fraud, should be penalized by the courts in the same way as other such frauds.

The Appellate Division, following its own earlier and similar holding in Walsh v. Walsh (276 App. Div. 753) held that (p. 357) “ questions of support cannot be raised in the form of actions on the case for deceit ” and that “ the sole remedy is to attack the validity of the agreement by way of rescission.” (276 App. Div. 355, 356.) That ruling that plaintiff, though alleged to be a defrauded contracting party, does not have all the choices Usted in Goldsmith v. National Container Corp. (supra) seems to be based entirely on an interpretation, which I cannot accept, of Johnson v. Johnson (206 N. Y. 561). The J ohnson case contains nothing, by way either of holding or dictum, on the question we have here. Mrs. Johnson did not sue for damages for fraud. She did not even seek a rescission or reformation of her separation agreement. She simply prayed the court to increase the amount fixed in the agreement for her alimony. The courts, when asked in that suit to award plaintiff a counsel fee, decided two things, and two things only: first, that counsel fees could not be allowed because it was not a matrimonial action, and second, that the complaint stated no cause of action at all since it asked no more than that a new alimony figure be put by the court into the subsisting separation agreement. That the Johnson case did not, and was never intended to, go any further than that, was later stated in so many words by this court in Stoddard v. Stoddard (227 N. Y. 13, 20, 21). The Johnson and Stoddard opinions were both written by Judge (later Chief Judge) Hiscock.

Of course, Johnson v. Johnson (supra) could not have dealt with the validity of a common-law fraud suit such as this one, and there is no suggestion in the J ohnson opinion that the court was making any such (gratuitous) effort. Indeed, there is a statement in the Johnson opinion which, given its logical application to our situation, would uphold this complaint. On page 567 of 206 New York, Judge Hiscock, writing for the court, and after noting that plaintiff J ohnson could have sued in equity to set aside the separation agreement, had this further to say: But such an action would rest on the same general principles as a similar action affecting any contract. The plaintiff would be allowed to maintain it not because the agreement related to the marital relation but because she had been persuaded by fraud or duress to enter into a contract impairing her legal rights.” In other words, fraud which persuades a wife to give up her marital rights, makes available to her the same remedies as if the contracting parties were not husband and wife, and as if the rights impaired were not those appertaining to marriage.

Defendant argues that plaintiff here is really asking the court to do what Johnson v. Johnson (supra) says no court can do: take jurisdiction solely to increase the alimony fixed by a separation agreement. In a sense that may be true, since plaintiff, if she wins, will have more money, and she can use that money for her support. But a similar objection could be made, and a similar label applied, to any cause of action for fraudulently inducing any plaintiff to enter into a contract to give up any kind of property right. If one has a claim or chose in action against another and releases it for a price to which his consent is obtained by fraud, his successful suit for damages would, in one way of looking at it, be a fixation by the court or jury of a price, higher than the parties had agreed on, for the release. But suits for fraud have never, until now, been dismissed because the giving of damages to a contracting party means that he receives, ultimately, more than he bargained for. He sues, not so that the court may up the price he agreed to take, but to get what he lost through the fraud. All this is equally true of this plaintiff’s plight, and she should not be barred from the remedies which the law gives to all others similarly situated.

Again, defendant says that plaintiff cannot sue for fraud as to this contract, because in so doing, she is merely attacking the alimony terms thereof and leaving the rest of the document intact. But that is exactly what she is permitted to do by Goldsmith v. National Container Corp. (supra) and the cases and authorities cited in the Goldsmith opinion at page 443 of 287 New York.

We agree with the United States Court of Appeals for the Tenth Circuit, which, as to this very question, said: “it is difficult to see why such a contract would be any different than a property settlement contract between two partners, and why the parties in an action thereon could not assert the same rights or the same defenses against each other that partners could in disputes arising out of a partnership property settlement contract.” (Schoonover v. Schoonover, 172 F. 2d 526, 529.) Another recent case confirming the right to bring this sort of suit is United States Nat. Bank v. Bartges (120 Col. 317, certiorari denied 338 U. S. 955).

Defendant argues that the complaint contains no factual allegations to support a claim for damages. I think it does. It tells us that defendant falsely and fraudulently represented to plaintiff that his entire estate consisted of a half-interest, worth $50,000, in a certain corporation, whereas in truth, says the complaint, he had holdings in various corporations, which holdings were of the value of $500,000. Plaintiff alleges that she released her rights against her husband for $20,000 in reliance on his false statement that he was worth $50,000, whereas Ms real financial worth was ten times as great as he represented. The amount of her damage is stated as $100,000. I think that sufficiently avers damage. We need not now consider, on such an appeal as this, any questions as to the amount of damages recoverable, or as to the methods, or possible difficulties, of proof thereof (see, on this precise question, United States Nat. Bank v. Bartges, supra, 120 Col. at pp. 334-336).

The judgment should.be reversed, and the motion denied, with costs in all courts. The certified questions, being unnecessary, should not.be answered.

Loughban, Ch. J., Conway, Dye, Fuld and Fboessel, JJ., concur in opinion by Lewis, J.; Desmond, J., dissents in opinion.

Judgment affirmed, etc.

