author: Fboessel, J.

text:
    Vera Mrachek, Respondent, v. Sunshine Biscuit, Inc., Appellant, et al., Defendants.
    Argued October 15, 1954;
    decided December 31, 1954.

      Joseph J. Brophy and Desmond T. Barry for appellant.
    The corporate defendant is not derivatively responsible for the medical neglect, if any, of a physician whom it employed to test job applicants. (Bakal v. University Heights Sanitarium 277 App. Div. 572, 302 N. Y. 870; Schloendorff v. Society of N.
      Y. Hosp., 211 N. Y. 125; Rabasco v. New Rochelle Hosp. Assn., 266 App. Div. 971; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176; Sutherland v. New York Polyclinic Med. School & Hosp., 298 N. Y. 682; Matter of Renouf v. New York Central R. R. Co., 254 N. Y. 349; Schneider v. New York Tel. Co., 249 App. Div. 400, 276 N. Y. 655; Laubheim v. De Koninglyke N. S. M., 107 N. Y. 228; Brown v. La Societe Francaise, 138 Cal. 475; Smith v. Mallinckrodt Chemical Works, 211 Mo. App. 158; Philips v. St. Louis R. Co., 211 Mo. 419.)

      Jacquin Frank and David ill. Fink for respondent.
    Here there was no doctor-patient relationship. Defendant’s employee was not required or authorized to exercise any judgment whatsoever as to the necessity of extracting blood; the negligent acts committed here were for the benefit of defendant’s business and defendant is legally responsible for these acts. (Carpenter v. Blake, 75 N. Y. 12; Pike v. Honsinger, 155 N. Y. 201; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176; Bakal v. University Heights Sanitarium, 277 App. Div. 572, 302 N. Y. 870; Matter of Renouf v. New York Central R. R. Co., 254 N. Y. 349; Schneider v. New York Tel. Co., 249 App. Div. 400, 276 N. Y. 655; Ranelli v. Society of N. Y. Hosp., 269 App. Div. 906, 295 N. Y. 850; Pivar v. Manhattan Gen., 279 App. Div. 522; Darcy v. Presbyterian Hosp. in City of N. Y., 202 N. Y. 259; Johnsen v. Staten Is. Hosp., 246 App. Div. 638, 271 N. Y. 519; Engels v. City of New York, 256 App. Div. 992, 281 N. Y. 650; Greenfield v. Hospital Assn. of City of Schenectady, 258 App. Div. 352; Nathanson v. City of New York, 282 N. Y. 556; Laubheim v. De Koninglyke N. S. M., 107 N. Y. 228.)
   Fboessel, J.

On June 12, 1951, plaintiff applied for employment with defendant, Sunshine Biscuit, Inc. It was the latter’s practice to require each job applicant to submit to a physical examination and, in addition, to a blood test in order to determine whether or not he or she was suffering from a communicable disease. On the fifth floor of its plant, defendant maintained rooms for first aid and a pre-employment or pre-placement room for examinations ”. Defendant equipped these rooms and regularly employed a physician and two nurses.

According to plaintiff, who testified through an interpreter, she was sent to these rooms, after filling out an application form. She was weighed, measured, given an eye check, and a physical examination. Following the examination, she was also given a blood test ” which was ordered by defendant. We are presently concerned only with that test, and not with other situations, e.g., where one had voluntarily applied for first aid or other treatment (Schneider v. New York Tel. Co., 249 App. Div. 400, affd. 276 N. Y. 655).

In attempting to obtain blood from the left arm, the physician twice inserted the needle, probing beneath the skin many times, but he failed to draw any blood into the syringe. Then he took plaintiff’s right arm and drew blood on the first attempt. His probing into plaintiff’s left arm caused her to lose all feeling in her left hand, which soon developed an extremely painful, claw-like paralysis, diagnosed as “ causalgia ”, Not long after the injury, plaintiff was discharged from employment, because she was unable to use her left hand in her work; twice thereafter she was re-employed and discharged, finally on October 15,1951.

In this action by plaintiff against Sunshine Biscuit, Inc.— the case against the physician was discontinued by consent — the Trial Judge determined that the physician had been negligent, that his employer, Sunshine, was responsible for his negligence, and that plaintiff was entitled to $30,000 damages. The majority of the Appellate Division affirmed except as to damages, which they reduced to $15,000. Two Justices, however, voted to reverse and dismiss the complaint “ on the ground that the defendant company was not liable for the acts of the physician in administering the blood test ”.

Questions of negligence, causation and damages are not raised on this appeal by defendant. Clearly, they were questions of fact, and, there being substantial evidence to support the findings below, we cannot disturb them. The only issue before us, therefore, is whether the defendant, a private industrial corporation, is derivatively liable for the negligence of a physician whom it employed to test job applicants.

Defendant relies on the rule, firmly established in this State, exempting hospitals from liability for the negligence of their physicians and nurses in the treatment of patients. This rule has been applied in favor not only of charitable and private hospitals (Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125, 132-133; Bakal v. University Heights Sanitarium, 277 App. Div. 572, affd. 302 N. Y. 870), but also of private corporations which engage physicians for treatment of employees or third persons (Laubheim v. De Koninglyke N. S. M., 107 N. Y. 228; Schneider v. New York Tel. Co., supra; Allan v. State S.S. Co., 132 N. Y. 91).

Formerly, our courts invoked the theory of implied waiver to exempt charitable hospitals from liability for their physicians ’ malpractice (see Schloendorff v. Society of N. Y. Hosp., supra, pp. 128-129); but this doctrine has since been repudiated (Sheehan v. North Country Community Hosp., 273 N. Y. 163; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188). Today, if a hospital, or even a private corporation, is to be granted immunity from liability for the torts of one of its physicians, such immunity must rest upon the physician’s status as an “ independent contractor ” as opposed to servant

It will serve no useful purpose to analyze in detail the many precedents of our court dealing with this subject of hospital immunity. The cases which have thus far come before us have involved negligence occurring in the course of treatment and care of a patient who was at the hospital seeking relief or a cure for some malady with which he was afflicted. In each such instance, a doctor-patient relationship existed, and the doctor determined what was to be done. In these cases, where the tort was committed in the course of treatment, immunity, when granted to hospitals, was based upon the following rationale: “ Such a hospital undertakes, not to heal or attempt to heal through the agency of others, but merely to supply others who will heal or attempt to heal on their own responsibility.” (Emphasis supplied; Matter of Bernstein v. Beth Israel Hosp., 236 N. Y. 268, 270, quoted with approval in Phillips v. Buffalo Gen. Hosp., supra, p. 189.) At the heart of this rationale lies the thought that the hospital does not cure the patient; rather it procures a physician who, in rendering treatment, exercises his own judgment and discretion, undirected and uncontrolled by the hospital.

Where the physician’s negligence has occurred in the course of treatment which he determined to give, we have, as already noted, applied the rule that if at the time of the tort he was engaged in a “ professional ” (sometimes called medical ”) act, he was acting as an independent contractor, and the hospital would not he liable. If, on the other hand, his negligence was “ administrative ”, then the hospital will be held responsible, for he was acting as its servant (Dillon v. Rockaway Beach Hosp., 284 N. Y. 176; Ranelli v. Society of N. Y. Hosp., 269 App. Div. 906, affd. 295 N. Y. 850; Iacono v. New York Polyclinic Med. School & Hosp., 268 App. Div. 955, affd. 296 N. Y. 502; Sutherland v. New York Polyclinic Med. School & Hosp., 273 App. Div. 29, affd. 298 N. Y. 682, motion for reargument denied 298 N. Y. 794; Grace v. Manhattan Eye, Ear & Throat Hosp., 276 App. Div. 955, affd. 301 N. Y. 660; Bakal v. University Heights Sanitarium, supra; Holtfoth v. Rochester Gen. Hosp., 304 N. Y. 27).

Thus, even where in the course of treatment a patient is injured through a negligent “ administrative ” act, such as failing to erect sideboards after deciding they are necessary (Ranelli v. Society of N. Y. Hosp., supra), or giving a blood transfusion to the wrong patient (Necolayff v. Genesee Hosp., 270 App. Div. 648, affd. 296 N. Y. 936), the hospital is liable. In such cases, it is not the person (i.e., the physician, nurse or orderly), but the nature of the negligent act, which determines the hospital’s liability (Dillon v. Rockaway Beach Hosp., supra).

