author: Rippey, J. Desmond, J.

text:
    Ethel M. Waddey, Appellant, v. Everett Waddey, Jr., Respondent.
    Submitted December 8, 1942;
    decided April 15, 1943.

      Henry H. Shepard for appellant.

      William J. H. Molinari and Helen Borgia for respondent.
   Rippey, J.

On May 24, 1928, the appellant was awarded a decree of absolute divorce from defendant by the Supreme Court of Kings County and provision was therein made for alimony of $35 per week up to and including February 21,1929, and $25 per week thereafter.

By chapter 161 of the Laws of 1938, effective March 26,1938, the Legislature amended section 1159 of the Civil Practice Act (now numbered 1172-c), which related to “ Modification of judgment or order in action for divorce brought by wife,” by adding the following provision: “ The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with-respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife.”

On April 14,1938, respondent applied to the court to have the alimony provisions in the decree annulled. Appellant contended at that time, as now, that the statute was unconstitutional as interfering with her vested rights and could not be given a retroactive effect. Justice Riegelmaitn, at Special Term, overruled that contention and referred the matter to an official referee to take proof and report ‘ ‘ whether the plaintiff was, on March 26th, 1938, and since that time, has been habitually living with a man known as Augustus S. Kibbe, holding herself out to be his wife, although not married to him. ’ ’ The referee reported in the affirmative. Special Term thereupon adopted the report of the referee and made an order annulling the alimony provisions of the decree and that order has been affirmed by the Appellate Division.

Courts have jurisdiction over the marriage relation, its incidents and its ultimate consequences only as such jurisdiction is conferred by statute (Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463; Wilson v. Hinman, 182 N. Y. 408, 410). The power of the Legislature to enact the statute under consideration (L. 1938, ch. 161) cannot be doubted (Cf. Fearon v. Treanor, 272 N. Y. 268). The decisive question here is whether the effect given to the statute by the courts below deprives the appellant of some substantial vested right. If the order from which the appeal is taken so operates, it is not the result of due process and the statute so applied would violate both the State and Federal Constitutions. In determining the constitutional question, “ the courts must give consideration to the proper construction and effect of the statute ” (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122, 132).

It is a settled rule of statutory construction that the provisions of a statute will not be applied retrospectively where they are capable of any other construction unless the intent of the Legislature to the contrary clearly appears (New York & Oswego Midland R. R. Co. v. Van Horn, 57 N. Y. 473, 477; Walker v. Walker, 155 N. Y. 77, 81). There is nothing in the statutory provision that exhibits any intent other than that it should apply prospectively only. We cannot read into it something that is not there. Nor can we read into the act of 1938 any legislative intent to make it applicable to decrees entered prior to March 26, 1938, by construing it with section 1170 of the Civil Practice Act. The statutes were not enacted at the same time. The amendment to section 1159 was not an amendment to nor any part of section 1170. The Legislature, by its form as well as by the fact that it was, by its terms, an amendment to section 1159, indicated that its purpose was to deal with a situation not deemed to be covered by the provisions of section 1170. Even though the Legislature had indicated by express declaration its intent that the act should have retrospective application, it would not be effective as to decrees entered prior to the date it went into effect since the right of appellant to alimony became a vested property right upon the entry of the judgment and could not be affected by subsequent legislation (Livingston v. Livingston, 173 N. Y. 377).

Furthermore, the question of whether legislation with respect to varying, modifying or annulling provisions for alimony in final decrees of divorce may be applied retrospectively is not an open one in this court. The provisions contained in section ■ 1170 of the Civil Practice Act to the effect that the court may, upon the application of either party to the action, at any time after final judgment and upon due notice to the other party, vary, modify or annul directions contained therein for the support of the wife have been in effect under one or another Code of Civil Procedure or Civil Practice Act reference since 1895 (L. 1895, ch. 891). Where claims were made that that statutory provision was retroactive in effect, this court held that it conferred no authority upon the court to vary, modify or annul provisions for alimony contained in any final decree entered prior to its effective date, although, by its express terms, it provided that it should apply to such decrees (Livingston v. Livingston, supra; Lake v. Lake, 194 N. Y. 179). By true analogy, the same rule must be applied to the amendment to section 1159 (now 1172-c) of the Civil Practice Act.

Nor can this court sustain the contention of respondent that without the 1938 amendment to section 1159 he is entitled, in the sound discretion of the court, to the relief which he seeks under the provisions of section 1170 of the Civil Practice Act because the effective date of the applicable provisions in that section was prior to the date of the entry of the final decree of divorce. It is true, of course, that the final decree in the instant case was entered subsequent to the enactment of the provisions of section 1170 and while it was in effect. The effect of that section was to write into every final judgment of divorce, entered after its enactment, a reservation, although none such was contained in the decree itself, of jurisdiction in the court to vary, modify or annul any provisions contained therein for alimony or to insert such provisions in the decree by amendment if previously it had contained no such award (Fox v. Fox, 263 N. Y. 68, 70; Karlin v. Karlin, 280 N. Y. 32). Nevertheless, that statutory provision did not authorize the court to annul for her misconduct by fornication, or immoral course of living, subsequent to the final decree, a provision for alimony contained in a final decree of divorce entered after its effective date in favor of the wife (Hayes v. Hayes, 220 N. Y. 596). Thus, the question of whether, under the provisions of section 1170 of the Civil Practice Act, a provision in the final decree for alimony awarded to the plaintiff in this case could be annulled because she has been habitually living with a man although not married to him, and yet holding herself out to be his wife, has been set at rest in her favor in this court.

In 1904 (L. 1904, ch. 339) the Legislature determined that public policy dictated that a woman who had received a final decree of divorce in her favor from her husband should no longer be permitted to hold her husband liable for alimony after she had again married. However, not until 1938 (L. 1938, ch. 161) did the Legislature determine that public policy required a ban on further alimony payments provided in a final decree of divorce granted to the wife for the wife’s failure otherwise to live, subsequent to the divorce, in her character of former wife. It is asserted here without contradiction that counsel for the defendant was instrumental in causing the introduction in and passage by the Legislature of the 1938 amendment, since previous efforts of the defendant in the courts to procure an annulment of the alimony provisions of his former wife’s final decree of divorce under other provisions of the Civil Practice Act then in effect had been unsuccessful. No indication has been furnished to us that any public emergency then arose requiring that legislation and no circumstances are presented to indicate that the Legislature by the mere determination then made indicated that it intended that the cause specified, if found to exist, should be available to annul provisions in a final decree entered before it made its determination. The public policy of the State of New York as determined and recorded by the Legislature may not be changed and rewritten by a court to satisfy its own private notion of what the public policy of the State ought to be.

The orders appealed from should be reversed, and the motion denied with costs in all courts.

Desmond, J.

(dissenting). In 1928 appellant obtained a divorce from respondent. The judgment provided for weekly alimony payments. In 1938 (L. 1938, eh. 161) the Legislature of this State enacted a statute (now Civ. Prac. Act, § 1172-c, second sentence) which empowered the court in its discretion to modify a judgment of divorce by striking out its alimony provisions “ upon proof that the wife is habitually living with another man and holding, herself out as his wife, although not married to such man.” The courts below, on sufficient proof have found that appellant was, on March 26, 1938 (the effective date of the statute hereinabove described) and thereafter, “ habitually living with a man not her husband and holding herself out to be his wife. ’ ’ Acting within the terms of section 1172-c of the Civil Practice Act, those courts have modified the 1928 divorce judgment by striking therefrom the award of alimony. Now we are told that such an excision is beyond the power of the courts, since, it is said, the statute, to save its constitutionality, must be read to permit such an operation only on judgments entered after the effective date of the statute, and not to judgments, like the one here involved, which were entered before the statute went upon the books. The rule of law cited as impelling us to that result is that which accords to certain judgments a finality beyond the reach of the Legislature, or the courts, so that the benefits decreed to a successful party by such a judgment become vested in that party, forever.

If all this be binding law, strange results follow. A wife who filed her divorce judgment in April of 1938 would find herself deprived of support from her former spouse if he could prove her guilty of unlawful cohabitation, while her erring sister, whose decree had been handed down in February of that year, would be safely beyond the reach of the statute. Each of those women would have secured her divorce and grant of alimony, originally, on proof of her husband’s guilt and, inferentially at least, of her own innocence. Neither woman could have had any divorce or alimony at all if the divorce proceedings involving her and her husband had been brought after the meretricious relationship with another man, here proven, had begun. A conclusion that the lawmakers intended to make of our divorce laws, expressive as they are of deep moral convictions, so asymmetrical a pattern, should be avoided, if avoidance is possible. Whatever the legislative purpose may have been, it cannot have contemplated such an incongruous result.” (Matter of Morse, 247 N. Y. 290, 302.)