       At Special Term, defendant’s motion under rule 106 of the Buies of Civil Practice to dismiss the complaint was denied. At the Appellate Division the order entered at Special Term was reversed on the law and defendant’s motion to dismiss the complaint was granted. From the Appellate Division judgment of reversal the plaintiff was entitled to appeal as of right (Civ. Prac. Act, § 588). However, upon plaintiff’s motion the Appellate Division granted leave to appeal to this court and certified two questions. Inasmuch as the judgment entered upon the order of reversal by the Appellate Division is final and the certified questions are unnecessary, we do not answer those questions but treat the appeal as one taken as of right (People ex rel. Paulos V. McDonnell, 302 N. Y. 89).


author: Fuld, J. Conway, J.

text:
    Churchill Rodgers, Appellant, v. Village of Tarrytown et al., Respondents.
    Argued October 9, 1950;
    decided January 18, 1951.

      Mark F. Hughes for appellant.
    I. The novel scheme here involved conflicts with the districting, uniformity of uses, and comprehensive planning requirements of the Village Law. It is an illegal and unconstitutional device for granting variances to owners of ten acres without the statutory proof required for a variance in that it invites the rezoning from time to time of single properties of individual owners and only if, as and when the owners make application for rezoning. (Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Kensington-Davis Corp.
      v. Schwab, 239 N. Y. 54; City of Utica v. Hanna, 202 App. Div. 610; Harris v. Village of Dobbs Ferry, 208 App. Div. 853; City of Olean v. Conkling, 157 Misc. 63; Kennedy v. City of Evanston, 181 N. E. 312 [Ill.]; Page v. City of Portland, 178 Ore. 632; Edgewood Civic Club v. Blaisdell, 95 N. H. 544; Polk v. Axton, 306 Ky. 498.) II. The 1948 amendment is invalid for the further reasons that (1) the planning board was illegally constituted; (2) no amendment was made to the official village map as required by the 1947 amendment, and (3) respondent Rubin did not possess the necessary ten acres since the official village map reveals a thoroughfare laid out across her property. (Christoffel v. United States, 338 U. S. 84; People ex rel. Dann v. Williams, 36 N. Y. 441; Headley v. City of Rochester, 272 N. Y. 197.) III. The burden should have been placed upon the owner of the plot to have demonstrated, among other things, that (1) the use which would be authorized would not alter the essential character of the locality, and (2) the requisite hardship was due to the unique circumstances and not to the general conditions of the neighborhood which might reflect the unreasonableness of the zoning ordinance itself. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86.) IV. The village’s scheme violates the comprehensive planning requirement of the Village Law (§ 175). (Nappi v. La Guardia, 184 Misc. 775, 269 App. Div. 693, 295 N. Y. 652; Matter of Kensington-Davis Corp. v. Schwab, 239 N. Y. 54; Shepard v. Village of Skaneateles, 300 N. Y. 115; Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86; Matter of Small v. Moss, 279 N. Y. 288; Packer Collegiate Inst. • v. University of State of N. Y., 298 1ST. Y. 184; Euclid v. Ambler Realty Co., 272 U. S. 365; Matter of Wulfson v. Burden, 241 N. Y. 288; Rice v. Van Vranken, 132 Misc. 82.)

      Paul Windels and C. McKim Norton for Regional Plan Association, Inc., amicus curiae, in support of appellant’s position.
    The zoning powers of the Village of Tarrytown were not validly exercised in the adoption of the zoning resolutions under review.

      Kenneth F. Stone and George Link, Jr., for Mrs. Mary E. McI'lravy and others, amici curiae, in support of appellant’s positian.
    The Tarrytown zoning amendments, enacted respectively in 1947 and 1948, constitute an invalid exercise of the police power. They create a condition of illegal spot zoning and destroy the comprehensive plan of the village. (City of Utica v. Hanna, 202 App. Div. 610.)

      William T. Love, Jr., for Village of Tarrytown and others, respondents.
    I. The 1947 and 1948 zoning amendments comply with all the zoning objectives and requirements of the Village Law and are constitutional. (Nappi v. La Guardia, 184 Misc. 775, 269 App. Div. 693, 295 N. Y. 652; Shepard v. Village of Skaneateles, 300 N. Y. 115; Zahn v. Board of Public Works, 274 U. S. 325; Kane v. Walsh, 295 N. Y. 198; Reichelderfer v. Quinn, 287 U. S. 315; Matter of Kensington-Davis Corp. v. Schwab, 239 N. Y. 54; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534.) II. The further contentions of appellant that the 1948 amendment is invalid because (1) the planning board was illegally constituted; (2) no amendment was made to the official village map as allegedly required by the 1947 amendment, and (3) respondent property owner did not possess the necessary ten acres since the official village map reveals a thoroughfare laid out across her property, have no basis whatsoever in law or in fact. (People ex rel. Griffing v. Lister, 106 App. Div. 61; Dolan v. Mayor of City of N. Y., 68 N. Y. 274; Demarest v. Mayor of City of N. Y., 147 N. Y. 203; Matter of Sloane v. Walsh, 245 N. Y. 208; Headley v. City of Rochester, 272 N. Y. 197; Matter of City of New York [Briggs Ave.], 196 N. Y. 255.)

      Arthur D. Brennan, Chester A. Slocum and James D. Hopkins for Elizabeth H. Rubin, respondent.
    Placing of the property of respondent Rubin in a u Residence B-B ” district under the provisions of the 1947 and 1948 amendments to the zoning-ordinance was valid. (People ex rel. Griffing v. Lister, 106 App. Div. 61; Dolan v. Mayor of City of N. Y., 68 N. Y. 274; Demarest v. Mayor of City of N. Y., 147 N. Y. 203; Matter of Sloane v. Walsh, 245 N. Y. 208; Loos v. City of New York, 257 App. Div. 219; Kittinger v. Buffalo Traction Co., 160 N. Y. 377.)
   Fuld, J.