The instant case, however, presents an entirely different situation from those in the cases above cited. There, the physician’s negligence occurred in the course of treatment of a patient, the nature of which he determined. Here, plaintiff merely sought employment. In accordance with defendant’s policy, she was sent to its pre-employment room for a blood extraction by its own physician, who, in obedience to its order, manipulated the needle with the consequences afore-mentioned. She was not his patient, for, as she testified, “ They told me I had to get the company doctor ”. She asked for no treatment, nor was she undergoing treatment or care at his hands; she went to him as a prospective employee of defendant and under its express direction. Her health had previously been good. Thus the rationale supporting the previously discussed “ treatment ” cases cannot apply to the present situation.

Moreover, the physician was a regular employee of defendant. He worked on defendant’s premises daily in an office entirely equipped by defendant. He was on a straight salary and was paid semimonthly like other office employees of defendant. The usual payroll deductions (including Federal income tax and social security) were taken from his paycheck, and he was covered under the Workmen’s Compensation Law.

He did not exercise any discretion or judgment in determining whether or not to draw an applicant’s blood. According to defendant’s manager, its physician was “ required ” by the employer to make a “ blood test ”. He himself testified he did as many as twenty or twenty-four of these tests a day. Furthermore, “ blood test ’’here is a misnomer, for all that the physician does is merely to extract a small quantity of blood and forward it to a testing laboratory, which conducts the actual test and reports back either a positive or negative finding.

Thus the only act performed by the physician in this respect was the insertion of the needle to draw the blood. He did this not as an independent contractor exercising his own discretion, but by command of his employer, the defendant. To call this a medical act ” and therefore within the immunity rule of the treatment ” cases would be to apply those cases out of the independent contractor context from which they arose. We look to the “ medical administrative ” distinction only when the negligence occurred during treatment or care of a patient, and where the physician acts independently. Here, where there was no treatment or care involved, where there was no doctor-patient relationship, where the physician did not act independently but merely obeyed an order given by his employer ”, and where the physician’s act “ was done solely for the purpose of furnishing to the employer in its business a report of the physical condition of the applicant ”, the physician was a servant, not an independent contractor, and the employer is liable for his negligence.

The judgment should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Voorhis, JJ., concur.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. John Tower, alias Harry Mason, Appellant.
    Argued November 29, 1954;
    decided December 31, 1954.

      J oséph Lonardo for appellant.
    I. The finding that defendant with a long criminal career could still be benefited by reformatory measures presents a paradox and constitutes an abuse of discretion. (People v. Bendix, 235 App. Div. 837, 260 N. Y. 590; People v. Thompson, 251 N. Y. 428; People ex rel. Kohlepp v. McGee, 256 App. Div. 792; People ex rel. Gordon v. Ashworth, 290 N. Y. 285.) II. The “recommendation” that defendant serve the maximum three years lacks statutory authority. It effects an unjustifiable aggravation of punishment repugnant to due process. (People v. Ray, 172 Misc. 1004, 259 App. Div. 1065; People ex rel. Kohlepp v. McGee, 256 App. Div. 792; People ex rel. Kipnis v. McCann, 199 App. Div. 30, 234 N. Y. 502; People ex rel. Angley v. Warden of Penitentiary, 153 Misc. 307.)

      T. Vincent Quinn, District Attorney {Benj. J. Jacobson of counsel), for respondent.
    I. The express finding of the sentencing court that defendant was capable of benefiting from commitment to a reformatory institution may not be rebutted. (People v. Thompson, 251 N. Y. 428.) II. The court’s recommendation that defendant serve three years did not invalidate the sentence. (People ex rel. Gordon v. Ashworth, 290 N. Y. 285.)
   Per Curiam.

Defendant, who had previously been convicted of three felonies, was permitted to plead guilty to the misdemeanor of unlawful entry to cover three felony counts in an indictment against him. At the time of sentence defense counsel urged that defendant was beyond redemption and, therefore, “ a sentence strictly of a punitive character is the only one that under the circumstances [the] Court may impose, which would be one year in the Penitentiary * * * The court, however, declared that it did not agree with counsel, denied defendant’s motion, and sentenced him to an indeterminate term with the recommendation that he serve a term of three years, the maximum term under subdivision (b) of section 203 of the Correction Law.

On this appeal defendant contends (1) that the sentencing court abused its discretion in sentencing defendant under the reformatory provisions of subdivision (b) of section 203 of the Correction Law; and (2) that the recommendation that defendant serve the maximum term of three years was beyond the authority of the sentencing court and invalidated the sentence.

As to (1): The sentencing court was free to conclude that defendant was not “ Insane, or mentally or physically incapable of being substantially benefited by being committed to a correctional and reformatory institution ” (Correction Law, § 203, subd. [e], par. 3) notwithstanding his long criminal record for it is manifest that such a record does not necessarily render one incapable of responding to correctional care. (See People v. Bendix, 260 N. Y. 590.)

As to (2): Under the Correction Law the function of the sentencing court is to determine, at the time of sentence, whether or not the defendant is capable of receiving substantial benefit by commitment to a correctional and reformatory institution. If the court concludes, as it did here, that the defendant is so capable, then it must impose an indeterminate term of imprisonment. Nowhere in the statute is authority given to courts to recommend the length of imprisonment at the time of such sentencing and it was improper for the court to have done so here. It is the function of the Parole Commission to determine, in the first instance, when the prisoner is sufficiently rehabilitated or reformed to be fit for return to society (see Correction Law, § 204). The court then, and then only, has power to approve or disapprove that recommendation. We cannot say, however, that the unauthorized recommendation had the effect of invalidating a sentence which the court had jurisdiction to impose. The Parole Commission is under no obligation to follow the court’s recommendation. Bather, it is under an obligation to recommend the defendant’s release if and when, in its judgment, defendant is fit to return to society. We must presume that the commission will do so.

The judgment should be affirmed.

Lewis, Oh. J., Conway, Desmond, Dye, Fuld, Fboessbl and Van Voobhis, JJ., concur.

Judgment affirmed.


author: Lewis, Ch. J. Conway, J. (dissenting).

text:
    Clifford T. Rogers et al., Appellants, v. Association for the Help of Retarded Children, Inc., Respondent.
    Argued October 6, 1954;
    decided December 31, 1954.

      Daniel F. Kelley for appellants.
    I. The present use made of the premises by defendant is not the identical use made thereof by the former owner or a tenant of the owner. II. The former owner never operated or used the premises as a school, nor did its board of directors, nor did any of its employees conduct a school upon the premises. III. The educational instruction given at the Home was a mandatory requirement of the compulsory Education Law of the State of New York and was carried on in the premises by the Board of Education of the City of New York. IV. Plaintiffs have shown that they have suffered or will suffer special damage, and hence have a right to bring this action. (Rice v. Van Vranken, 255 N. Y. 541.) V. Plaintiffs have sustained actual damage. VI. Where property owners suffer a diminution in the value of their properties by reason of the violation of a zoning ordinance, they have a cause of action in equity to restrain such violation. (New York Cement Co. v. Consolidated Rosendale Cement Co., 178 N. Y. 167; Rice v. Van Vranken, 132 Misc. 82, 225 App. Div. 179, 255 N. Y. 541; Marcus v. Village of Mamaroneck, 283 N. Y. 325.) VII. That the village has a right to determine what zoning plans will promote public welfare is a legislative question with which the courts may not generally interfere. (Wulfsohn v. Burden, 241 N. Y. 288; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250.) VIII. An individual’s conduct and use of his property may be regulated in the exercise of police power. (Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; Shepard v. Village of Skaneateles, 300 N. Y. 115; Heimerle v. Village of Bronxville, 168 Misc. 783; Village of Old Westbury v. Foster, 193 Misc. 47.) IX. Defendant having acquired its property after the adoption of the ordinance is presumed to have acquired same subject to the ordinance. (Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 86.) X. Unless the continuance of nonconforming use is identical with the prior use of the premises by the owner or tenant, the same must be enjoined. (City of Buffalo v. Roadway Tr. Co., 303 N. Y. 453; President & Trustees of Vil. of Ossining v. Meredith, 275 App. Div. 850; Matter of Eaton v. Sweeny, 232 App. Div. 459; Matter of Pisicchio v. Board of Appeals of Vil. of Freeport, 165 Misc. 156.) XI. Aesthetic considerations might be considered as auxiliary of what thus far have been regarded by the courts as the more effective and sufficient reasons for damages. (Welch v. Swasey, 214 U. S. 91; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Rice v. Van Vranken, 132 Misc. 82, 255 N. Y. 541.)