The jurisdiction of the courts in matters of divorce and alimony is derived exclusively from statute. (Erkenbrach v. Erkenbrach, 96 N. Y. 456.) A statutory grant of jurisdiction to grant divorce judgments including alimony awards, would not, without more, authorize the modification of such a judgment, previously entered, as to its alimony features, since the judgment would have become final and in that sense would have created vested rights in the successful wife. (Livingston v. Livingston, 173 N. Y. 377.) Where authority to modify as to alimony was not expressly reserved by a statute in force before entry of judgment, or was not reserved in the judgment itself at the time of its rendition, those “ vested rights ” were beyond attack from Legislature or court. So, when in 1900, the Legislature attempted to bestow upon the courts the power to annul or modify directions for alimony ‘ ‘ at any time after final judgment, whether heretofore or hereafter rendered ” the statute was, as to judgments entered before its passage, inoperative (Livingston v. Livingston, supra). But this careful protection of the finality of alimony judgments was not based on any theory that they were akin to judgments on contract debts. Alimony (“ alimonia-sustenance ”) means the continued support of a wife by her divorced husband. “ The divorce with its incidental allowance of alimony simply continues his duty beyond the decree and compels him to perform it, but does not change its nature ” (Romaine v. Chauncey, 129 N. Y. 566, 570). Alimony is not a property settlement or a finally arrived at division between husband and wife of the former’s income. It is a device for enforcing our public policy that an innocent wife’s sustenance by her guilty husband should be continued after the divorce. But it would be a faulty public policy which would enforce the husband’s public duty of support and not the correlated public duty of the wife. The Legislature, by the statute we are examining, has ordained that the wife’s right to continued support from her husband after divorce, shall be forfeited by such misconduct as here appears. Concededly, the enactment of such a statute is within the Legislature’s competence. It seems plain the Legislature could not reasonably have' intended, in 1938, to authorize such a forfeiture only as to wives divorced before that date. We concede that a statute might be considered unreasonable or invalid which contemplated such a forfeiture for immoral acts done before the statute’s enactment. No such question is here. We are investigating only the validity of a forfeiture of alimony for wrong conduct after the statute’s passing. We find no unconstitutionality in such a law.

We have seen that alimony provisions are immune from modification if the judgments of which they are a part contain no reservation of power to modify, and if they are entered at a time when no statute exists making such judgments subject to modification. But when the judgment in the present case was handed down in 1928, there was already on the books a statute (Civ. Prac. Act, § 1170) which in sweeping terms said that the court was authorized, at any time after a final judgment for divorce, to annul, vary or modify an award of alimony contained therein. The effect of the statute is to write a reservation into every final judgment of divorce. The jurisdiction of the court over the parties and over the incidental subject-matter is prolonged ; and to that extent the action may be said to be pending within the meaning and intent of section 1169 of the Civil Practice Act ” (Fox v. Fox, 263 N. Y. 68, 70). Jurisdiction of this judgment, therefore, remained in the court precisely as if the judgment itself had, as was formerly the practice, contained an express reservation of leave to apply at its foot for its modification (Fox v. Fox, supra). Thus when the divorce judgment with which we are here dealing was granted in 1928, it plainly was not final. It created no “ vested rights ” at all in appellant, since, by the statutory law then in force, it was expressly subject to future modification in the court’s discretion. The rule of Livingston v. Livingston, supra, had no application to that judgment.

Hayes v. Hayes (220 N. Y. 596), announces no different rule. At the time the Hayes judgment was entered there was no statute authorizing modification because of the wife’s immoral behavior, so that in that case, while the judgment was non-final, while it created no vested alimony rights and was open to modification generally, yet there could be found no express statutory grant of authority to modify it for that particular reason. That deficiency in the statutes was supplied in 1938, by the enactment of the second sentence of section 1172-c. Thereafter alimony judgments, long since deprived of their erstwhile finality, were specifically made alterable for the particular reason here assigned.

In the time of Forrest v. Forrest (9 Abb. Pr. 289), there was a broad and fundamental reason why a wife’s alimony judgment could not be modified because of her misbehavior, that reason being the absence of any statute at all on the subject of modification. At the time of Hayes v. Hayes, supra, there was a narrower reason, i. e., the absence of a definite legislative declaration that such misbehavior was one of the grounds on which could be exercised the general power to modify, which general power had been provided between the time of the Forrest case and the time of the Hayes case. Now the Legislature has made that express declaration and no reason at all remains why there may not be modification for the precise canse relied on here.

We need not be fearful that we are here doing violence to any settled rules against retroactive application of statutes. The courts may, and in the present case did, give full and immediate effect to section 1172-c, without taking a single backward look. The misconduct for which the forfeiture of alimony was here imposed was misconduct after the date of the statute, and the alimony payments forfeited were those which were to come due in the future. In no real sense can such a use of the statute be considered to be retrospective (see discussion in Sistare v. Sistare, 218 U. S. 1, 24 et seq.).

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

Loughran, Lewis and Conway, JJ. concur with Rippey, J., Desmond, J. dissents in opinion in which Finch, J., concurs; Lehman, Ch. J., taking no part.

Orders reversed, etc.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    May Metropolitan Corporation, Appellant, v. May Oil Burner Corporation, Respondent.
    Argued February 25, 1943;
    decided April 15, 1943.

      Louis Rivkin for appellant.

      Walter G. Schelker, Jr., for respondent.
   Desmond, J.

Defendant has been granted judgment on the pleadings dismissing the complaint, and so we proceed to test for sufficiency the complaint and plaintiff’s bill of particulars. The action is for breach of contract. The first alleged cause of action grows out of the failure of the parties, in 1937, to conclude an agreement for the renewal for that year, of plaintiffs so-called franchise ” to deal in defendant’s products (oil burning heating equipment) in Brooklyn. At the time of the impasse between the parties in early 1937, plaintiff had served as such “ Dealer ” since early 1929, under eight successive annual “ franchise ” agreements, each of which contained some sort of clause looking to its renewal for the succeeding year. Plaintiff corporation was organized in 1929 for the sole purpose of acting as a distributor of the defendant’s products,” was forbidden by the franchise ” agreements to sell any other manufacturer’s oil burners and is now completely out of business as a result of the failure of the parties in 1937 to get together on the question of plaintiff’s quota ” for that year. For the first three years of the relationship between the parties the renewal clause was as follows: " Dealer shall have the privilege of renewing this agreement from year to year, provided he has lived up to all terms of his agreement. If the Company and the Dealer cannot agree as to the quota for subsequent years, a third party may be called in to decide what this quota shall be, with the understanding, however, that the quota shall not be for a lesser amount than previously contracted for from year to year.” We are not informed as to whether an arbitrator’s services were required during those years but the successive agreements show that the quota for the first year (1929) was 200 “ units ” and that the number of units ” actually agreed upon as plaintiff’s quota for the years to which the above quoted form of renewal clause applied was as follows: 200 in 1930,150 in 1931 and 200 in 1932. In renewing the relationship for 1932 a new form of contract was used which contained this clause: Should the distributor carry out all of the terms of this agreement, particularly those in reference to paragraph marked Quota,’ he shall automatically have the right of renewing this contract from year to year — providing he shall sign a new quota agreement for each year which shall be in excess of the previous year’s quota and to be mutually agreed upon.” This same language was in the agreements covering 1933,1934, 1935 and 1936, also. The quotas in fact agreed upon for 1933, 1935 and 1936 were, respectively, 150, 150 and 100 (for some reason the papers in the case do not show the exact number of units agreed upon for 1934 but it is stipulated that the quota for that year was not more than 10 per cent higher than the 1933 quota of 150).

In January, 1937, the parties entered into discussions as to the quota to be named for that year. Plaintiff wrote defendant that plaintiff desired “ a renewal of our present contract with an increased minimum quota from 100 oil burners to 150 oil burners,” reminding defendant that this proposed increase was “ substantially in excess of any prior increase in quota.” Defendant insisted on an increase from 100 to 250. Plaintiff, denouncing this demand as arbitrary and unreasonable, requested defendant to prepare a contract with a quota of 150. Defendant sent on a proposed “ franchise agreement ” which would have bound plaintiff to take 250 burners in 1937. When plaintiff refused to sign this, defendant, asserting that it was under no obligation at all to treat with plaintiff and noting its belief that there was “ no agreeable mutual basis,” informed plaintiff that there would be no renewal and .that defendant would “ make other arrangements as to representation in Brooklyn.” The complaint alleges that the provision for increase in quota as used in said contracts, was by the custom, usage and conduct of the. parties defined to contemplate an increase not in excess of 10% of the quota for the prior year,” that the increase from 100 to 150 as proposed by plaintiff was within this contemplation and was reasonable but that the increase proposed by defendant (100 to 250) was unreasonable. All of this, alleges plaintiff, makes out a breach by defendant of plaintiff’s right to renew for 1937 on reasonable terms. Plaintiff’s prayer for judgment asks for an award to it of lost profits for 1937, and other items. The courts below, in ordering judgment for defendant on the pleadings, have written no opinions. We assume that they have held that the renewal clause is unenforceable, as being merely “ an agreement to agree.”

A contract is incomplete and unenforceable when, as to some essential term, there has been no agreement but only an agreement to agree in the future. (St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30, Sun Printing & Publishing Assn. v. Remington Paper & Power Co., 235 N. Y. 338.) In such cases the legal effect, or lack of effect, is the same as if the parties had left blanks in the writing, to be filled in later when their minds should meet. But a contract is not necessarily lacking in all effect merely because it expresses the idea that something is left to future agreement. If the contract contains, as to some material term, an “ agreement to agree ” and it fairly appears that what the parties intended was that the treaty should be binding only if the parties did thereafter in fact arrive at a mutually satisfactory agreement as to that term, then unless and until they arrive at that point, there is no contract. (Mayer v. McCreery, 119 N. Y. 434, 439.) Thus in the St. Regis case (supra), see 235 N. Y. at page 33, the writing, after providing that for every three-month period after the first, the price was to he fixed by mutual consent,” went on to say that if the parties should fail to arrange a price for any such quarter-year, the contract should thereupon terminate.” The seller and buyer in that case decided for themselves, quite explicitly, just what should become of the contract if the future agreement should not materialize. There is in the agreements before us no statement that annual renewals are to be available to plaintiff only if the parties agree on a quota, nor any statement that, absent such agreement, the long-existing relationship shall forthwith be dissolved. Quite different is the scheme of these contracts. In eight successive annual agreements, the manufacturer here told the dealer that the dealer was thereafter to have the “ privilege ” or right ” of renewing the agreement from year to year.” From 1932 on, the dealer was told that it was automatically ” to have this right of renewing.” It does not seem possible that such strongly worded inducements meant only that, if and when defendant for its own reasons should decide to make other arrangements, defendant could seize upon the mutually agreed upon ” phrase with reference to quotas and call the whole thing off by arbitrarily demanding an increase of one hundred and fifty per cent in one year.