This appeal, here by our permission, involves the validity of two amendments to the General Zoning Ordinance of the Village of Tarrytown, a suburban area in the County of Westchester, within twenty-five miles of New York City.

. Some years ago, Tarrytown enacted a General Zoning Ordinance dividing the village into seven districts or zones — Residence A for single family dwellings, Residence B for two-family dwellings, Residence C for multiple dwellings and apartment houses, three business districts and an industrial zone. In 1947 and 1948, the board of trustees, the village’s legislative body, passed the two amendatory ordinances here under attack.

The 1947 ordinance creates “ A new district or class of zone * * * [to] be called / Residence B-B ’ ”, in which, besides one- and two-family dwellings, buildings for multiple occupancy of fifteen or fewer families were permitted. The boundaries of the new type district were not delineated in the ordinance but were to be “ fixed by amendment of the official village building zone map, at such times in the future as such district or class of zone is applied, to properties in this village.” The village planning board was empowered to approve such amendments and, in case subh. approval was withheld, the board of trustees was authorized to grant it by appropriate resolution. In addition, the ordinance erected exacting standards of size and physical layouts for Residence B-B zones: a miuimum of ten acres of land and a maximum building height of three stories were mandated; set-back and spacing requirements for structures were carefully prescribed; and no more than 15% of the ground area of the plot was to be occupied by buildings.

A year and a half after the 1947 amendment was enacted, defendant Elizabeth Rubin sought to have her property, consisting of almost ten and a half acres in the Residence A district, placed in a Residence B-B classification. After repeated modification of her plans to meet suggestions of the village planning board, that body gave its approval, and, several months later, in December of 1948, the board of trustees, also approving, passed the second ordinance here under attack. In essence, it provides that the Residence B-B district “ is hereby applied to the [Rubin] property * * * and the district or zone of said property is hereby changed to ‘ Residence B-B ’ and the official Building Zone Map of the Village of Tarrytown is hereby amended accordingly [by specification of the various parcels and plots involved] ”.

Plaintiff, who owns a residence on a six-acre plot about a hundred yards from Rubin’s property, brought this action to have the two amendments declared invalid and to enjoin defendant Rubin from constructing multiple dwellings on her property. The courts below, adjudging the amendments valid and the action of the trustees proper, dismissed the complaint. We agree with their determination.

While stability and regularity are undoubtedly essential to the operation of zoning plans, zoning is by no means static. Changed or changing conditions call for changed plans, and persons who own property in a particular zone or use district enjoy no eternally vested right to that classification if the public interest demands otherwise. Accordingly, the power of a village to amend its basic zoning ordinance in such a way as reasonably to promote the general welfare cannot be questioned. Just as clearly, decision as to how a community shall be zoned or rezoned, as to how various properties shall be classified or reclassified, rests with the local legislative body; its judgment and determination will be conclusive, beyond interference from the courts, unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed upon him who asserts it. In that connection, we recently said (Shepard v. Village of Skaneateles, 300 N. Y. 115, 118): “ Upon parties who attack an ordinance # * * rests the burden of showing that the regu-

lation assailed is not justified under the police power of the state by any reasonable interpretation of the facts. ‘ If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.’ (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 388; see, also, Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167,169,170; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 296-297.) ”

By that test, the propriety of the decision here made is not even debatable. In other words, viewing the rezoning in the case before us, as it must be viewed, in the light of the area involved and the present and reasonably foreseeable needs of the community, the conclusion is inescapable that what was done not only accorded with sound zoning principles, not only complied with every requirement of law, but was accomplished in a proper, careful and reasonable manner.

The Tarrytown board of trustees Avas entitled to find that there was a real need for additional housing facilities; that the creation of Residence B-B districts for garden apartment developments would prevent young families, unable to find accommodations in the village, from moving elsewhere; would attract business to the community; would lighten the tax load of the small home OAvner, increasingly burdened by the shrinkage of tax revenues resulting from the depreciated value of large estates and the transfer of many such estates to tax-exempt institutions; and would develop otherwise unmarketable and decaying property.

The village’s zoning aim being clear, the choice of methods to accomplish it lay Avith the board. Two such methods were at hand. It could amend the General Zoning Ordinance so as to permit garden apartments on any plot of ten acres or more in Residence A and B zones (the zones more restricted) or it could amend that Ordinance so as to invite ovmers of ten or more acres, who Avished to build garden apartments on their properties, to apply for a Residence B-B classification. The board chose to adopt the latter procedure. That it called for separate legislative authorization for each project presents no obstacle or drawback — and so we have already held. (See, e.g., Nappi v. La Guardia, 184 Misc. 775, 781 [per Froessel, J.], affd. 269 App. Div. 693, affd. 295 N. Y. 652; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534, 539.) Whether we would have made the same choice is not the issue; it is sufficient that the board’s decision was neither arbitrary nor unreasonable.

As to the requirement that the applicant ovm a plot of at least ten acres, we find nothing therein unfair to plaintiff or other OAvners of smaller parcels. The board undoubtedly found, as it was privileged to find, that garden apartments would blend more attractively and harmoniously with the community setting, would impose less of a burden upon village facilities, if placed upon larger tracts of land rather than scattered about in smaller units. Obviously, some definite acreage had to be chosen, and, so far as the record before us reveals, the choice of ten acres as a minimum plot was well within the range of an unassailable legislative judgment. (See, e.g., Nappi v. La Guardia, supra, 295 N. Y. 652, affg. 269 App. Div. 693, affg. 184 Misc. 775, wherein the qualifying acreage was also fixed at ten.)