      John F. Mulvey, Village Attorney, for Village of Pelham Manor, amicus curice, in support of appellants’ position.
    The use of the premises by defendant-respondent is not a continuance of the prior nonconforming use and should be enjoined. (City of Buffalo v. Roadway Tr. Co., 303 N. Y. 453; President & Trustees of Vil. of Ossining v. Meredith, 190 Misc. 142, 275 App. Div. 850; Eaton v. Sweeny, 232 App. Div. 459; Matter of Pisicchio v. Board of Appeals of Vil. of Freeport, 165 Misc. 156; Yuba City v. Cherniavsky, 117 Cal. App. 568; Matter of Shoen v. Bowne, 273 App. Div. 1020, 298 N. Y. 611; Matter of Furman Ave. Realty Corp. v. Board of Standards & Appeals of City of N. Y., 275 App. Div. 779, 299 N. Y. 768; City of Lynn v. Deam, 324 Mass. 607; People ex rel. Cairns v. Murray, 148 N. Y. 171.)

      John J. O’Neil for respondent.
    I. The present operation of defendant is a continuing nonconforming use. (People ex rel. Facey v. Leo, 230 N. Y. 602; Keenly v. McCarty, 137 Misc. 524; People v. Perkins, 282 N. Y. 329.) II. Plaintiffs, having failed to show pecuniary loss or damages, are not proper parties to bring this action. (Juran v. Title Guar. & Trust Co., 151 Misc. 631; Lair v. Grant, 137 Misc. 470; People v. Canal Bd. of State of N. Y., 55 N. Y. 390; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Rice v. Van Vranken, 132 Misc. 82, 225 App. Div. 179, 255 N. Y. 541; Shallow v. Metropolitan Life Ins. Co., 278 App. Div. 328.) III. Plaintiffs-appellants cannot succeed in the absence of a showing that defendant-respondent’s operation is a nuisance per se. (Owid v. Moushaty, 125 Misc. 535; Whitridge v. Park, 179 App. Div. 884; City of Mount Vernon v. Seeley, 74 App. Div. 50; Village of New Rochelle v. Lang, 75 Hun 608.)
   Lewis, Ch. J.

The plaintiffs are owners of residential properties in the village of Pelham Manor, Westchester County, which are located either contiguous to, or in the immediate vicinity of, improved property known as No. 975 Split Rock Road, owned by the defendant corporation. The purposes for which the defendant corporation was organized are “ To voluntarily assist the slow and mentally retarded child and to ascertain through study and research, the problems and causes of mental retardation and means for improving the condition of the child; develop a better understanding of, and more wholesome and helpful attitude toward mental retardation; to serve as a clearing house for information about the mentally retarded child, and to voluntarily assist parents of the mentally retarded child, in meeting their problems.”

By their complaint herein plaintiffs allege in substance that it is the purpose of the defendant corporation to conduct on its premises at No. 975 Split Rock Road, in accord with its corporate powers, a school for the mental and physical development of mentally retarded children; that such uses of its property by the defendant are in violation of the zoning ordinance of the Village of Pelham Manor which prohibits the maintenance in that village of an institution for the care of invalids or mental defectives that the presence of defendant’s pupils at its school or institution and in the village will of necessity cause close and intimate contact between said mental defectives and plaintiffs and plaintiffs’ children, and that such daily contact and the action and mannerisms of said mental defectives will have a profound, deleterious, depressing effect upon the minds, hearts, emotions and nervous systems of plaintiffs and particularly of plaintiffs’ children and that plaintiffs’ health and the health of plaintiffs ’ children will thereby be impaired; that the presence of these numerous mental defectives in the midst of such a highly residential section of the village of Pelham Manor and their close and intimate contact with the average normal child of plaintiffs will unfortunately and of necessity give rise to many unpleasant incidents upon the public streets and thoroughfares of the village between them and plaintiffs’ children whereby breaches of the peace will or may be occasioned and plaintiffs will be thereby harassed and annoyed and will become embroiled and involved in endless litigation both of a civil and criminal nature; that the value of plaintiffs’ real and personal property and their health, safety and welfare will be adversely affected, and that plaintiffs will suffer and will continue to suffer irreparable damage and diminution in the value of their properties. Upon the foregoing and other allegations, plaintiffs seek injunctive relief restraining the defendant from using its property at No. 975 Split Rock Road for its corporate purposes, or as a school or institution for the care and physical or mental development of mentally retarded children, and from using its property for any purpose other than a residence.

By denials in its answer the defendant puts at issue allegations in the complaint which assert its illegal use of its property; denies that plaintiffs’ properties have been and will be diminished in value and that the welfare of plaintiffs’ children will be adversely affected by the defendant’s use of its property. As a separate defense the defendant alleges that for many years prior to the local zoning ordinance in the village of Pelham Manor, the property known as No. 975 Split Rock Road was used as a school for the education and improvement of children who suffered from cardiac disorders which prevented them from attending the public schools of the State of New York; that such use having been made of the property prior to the passage of the zoning ordinance of the Village of Pelham Manor became a nonconforming use; that the defendant purchased its property with the sole intention of operating a school for the instruction of younger children and of children of a tender age who could not, under ordinary circumstances, be admitted to public schools.

Upon the trial at Supreme Court, Special Term, two issues were litigated; (1) whether the plaintiffs had suffered special damages entitling them to maintain the present action to enforce the zoning ordinance; and (2) whether the defendant’s school was a continuation of a legal nonconforming use — within a provision of the zoning ordinance of Pelham Manor which provides : “A change of ownership or tenancy shall not be deemed a discontinuance of a non-conforming use provided the subsequent use is identical with, the non-conforming use of the prior owner or tenant,”

On the first issue the Trial Justice made a finding of fact that plaintiffs have sustained or will sustain a diminution of the pecuniary value of their property by reason of the use presently being made of defendant’s property as a school for mentally retarded children. On the second issue the Trial Justice found that the present use made of its premises by the defendant is that of a school for mentally retarded children, whereas the former uses were those of an institution and home for poor children in the country and subsequently as an institution for the care of children suffering from cardiac distorders; and that the present use of the premises by the defendant herein is not the same identical use that was made of the premises by any of the former owners.

At the Appellate Division, where the judgment entered at Special Term was reversed on the law and facts and the complaint was dismissed, the order reversed and set aside the finding- of fact last mentioned above and made new findings as follows: That the health, welfare and safety of the plaintiffs were not adversely affected by the defendant’s use of its premises; that the presence of mentally retarded children on the defendant’s property did not cause hardship to the families of the plaintiffs; that the method of education afforded by the defendant to mentally retarded children did not disturb the peace and quiet of the neighborhood, nor did those children cause damage to plaintiffs’ property or bodily harm to anyone in the neighborhood; that " The education and schooling given by the defendant to teach them [the mentally retarded children] the regular school curriculum enables them to some degree to take their place in society ’ ’; that the present use of it's property by the defendant is the same as one of the uses made of the premises by the former owner.

After reversing and disallowing each conclusion of law made at Special Term: the Appellate Division made conclusions of law as follows: That the Pelham House for Children, Inc. (defendant’s predecessor in title) enjoyed two nonconforming uses- — (1) as an institution for treatment of cardiac children, and (2) as a school ; that there- has been no- abandonment of the nonconforming-uses enjoyed by the prior owner; that a certificate of occupancy is not required for the continuance of a nonconforming use; that the defendant’s use of the property was a continuance of a nonconforming use; that defendant’s predecessor in title used the premises as a school in conjunction with the use of the premises as a cardiac home for children.

In support of the new findings by the Appellate Division, there is evidence of record that the Pelham Home for Children, Inc., from 1915 until 1950 — in which latter year it sold its property to the present defendant — had accepted from Bellevue Hospital in New York City for convalescent care, children suffering from cardiac ailments. As the children were residents of New York, the board of education of that city furnished at least one teacher for the instruction required for an eight-year grammar school course. Daily classes were conducted from September until June when graduation was held. The capacity of the present facilities is forty-five children, most of whom are ambulatory, attending classes on the first floor of the building.

Although plaintiffs did not dispute evidence of these facts, and of the further fact that the Home was an adjunct to New York City Public School No. 192, the plaintiffs contended that the chief reason for the children being at the Home before 1950 was to provide them with medical care while they were recovering from various heart ailments. Two related contentions are also made in this court: (1) that it was ultra vires for the prior owner to conduct on the property in suit a school for cardiac children when its charter limited its functions to the “ care ” of such children; (2) that the school for cardiac children had been staffed and conducted by the Board of Education of the City of New York, not by the prior owner of the property.