Plaintiff pleads in the complaint that the written words relating to renewal quotas came by usage and conduct to contemplate an annual increase of not more than ten per cent. None of the writings set out in the bill of particulars says anything about ten per cent ” but oral proof tending to show that such a meaning was arrived ah by custom and usage would not necessarily be inadmissible as varying the writings. The increase offered by plaintiff for 1937 was an increase of fifty per cent. We think that plaintiff should have the opportunity of exploring before a jury the whole question of the meaning of this long series of writings and long course of dealings. We do not think that our .search for the meaning of this renewal clause comes to a full stop as soon as the phrase “ mutually agreed upon ” is encountered. We still must deal with defendant’s grant to plaintiff of the right of renewing this contract from year to year,” and we must deal with the word “ automatically.”

Reasonable men may well read all that language together as importing that defendant shall not impose, as a further condition for renewal, the consent of plaintiff to an unreasonable increase in quota. In other words, the contracts as written do not negative an implication of reasonableness and good faith. If proof is available from which a standard of reasonableness can be worked out, such proof should be taken. (Stern v. Premier Shirt Corp., 260 N. Y. 201.) If such a standard or measure should develop out of the testimony on the trial, and a jury should hold that defendant’s conduct was not up to the standard, there would, it seems, be no insuperable difficulty in arriving at damages to be measured by the profits which plaintiff may be able to show with reasonable certainty were lost to him [it] by the breach.” (Stern v. Premier Shirt Corp., supra, p. 205.)

All that we have so far said deals with the first alleged cause of action in the complaint, only. The second count describes another alleged breach of contract, by defendant. It says that the agreements for 1934,1935 and 1936 required plaintiff to pay a certain sum toward defendant’s advertising expense, and that in return therefor defendant agreed to supply plaintiff with at least one-half of the names of all persons in Kings County, who made inquiries with respect to Quiet May Oil Burners.” Plaintiff then goes on to allege, in this second cause of action, that it did its part by making its contribution for the advertising costs but that defendant failed and refused to submit to plaintiff the names of one-half the Kings county “ prospects.” This might sufficiently state a cause of action were we not under a duty of reading with it the allegations of plaintiff’s bill of particulars. The written contracts contain plaintiff’s promise to make the advertising payments, but say nothing about an engagement by defendant to furnish names to plaintiff. A letter from defendant to plaintiff, set out in the bill of particulars, makes it plain, we think, that there was no binding agreement by defendant to furnish to plaintiff the names of one-half those residents of Brooklyn who showed an interest in defendant’s product. The letter is a mere statement that plaintiff may expect to get such, names if it cooperates as to a number of other matters discussed in the letter. The letter negatives the idea of a binding agreement as to the furnishing of the names, and so the second alleged cause of action, with the bill of particulars read into it, is insufficient.

The judgments in so far as they dismiss the first cause of action should be reversed and the motion to dismiss that cause of action denied; otherwise judgments affirmed, without costs.

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

Judgment accordingly.


author: Conway, J.

text:
    In the Matter of Edward P. Holland, Respondent, against Paul A. Bankson, as City Manager and Acting Director of the Department of Public Safety of the City of New Rochelle, et al., Appellants.
    Argued February 23, 1943;
    decided April 15, 1943.

      Aaron Simmons, Corporation Counsel, for appellants.

      Frederick Evan Crane and Edward M. Edenbaum for respondent.

      Francis R. Doherty for Harold Douglas, individually and as President of the Uniformed Firemen’s Benevolent Association of White Plains, amicus curiae, in support of the position of respondent.
   Conway, J.

The Appellate Division has granted leave to appeal to this court to the representatives of the city of New Rochelle from an order affirming an order of Special Term striking out their answer as insufficient in law upon the face thereof and granting the prayer of petitioner that the tours of duty and hours off duty of the officers and firemen of the New Rochelle Fire Department be changed to conform to the requirements and provisions of chapter 626 of the Laws of 1941 (known as the Hampton Act).

The tours of duty and the hours off duty of firemen in the city of New Rochelle were established and regulated by Local Law No. 1 of 1942. It is conceded that the Hampton Act allows to firemen of that city at least an additional day off duty each week not permitted by the Local Law. The first separate and distinct defense in the answer alleges that the Hampton Act does not apply to the city of New Rochelle and that the establishment and control of the fire department of that city are matters of local concern and relate to the affairs of the city of New Rochelle within the meaning of the City Home Rule Law.

Both the Home Rule Amendment to the State Constitution approved by the People at the election of 1923 (Art. XII, § 2) and the State Constitution which went into effect on January 1, 1938 (Art. IX, § 11) required the Legislature to act in relation to the property, affairs or government of any city by general laws only which should in terms and in effect apply alike to all cities, with certain exceptions not material here. Such provision “ was intended to vest in the cities of the State increased control of their own property, affairs and government.” (City of New York v. Village of Lawrence, 250 N. Y. 429, 435; see, also, Matter of Mayor of the City of New York [Elm Street], 246 N. Y. 72,76.) Section 11, subdivision 1, of the City Home Rule Law provides in part as follows: “ §11. Power of cities to adopt and amend local laws. 1. * * * The local legislative body of a city shall have power to adopt and amend (a) local laws in relation to the property, affairs or government of the city * * *. Such local laws may change or supersede any provision of an act of the legislature theretofore enacted which provision does not in terms and in effect apply alike to all cities. The enumeration of powers in this subdivision is not intended to imply that any of such powers is not included within the power of a city to adopt and amend local laws in relation to its property, affairs and government.”

The question presented for our determination is whether or not the Hampton Act (L. 1941, ch. 626) is a general law. If it is a general law, then the statute governs the tours of duty and hours off duty of officers and firemen of the fire department of the city of New Rochelle. If it is not a general law applying alike to all cities in terms and in effect, then such hours and tours of duty are governed by Local Law No. 1 of 1942. (Adler v. Deegan, 251 N. Y. 467, 486, 487.)

Section 2 of the Hampton Act provides that “ the provisions of this act shall not repeal, affect or impair the provisions of chapter nine hundred and forty-six of the laws of nineteen hundred thirty-six or any other law, general, special or local, relating to tours of duty and days or hours off duty of firemen in any city.” Chapter 946 of the Laws of 1936 relates to city firemen in the city of New York. There is excepted from the application of the Hampton Act ‘ ‘ any other law, general, special or local ” relating to hours off duty and tours of duty of firemen in any city. The following cities, according to respondent’s brief, adopted local laws prior to the effective date of the Hampton Act: Corning, Elmira, Geneva, Glens Falls, Ithaca, Johnstown, Middletown, Newburgh, Oneida, Rensselaer, Rochester, Saratoga Springs, Watertown, White Plains. The Hampton Act is not applicable to those mentioned cities and is not and was clearly never intended to be a general law applicable alike to all cities. (Adler v. Deegan, supra, pp. 486, 487.) Moreover, we have held: “ Historically and as matter of common knowledge, fire departments have been recognized agencies of municipal governments, and their organization, operation and administrative control have been deemed matters of local concern.” (Matter of Osborn v. Cohen, 272 N. Y. 55, 60.)

Since the Hampton Act was not intended by the Legislature to be a general law applicable in terms and in effect alike to all cities, Local Law No. 1 of 1942 of the city of New Rochelle is controlling here. The first separate and distinct defense set out in the answer is a good defense and should not have been stricken out.

. The orders should be reversed and the petition dismissed without costs.

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

Orders reversed, etc.


author: Lehman, Ch. J.

text:
    The People of the State of New York, Appellant, v. John Farina, Respondent.
    Argued March 1, 1943;
    decided April 15, 1943.

      Thomas Cradock Hughes, Acting District Attorney (Fred J. Loughran and Henry J. Walsh of counsel), for appellant.

      Louis J. Castellano, Arthur L. Burchell and Daniel McNamara, Jr., for respondent.
   Lehman, Ch. J.

The defendant, a contractor, received, from the owner, payment of the agreed price for constructing improvements on real property in the borough of Brooklyn. He has failed to pay, out of the moneys received, his indebtedness to Southern Lumber Co., Inc., for merchandise furnished upon that improvement. Because of his failure to pay that indebtedness, he was charged with petit larceny of the funds which he received from the owner under his contract for the improvement of real property and which in accordance with section 36-a of the Lien Law “ constitute trust funds in the hands of such contractor to be applied first to the payment of claims of subcontractors, architects, engineers, surveyors, laborers and material-men arising out of the improvement.” He was convicted, one justice dissenting, after a trial in the Court of Special Sessions. The Appellate Division by a closely divided court reversed the judgment of conviction “ on the law ” and dismissed the information. The People have appealed to this court from the judgment of the Appellate Division.

The defendant moved at the close of the People’s case to dismiss the information because it was not shown that the moneys received by the defendant were improperly disbursed.” The motion was denied. At that time the People had failed to make out a prima facie case. The problem presented upon this appeal is whether the deficiency in the proof at the close of the ease was thereafter supplied upon the examination of the defendant. In determining whether there is evidence sufficient as matter of law to sustain the judgment of conviction, we must appraise all the evidence produced at the trial, and we do not exclude from that appraisal the evidence produced by the defendant. (People v. Corbisiero, 290 N. Y. 191, decided herewith.) The Appellate Division appraised the sufficiency of the evidence in the same manner.