Nor did the board, by following the course which it did, divest itself or the planning board of power to regulate future zoning with regard to garden apartments. The mere circumstance that an owner possesses a ten-acre plot and submits plans conforming to the physical requirements prescribed by the 1947 amendment will not entitle him, ipso facto, to a Residence B-B classification. It will still be for the board to decide, in the exercise of a reasonable discretion, that the grant of such a classification accords with the comprehensive zoning plan and benefits the village as a whole. And — while no such question is here presented — we note that the board may not arbitrarily or unreasonably deny applications of other owners for permission to construct garden apartments on their properties. The action of the board must in all cases be reasonable and, whether a particular application be granted or denied, recourse may be had to the courts to correct an arbitrary or capricious determination. (See, e.g., Nappi v. La Guardia, supra, 184 Misc. 775, 781, affd, 269 App. Div. 693, affd. 295 N. Y. 652; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, supra, 281 N. Y. 534, 539; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 232; Dowsey v. Village of Kensington, 257 N. Y. 221, 231; Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 334, 336; City of Little Rock v. Joyner, 212 Ark. 508; Frink v. Orleans Corp., 159 Fla. 646.)

The charge of illegal ‘ ‘ spot zoning ’ ’— levelled at the creation of a Residence B-B district and the reclassification of defendant’s property — is without substance. Defined as the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners (see Harris v. City of Piedmont, 5 Cal. App. 2d 146, 152; Cassel v. Mayor & City Council of Baltimore, 73 A. 2d 486, 488 — 489 [Md.]; Board of Co. Comrs. of Anne Arundel Co. v. Snyder, 186 Md. 342, 345-346; Leahy v. Inspector, of Bldgs, of New Bedford, 308 Mass. 128, 134; Page v. City of Portland, 178 Ore. 632, 641; Weaver v. Ham, 232 S. W. 2d 704, 709 [Tex.] ; see, also, Yokley, Zoning Law and Practice [1948], § 85; cf. People v. Cohen, 272 N. Y. 319), “ spot zoning ” is the very antithesis of planned zoning. If, therefore, an ordinance is enacted in accordance with a comprehensive zoning plan, it is not “ spot zoning,” even though it (1) singles out and affects but one small plot (see, e.g., Shepard v. Village of Skaneateles, supra, 300 N. Y. 115) or (2) creates in the center of a large zone small areas or districts devoted to a different use. (See Nappi v. La Guardia, supra, 295 N. Y. 652, affg. 269 App. Div. 693, affg. 184 Misc. 775 — business area in residence zone; Marshall v. Salt Lake City, 105 Utah 111, 126-127 — business district in residence zone; Higbee v. Chicago, B. & Q. R. R. Co., 235 Wis. 91, 98-99 — railroad station in residence zone; see, also, Avery v. Village of La Grange, 381 Ill. 432, 442; Town of Marblehead v. Rosenthal, 316 Mass. 124, 126; Rathkopf, Law of Zoning and Planning [2d ed., 1949], p. 72 et seq.) Thus, the relevant inquiry is not whether the particular .zoning under attack consists of areas fixed within larger areas of different use, but whether it was accomplished for the benefit of individual owners rather than pursuant to a comprehensive plan for the general welfare of the community. Having already noted our conclusion that the ordinances were enacted to promote a comprehensive zoning plan, it is perhaps unnecessary to add that the record negates any claim that they were designed solely for the advantage of defendant or any other particular owner. Quite apart from the circumstance that defendant did not seek the benefit of the 1947 amendment until eighteen months after its passage, the all-significant fact is that that amendment applied to the entire territory of the village and accorded each and every owner of ten or more acres identical rights and privileges.

By the same token, there is no basis for the argument that “ what has been done by the board of trustees ” constitutes a device for “ the granting of a variance ’ ” (opinion of Conway, J., p. 129). As we have already shown, the village’s zoning aim, the statute’s purpose, was not to aid the individual owner hut to permit the development of the property for the general welfare of the entire community. That being so, the board of trustees followed approved procedure by changing the General Zoning Ordinance itself. (See, e.g., Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86, 91.) Accordingly, when the board was called upon to consider the reclassification of the Rubin property under the 1947 amendment, it was concerned, not with any issue of hardship, but only with the question of whether the property constituted a desirable location for a garden apartment.

We turn finally to the contention that the 1947 ordinance is invalid because, in proclaiming a Residence B-B district, it set no boundaries for the new district and made no changes on the building zone map. The short answer is that, since the ordinance merely prescribed specifications for a new use district, there was no need for it to do either the one or the other. True, until boundaries are fixed and until zoning map changes are made, no new zone actually comes into being, and neither property nor the rights of any property owner are affected. But it was not the design of the board of trustees by that enactment to bring any additional zone into being or to affect any property or rights; the ordinance merely provided the mechanics pursuant to which property owners might in the future apply for the redistricting of their property.' In sum, the 1947 amendment was merely the first step in a reasoned plan of rezoning, and specifically provided for further action on the part of the board. That action was taken by the passage of the 1948 ordinance which fixed the boundaries of the newly created zone and amended the zoning map accordingly. It is indisputable that the two amendments, read together as they must be, fully complied with the requirements of the Village Law and accomplished a rezoning of village property in an unexceptionable manner.