In our view it cannot be argued successfully that the care of convalescent children does not include their education, the fact being that the Legislature has ordained their education to be compulsory (see Education Law, art. 65). As to plaintiffs’ claim that the use to which the prior owner put the property had been a convalescent home and not a school, we think the argument disregards both the statutory requirement last cited above, and the strong public policy of the State which favors the education of all children, however handicapped. Consequently, we agree with the statement in the Appellate Division opinion (281 App. Div. 978) that the present use of the property as a school for mentally retarded children is a continuation of one of the prior nonconforming uses. At the time of the adoption of the zoning ordinance, the property was used as a convalescent home for cardiac children, an incident of that use being the schooling of the children. Defendant’s present use of the property is a restriction or limitation of the prior nonconforming uses of the property.” (Emphasis supplied.)

We find in the record before us substantial evidence, the weight of which favors the new findings made by the Appellate Division. (N. Y. Const., art. VI, § 7; Civ. Prac. Act, § 605; Harrington v. Harrington, 290 N. Y. 126, 130; Pocket Books, Inc., v. Meyers, 292 N. Y. 58, 61.)

Accordingly, the judgment should be affirmed, with costs.

Conway, J. (dissenting).

This is an action by property owners in Pelham Manor, Westchester County, to restrain the use by defendant of its property as a school for mentally retarded children in violation of a village zoning ordinance. Special Term and the Appellate Division agreed that the action might be maintained because there was proof that the property of plaintiffs was materially damaged in value by reason of defendant’s use of the property. The children here concerned, as we shall see, were mental defectives within the meaning of that term. (Mental Hygiene Law, § 2, subd. 9; cf. Excelsior Ins. Co. v. State of New York, 296 N. Y. 40.) It has also been established that defendant’s use of its property is a violation of the village zoning ordinance unless it is a continuation of a prior nonconforming use.

When the village zoning ordinance was adopted, the property now owned by defendant was owned by the Pelham Home for Children, Inc. (hereinafter called The Home), a domestic membership corporation, organized for a charitable purpose and subject to the jurisdiction of the Supreme Court of the State of New York and the then existing State Board of Charities. It was used as a convalescent home for children afflicted with cardiac conditions who remained at The Home and there received institutional care. The Home was not empowered to conduct a school. Due to the fact that the cardiac-conditioned children were receiving institutional care, educational facilities were required by statute to be furnished to them by the Educatian Law of the State and were a charge upon the community of the domicile of the children. Thus section 3205 of the Education Law requires that “ In each school district of the state each minor from seven to sixteen years of age shall attend upon full time day instruction.” Pupils at The Home did not fall into the exceptions to that requirement. Section 3204 of the same law provides that ‘ ‘ A minor required to attend upon instruction by the provisions of part one of this article may attend at a public school or elsewhere. The requirements of this section shall apply to such a minor, irrespective of the place of instruction.” Section 3202 of the Education Law states that if the children are cared for in a duly incorporated institution for the care, custody and treatment of children, then the “ trustees or other authorities in charge of any such institution may contract with the trustees or board of education of the school district in which such institution is located for the secular instruction of such children. * * * If such children are not supported and maintained at the expense of a public welfare district, the cost of the secular instruction of such children in the school or schools in the district shall be a charge upon and shall be paid by the school district responsible for their instruction at the time of their admittance to said duly incorporated * * * institution for the care, custody and treatment of children.” The children were sent to The Home from Bellevue Hospital, a hospital located in New York City, and were treated as children domiciled in the city of New York. Therefore, a teacher taught the children, some of whom were bed cases, in The Home in Westchester County. That teacher was in the employ of and was paid by the New York City Board of Education and was subject to the board’s jurisdiction and control. That was not a school conducted by The Home, the owner of the premises. The Home had no charter power to conduct a school. There is grave doubt as to whether New York City had the power and authority to send one of its teachers to teach outside the limits of the city, but we need not consider that further.

As a result of the discovery and use of new drugs and medicines, there is no longer a sufficient number of cardiac cases to justify the use of The Home for cardiac-conditioned children. As a result, the building and grounds formerly used by The Home have been transferred to the present owner, the Association for the Help of Retarded Children, Inc. It operates a school for mentally retarded children who receive no medical care and who are brought to the school in the morning and return home in the afternoon. It seems quite clear that while the use by the Pelham Home for Children, Inc., was that of an institution for the care of children suffering from cardiac conditions it was not a school in any sense of the word, while the present use solely as a school and not as a home providing institutional care for children is not a continuance of the original nonconforming use. The children are of an I.Q. of between 30 and 50, which is lower than the I.Q. fixed for children who may be educated in specially formed classes in our public school system. A charge of $35 per month is made for the schooling of each child. Section 202- of the Mental Hygiene Laiv provides that an institution such as that of defendant must be licensed. Section 1122 of the Penal Law provides for prosecution when a license is not obtained. The institution is not licensed under section 202 of the Mental Hygiene Law.

The whole purpose of the zoning law is to have uniformity of use within the various zones. Nonconforming use is forbidden unless the nonconforming use is a continuation of an identical use as it existed prior to the zoning statute. The statute, as quoted in the complaint, reads: A change of ownership or tenancy shall not be deemed a discontinuance of a nonconforming use provided the subsequent use is identical with the non-conforming use of the prior owner or tenant.” (Emphasis supplied.) (See Matter of Furman Ave. Realty Corp. v. Board of Standards & Appeals of City of N. Y., 299 N. Y. 768.) If there be such prior nonconforming use, its continuance is permitted. It seems clear to us, and cannot be questioned, that the use of the premises by The Home was never a use as a school. The Home had no charter power to conduct a school. The present defendant is lawlessly conducting an unlicensed school on the premises now and that is a use which was never made of them before the zoning statute. The finding by the Appellate Division that the present use of the premises by the defendant is the same as one of the uses that was made of the premises by the former owner, viz., a school, is without evidence to support it and the present use of the property is not a continuance of any nonconforming use by the former owner. Even if it were, it was clearly not a change to an identical use.

Accordingly the judgment appealed from should be reversed, and the judgment of the Special Term should be affirmed, with costs in this court and in the Appellate Division.

Desmond, Dye and Froessel, JJ., concur with Lewis, Oh. J.; Conway, J., dissents in an opinion in which Fuld and Van Voorhis, JJ., concur.

Judgment affirmed.


author:
      Per Curiam.
     Desmond, J.

text:
    Malcolm Martin, Appellant, v. Clara Martin, Respondent.
    Argued October 15, 1954;
    decided December 31, 1954.

      James N. Vaughan and Hugh Lincoln Hoey for appellant.
    I. The 1949 decree is res judicata with regard to the religious education of the boy because no facts were proved tending to show that the effects of such education have been harmful to him or that there has been any material change in circumstances since 1949. On the facts proved, either respondent’s motion should have been denied or custody transferred to the father. (People ex rel. Portnoy v. Strasser, 303 N. Y. 539; People ex rel. Sisson v. Sisson, 271 N. Y. 285; Duryea v. Bliven, 122 N. Y. 567; Matter of Noel, 173 Misc. 844; Haskell v. Haskell, 201 App. Div. 414, 236 N. Y. 635, 207 App. Div. 723; Armour v. Armour, 275 App. Div. 941; People ex rel. Glendening v. Glendening, 159 Misc. 215, 259 App. Div. 384, 284 N. Y. 598; Bunim v. Bunim, 298 N. Y. 391.) II. The twelve-year-old boy of immature judgment should not have been permitted, on the facts proved in this case, to decide for himself the nature of his religious education. (International Text Book Co. v. Connelly, 206 N. Y. 188; Greenburg v. New York Central & H. R. R. R. Co., 210 N. Y. 505; Matter of Vardinakis, 160 Misc. 13; Matter of Santos, 278 App. Div. 373, 304 N. Y. 483, 279 App. Div. 578; Matter of Zorach v. Clauson, 303 N. Y. 161, 343 U. S. 306; People ex rel. Portnoy v. Strasser, 303 N. Y. 539; Matter of Auster [Weberman], 302 N. Y. 855; People ex rel. Glendening v. Glendening, 159 Misc. 215, 259 App. Div. 384, 284 N. Y. 598; Bunim v. Bunim, 298 N. Y. 391; Lester v. Lester, 178 App. Div. 205, 222 N. Y. 546; Matter of Jiranek, 183 Misc. 704, 269 App. Div. 709.) III. Independently of the 1949 judgment and because of the written antenuptial agreement, the father possessed the right and obligation to control the religious educatian of Ms cMM and tMis the right and obligation to protect the religions heritage of the cMld. (Weinberger v. Van Hessen, 260 N. Y. 294; Matter of Mancini, 89 Misc. 83; Matter of Kananack, 272 App. Div. 783; Matter of Charter, 265 App. Div. 1006; Matter of Glavas, 203 Misc. 590.)