The defendant testified that he had applied the trust fund in manner required by the statute and had not used any part of the trust fund for other purposes. It would serve no purpose to analyze that testimony. If the triers of the fact, believed the defendant, they were bound to acquit, but they could reasonably reject that testimony, as in fact they did. Eejection of the testimony offered by the defendant would not, however, alone justify the contrary finding of guilt. That, of course, must be shown by affirmative proof of circumstances from which an inference of guilt may be drawn or which create a presumption of guilt.

The Legislature recognized in the Lien Law the difficulty of proving that funds received by a contractor have been diverted unless the contractor is required to keep proper accounts and to furnish a statement of the manner in which he claims that he disbursed the moneys received. Accordingly, the Legislature provided in section 36-d that a contractor “ shall keep books or records showing the allocation to each improvement of real property * * * of the funds received and disbursed on account and/or by reason thereof;” that the contractor shall deposit such funds in a bank or other depository in his own name, and that a person entitled to a payment on account of an improvement of real property * * * as provided in this chapter, from such * * * contractor * * * shall, after the expiration of sixty days from the due date of such payment, be entitled to a statement under oath ” as provided in the statute. Such statement must be served by the contractor within ten days after a written demand for such statement is served personally or by registered mail.” In the same section the Legislature provided that: (6) The failure to keep such books or records and/or the failure of an owner, contractor or subcontractor, or of an officer, director or agent of such owner, contractor or subcontractor, to serve such statement shall be presumptive evidence that such owner, contractor or subcontractor, as the case may be, and/or such officer, director or agent of such owner, contractor or subcontractor, has applied and/or consented to the application of trust funds for purposes other than those specified in this chapter, on the date that such payment became due to the person entitled to such statement, in an amount equal to the sum due.”

Here the People showed upon cross-examination of the defendant that a demand for a statement under oath as provided in the statute was served upon the contractor, and that the defendant had failed to serve such statement within ten days after the written demand, but the contractor did serve such a statement a few days before the trial. The People urge that failure to serve such statement within the ten days allowed by the statute is “ presumptive evidence of guilt ” even where the statement is thereafter served. Unless that contention is sustained the record is barren of evidence of guilt.

The statutory requirement that a contractor shall keep proper books of account and shall furnish a statement in manner provided by the statute furnishes reasonable protection to those entitled to payment for improvement of property for which the contractor has been paid, and it places no unreasonable burden upon the contractor. A statutory presumption of guilt arising from unexplained and willful failure to comply with the provisions of the statute rests upon a sound foundation and does not violate any provision of the Constitution of the State of New York or of the United States. There is, however, no foundation for inference or presumption of guilt where books or records are kept by the contractor, though through inadvertence or excusable neglect the books or records may be defective in some unimportant details or where a statement is served by the contractor more than ten days after demand, and it does not appear that the person upon whom the statement was served rejected the statement. Here no defect was pointed out in the books or records kept by the defendant which called for explanation by him, and it does not appear that the statement served by the contractor was rejected or even received under protest.

The failure of a contractor to serve such statement ” is made by statute presumptive evidence of guilt ”; and since the statute requires that the statement shall be served within ten days after demand, no effective service can be made thereafter unless the contractor’s default is waived by the person making the demand; or unless the court, for sufficient cause, relieves the contractor of his default. Choice of whether to accept belated service of the statement or to reject it lies with the person making the demand. He cannot, however, accept the advantage which the statute intends that service of the statement should confer and at the same time claim the benefit of a statutory presumption which arises only where there has been failure to serve such statement. Since it does not appear that belated service of the statement was, in this case, rejected by the complainant, there is in the record no evidence of guilt, presumptive ” or otherwise.

The judgment should be affirmed.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.


text:
    In the Matter of the Claim of Walter Hoffman against New York Central Railroad Company, Respondent. State Industrial Board, Appellant.
    Argued March 5, 1943;
    decided April 15, 1943.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Orrin G. Judd of counsel), for appellant.

      Robert E. Whalen and Charles E. Nichols for respondent.
   Conway, J.

Claimant was employed by the New York Central Railroad Company for about twenty years. On March 21,1940, he was a boiler maker helper and worked in Shop C of the West Albany shop of the railroad. He was on his way to work between Shop C and Shop D and was walking on a concrete path which the employees used on the employer’s premises. Claimant testified that there was ice on the walk and that he fell. A question of fact was presented as to whether or not claimant sustained an accidental injury arising out of his employment so as to entitle him to compensation. It was conceded that his injury was sustained in the course of his employment. There is a presumption that the claim comes within the provisions of the Workmen’s Compensation Law and the decision of the State Industrial Board is final as to all questions of fact. (Workmen’s Compensation Law, §§ 21, 20; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459, 466.) The frankness of the claimant in testifying that he did not know the canse of his fall, does not, without more, necessarily overcome the presumption that his claim comes within the statute. The question of fact was resolved by the Industrial Board in the claimant’s favor. The award should have been sustained. (Matter of Unger v. New York Sportwear Co., 268 N. Y. 651; Matter of Kefford v. Federal Reserve Bank, 246 App. Div. 660, motion for leave to appeal denied, 270 N. Y. 675.)

The order of the Appellate Division should be reversed and the award of the State Industrial Board reinstated with costs in this.court and in the Appellate Division.

Lehman, Ch. J., Lohghran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the Bank of the United States, in Liquidation. Bayou Interests, Inc., Appellant. Garcent Corporation et al., Respondents.
    Argued March 2, 1943;
    decided April 15, 1943.

      Jacob L. Holtzmann, Henry Cohen and Lucille F. Bekaert for appellant.

      Henry L. Bayles and Carl J. Austrian for Superintendent of Banks.

      Edward Lazansky, Joseph Glass and Leslie Kirsch for Garcent Corporation, respondent.
   Lehman, Ch. J.

The Superintendent of Banks is in possession of the business and property of Bank of United States for the purpose of liquidating its affairs in accordance with the provisions of the Banking Law. Among the assets of the bank are bonds and stocks of G-arment Center Capitol, Inc. The Superintendent of Banks applied to the court for an order approving acceptance of an offer which had been made by the appellant Bayou Interests, Inc., for the purchase of these securities. Upon the hearing of the petition the court indicated that it would not approve that application but would be willing to make an order approving the acceptance of a later offer by the respondent Garcent Corp. for the same securities at a higher price. The Superintendent of Banks then reluctantly filed a petition for the approval of that offer. The court granted that petition, and an order was entered denying the petition of the Superintendent of Banks for an order approving the acceptance of the offer of Bayou Interests, Inc. and granting the petition for an order approving the acceptance of the offer of Garcent Corp. The order was unanimously affirmed by the Appellate Division and by permission of this court, Bayou Interests, Inc. has appealed from the order of the Appellate Division.

Garment Center Capitol Inc. is the fee owner ” of certain improved real property in the city of New York. The securities owned by Bank of United States represent a very substantial share of the equity of the corporation in three mercantile buildings. The Superintendent of Banks determined that better prices for securities of that type can be obtained by private sale than by public auction. Appraisers retained by the Superintendent had valued the securities at $750,000. The Superintendent sought to obtain offers for the securities from investors who might be interested. The attorney for the Superintendent talked to representatives of prospective buyers. All were told that the Superintendent expected to obtain $750,000 for the securities and were urged to bid more than that amount. They were told also that he expected bidders to make their best offer, “ because no further opportunity to make a bid would be afforded by the Superintendent.” They were informed further that no bid received from one prospective bidder would be disclosed to any other bidder. The attorney representing a group of investors who for convenience intended to bid upon the property in the name of Garcent Corp. expressed approval of the procedure adopted by the Superintendent of Banks, but stated that his clients did not consider the securities worth $750,000. He made an offer in writing of $650,000 for the securities. Bayou Interests, Inc. was induced to submit a bid of $751,501 for the securities. Since that was far the highest bid received, the Superintendent of Banks informed Bayou Interests, Inc. that its offer was acceptable and thereupon the Superintendent asked the court to approve the offer.

While the Superintendent’s petition was pending before the court the attorney representing Garcent Corp. sent a letter to the court stating that after the bid of Garcent Corp. had been rejected, “ I have since Monday reviewed the matter with clients of mine who are willing to bid very substantially more than $650,000, and the amount of such bid may be substantially higher than the bid now recommended by the Superintendent of Banks for your approval.” Upon receipt of that letter the court stated to the Superintendent that it would hold public hearings upon his petition for approval of the sale of the securities. The hearings were held. Notice was given by the Superintendent to all prospective bidders who had shown any interest in the purchase of the securities. The court solicited higher offers from all, and in effect held an auction which resulted in Garcent Corp. submitting an offer which is a little higher than the offer previously made by Bayou Interests, Inc. The Superintendent of Banks at all times urged that the offer of Bayou Interests, Inc. should be accepted, since the price offered was adequate and was the highest bid that could be obtained in accordance with the procedure which the Superintendent of Banks had adopted. Since the court indicated that it would not approve a sale at a price lower than the bid thereafter made by Garcent Corp., the Superintendent felt bound to ask approval of that hid.