In point of fact, there would have been no question about the validity of what was done had the board simply amended the General Zoning Ordinance so as to permit property in Residence A and Residence B zones — or, for that matter, in the other districts throughout the village — to be used for garden apartments, provided that they were built on ten-acre plots and that the other carefully planned conditions and restrictians were met. It may be conceded that, under the method which the board did adopt, no one will know, from the 1947 ordinance itself, precisely where a Residence B-B district will ultimately be located. But since such a district is simply a garden apartment development, we find nothing unusual or improper in that circumstance. The same uncertainty — as to the location of the various types of structures — would be present if a zoning ordinance were to sanction garden apartments as well as one-family homes in a Residence A district — and yet there would be no doubt as to the propriety of that procedure. (See Nappi v. La Guardia, supra, 295 N. Y. 652, affg. 269 App. Div. 693, affg. 184 Misc. 775.) Consequently, to condemn the action taken by the board in effectuating a perfectly permissible zoning scheme and to strike down the ordinances designed to carry out that scheme merely because the board had employed two steps to accomplish what may be, and usually is, done in one, would be to exalt form over substance and sacrifice substance to form.

Whether it is generally desirable that garden apartments be freely mingled among private residences under all circumstances, may be arguable. In view, however, of Tarrytown’s changing scene and the other substantial reasons for the board’s decision, we cannot say that its action was arbitrary or illegal. While hardships^ may be imposed on this or that owner, cardinal is the principle that what is best for the body politic in the long run must prevail over the interests of particular individuals.” (Shepard v. Village of Skaneateles, supra, 300 N. Y. 115,118.)

The judgment of the Appellate Division should be affirmed, with costs.

Conway, J.

(dissenting). The decision here made gives judicial sanction to a novel and unprecedented device whereby the board of trustees of a village may, in the exercise of its discretion, authorize the erection of multiple family dwellings on property, located wholly within established districts theretofore uniformly zoned for use as one- or two-family dwellings, by the simple expedient of declaring, upon the application of individuals owning a certain acreage, that henceforth such property shall constitute a new and separate zoning district. The device may have much to commend it in the way of administrative convenience, but it most assuredly is not zoning ”, as that term has previously been understood. We think the action of the board of trustees of the village of Tarrytown is unauthorized by the Village Law of this State, which is the sole source of the board’s power to act. Moreover, we feel that the board’s action, here approved, is completely at odds with all sound zoning theory and practice, and may well prove to be the opening wedge in the destruction of effective and efficient zoning in this State.

First of all, we think the board had no power to create the so-called “ Residence B-B ” district by the basic ordinance of 1947. Section III of that ordinance provided as follows: “ The boundaries of said newly created district or class of zone will be fixed by amendment of the official village building zone map, at such times in the future as such district or class of zone is applied, to properties in this village.” (Emphasis supplied.) That language can, in no sense, be considered as validly creating a new district or class of zone. It is essential to the creation of a zoning district that its physical boundaries be established in advance; otherwise there is no ‘£ district ”, there is merely the possibility that a district may one day be delineated. (Matter of Kensington-Davis Corp. v. Schwab, 239 N. Y. 54, 58-59.) Section 176 of the Village Law, entitled “ Districts ”, provides that “ * * * the board of trustees may, divide the village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act * * * ” (emphasis supplied). The plain import of that language is that after the board has exercised its power to ‘6 divide the village into districts ”, there should result a number of physically ascertainable districts, each having a definite shape ” and area ”. Obviously, the board of trustees, in enacting the 1947 ordinance, did not “ divide ” the village into districts; the board merely assigned a name or title to a district which might some day be created. As a result of that ordinance, no one could tell whether there would ever be any ‘1 Residence B-B districts ”, or, if so, what their number, shape and area might be. Thus, the reference in the ordinance to “ districts ” or “ zones ” is meaningless, for it is impossible to have a true “ district ” or “ zone ” without specified boundaries. As we said in the Kensington ease (supra, p. 58) Power was given under that law ‘ to divide the city into districts.’ This clearly contemplated fixed areas with defined boundaries. ’ ’ The key to any zoning ordinance is the map showing the boundaries of the areas affected. No map showing the location of the new Residence B-B district was, or could have been, made and filed with the 1947 ordinance which was therefore defective. (Village of Williston Park v. Israel, 301 N. Y. 713, affg. 276 App. Div. 968, affg. 191 Misc. 6.) All that the language of the 1947 ordinance means is that, from time to time, in the future, the board may, upon the application of individuals owning ten acres, set aside certain property in the village and assign to it the ‘1 Residence B-B ” designation. That, we submit, is “ spot zoning ”, if it may be classified as zoning at all, and is unauthorized under our statutes.

Under the mandate of section 177 of the Village Law, the regulations of the board of trustees, including the division of the village into districts, shall be made in accordance with a comprehensive plan ” (emphasis supplied). The action of the board in the case at bar cannot, under any view of the facts, be considered as taken “ in accordance with a comprehensive plan ”. The board takes no action on its own initiative. It makes no investigation to determine which areas of the village are suitable for the erection of multiple family dwellings, and which are not. With relation to the type of construction here involved, the board has adopted no plan, comprehensive or otherwise. Under the ordinance, the board merely waits for some individual, owning ten acres of land or who has acquired ten acres of land, to make an application to have it declared a 1 ‘ Residence B-B ” district; then the board accepts or rejects the application. That is not comprehensive planning by the board; it is just the opposite. It is spot zoning at the request of landed interests who may happen to find favor with the board. As a result of this decision, it is possible that there will be found in the residential areas of Tarrytown multiple family dwellings scattered (or spotted) haphazardly throughout the village without any studied, over-all plan — for how may the board adopt a comprehensive plan with respect to these multiple family dwellings when it is impossible for it to know the names, number and location of individuals who own or who may acquire ten-acre parcels and who may wish to avail themselves of the ordinance. This is an ordinance which "benefits those who can meet a property qualification and is thus undemocratic.