      Malcolm I. Ruddock, Bertram E. Gendar and Edward A. Niles for respondent.
    I. On the facts presented the Referee was not bound by res judicata and had full power and discretion to grant respondent’s motion. (People ex rel. Sisson v. Sisson, 271 N. Y. 285.) II. In the light both of statute and precedent, a cMld’s interests control in such questions as the present. III. An antenuptial agreement cannot control as against the cMld’s welfare. (Denton v. James, 107 Kan. 729; Boerger v. Boerger, 26 N. J. Super. 90; Commonwealth v. McClelland, 70 Pa. Super. Ct. 273; Andrews v. Salt, L. R. 8 Ch. 622; Matter of Nevin, [1891] Ch. 299; Purinton v. Jamrock, 195 Mass. 187; Matter of M’Dowle, 8 Johns. 328; People ex rel. Fowler v. Pillow, 1 Sandf. 672; Matter of Watson, 10 Abb. N. C. 215.) IV. A child should not be punished for its custodian’s fault, if any. (Stourton v. Stourton, 8 De G. M. & G. 760; Hawksworth v. Hawksworth, L. R. 6 Ch. 539.) V. The father’s wishes have no preference and must yield to his cMld’s welfare. (Matter of Agar-Ellis, 10 Ch. D. 49; Matter of W, [1907] Ch. 557; Ward v. Laverty, [1925] A. C. 101; Matter of Thain, [1926] Ch. 676.) VT. Religious education outside of the faith of the custodian is disfavored. (Weinberger v. Van Hessen, 260 N. Y. 294.) VII. A court is justified in consulting and giving weight to the preferences of a child of Malcolm’s age and qualities. (Matter of Vardinakis, 160 Misc. 13.) VIII. Any attempt to change a cMld’s actual religious faith is to be avoided on principle. (Matter of Newton, [1896] Ch. 740.) IX. The constitutional provisions protecting religious liberty forbid restoration of the original order at tMs date.
   Per Curiam.

After a fairly extensive hearing, at which the boy, then twelve, now fourteen, years old, testified, the Referee, appointed to hear and determine the matter, decided that the “ boy’s welfare ” called for modification of the decree in the respects requested, and the Appellate Division affirmed. There being ample evidence to support both the finding that the youngster was old enough to testify intelligently and the conclusion that the modification was for his best interests and welfare, the order appealed from should be affirmed, with costs.

Desmond, J.

(dissenting). I dissent for these reasons:

1. There is no finding and no testimony that enforcement of the religious training provision of the 1949 judgment (and of the 1938 agreement which it confirmed) would damage, or has damaged, the boy, mentally, physically or in any other way. All statements as to his becoming “ unhappy ” or “ mentally disturbed” or “ill-adjusted” are taken from the mother’s ex parte affidavit which is a mere pleading, not proof. Neither the mother, nor the boy nor anyone else gave any testimony as to any such mental hurt or disturbance. The Referee’s decision makes no such finding. The Referee amended the decree solely because, so he found, this twelve-year-old boy “ has a mind of his own ”, because failure to amend the decree “ would strip him of Ms independent judgment in matters of this Mnd ”, and because (so held the Referee) “neither the mother’s wishes nor the father’s wishes should control what is here to be done ”. True, at the end of the decision, the Referee said he was doing what “ is best for the boy ” but it is impossible to read the decision as based on anytMng except the boy’s own wishes and Ms supposedly mature and considered choice of a religion for himself. That was not within the Referee’s competency, in the face of a Supreme Court judgment as to the place and nature of Ms religious training, based on a- solemn prenuptial agreement.

2. The idea that a child of twelve is competent to make a choice binding on the Supreme Court and on Ms parents in such a matter is not only contrary to our decisions (see Bunim v. Bunim, 298 N. Y. 391), and contrary to all human experience, but is directly opposed to the parens patriae public policy of New York (see Alcoholic Beverage Control Law, §§ 100, 126; Pari-mutuel Revenue Law [L. 1940, ch. 254], § 8; Domestic Relations Law, §§ 15-a, 72; Labor Law, § 130; Education Law, art. 65, part I; General City Law, § 18-b; Penal Law, §§ 484, 486; Personal Property Law, § 163; Debtor and Creditor Law, § 260; Judiciary Law, § 474; Correction Law, § 485; Vehicle and Traffic Law, § 20; N. Y. Const., art. VI, § 18; Mental Hygiene Law, § 132; Correction Law, § 610; Social Welfare Law, § 373; Code Grim. Pro., §§ 483, 913-m; N. Y. City Dom. Rel. Ct. Act, § 88, subd. 5).

3. This sort of prenuptial agreement is enforcible like any other, unless and until its enforcement is shown to be harmful to the child. “ Agreements between parents for a particular sort of religious upbringing have in general been held valid in this country ” (Weinberger v. Van Hessen, 260 N. Y. 294, 298). Particularly must this be so when the agreement has been confirmed by, and written into, a judgment.

4. Although the child’s welfare is a paramount consideration in every custody case, we cannot close our eyes to fundamental principles as to judgments and agreements, and we cannot forget ancient maxims denying equitable relief to suitors whose hands are unclean. Respondent failed to prove that an amendment to the decree was suggested by anything except the boy’s own desires. She did prove affirmatively that she herself had created this troublesome position by violating not only her solemn agreement, but the plain condition under which custody was decreed to her.

Lewis, Ch. J., Dye, Fuld, Froessel and Van Voorhis, JJ., concur in Per Curiam opinion; Desmond, J., dissents in an opinion in which Conway, J., concurs.

Order affirmed.


author: Dye, J.

text:
    In the Matter of the Claim of Marion K. Graham, Appellant, against Nassau & Suffolk Lighting Company et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued October 14, 1954;
    decided December 31, 1954.

      Walter F. Forster for appellant.
    I. The theory, that when decedent ascended the ladder, reached the platform and was seen disappearing in the superheater while it was emitting flames and the clapper had not fully opened, is not tenable. II. There is nothing in the record from which it can be logically inferred that deceased had any motive for committing suicide and, in this respect, the employer and carrier have failed to destroy the presumptions in favor of appellant. III. With respect to suicide the statutory presumptions contained in subdivision 3 of section 21 of the Workmen’s Compensation Law, as well as the common law, have not been overcome by the employer and carrier. In the absence of such evidence to the contrary, the presumptions must prevail. (Matter of Dubinsky v. Kofsky, 242 App. Div. 342; Matter of Orner v. Shapiro & Aronson, 264 App. Div. 803, 289 N. Y. 853; Matter of Sullivan v. Casimir Co., 258 App. Div. 830; Matter of Aponte v. Santiago & Garcia, 279 App. Div. 269; Matter of Phillips v. R. & M. Operating Corp., 298 N. Y. 608; Matter of Sullivan v. Woodle, 252 App. Div. 906, 277 N. Y. 739; Matter of Goldner v. 34th St. Hotel Corp., 252 App. Div. 711, 276 N. Y. 689; Matter of Kushma v. du Pont Rayon Co., 244 App. Div. 858, 269 N. Y. 681; Matter of Chandy v. Society of New York Hosp., 272 App. Div. 853, 297 N. Y. 1032; Matter of Hughes v. Covert Mfg. Co., 271 App. Div. 856, 296 N. Y. 1058; Matter of McAvoy v. Squibb & Sons, 269 App. Div. 801, 294 N. Y. 642; Matter of Busselle v. Brooklyn Union Gas Co., 241 App. Div. 901; Matter of Horn v. Goldstein Co., 265 App. Div. 1022.) IV. The case at bar, considering the sketchy and improbable testimony of employer’s witnesses, could easily be classed as a typical unwitnessed accident ease and the usual presumptions in connection with unwitnessed accidents prevail. (Matter of Kleid v. Carr Bros., 300 N. Y. 270; Matter of Norris v. New York Central R. R. Co., 246 N. Y. 307; Matter of Smith v. Osterheld & Son, 189 App. Div. 384, 229 N. Y. 525; Matter of Greco v. Curtiss-Wright Corp., 269 App. Div. 915, 295 N. Y. 988.) V. The substitution of a referee, during the course of the hearings before the Workmen’s Compensation Board, is a procedural matter within the prerogatives of the board and did not deprive respondents of due process of law. (Matter of Dahl v. Spencer & Son Corp., 269 App. Div. 794; Matter of Olsen v. Todd Dry Dock Eng. & Repair Corp., 235 App. Div. 754.)