Though the Superintendent of Banks could not appeal from an order made upon his application, hé has indicated to the court upon this appeal that in his opinion the order is ill-advised. He urges that the responsibility of selling at the highest price which can be obtained for the assets of a bank rests upon the Superintendent of Banks; that experience has shown that the procedure best calculated to obtain the highest offer is the procedure which he adopted, and by which he obtained a bid of over $750,000 from Bayou Interests, Inc. though the next bid was for $650,000; that it will be impossible for the Superintendent of Banks hereafter to use that procedure successfully if the court is free to withhold approval of a sale upon a bid so obtained and for an adequate amount. The court in rejecting the petition of the Superintendent for approval of a sale tó ¡ Bayou Interests, Inc. did not indicate that in its opinion the Superintendent acted unreasonably in recommending that the bid of Bayou Interests, Inc. should be accepted. Indeed, no possible argument could be made that the Superintendent acted unreasonably. The bid was concededly the highest bid which had been received upon a sale conducted fairly and in accordance with a procedure devised by the Superintendent because in his opinion the best price for the securities could be obtained upon a sale so conducted. If the court has no power except to review the exercise of a discretionary power conferred by the Legislature upon an administrative officer, forcible argument could be made that the court has exceeded its power.

In truth, however, the power conferred by the Legislature upon the court is far greater. The Superintendent is authorized to sell, or dispose of, the assets of the bank only “ upon an order of the Supreme Court.” (Banking Law, § 618.) In making such an order the function of the court is not confined to review of a determination previously made by the Superintendent in the exercise of an administrative discretion vested in him. The court exercises its own discretion, and since the Appellate Division has affirmed the order of the court, we have no power to review the exercise of that discretion.

We point out also that the decision of the courts below will not necessarily leave the Superintendent of Banks without power to make sales of securities in accordance with the procedure deemed fairest and most advantageous by him. If the Superintendent, before asking bids at private sale, applies to the court for approval of the procedure deemed best by the Superintendent, and if the court in the exercise of its discretion determines that the sale should be so conducted, prospective bidders can submit their offers with reasonable certainty that in the absence of unusual circumstances, a bid for an adequate amount obtained upon a sale so conducted will be accepted and approved. (See Matter of National Surety Co., 248 App. Div. 111, affd. 272 N. Y. 613.)

The order should be affirmed with costs. (See 290 N. Y. 765.)

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.


author: Finch, J. Lehman, Ch. J.

text:
    The People of the State of New York ex rel. Gilbert Gordon, Appellant and Respondent, against Harry T. Ashworth, as Acting Warden of the Penitentiary of the City of New York, Defendant. The People of the State of New York, Respondent and Appellant.
    Argued December 1, 1942;
    decided April 15, 1943.

      Frank, S. Hogan, District Attorney (Stanley H. Fuld and Francis G. Leffler of counsel), for People of the State of New York, respondent and appellant.

      Selig Lenefsky for relator, appellant and respondent.
   Finch, J.

Both the People of the State of New York and the relator appeal from an order of the Appellate Division which modified an order discharging the relator from custody by directing that he be remanded to the Court of Special Sessions for resentence.

The relator pleaded guilty to two separate informations, one the unlawful possession of a firearm ” (Penal Law, § 1897) and the other “ unlawfully possessing a habit-forming drug ” (Public Health Law, §§ 423, 440). He was given an indeterminate sentence in the city penitentiary upon each conviction, the terms to run consecutively. Thereafter he served twenty-eight months of imprisonment on the first commitment, due allowance being given for time in jail awaiting trial and for exemplary behavior and industry. He was thereupon deemed released on the first commitment and was then detained under the second commitment. The maximum length of confinement under the second commitment would be a term of thirty-six months from the date of the expiration of his first commitment.

After relator had finished serving his time under the first commitment he instituted this habeas corpus proceeding to test the validity of his detention under the second commitment, claiming that a Court of Special Sessions did not have power under the Parole Commission Law (Correction Law, art. 7-A) to make commitments for consecutive, indeterminative terms. The Court at Special Term holding that the imposition of such consecutive sentences was contrary to the provisions of the Parole Commission Law, sustained the writ and discharged the relator from custody. Upon appeal, the Appellate Division reached the conclusion that the relator should not be discharged from custody, but be remanded for resentence upon the second judgment of conviction.

We reach the conclusion that the Appellate Division has properly construed the Parole Commission Law.

The problem presented is one of construction, whether under the Parole Commission Law there may be a commitment for consecutive terms following conviction upon distinct offenses. The People contend that under the Parole Commission Law the courts of New York have such power. The relator contends that there cannot be two consecutive commitments under the Parole Commission Law upon the ground that no term of commitment under this Law can exceed three years.

The. relator would seem to overlook the fact that he has pleaded guilty to two separate and distinct misdemeanors. It is true that the Parole Commission Law does specify that “ The term of such imprisonment * * * shall not exceed three years ” (Correction Law, § 203, subd. b.), but this language obviously refers to the case where a defendant stands convicted of a single crime and does not purport to cover a case where a defendant has been convicted of more than one crime. To urge that the court can under no circumstances order the confinement of an offender guilty of more than one crime for a period which may exceed three years would in effect be urging that a defendant may not be punished for each of the crimes of which he has been found guilty. But we have held otherwise. In People v. Ingber (248 N. Y. 302, 306) we quoted from Tilghmah, C. J., in Russell v. Commonwealth (7 S. & R. 489 [23 Penn. St.]): “‘Would it not be absurd, to make one imprisonment, a punishment for two offences? Nay the absurdity does not end there, for unless imprisonment for the last offence is to begin where the imprisonment for the first ends, it would be impossible, under our system, to punish the offender, in certain cases, for the last offence, at all.’ And by statute (Penal Law, § 2190) there is provided discretionary power in the courts to impose consecutive sentences. The Court of Special Sessions is vested with such power to impose consecutive sentences. (People v. Faden, 271 N. Y. 435.) It is true that under the Parole Commission Law, where the prisoner is found capable of being substantially benefited by commitment to a correctional institution, the court may temper punishment with the privilege and possible benefit of reformation. But in providing for possible rehabilitation, the statute contains no language looking towards curtailment of the discretionary power in the courts to impose a penalty for each separate and distinct crime. Since no legislative prohibition against the imposition of cumulative penitentiary sentences is to be found either in the Parole Commission Law or in the Penal Law, the Legislature.presumably intended that the courts should retain this power with regard to imposition of cumulative sentences.

Nothing in the Parole Commission Law, therefore, prevented the court from sentencing this defendant upon the second of two crimes after his sentence to the penitentiary upon the first of the crimes has been concluded.

It was argued at Special Term that there is incongruity between the maximum sentence of one year for a misdemeanor under the Penal Law and an indeterminate sentence up to three years for a misdemeanor under the Parole Commission Law. While it is true that the Parole Commission has the power of detaining a prisoner for three years if, in its opinion, this continuing treatment may result in his rehabilitation, yet, if he responds, it is also within the discretion of the Parole Commission to release him almost immediately after he has entered the penitentiary. In other words, under the Parole Commission Law, there is no minimum sentence. Where a defendant has committed but one crime, neither the Parole Commission nor the court has any leeway and must release him at the end of three years even though they may well conclude that three years is not an adequate period for reformation. If, however, the prisoner has been convicted of several misdemeanors, the court is empowered to sentence him separately for each crime, but should do so only after he has been brought before the court for sentence after completing his first sentence.

If we adopt the construction of the Parole Commission Law, that the imposition of an indeterminate sentence forbids any sentence upon pleas of guilty to unrelated misdemeanors, then we reach the unrealistic conclusion that the punishment for one misdemeanor is made the only punishment possible, not only for two unrelated crimes but for as many misdemeanors as the prisoner may recall and wish to plead guilty to. It is submitted that such a construction, by providing, for one punishment to become a satisfaction for any number of unrelated crimes, removes any deterrent to their commission and, therefore, weighs against this construction being in accord with the intention of the Legislature.

It follows that the order appealed from should be affirmed.

Lehman, Ch. J.

(dissenting). The relator pleaded guilty to two informations charging unrelated misdemeanors. Upon conviction of each misdemeanor, the relator was punishable by imprisonment, in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.” (Penal Law, § 1937.) The court had power to direct that the terms- of imprisonment should be served consecutively. (Penal Law, § 2190; People v. Ingber, 248 N. Y. 302.) No sentence of imprisonment for a fixed term was pronounced upon the defendant. Separate judgments of conviction were simultaneously pronounced. Bach judgment provided that the defendant “ be imprisoned in the penitentiary of The City of New York,- there to be dealt with according to law ” and each sentence or commitment bears the notation “ to run consecutively.”

The Parole Commission Law (now art. 7-A of the Correction Law) applies in terms to “ any city of the first class wherein there is a department of correction which has jurisdiction over a workhouse, a penitentiary and a reformatory ” and which has created a parole commission pursuant to the statute. (Correction Law, § 200.) It provides (§ 203) that:

“ (a) After the creation of a parole commission pursuant to this article any person convicted of any crime or offense punishable by imprisonment in a penitentiary, workhouse, city prison, county jail or other institution under the jurisdiction of the department of correction of the city if sentenced to any institution under the jurisdiction of the department of correction in. such city shall be sentenced and committed to a penitentiary or a workhouse or a reformatory under the jurisdiction of such department.
“(b) The court in imposing sentence shall not fix or limit the term of imprisonment of any person sentenced to any such penitentiary. The term of such imprisonment shall be terminated in the manner prescribed in section two hundred four of this article and not otherwise, and shall not exceed three years. *******
“ (e) This article shall not apply to any person who is:
* * *
2 * * *
3. Insane, or mentally or physically incapable of being substantially benefited by being committed to a correctional and reformatory institution.”