We are adjured by the prevailing opinion (p. 126) not to exalt form over substance and sacrifice substance to form ”, yet we think the decision of the majority has done just that. Essentially and basically, what has been done by the board of trustees in the instant case is to permit a nonconforming use in an established zone. Heretofore, such action has always been referred to as the granting of a “ variance ”, yet the board has here sought to cloak its ultimate objective under the label and form of “ rezoning ”. In order to protect and preserve our zoning systems from the frequent and inevitable attacks of interested parties who seek to avoid zoning laws for their own purposes, this court has imposed strict and severe limitations upon the granting of variances. Two recent illustrations are Matter of Taxpayers’ Assn. v. Board of Zoning Appeals (301 N. Y. 215), and Matter of Clark v. Board of Zoning Appeals (301 N. Y. 86). It cannot be denied that the individual respondent here would never have been able to secure a variance permitting the erection of multiple family dwellings in Residence A or B districts under the rules stated in those two cases. Nevertheless, the identical result has here been reached by denominating the action of the board as “ rezoning ”. In that fashion, the board of trustees (which, incidentally, does not even have the power to grant a variance, since that power resides in the board of appeals [Village Law, § 175]) has successfully avoided the long-established and stringent limitations upon the granting of variances, merely by adopting a procedure under the name of rezoning ”. Now, instead of making the required showing that (1) the land cannot yield a reasonable return if used only for a purpose allowed in that zone, (2) that the plight of the owner is due to unique circumstances and not to the general conditions of the neighborhood, and (3) that the use sought will not alter the essential character of the neighborhood (Matter of Taxpayers’ Assn. v. Board of Zoning Appeals, supra, p. 218), all a property owner need do is to show that he possesses ten acres of land and the board becomes authorized to permit a nonconforming use thereon. That, we submit, is truly exalting form over substance.

6

The case of Nappi v. La Guardia (295 N. Y. 652, affg. 269 App. Div. 693, affg. 184 Misc. 775), is clearly distinguishable from the case at bar. In the Nappi case, the New York City zoning resolution did not purport to establish a new district; it merely added a further permitted use to the uses already authorized in certain residence districts, in the city. The distinction is obvious and important. A person purchasing property in New York City in the designated residence districts would be on notice that the additional use was authorized. He may examine the zoning ordinance and discover, with certainty, all the permitted uses to which the adjoining property could be put. On the contrary, a person purchasing property in Tarrytown in a Residence A or B district to bring up his children now has no way of knowing whether the property next to his may or may not become the site of a multiple family dwelling with the attendant increases in population, traffic dangers, commerce and congestion.

Finally, it seems to us specious to argue that since the ultimate objective of the board might have been accomplished in a different and legal manner, that the procedure actually used should therefore be sustained. The question remains whether the particular method adopted by the board was in conformity with the legislative requirements found in the Village Law, and whether it accorded with sound, proper zoning theory and practice. In this case, we feel that the board’s action must fall on both counts. That being so, it is of no moment that the same result might have been reached through the employment of approved, legal procedures. Zoning methods are determined by the Legislature and not by the ingenuity of local boards of trustees or by the courts. In short, we think the end cannot here justify the means used.

The judgments below should be reversed and the case remitted to Special Term for the entry of a judgment in plaintiff’s favor in accordance with this opinion.

Lotjghran, Oh. J., Lewis, Dye and Froessel, JJ., concur with Fuld, J.; Conway, J., dissents in opinion in which Desmond, J., concurs.

Judgment affirmed.


author: Dye, J. Fuld, J.

text:
    In the Matter of the Claim of Martin K. Burns, Respondent, against Merritt Engineering Co. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 18, 1950;
    decided January 18, 1951.

      Albert P. Thill and Merrill G. Windelberg for appellants.
    The accident did not arise out of and in the course of claimant’s employment.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    The accidental injuries which claimant sustained arose out of and in the course of his employment. (Matter of Kleid v. Carr Bros., 300 N. Y. 270; Matter of Bollard v. Engel, 278 N. Y. 463; Matter of Humphrey v. Tietjen & Steffin Milk Co., 235 App. Div. 470, 261 N. Y. 549; Matter of McCarthy v. Remington Rand, Inc., 300 N. Y. 715; Matter of Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Donovan v. Bush Term. Co., 255 App. Div. 737; Matter of Levy v. World-Telegram Corp., 259 App. Div. 943, 285 N. Y. 533; Matter of Mason v. Nassau Riding Academy, 250 App. Div. 802; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443; Matter of Chanin v. Western Union Tel. Co., 271 App. Div. 763; Matter of Wickham v. Glenside Woolen Mills, 252 N. Y. 11; Matter of Comr. of Taxation & Finance [Callahan] v. Bronx Hosp., 276 App. Div. 708.)
   Dye, J.

The sole question posed on this appeal is whether the claimant’s disability for which he has been awarded workmen’s compensation benefits' arose out of his employment, there being no question that the incident giving rise to the injury occurred on the employer’s premises during working hours.