      Bobert N. Van Benthuysen for Nassau & Suffolk Lighting Company and another, respondents.
    I. The death of deceased was not the result of an industrial accident but was due to suicide. (Matter of McCormack v. National City Bank of N. Y., 303 N. Y. 5; Matter of Wilson v. General Motors Corp., 298 N. Y. 468; Matter of Dyviniek v. Buffalo Courier Express Co., 296 N. Y. 361; Universal Camera Corp. v. Labor Bd., 340 U. S. 474) IL Substitution of a new referee during the course of the hearings violated section 20 of the Workmen’s Compensation Law and constituted reversible procedural error depriving respondents of due process of law. (Matter of Dahl v. Spencer & Son Corp., 269 App. Div. 794; Matter of Olsen v. Todd Dry Dock Eng. & Repair Corp., 235 App. Div. 754.)
   Dye, J.

The issue presented by this compensation appeal turns on whether the deceased employee, Edward Graham, met his death in the course of his employment by accident as found by the Workmen’s Compensation Board or by suicide as found by the Appellate Division, Third Department. Causation is a question of fact as to which the decision of the board shall be final (Workmen’s Compensation Law, § 20) and it shall “ be presumed in the absence of substantial evidence to the contrary * * * 3. That the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another ” (Workmen’s Compensation Law, § 21). While such a presumption may not be used as a substitute for proof of accident (Matter of McCormack v. National City Bank, 303 N. Y. 5) nonetheless where there is such proof — particularly in unwitnessed cases — the presumption accorded by the statute may not be overcome except in the manner provided by “ substantial evidence to the contrary” (Matter of Epstein v. City of New York, 283 App. Div. 751; Matter of Dubinsky v. Kofsky, 242 App. Div. 342).

The claimant’s proof establishes, without contradiction, that the claimant’s deceased met his death on his employer’s premises, during working hours, at a place where he customarily performed the tasks incident to his job as gas maker. A fellow worker testified that he saw him running up the ladder leading to a small service platform near the top of the superheater. When he looked again a few moments later — as his attention had been diverted to the work he himself was doing at the time — “ The next thing was his feet sticking out of the super-heater ”. The charred remnants of his almost completely incinerated body were later taken from the bottom of the superheater.

These simple facts presented a situation, partially unwitnessed as to some of its details but, even so, in our view, enough to justify the board in finding that an accident had taken place arising out of and in the course of decedent’s employment. To overcome that finding of fact, the employer and its carrier had the burden of demonstrating by “ substantial evidence to the contrary ” that the resulting death was in fact due to suicide. To meet this burden they offered hearsay and opinion evidence in the form of the coroner’s certificate listing suicide as the cause of death; the opinion of an officer who investigated the accident, and the expert opinion of an engineer who testified that a person of the height of the decedent, standing on the service platform located ne¿' the top of the superheater, could not fall into the stack. Despite this opinion testimony the board was justified in concluding that the decedent’s presence at the top of the superheater just before he disappeared into it could reasonably be accounted for as being for the purpose of realigning the clapper. While that function was not part of his assigned duty as crew foreman, it is not at all unusual for an employee to do something other and more than is required of him to his injury. When he does so he is not penalized for his right to compensation is not dependent on freedom from fault.

On the day at the time in question the generator needed refueling. The decedent who was in charge of the three-man crew ordered a fellow crew member to turn off the controls and shut down the machine. It was while this was being done that the happening above described occurred.

The superheater is an apparatus used in making gas. It has a large cylindrical stack sixteen feet nine inches high and five feet in diameter. Affixed to the top of this vertical stack is a heavy iron cover or “ clapper ” three feet two inches in diameter. It is fastened by means of a bolt through a hole in its center to a metal arm which in turn is attached to the side of the stack by a single hinge. The clapper at intervals of about four minutes automatically opens upward to a ninety-degree angle to release excess gas pressure developed inside the superheater and remains open between one and two minutes. The gas thus emitted ignites when coming in contact with outside air and an enveloping sheet of flame is thrown five or more feet generating a temperature of over one thousand degrees Fahrenheit. Fastened to the side of the stack is a narrow iron ladder ascending to a small iron platform, the floor of which is about four feet three inches below the top of the stack. This platform is protected "by an iron railing consisting of horizontal members fastened to vertical parts. In the course of the gas-making operation the clapper atop the stack, which was designed to fit snugly, occasionally gets out of alignment and requires readjustment. Because of the flames and extreme heat caused by the burning gases, the adjustment can only be made when the apparatus is shut down for refueling. At such times one of the gas-making crew ascends the iron ladder to the platform and, by inserting a short iron bar into a notch in the cover provided for that purpose, rotates the heavy cover into proper alignment. For a workman six feet tall, the height of the deceased, to do this while standing on the platform, he would be required to stretch his arms well over his head. On the other hand, if he stood on the middle horizontal section of the guardrail approximately two feet above the floor of the platform, the clapper could be adjusted with much less physical effort, but the body of the workman would be raised well above the opening of the stack. This method was frequently resorted to, and there is no showing that it was not used by the decedent at the time in question.

To show motivation and suicidal tendency, proof was offered to the effect that the decedent was having matrimonial difficulties; that his wife had obtained an interlocutory decree of divorce with provisions for alimony and that on the morning in question he was moody and uncommunicative. However, there is countervailing proof that claimant was forty-four years of age; was survived by his wife and four children under the age of eighteen years; had worked for the same employer for eighteen years; had no habits or attitudes nor did he do any acts or make any statements indicating unbalance, dissatisfaction with life or other evidence tending to indicate an intention or motivation leading to self-destruction. In fact, it appeared that, as soon as the wife’s divorce decree became final, he was planning to remarry. Under such a showing, motivation became an issue of fact, which the board was entitled to resolve in the first instance (Workmen’s Compensation Law, § 20). Viewing the record as a whole we cannot say, as a matter of law, that the presumption against suicide accorded by section 21 of the Workmen’s Compensation Law was overcome by substantial evidence to the contrary ”.

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the award of the Workmen’s Compensation Board reinstated.

Conway, Desmond and Froessel, JJ., concur with Dye, J.; Lewis, Ch. J., Fuld and Van Voorhis, JJ., dissent and vote to affirm upon the opinion of Imrie, J., in the Appellate Division.

Order reversed, etc.


author: Desmond, J.

text:
    In the Matter of Gerard E. Nistal, Respondent, against Karl F. Hausauer, as Commanding General of the New York National Guard, Appellant.
    Argued November 15, 1954;
    decided December 31, 1954.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman, Wendell P. Brown and Jerome 0. Gluchsman of counsel), for appellant.
    I. The power to grant the appEcation for discharge prior to the expiration of the term of enlistment is lodged exclusively in the Governor. His determination, both on the propriety of shortening the term of enEstment and on the characterization of the discharge, is not subject to review in the civil courts. And this is so whether he exercises his power independently or by delegation of power to the staff through which he exercises his command of the armed forces of the State. (People ex rel. Broderick v. Morton, 156 N. Y. 136; People ex rel. Smith v. Hoffman, 166 N. Y. 462; Matter of Bianco v. Austin, 204 App. Div. 34; Matter of Donnelly v. Roosevelt, 144 Misc. 525; Reid v. United States, 161 F. 469, 211 U. S. 529; Nordmann v. Woodring, 28 F. Supp. 573; Denby v. Berry, 263 U. S. 29; United States v. Eliason, 16 Pet. [U. S.] 291; Davis v. Woodring, 111 F. 2d 523; Matter of Brodie, 128 F. 665.) II. The decision in People ex rel. Smith v. Hoffman (166 N. Y. 462), is authority for the dismissal of the instant petition. III. Even if we assume for the sake of argument that appellant was vested with independent statutory power to issue the discharge, yet, under the circumstances of this case, review in the nature of certiorari does not lie. (Reaves v. Ainsworth, 219 U. S. 296; Creary v. Weeks, 259 U. S. 336; Gusick v. Schilder, 340 U. S. 128; Burns v. Wilson, 346 U. S. 137; Goldstein v. Johnson, 184 F. 2d 342, 340 U. S. 879; Hurley v. United States, 47 F. 2d 431; Davis v. Woodring, 111 F. 2d 523; Reid v. United States, 161 F. 469, 211 U. S. 529; Nordmann v. Woodring, 28 F. Supp. 573.)