Concededly the statute was intended to apply to the city of New York. In that city the only sentence of imprisonment which a court would have power to impose upon a person convicted of either offense to which the relator pleaded guilty would he for an indeterminate term which “ shall not exceed three years ” unless the court found that such person was “ insane, or mentally or physically incapable of being substantially benefited by being committed to a correctional and reformatory institution.” The maximum term of imprisonment which under the provisions of the Penal Law may be imposed as punishment upon a person convicted of a misdemeanor is one year. Within that limit “ the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence ” (Penal Law, § 1931); but the Legislature has decreed in the Parole Commission Law that in the city of New York sentence of imprisonment as provided in the Penal Law may be imposed only upon persons who are “ incapable of being substantially benefited by being committed to a correctional and reformatory institution.” Before imposing sentence under the Parole Commission Law, the court must determine whether the person who has been convicted is capable of being benefited by such commitment. If the court determines that he is a hardened criminal not capable of being benefited by such commitment, the Parole Commission Law does not apply and under the Penal Law the court must limit the term of imprisonment to one year. If the court determines that the person who has been convicted is not insane and is capable of being substantially benefited by imprisonment in a correctional or reformatory institution rather than an" ordinary jail or reformatory institution, the court must sentence him to a correctional or reformatory institution and may not “fix or limit the term of imprisonment.” (Correction Law, § 203, supra; People v. Thompson, 251 N. Y. 428.)

During his term of imprisonment under the first sentence the Parole Commission might have terminated the offender’s imprisonment in accordance with the provisions of the Parole Commission Law by “ parole, * * * release [or] discharge ” with the approval of the judge who made the commitment, or on the other hand the offender might be imprisoned under that sentence for three years. If two consecutive indeterminate sentences may be imposed simultaneously then, regardless of the manner in which his imprisonment under the first sentence was terminated, the offender must be imprisoned again for a term which can ‘ ‘ be terminated in the manner prescribed in section two hundred four ” of the Correction Law; “ and not otherwise, and shall not exceed three years.” Before such indeterminate sentences to be served consecutively could be imposed, the court would be compelled to decide that at the end of the first term of imprisonment three years later the offender would still be capable of being “ substantially benefited by being committed to a correctional and reformatory institution”; though discharge of the offender in accordance with section 204 before the end of three years would, it seems, indicate that, in the opinion of the Parole Commission and the trial court, longer imprisonment would not accord with the public interest; and conversely failure to terminate the imprisonment during the longest term of imprisonment permitted by the statute would, it seems, indicate that corrective and reformatory treatment failed to achieve its purpose. Such construction would thwart the purpose of the Parole Commission Law that “correctional and reformatory institutions ” should be established in which offenders who are not incapable of moral improvement might be imprisoned until the desired improvement has been noted by the Parole Commission and the court, or until three years of imprisonment had been served. Such construction would deprive the Parole Commission and the court of a part of the discretionary power vested in them by law to discharge an offender from imprisonment at any time and would permit the trial court to impose upon an offender deemed capable of moral regeneration a longer term of imprisonment than could be imposed upon a confirmed criminal. That construction is contrary to the letter and the spirit of the Parole Commission Law.

So far the judges of the courts below have agreed and there is no difference of opinion between Judge Finch and myself. Difference of opinion arises only upon the question whether the court which must sentence an offender upon conviction of two or more offenses may impose an indeterminate sentence for one offense and suspend or postpone sentence for the other offense, or offenses, until the first sentence has been served. The power of the court to impose cumulative sentences under the Penal Law is not open to question and if the court had determined that the relator was incapable of being benefited by sentence imposed in accordance with the Parole Commission Law the court could certainly have imposed sentence of imprisonment for a term of not more than one year for each offense to run consecutively in accordance with the provisions of the Penal Law; for in such case the Parole Commission Law would by its terms have no application. The Parole Commission Law does not, however, contain any express provision for cumulative sentences and the question here presented is whether the power to impose such cumulative sentences must be implied.

We are told that such power must be read into the statute because the Legislature cannot be deemed to have intended that the courts under the Parole Commission Law are required to impose the same punishment for two or more offenses as they would impose for one. The argument overlooks the fact that the basic theory of the Parole Commission Law is that where a person can benefit by correctional or reformatory treatment the court shall not fix a term of imprisonment proportioned to the offender’s guilt, but shall commit the defendant to a correctional or reformatory institution for a term of imprisonment not to exceed three years. The punitive purpose of imprisonment is subordinated to its reformatory purposes. Where a statute expressly provides that sentence must be imposed which shall not be proportioned to an offender’s guilt, there is little if any basis for reading into the statute an implied power to impose cumulative punishment for several offenses.

The court could not at the time of original sentence impose an indeterminate sentence for one offense under the Parole Commission Law upon a finding that the offender is capable of being benefited by commitment to a correctional or reformatory institution and, at the same time, impose a sentence for a fixed term not over one year under the Penal Law upon a contrary finding. That is undisputed. The court could not at that time impose two indeterminate sentences under the Parole Commission Law. Upon that point, as I have said, all are agreed. If the offender is subject to punishment in accordance with the Penal Law, sentence could not in any circumstance be suspended for more than one year — the longest period for which the offender might have been sentenced under the Penal Law (Code Crim. Pro. § 470-a). It follows that the only sentence which could be pronounced upon an adjourned date is the same indeterminate' sentence which all agree the court had no power to impose at the time of the original sentence. I can see no possible basis for reading by implication into the Parole Commission Law a power to suspend or postpone sentence for one offense in order to enable the court to impose a sentence upon the postponed date which the court had not power to impose at the time the offender was convicted. Since the statute cannot be so construed it is perhaps unnecessary to point out that a construction which would permit the court to impose sentences of imprisonment aggregating six years upon charges for which a jury trial cannot be had, would create grave doubt of the constitutionality of the statute.

The order of the Appellate Division should be reversed in so far as it modifies the order of the Supreme Court and the order of the Supreme Court should be affirmed.

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

Order affirmed.


author: Rippey, J.

text:
    Gertrude Sternfeld, on Behalf of Herself and All Other Common Stockholders, Similarly Situated, of Toxaway Tanning Company, Respondent, v. Toxaway Tanning Company et al., Appellants, et al., Defendants.
    Argued March 11, 1943;
    decided April 15, 1943.

      Joseph C. Slaughter, Charles H. Lieb and Morris Katz for appellants.

      Stanley Rosenthal and Maxwell Okun for respondent.
   Rippey, J.

This action is grounded in fraud and deceit. It is not an action for damages. The defendant corporation is organized and existing under the laws of the State of North Carolina.

The relief sought is a declaration that a preferred stock issue of the defendant corporation be declared illegal and of no effect: that the stock certificates issued thereunder be declared null and void and cancelled; that the holders of such stock be directed to return any of such stock held by them to the defendant corporation for cancellation and that the corporation be directed to cancel the same; that the corporation be enjoined from in any wise dealing in or issuing any of such stock still remaining in the treasury; that the corporation and its officers be directed to file with the Secretary of State of North Carolina a certificate cancelling the certificate of the corporation under the authority of which the stock was authorized and that the defendants be enjoined from hypothecating, transferring or otherwise dealing with such stock and from declaring or paying dividends thereon. Some necessary defendants have not been served with the summons and have not appeared.

A judgment of a court in this State granting the relief sought could not be enforced nor could the plaintiff be granted complete relief without cancellation of recapitalization proceedings taken under the laws of a foreign state and of shares of stock issued thereunder and consequent interference with the internal affairs and management of a foreign corporation. In those circumstances, jurisdiction by our courts will not be entertained (Travis v. Knox Terpezone Co., 215 N. Y. 259; Cohn v. Mishkoff Costello Co., 256 N. Y. 102; Rogers v. Guaranty Trust Co., 288 U. S. 123). Considerations of convenience, efficiency and justice point to the courts of the domicile of the corporation for settlement of the issues presented and necessarily involved in a complete determination of the present case. That fraud is alleged is not a decisive factor inducing our courts to entertain jurisdiction.

The orders appealed from should be reversed with costs in all courts, the motion to dismiss the complaint granted, with ten dollars costs, and the question certified answered in the negative.

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

Ordered accordingly.


text:
    Lazlo V. Keviczky, Respondent, v. Isadore Lorber et al., Appellants, et al., Defendants.
    Argued December 2, 1942;
    decided April 15, 1943.

      Alexander Pfeiffer for Isadore Lorber, appellant.

      John C. Crawley, Henry W. Profit, William I. Hart and Clifford L. Tichenor for Dry Dock Savings Institution, appellant.

      Benjamin Shiverts, Edmond B. Butler and Raymond D. O’Connell for respondent.
   Finch, J.

Whether plaintiff has made out a cause of action sufficient to sustain the finding of the jury, that the buyer and seller and so-called dummy broker have conspired wrongfully to refrain from dealing with plaintiff and thus prevented him from earning his commission, is the question presented by this appeal.

In view of the findings of the jury, plaintiff is entitled to the most favorable view of the evidence, including the reasonable inferences therefrom.

The dramatis persones are plaintiff, a real estate broker, and defendants-appellants, a savings bank and one Lorber, a purchaser of real property from the bank. Defendant G-eller Realty Associates is likewise a real estate broker.