The facts are these: At five minutes before quitting time on Saturday, October 13, 1947, and before he had checked out, the claimant, a machinist employed in the machine department of the employer’s plywood factory, went to the electrical department for the purpose of getting an automobile ride to his home with one Fothergill, a friend and coemployee. This was a common practice known to the employer. During the conversation Fothergill offered claimant a drink from a bottle containing a clear liquid and labeled “ Barclay’s Gin ”, The claimant, after satisfying himself that the department’s “ straw boss ” who was changing his clothes nearby was not watching, took the bottle, stepped behind a large noisy electrical machine designated as a “ DC converter ” where he would be concealed from view, unscrewed the cork and drank. The bottle contained not gin as he expected, but carbon tetrachloride, a fact known to Fothergill but deliberately withheld from claimant. Fothergill had obtained the liquid with the employer’s permission from the company’s supply room for his personal use. Later, while claimant was riding home with Fothergill, he became violently ill. The poisonous liquid did severe damage to his internal organs, resulting in the disability complained of.

Claimant at the time was a member of a labor union, the United States Steel Workers of America, which, in acting as bargaining agent, had negotiated a contract with the employer which read in part, viz.: “ possession of or drinking liquor or any alcoholic beverage on company property at any time * * * is forbidden and shall constitute a just cause for immediate dismissal.”

The testimony is conflicting as to whether the claimant knew about this rule prior to the accident — the employer adducing testimony that each employee had a copy of the contract and that it was accepted and obeyed by the employees, and that it knew of no violation — whereas the claimant would only admit that he learned about the rule at the hearing. Whether or not he knew about such rule prior to the accident is not determinative of the issue here, which is not whether his act, under the rule warranted dismissal, but whether he should be denied compensation because his injuries did not arise out of his employment. In other words, did his conduct under the circumstances amount to an abandonment of his employment as a matter of law?

It is well established that disregard of the precise terms of employment does not necessarily constitute an abandonment thereof (cf. Matter of O’Bryan v. Town of Jewett, 296 N. Y. 785; Matter of Dann v. Town of Veteran, 278 N. Y. 461), nor does violation of a rule not promulgated but which under the circumstances might reasonably be implied, bar compensation benefits (Matter of Lang v. Franklin Ry. Supply Co., 272 App. Div. 988, motion for leave to appeal denied 297 N. Y. 1036; Matter of Currivan v. Friesler Realty Co., 273 App. Div. 834, motion for leave to appeal denied 297 N. Y. 1033). Viewed in the light of these authorities, a violation — if such there was — of the no-drinking rule under penalty of dismissal, may and should not be treated any differently for purposes of compensation than the violation of any other rule designed to improve plant efficiency and to safeguard employees (cf. Matter of Chila v. New York Central R. R. Co., 251 App. Div. 575, affd. 275 N. Y. 585; Matter of Brenchley v. International Heater Co., 227 App. Div. 831, affd. 254 N. Y. 536; Matter of Fox v. Truslow & Fulle, Inc., 204 App. Div. 584, affd. 236 N. Y. 634).

Here the board has found as a fact, from all the surrounding circumstances, that the injuries arose out of the claimant’s employment. The contention of the employer and its insurance carrier that the employee by breaking the no-drinking rule forfeits compensation must be rejected, and he may not be penalized for an intention to do so because he drank from a bottle labeled gin in an expectation that it contained gin. When he unwittingly drank carbon tetrachloride knowingly handed to him by a coemployee — who had it with the employer’s permission— he was not injured because he violated a rule of the plant, but, on the contrary, because he was the innocent victim of a cruel and senseless joke. WTien so viewed the employer is not to be exonerated from the consequences of such an act under a theory that it constituted an abandonment of employment but, rather, he may be held under the theory that the-injurious act fell naturally into that category of conduct known to the law as ‘ horseplay ’ ’. To be victimized by a prank perpetrated by a coemployee has long been recognized as an incident of employment, as something reasonably to be expected, a peril of service; an indulgence in a moment’s diversion from work to joke with or play a prank upon a fellow workman is a matter of common knowledge to everyone who employs labor (Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Thom v. Sinclair, [1917] A. C. 127; Matter of Redner v. Faber & Son, 223 N. Y. 379) and an employee so injured will be allowed compensation benefits if the board is satisfied that the acts were incidental to the employment (Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443; Matter of Lang v. Franklin Ry. Supply Co., supra; Matter of Chanin v. Western Union Tel. Co., 271 App. Div. 763; cf. Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511). But when the board is not so satisfied, compensation will be denied (Matter of Gaurin v. Bagley & Sewall Co., supra; Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85). These general principles are equally available here, particularly as it is quite apparent from the evidence that the claimant, although collaborating or participating in the event, was not the instigator thereof but was its innocent victim.

Perhaps it would be well to say also that an award in horseplay cases should not depend on evidence of foreseeability. It is an important element (Matter of McCarthy v. Remington Rand, Inc., 300 N. Y. 715), but not necessarily conclusive. To introduce such an arbitrary and anomalous rule hardly seems consonant with the liberal policy incident to the administration of the statute. The test is whether the injurious horseplay may reasonably be regarded as an incident of the employment (Matter of Leonbruno v. Champlain Silk Mills, supra) — rather than the foreseeability of a particular prank — that supports the finding of fact that it arose out of the employment.

Furthermore, the claimant here is in very much the same position as the victim of an unprovoked assault — malicious or friendly — and the principles pertaining thereto are equally pertinent here (Matter of Levy v. World-Telegram Corp., 259 App. Div. 943, affd. 285 N. Y. 533; Matter of Sewell v. Johnson Auto Body Shop, 274 App. Div. 957, motion for leave to appeal denied 298 N. Y. 937; Matter of Humphrey v. Tietjen & Steffin Milk Co., 235 App. Div. 470, affd. 261 N. Y. 549; Matter of Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Chanin v. Western Union Tel. Co., supra; Hartford Accident & Ind. Co. v. Cardillo, 112 F. 2d 11, certiorari denied 310 U. S. 649).