      Arthur G. Warner and James E. Birdsall for respondent.
    I. The court has jurisdiction of this matter. (Reid v. United States, 161 F. 469, 211 U. S. 529; People ex rel. Smith v. Hoffman, 166 N. Y. 462; People ex rel. Hoesterey v. Taylor, 210 App. Div. 196; Matter of Bianco v. Austin, 204 App. Div. 34.) II. The charge of fraudulent enlistment was barred by the Statute of Limitations and petitioner should have been advised of that fact. III. Petitioner did not receive a fair trial on the charge of fraudulent enlistment.
   Desmond, J.

The Special Term order dismissed petitioner’s proceeding under article 78 of the Civil Practice Act on the ground that the relief demanded (compelling the issuance to petitioner by respondent of an honorable discharge from the National Guard) was beyond the jurisdiction of the court, and in the power of the Governor, only. The Appellate Division, reversing that order, denied the motion to dismiss the petition, and granted respondent leave to appeal to this court, certifying three questions as to jurisdiction of subject matter, jurisdiction over the person of respondent, and as to the sufficiency of the petition.

Since appellant has chosen to attack the sufficiency of the petition, the allegations thereof must, of course, be presently taken as true. The Appellate Division majority opinion (282 App. Div. 7, 10-11) contains a good summary of those allegations, which we quote:

“ Prior to his enlistment in the New York Air National Guard on November 6, 1947, petitioner had served three terms of enlistment in the Air Corps of the Armed Forces of the United States. He had also served a term of enlistment during the war years in the United States Naval Reserve. Thus he had been continuously in active service in the Armed Forces of the United States from December 17,1937 through October 24,1945. During the course of these enlistments, he overstayed a leave one day before his voluntary return to camp when, after a furlough, he returned to camp by taking an unauthorized ride in an army plane, and, upon another occasion, during peacetime, he fell asleep while on duty as a watchman. Although found guilty by courts martial on both of these charges, they were not considered to have been of sufficient magnitude to prevent his being honorably discharged at the expiration of his enlistments from the armed forces of the United States. These convictions were indorsed on the backs of his certificates of honorable discharge, which were presented by him to the officers in charge of enlistment in the New York Air National Guard when he applied in 1947. The application blank required him to answer a question inquiring whether he had ever been convicted of any offense. Exhibiting his discharge certificates to the enlistment officers, showing his convictions by the two courts martial as above described, he asked them whether this question referred only to convictions by civilian courts, and was told that this interpretation was correct, and that convictions by courts martial were not intended. He answered the question in the negative in making his written application. After his enlistment in the militia, he was assigned to duty as an aide in the recruiting office. Both of the enlistment officers, through whom his application had been processed, directed him to advise other applicants for enlistment that the aforesaid question referred only to convictions by civilian courts and not to convictions by courts martial.

“ The subject was brought into focus by a request made by petitioner on December 4, 1950, for an honorable discharge before the expiration of his term of enlistment, for the reason that he had been requested by his employer, Radio Marine Corp. of America, to assume the duties of a position in the defense effort, the performance of which conflicted with continued active membership in the National Guard. He was discharged, as requested, but ‘ without honor ’. The ground for issuing this type of discharge was stated to have been ‘ fraudulent enlistment referring, the petition alleges, to failure to list in Ms application for enlistment the two convictions by courts martial wMle in the armed forces of the United States.

“It is the assertion of petitioner, to date unchallenged by respondent, that he was so discharged without charges being made, without being given the opportunity to present evidence in Ms own behalf or to be confronted with the witnesses against Mm or to know the nature of the evidence offered against him.”

TMs also should be mentioned: petitioner was directed to, and did, appear before a board of officers appointed by appellant to hear, and make recommendations as to, applications for discharge by members of the guard, and on that occasion he was told of the charge of fraudulent enlistment, and gave his explanation thereof. TMs fact, also, is pertinent: that the military order granting a “ Discharge (not honorable) ” to petitioner was signed by respondent as Chief of Staff, but, immediately above that signature appeared tMs: “By Command of the Governor ”. We agree with the Appellate Division that it is most unlikely, in view of the Governor’s numerous public duties, that he actually and specifically ordered this particular discharge, but, nevertheless, as will appear, the power to discharge is the Governor’s power. Appellant, as Commanding General of the New York National Guard, is the Chief of Staff to the Governor, who is the Commander in CMef thereof. Appellant, as Chief of Staff, is the head, also, of the State’s Division of Military and Naval Affairs, wMch division includes the New York National Guard and other military and naval forces of the State. By statute, it is provided that the Governor may perform Ms duties as Commander in Chief through that Division (see N. Y. Const., art. IV, § 3; State Military Law, §§ 3, 10, 11; Executive Law, § 190). Part of the picture is section 93 of the State Military Law, also, which says that an enlisted man (like petitioner) may be discharged prior to expiration of enlistment term under such conditions as may be prescribed by the laws and regulations of the United States and by the State Military Law and State regulations, and shall receive a discharge in writing in such form as may be prescribed by such Federal statutes and regulations and State statutes and regulations. Regulation No. 2 of the Military Regulations of this State says, in part, that the Governor, in respect to the State forces, shall exercise the same powers as are conferred upon the President or Secretary of War in respect to the United States Army. No. 15 of the State Military Regulations lists three types of discharge from the guard: Honorable, dishonorable, and neither honorable nor dishonorable, and authorizes a discharge “ not honorable ” where there has been a fraudulent enlistment. There seems to be nothing in the United States statutes directly affecting our question, since the United States statutes referring to discharge of persons in the ‘ Army ’ ’ have no direct application to enlisted personnel of the National Guard, although the latter organization is subject, in varying respects, to both Federal and State control.

Our own analysis of our problem is as follows: petitioner, for his own reasons, applied for discharge prior to expiration of enlistment; three kinds of discharge are provided for by the State regulations, including a discharge without honor; a board set up for the purpose of making recommendations as to such applications recommended that petitioner be given a Discharge without Honor ’ ’; such a discharge was given under the hand of respondent, as Chief of Staff, with the accompanying recital that the action was “ By Command of the Governor ”; as Commander in Chief the Governor has undoubted power in this respect, respondent is the Governor’s subordinate, and the civil courts cannot go back of the document to determine whether or not the Governor in fact commanded the action; the kind of discharge to be given an enlisted man is not controlled by statute and “ must necessarily be left in the discretion of the executive officer having power to grant some kind of discharge ” (Reid v. United States, 161 F. 469, 472, appeal dismissed 211 U. S. 529, holding that the court could not review such discretionary action as to a member of the United States Army); there is no statute requiring or authorizing a trial or any particular kind of hearing in such eases.

We turn now to the opinions below. Special Term discussed People ex rel. Smith v. Hoffman (166 N. Y. 462) which held that a determination by a military board as to National Guard officers’ fitness was a judicial finding, subject to civil court review. However, as Special Term pointed out, the Smith v. Hoffman result was dictated by section 6 of article XII of the State Constitution, which says that no commissioned officer in this State’s militia, shall be removed during his term unless by the Senate, on the recommendation of the Governor stating grounds, or by the sentence of a court-martial, “ or upon the findings of an examining board organized pursuant to law ”. In other words, while the State Constitution thus requires a trial and findings (that is, a judicial process) for removal of an officer, there is nothing similar in the Constitution or statutes as to enlisted men, and the regulations provide only for a recommending board, saying nothing about a hearing or findings. Furthermore, the Smith case (supra) not only is inapposite because based on the constitutional fiat of a hearing and findings in the case of an officer, but because, also, the Smith case had to do with an involuntary separation from the State’s military service while ours is the case of a voluntary application for discharge, with discretion in the military authorities as to what kind of discharge should be granted. Special Term pointed out, too, that the only State statute (Military Law, § 93) mentioning discharge says that discharge before expiration of enlistment shall be ordered pursuant to Federal and State Laws and Regulations. Various Federal statutes cited in the Special Term opinion are not, we think, important, since there is nothing in the Federal statutes, old or new, cutting down the power of the Governor, as Commander in Chief of the State’s military forces, to order such discharges. We agree with the concluding statement by Special Term that, since the Governor has, through his Chief of Staff, ordered this discharge in the present case, the civil courts cannot review it.