On September 6,1937, one Burrucker, an authorized employee of the bank, the . owner of the property, employed plaintiff to sell the property and agreed to pay plaintiff the usual Real Estate Board brokerage commission. From September, 1937, to May, 1938, plaintiff negotiated between the bank and prospective purchasers. Between May, 1938, and July or August, 1938, plaintiff negotiated between Lorber and the bank, and induced the bank and Lorber to be satisfied with a price of $480,000, $50,000 cash and a five-year mortgage of three and one-half per cent and one per cent amortization. After Lorber had told plaintiff that he was satisfied with the terms, he asked plaintiff to wait until he had finished with his work late in the afternoon and that he would then come and talk to plaintiff. While walking together uptown, * * * Mr. Lorber turned to me and said, Keviczky, here is about $8,500 in commission involved. ’ ” Lorber then demanded of plaintiff that he kick back to Lorber all but $1,000 of the commission involved. Plaintiff called attention to the length of time that he had been working on the matter and refused to part with any of his commission. It is a fair inference that Lorber thereupon conceived the plan to obtain approximately this amount of the commission and yet not lose the benefits of the terms negotiated by plaintiff. Pursuant thereto, the next day he informed plaintiff that he had decided not to purchase the property at all, as “ * * * I don’t like that section * . * Plaintiff thereupon notified Burrucker of Lorber’s satisfaction with the terms and that Lorber was attempting to obtain the greater part of the commission, and notified Mr. Burrucker that if Mr. Lorber attempted to obtain the property without plaintiff, the latter expected Mr. Burrucker to protect him in the matter, to which Mr. Burrucker replied, “ I will bear in mind.”

Lorber in.August, 1938, without the knowledge of plaintiff, takes up negotiations with the bank through Burrucker. It is a fair inference that either Lorber or the bank was afraid to complete the deal without the intervention of a dummy broker. Whether Burrucker or Lorber engaged the dummy broker Geller Realty Associates it is difficult to determine since the testimony of Lorber and Geller is contradictory. Lorber testified first that Geller made the appointment with the bank and, on cross-examination, that he, Lorber, made the appointment. The strongest inference is that Burrucker, being anxious to dispose of the property for the bank, engaged Geller; but whoever it was is immaterial, the important inference being that Geller was only a dummy broker and that Lorber was to receive the benefit of the commission to the knowledge of the bank.

Certain it is that on August 24th Geller receives the particulars of this identical property from Burrucker. " Lorber thereupon went to meet Geller at a stockbroker’s office and Geller at once offers the identical property at $500,000 with $50,000 cash, and Lorber states his willingness to pay that' amount. A few minutes-later Geller makes an appointment with Burrucker for the same afternoon, and in a meeting between Burrucker, Geller and Lorber, which lasted a very few minutes, the sales price of the property is agreed upon at $480,000 with $50,000 cash and other details practically the same as arranged by plaintiff except for some slight and immaterial variations of which there is no indication that Lorber could not have done the same through plaintiff. The next day Geller signs an assignment to one Sobel, the lawyer of Lorber who up to this time has been a complete stranger to the transaction but who through the assignment is to receive from the bank $7,000 as his share of the brokerage commission out of a total commission of $8,200. August 29th the contracts are executed with the title closing about ten days later. At that time a check for the full commission was ostensibly delivered to Geller but he immediately indorses it over to Lorber upon receiving from Lorber a certified check for $1,200.

Plaintiff, learning of the sale, complains to Burrucker that the bank should not have recognized another broker in place of plaintiff, and that it aided and abetted the conspiracy by concealing its negotiations with Lorber from plaintiff, and that the bank also aided and abetted Lorber in the conspiracy to defraud plaintiff of his commission by the payment of the commission ostensibly to the dummy broker Geller but in reality to Lorber to the knowledge of the bank. Burrucker attempts to halt any contemplated legal action by plaintiff with threats that if he sues then no bank would ever be willing in the future to do business with him and, admitting the fault, says, “ Mow, there is other ways we will try to make up for it * * *. You have been running in with offers here on a piece of property we have on East 78th * * * Street * * * and if you bring in a reasonable offer for that property I will help you to make the deal, and you will make a good commission.” Direct and positive proof of a conspiracy to cheat and defraud such as is here presented is seldom, if ever, attained. Conspiracies of this nature ordinarily are not conceived and executed openly but in secret. Usually the only evidence available is that of disconnected acts on the part of the individual conspirators, which acts, however, when taken together in connection with each other, show the conspiracy to secure a particular result quite as satisfactorily and conclusively as more direct proof. (People v. Flack, 125 N. Y. 324; People v. Van Tassel, 156 N. Y. 561.)

A fair inference from the above evidence is that Burrucker, knowing through the efforts of plaintiff that Lorber wanted the property and that the terms were acceptable to him, provided that he might receive back all but approximately $1,000 of the commission allowed to the broker, sent Geller to Lorber. The bank clearly was anxious to get rid of the property and was willing to sell for $50,000 cash on a price of $480,000, provided the buyer was responsible. The bank knew that Lorber would buy if a broker could be obtained who would accept approximately $1,000 as his share of the commission. It appears that Geller was at the bank on another deal. Geller had done business with Burrucker but never with Lorber. A fair inference from the testimony is that Burrucker said to Geller, “ If you wish to make $1,000 quickly, take this property and go up and see Lorber. He is ready to buy but will not buy unless he receives back all the commission but approximately $1,000. The broker who worked out the deal refused to accept $1,000 as his share of the commission. ’ ’ The foregoing explains the fact that Lorber and Geller are supposed to have met accidentally, not in the office of either but in the office of a stockbroker with whom Geller, not Lorber, did business. Lorber and Geller discussed the deal for ten minutes and then Geller calls up Burrucker, and all three immediately get together and close the deal in a few minutes more. According to the testimony which is offered by defendants as credible, all that occurred in the broker’s office is that Geller meets Lorber accidentally, presents this property to him, tells him it can be purchased for $500,000 with $50,000 cash, Lorber, of course, knowing that it could be bought for $480,000 with $50,000 cash. Lorber says nothing of this or of his recent negotiation, but says he is willing to purchase at $500,000 with $50,000 cash.

The jury is asked to believe Lorber, who had just a short time previously attempted to extract ninety per cent of a commission from a broker, when he testifies to his willingness to sign a contract to purchase property at $500,000 when he knows it can be bought for $480,000.

Going down to the broker’s office, Lorber does the negotiating. Burrucker had advance notice that he was authorized to close at $480,000 because Burrucker had already received the approval of his committee in order to tell plaintiff back in July that the bank would accept $480,000 with $50,000 cash. In forty-five minutes the deal is closed for $480,000, with the terms of the mortgage and all the other details discussed and worked out. Some slight changes were made in the terms, but it is a fair inference that the only reason therefor was to try to make it appear that it was a different deal. The true nature of the transaction is further seen by the fact that Burrucker insisted that the offer be submitted by Geller in writing. Lorber himself was finally in doubt whether he had actually signed the offer submitted or not. Apparently Burrucker was fearful lest Geller not camouflage his part as broker in the transaction. Normally, when the seller and the buyer meet together and agree upon the terms, a contract is drawn up and perhaps the broker’s name inserted in the contract. The only purpose of this written offer and acceptance, which were obviously a subterfuge, was to endeavor to make it appear that Geller, as an independent broker, had brought Lorber into the bank, and to provide an indirect means of transferring back the commission to Lorber. The inference is clear, and the jury so found, that the entire matter had been rigged up by the bank to sell a piece of property at a price agreeable to them, to a purchaser who they knew was ready to buy at that figure. Both Lorber and the bank had benefited through the services of plaintiff and were perfectly willing to cheat him out of his commission. The bank urges that it did not know of Geller’s agreement to split the commissions with Lorber; but they did know that plaintiff was the broker who was entitled to the commission, and not Geller. The bank was fearful that if it protected plaintiff the deal might fall through. It would have been too barefaced if the bank had reached the same result by reducing the cash payment by $7,000, and plaintiff’s proof would have been easier to obtain. The evidence and the reasonable inferences from the evidence submitted to the jury preponderate in sustaining the finding of the jury that there was an agreement between the bank and Geller and Lorber to close the deal and freeze out plaintiff.

We come then to a consideration of the basis upon which plaintiff asserts his right for the wrong done Mm. As the learned trial court charged the jury, without exception by defendants, plaintiff does not claim that he ever did procure a purchaser. In other words, he is not suing here for commissions as such, because plaintiff admits that after he had negotiated a deal upon terms with which defendant Lorber was satisfied and which the bank was willing to accept, Lorber subsequently said that he would not go through with the deal unless a part of the commission which plaintiff was to have received would be paid over to Lorber. What plaintiff is here claiming is that through a conspiracy which was illegal and fraudulent, entered into by these defendants, plaintiff was prevented from procuring a purchaser, and that if that scheme had not been put into operation plaintiff could have procured the purchaser and would have earned his commission. It therefore appears that plaintiff had a customer with whom he had negotiated a deal, the fruition of continuous negotiations between buyer and seller extending over many months. Upon this record it is a fair inference, and in the finding of the jury the inference is implicit, that the deal would have been closed and that plaintiff would have received his commission had not defendants, by means of this conspiracy to refrain from dealing with plaintiff, prevented plaintiff from earning his commission. In other words, plaintiff was in possession of a valuable asset in his business, of which asset plaintiff was deprived through the actions of these defendants. When appellants and G-eller Realty Associates conspired to refrain from dealing with plaintiff and thus, althoug’h accepting the fruits of his labors, prevented him from earn-' ing the commission which was due him as a part of the transaction, the closing of which brought benefits to all the conspirators, an actionable wrong arose, giving rise to liability for the damages resulting therefrom to plaintiff which consisted of the amount of the commissions which plaintiff would otherwise have earned.

i When we consider the remedy available, no branch of the law seems less clear than that of conspiracy. At common law there was a writ of conspiracy now obsolete, dealing with treason and felonies. A later development resulted in an action on the case in the nature of conspiracy for the damage caused to plaintiff.’ (Sorrell v. Smith [1925] A. C. pp. 700, 725; Harrison Conspiracy as a Crime and as a Tort in English Law.) The acquisition of this asset of the business of plaintiff against his will, and the transferring of such asset to Lorber through the fraudulent conspiracy of all the defendants, brought damage to plaintiff. The action thus falls within one of the specified categories in the law of torts entitling the aggrieved person to a legal remedy. Although forms of action have been abolished, the specified categories of wrongdoing have left their imprint upon the law, and still serve as guides. Since plaintiff would have earned the commission if defendants had not conspired to refrain from dealing with plaintiff and thus prevented him from earning the commission, such a conspiracy is an actionable wrong giving rise to liability, and the damage resulting therefrom is the amount of the commission which plaintiff would otherwise have earned. • The damage here suffered by plaintiff was the loss of an asset in his business and the acquisition by Lorber of that asset. It constituted an unjustifiable interference with the right of plaintiff to pursue his lawful occupation and to receive the earnings of his industry and the fruits of his labor. Since the triers of the facts have found upon suEcient evidence that the commission would have been received' by plaintiff as the result and fruits arising from the lawful pursuit of his business or occupation, his damage arising from the fraudulent conspiracy of the defendants is recoverable.