The order appealed from should be affirmed, with costs.

Fuld, J.

(dissenting). A company rule forbade the drinking of intoxicating liquor and an agreement between the employer and the union, of which the employees were members, rendered a violation of that rule basis for “ immediate dismissal.” The rule was, as noted in the court’s opinion (p. 133) “ accepted and obeyed by the employees,” and there is not the slightest evidence either that any employee had ever before taken a drink while on the job, that the employer by word or conduct had ever relaxed the rule, or that it had ever indicated that it would permit drinking on the premises. Under such circumstances, it passes understanding to hold that an employee, who furtively accepts a drink, believing it to be gin, is entitled to compensation because the fellow employee, who offered him the drink, endowed with a cruelly perverted sense of humor, had filled the proffered bottle with poisonous carbon tetrachloride.

Our inquiry here, as in all workmen’s compensation cases, is whether the injury arose out of — as well as in the course of — the employment. In the case before us, there is no suggestion that the drinking was done, even in the remotest or most farfetched sense of the term, in the course of any assigned job, or that it was a permitted incidental diversion which the employer had knowledge of and had impliedly adopted through sufferance or acquiescence. Here, claimant’s act — and it is important to bear in mind that he could never have become the victim of the prank in question until and unless he first performed that act — was just as far removed from the scope of his employment as it would have been had he become ill from drinking bad liquor from a bottle which he himself had brought into the factory, in violation of a company rule, to assuage his thirst with an occasional nip. Surely, no one could possibly claim that the employee was entitled to compensation in such a case merely because the drinking had occurred in the factory during working hours. (See Elliot v. Industrial Accident Comm., 21 Cal. 2d 281, 284.) In the California case, Elliot, having become ill during working hours, took a drink — “as * * * medicatian ” — from a bottle which he believed held wine, though in fact it contained carbon tetrachloride. Although the court upheld the ensuing award, it was at pains to caution that the result would have been different if the employee had taken a drink “ of intoxicating liquor for the mere satisfaction of a desire therefor * * * rather than * * * for medicinal purposes ” (21 Cal. 2d, supra, at p. 284).

It does not end our task to declare that the employee was the victim of prank or horseplay, for, if, when the injury occurred, he had stepped out of his working environment, had abandoned his employment, in order to indulge in an extra-employment caper or activity, it would necessarily follow that his injury neither arose out of his employment nor resulted from a risk of that employment. (See, e.g., Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85, 87; Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511; Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443, 446-447; Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 472-473.) That being so, all relationship to the prank and horseplay cases is obliterated, any reliance upon them misplaced. In any event, though, whether the claimant’s extra-employment activity is to be deemed an incident of employment depends in large measure upon whether it has been regularized by long indulgence, upon whether there has been continuity of practice — conduct which has gained acceptance ”. (Matter of Ognibene v. Rochester Mfg. Co., supra, 298 N. Y. 85, 87; see, also, Matter of McCarthy v. Remington Rand, Inc., 300 N. Y. 715; Matter of Gaurin v. Bagley & Sewall Co., supra, 298 N. Y. 511; Matter of Industrial Comr. [Siguin] v. McCarthy, supra, 295 N. Y. 443, 446-447; Matter of Leonbruno v. Champlain Silk Mills, supra, 229 N. Y. 470, 472-473.) Thus, in affirming an award for compensation in the McCarthy case (supra, 295 N. Y. 443), we stressed the “ long-continuing custom and practice ” of the conduct there involved and the “ continued series of related and similar incidents participated in by all the employees ” (p. 447), and, in the Remington Rand case (supra, 300 N. Y. 715), where the employee took a drink of carbon tetrachloride at a New Year’s party held in the factory, under the belief, also induced by a practical joker, that it was whiskey, we upheld the award solely upon the ground that the evidence was ample to sustain the finding that the employer, knowing that the drinking of intoxicating liquor occurred at such parties, sanctioned the practice and, by that token, transformed such drinking and its attendant consequences into risks of the employment.

We have seen that here the case was entirely different. The record establishes that there never before had been any drinking in the factory — this being “ a single isolated incident which originated solely and entirely in the injured employee’s own act ” (Matter of Industrial Comr. [Siguin] v. McCarthy, supra, 295 N. Y. 443, 447) — and the employer had never permitted, or even intimated that he would have permitted, such conduct. There is no escape from the conclusion that, when claimant was injured, he had deliberately abandoned his employment in order to indulge in an activity entirely unrelated to his work — and the employer’s rule against drinking forcefully points up and accentuates the fact of such abandonment.

I am not suggesting that the violation of every company rule disqualifies an employee from compensation for resulting injuries. Some rules, such as those prescribing work routines or protective devices, are designed expressly for the individual employee’s personal protection, and it would frustrate the very purpose and aim of the Workmen’s Compensation Law to hold that a violation of that type of rule removed the employee from his employment. (See, e.g., Matter of Corrina v. De Barbieri, 247 N. Y. 357; Capital Tr. Co. v. Hoage, 84 F. 2d 235; Oklahoma Ry. Co. v. Cannon, 198 Okla. 65.) Not so, however, where the rule, such as the one before us, is obviously designed to protect not only the violator but his fellow employees whose safety is dependent upon his careful and sober operation of machinery or other equipment. It impresses me as principle turned topsy-turvy to sanction payment' of compensation to an employee who performs — or believes that he is performing — an act that calls for summary dismissal.

The order appealed from should be reversed and the claim dismissed.

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

Order affirmed.