“ An injury to a person’s business by procuring others not to deal with him, or by getting away his customers, if unlawful means are employed, such as fraud or intimidation, or if done without justifiable cause, is an actionable wrong.” (2 Cooley on Torts, § 230.)

In Kamm v. Flink (113 N. J. L. 582) and Skene v. Garayanis (103 Conn. 708) similar damage was recovered by the plaintiff which he had suffered' as the result of a conspiracy by the defendants. In Union Car Advertising Co. v. Collier (263 N. Y. 386, 401) we said: A cause of action has also been recognized where a party would have received a contract but for the malicious, fraudulent and deceitful acts of a third party * * * (Morgan v. Andrews, 107 Mich. 33; Debnam v. Simonson, 124 Md. 354; Skene v. Carayanis, 103 Conn. 708; Lewis v. Bloede, 202 Fed. Rep. 7; Nims on "Unfair Competition and Trade-Marks [3d ed.j, § 176; May v. Wood, 172 Mass. 11, p. 14.) ”

There being evidence and reasonable inferences therefrom suEcient to sustain the verdict of the jury, and the basis of the wrong asserted by plaintiff being actionable, the judgment appealed from should be aErmed, with costs.

Lehman, Ch. J.

(dissenting). The defendant Lorber on August 19,1938 entered into a written contract with the defendant Dry Dock Savings Institution for the purchase of an apartment house owned by the bank. The purchase price was $480,000. The plaintiff is a real estate broker who had been authorized by the owner to offer the property for sale. He did offer the property to Lorber, but concededly Lorber never authorized him to carry to the seller an offer to buy the property. The contract of sale recites that Geller Realty Associates are the brokers who brought about the sale. The usual brokerage commissions payable upon the sale of an apartment house for $480,000 would be $8,200, and the defendant savings institution paid that amount by check dated September 10, 1938, payable to Geller Realty Associates. The check was immediately endorsed by the brokers to the order of Lorber, the buyer, and the net amount which Geller Realty Associates actually received for any services they may have rendered in connection with the sale of the real property was $1,200. The plaintiff, claiming that he had been employed by the seller to procure a purchaser for the property; that he had induced the defendant Lorber to purchase the property upon terms which the seller was willing to accept, and that the defendants — buyer and seller — had conspired “ to deprive this plaintiff of the commissions which would become due to him,” brought this action to recover the amount of such commissions. The plaintiff can establish his cause of action only by proof that the defendants have wrongfully conspired to deprive him of commissions which would otherwise have become due to him.

Upon the trial of the action the jury found a verdict in favor of the plaintiff for the amount of the commissions he claimed and judgment was entered upon that verdict. By the verdict of the jury all disputed questions of fact were resolved in favor of the plaintiff, and upon the appeal to this court the plaintiff is entitled to the most favorable inferences which can be drawn from the evidence.

I shall state as briefly as I can the facts thus established in plaintiff’s favor. In September, 1937, the defendant bank employed the plaintiff as broker and agreed to pay the plaintiff the usual brokerage commissions if plaintiff brought to it an acceptable offer to purchase its property. In May, 1938, the plaintiff called the property to the attention of the defendant Lorber. Plaintiff sought to bring about a meeting of the minds i of the seller and prospective buyer. The prospective buyer said. that he was satisfied with the terms which the seller had stated it would be willing to accept, but the buyer insisted that he would not go any further with the proposed purchase unless the broker gave him $7,200 out of the brokerage fee. On the following day the plaintiff informed Mr. Burrucker, the “ real estate officer ” of the bank, that the defendant Lorber refused to make an offer for the property unless he received almost ninety per cent of the brokerage commissions. A few weeks later Lorber and the bank entered into the contract of purchase and sale upon substantially the terms which Lorber had told the plaintiff were satisfactory to him.

Mr. Burrucker, the real estate officer of the bank, died before the trial of this action. The plaintiff testified: I told Mr. Burrucker, Now, Mr. Burrucker, I know of Mr. Lorber and I known of his tricks, how he treats brokers, ’ and I says ‘ if he ever comes around here to get this property without me, I expect you to protect me in the matter. ’ Mr. Burrucker said, ‘ I will bear in mind.’ ” The jury might reasonably conclude from this testimony that Lorber refused to authorize the plaintiff to carry to the defendant bank his offer to buy the property, upon terms satisfactory to the bank, only because' the plaintiff refused to pay to Lorber the larger part of the brokerage commission which the plaintiff would receive; that Lorber thereafter arranged that G-eller Realty Associates should carry the offer to the bank and should act as ostensible brokers though as brokers they had done nothing to earn the commissions; and finally that the defendant bank paid Geller Realty Associates the usual brokerage commission with knowledge that they were called into the transaction by Lorber to act as ostensible brokers only for the purpose of enabling Lorber to obtain for himself the brokerage commissions which the bank was willing to pay. The jury might perhaps find too that the bank concealed from the plaintiff the-fact that through other brokers it had received a satisfactory offer from Lorber. The question remains whether from such premises the ultimate conclusion may be drawn that the parties have joined in a wrongful conspiracy which caused damages to the plaintiff for which they must respond.

The plaintiff could earn the compensation which the defendant bank agreed to pay him only by performing the services required by the agreement and procuring a purchaser for the property placed in brokers’ hands for sale. As the trial judge charged, at the time the plaintiff ceased to perform any services as broker, he had failed to procure such a purchaser; for the defendant Lorber had refused to offer to pay the purchase price demanded unless the broker would agree to reimburse him for part of the purchase price by paying to him the major portion of the brokerage commissions. The amendment of section 442 of the Beal Property Law, prohibiting splitting of commissions by a broker with a purchaser, became effective only on April 25, 1941. (L. 1941, ch. 719.) Prior to that time a person negotiating for the purchase of real property might lawfully refuse to proceed with the proposed purchase unless the broker would agree to pay over to him all or part of the brokerage commissions — at least unless the expectant buyer had expressly or impliedly employed the broker to induce the seller to reduce his price and had agreed with the broker that he would pay the price if the broker obtained a reduction. (Of. Grossman v. Herman, 266 N. Y. 249.) Here the plaintiff has not pleaded a cause of action based upon such an agreement and in his brief the plaintiff expressly disclaims any right to recover upon such theory. Only when the defendant Lorber found real estate brokers willing to agree to pay him seven thousand dollars out of commissions which the brokers might receive was Lorber willing to purchase the property upon terms satisfactory to the seller, and since the plaintiff had failed to bring about a meeting of the minds between the proposed purchaser and the seller, the seller breached no contract with plaintiff by refusing to pay to the plaintiff commissions which plaintiff never earned. It violated no duty owed to the plaintiff by paying commissions to the brokers who brought the seller a satisfactory offer from Lorber and by concealing such payment from the plaintiff. (Clinchy v. Grandview Dairy, Inc., 283 N. Y. 39.) It might have been unable to sell the property if it had acted differently.

We are told, however, that the plaintiff would have earned the commissions if the defendants — buyer and seller —«had not conspired to refrain from dealing with the plaintiff and thus to prevent him from earning the commissions. For the purpose of this appeal I assume without further consideration that such an agreement would be an actionable wrong giving rise to liability for any damages resulting from it. The difficulty still remains that the record is devoid of evidence that the defendants, singly or together, refrained from dealing with the plaintiff. Both desired an agreement for the purchase and sale of the real property upon satisfactory terms, and the price demanded by the seller was satisfactory to the buyer only if he could obtain partial reimbursement from the broker. The seller never offered to reduce his price. Only when a more complaisant broker was found did the minds of buyer and seller meet upon the terms of sale. Since the plaintiff did not bring that about he has no right of action against the parties for reaching an agreement which was satisfactory to the buyer only upon conditions which the plaintiff was unwilling to meet.

The judgments of Special Term and Appellate Division should be reversed with costs in all courts and the complaint dismissed.

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

Judgment affirmed. (See 290 N. Y. 855.)


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Louis DeLeen, Appellant.
    Argued March 8, 1943;
    decided April 15, 1943.

      Jacob Zelenko for appellant.

      Nathaniel L. Goldstein, Attorney-General (Irving Galt, James Amadei and Conrad A. Johnson of counsel) for respondent.
   Per Curiam.

Under section 203 of the Correction Law, the court had power to impose upon appellant an indeterminate sentence of confinement in the penitentiary. Such a penitentiary sentence was, however, the limit of the punishment that could be meted out to the offender. He could not, in addition thereto, be ordered to pay a fine.

The judgments should be reversed and the matter remitted to the Court of Special Sessions, for the imposition on appellant of a lawful sentence.

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

Judgments reversed, etc.