The Appellate Division opinion, with which we are compelled to disagree, says that the discharge of petitioner “ without honor ” was the exercise of a judicial function. But shortening the term of enlistment, it is conceded, was an executive act. We do not agree that either of those acts was judicial, that either was anything but discretionary, or that either is subject to civil court review. The Appellate Division opinion concedes that even if the decision were judicial but was made by the Governor or by order of the Governor, it is not subject to certiorari, citing People ex rel. Broderick v. Morton (156 N. Y. 136). But it is suggested that there should be a trial to determine whether or not the Governor did so order it, or whether appellant acted under independent authority conferred directly upon him by statute. We, however, do not think that the civil courts have jurisdiction to try any such issue. In any case, as it seems to us, the determination as to the kind of discharge to be issued is purely discretionary, and it must be presumed, in the absence of contrary pleading or proof, that this discretion has been exercised as to respondent by or under the direction of the Governor.

People ex rel. Smith v. Hoffman (166 N. Y. 462, supra), while not in point here, as I have shown above, does contain language by this court stating a rule of law which decrees a reversal here. This court’s opinion in that case, at page 471, says that if the board dealing with the discharge of Smith had the duty not of advising the Governor but of making an adjudication, certiorari would lie. At page 468 of the Smith v. Hoffman opinion, it is pointed out, however, that if the board was merely “ an agency to advise the governor, as commander-in-chief ” and the Governor could act regardless of the recommendation, then certiorari would not lie. The latter is this present case, and there can be no judicial review of petitioner’s discharge.

It is unnecessary to pass upon (neither court below did) respondent’s further defense that this proceeding must be dismissed as late, having been commenced after expiration of the four months’ time limitation of article 78 of the Civil Practice Act. Pertinent dates are: December 18, 1950, board met, interviewed petitioner, and considered his application for discharge; December 28,1950, order for petitioner’s discharge “ not honorable ” issued, and notice thereof given to petitioner; January 5, 1951, petitioner acknowledged receipt of order and asked for review thereof; January 25, 1951, petitioner was notified that proceedings had been reviewed and there would be no further hearing; February 8,1952, petitioner brought an article 78 proceeding (not this one) which was discontinued; May 20, 1952, petitioner called for and received his discharge paper, dated December 29,1950; June 5,1952, petitioner commenced the present proceeding. Thus, although the actual written certificate of discharge was not received until about fifteen days before this proceeding was commenced, the determination which he is seeking to review had been made, and notice given him thereof, more than a year before the commencement of this proceeding.

As the Appellate Division opinion points out, petitioner’s not honorable ” discharge may have an adverse effect on his reputation and career. However, it is also true, as was said in Orloff v. Willoughby (345 U. S. 83, 93) that judges are not given the task of running the Army ”. This form of discharge is probably damaging to petitioner’s reputation and to his prospects in life, but ours is a pure legal question only, as to whether or not it can be reviewed by the civil courts.

Respondent calls to our attention that, under the Federal Uniform Code of Military Justice (U. S. Code, tit. 50, ch. 22), there is a Statute of Limitations (§ 618) of two years as to fraudulent enlistment, which means that a trial before a court-martial on a charge of fraudulent enlistment must be brought on within two years. We see no application of that statute to a determination by the Governor or the Commanding General on an application for voluntary discharge. It is conceded in these briefs that a dishonorable discharge cannot be imposed on a soldier except after a court-martial but here, again, the distinction seems plain that a dishonorable discharge has always been considered punishment for wrongdoing, whereas a discharge without honor means only that the soldier is being discharged without the kind of commendation involved in an honorable discharge.

The three certified questions ask whether the petition should be dismissed for lack of subject matter jurisdiction, for lack of jurisdiction over respondent’s person, or as insufficient in law. We hold that the courts do have in personam jurisdiction over appellant but lack subject matter jurisdiction, and that the petition is insufficient in law.

The order of the Appellate Division should be reversed, and that of Special Term affirmed, with costs in this court and in the Appellate Division. The first and third questions certified should be answered in the affirmative, the second in the negative.

Lewis, Ch. J., Dye, Fulo and Fboessel, JJ., concur with Desmond, J.; Oonway, J., dissents and votes to affirm upon the opinion of Van Voobhis, J., in the Appellate Division; Van Voobhis, J., taking no part.

Ordered accordingly.


author: Fuld, J.

text:
    Margarite Auten, Appellant, v. Harold Auten, Respondent.
    Argued October 22, 1954;
    decided December 31, 1954.

      Michael Alexander, Bernard B. Smith and Leonard H. Steibel for appellant.
    I. The effect of the English separation action upon the separation agreement must be determined in accordance with the rule of law applied by the English courts. (Rennie v. Rennie, 287 N. Y. 86; Lynde v. Lynde, 41 App. Div. 280, 162 N. Y. 405, 181 U. S. 183; Swift & Co. v. Bankers Trust Co., 280 N. Y. 135; Myles v. Cuba R. R. Co., 182 Misc. 169; Lann v. United States Steel Works Corp., 166 Misc. 465; Matter of Palmer, 192 Misc. 385, 275 App. Div. 792; Graham v. First Nat. Bank of Norfolk, 84 N. Y. 393; Hutchinson v. Ross, 262 N. Y. 381.) II. Even assuming, arguendo, that the effect of the English separation action upon the separation agreement must be determined in accordance with the rule of law applied by the courts of New York, the judgment of the Appellate Division affirming Special Term cannot be sustained. (Woods v. Bard, 285 N. Y. 11; Krell v. Krell, 192 Misc. 1; Clark v. Kirby, 243 N. Y. 295; Dimick v. Dimick, 230 App. Div. 99; Van Horn v. Van Horn, 196 App. Div. 472; Chamberlain v. Cuming, 37 Misc. 815; Estin v. Estin, 296 N. Y. 308, 334 U. S. 541; Gifford v. Corrigan, 117 N. Y. 257; Rosmarin v. Rosmarin, 238 App. Div. 798; De Brauwere v. De Brauwere, 203 N. Y. 460; Patino v. Patino, 195 Misc. 887, 278 App. Div. 756, 278 App. Div. 921.)

      Saul Hammer for respondent.
    I. The separation agreement sued upon is governed by the law of the State of New York. (Bitterman v. Schulman, 265 App. Div. 486; Stumpf v. Hallahan, 101 App. Div. 383, 185 N. Y. 550; Vander Horst v. Kittredge, 229 App. Div. 126; Aronson v. Carobine, 129 Misc. 800; Rennie v. Rennie, 287 N. Y. 86.) II. The law of the contract also governs the interpretation and legal effect of any acts urged as a defense or discharge of the agreement. (Benton v. Safe Deposit Bank, 255 N. Y. 260; Pritchard v. Norton, 106 U. S. 124.) III. The law of domicile does not govern. (Vander Horst v. Kittredge, 229 App. Div. 126; Graham v. First Nat. Bank of Norfolk, 84 N. Y. 393; Hutchinson v. Ross, 262 N. Y. 381.) IV. Appellant repudiated the agreement sued upon by instituting suit against respondent for judicial separation. (O’Brien v. O’Brien, 252 App. Div. 427; Hettich v. Hettich, 278 App. Div. 518; Woods v. Bard, 285 N. Y. 11; Krell v. Krell, 192 Misc. 1; Schmelzel v. Schmelzel, 287 N. Y. 21; Dimick v. Dimick, 230 App. Div. 99; Van Horn v. Van Horn, 196 App. Div. 472.) V. In any event, appellant’s breach of the covenants of the agreement barred any subsequent recovery thereunder. (Duryea v. Bliven, 122 N. Y. 567; Haskell v. Haskell, 207 App. Div. 723; Muth v. Wuest, 76 App. Div. 332; Matter of Noel, 173 Misc. 844; Cole v. Addison, 153 Ore. 688; Harwood v. Harwood, 182 Misc. 130; Roth v. Roth, 77 Misc. 673; Schmidt v. Schmidt, 74 Misc. 423.) VI. No rights survive to appellant after her repudiation of the separation agreement.
   Fuld, J.

In this action to recover installments allegedly due for support and maintenance under a separation agreement executed in this state in 1933, the wife’s complaint has been dismissed, on motion for summary judgment, upon the ground that her institution of an action for separation in England constituted a repudiation and a rescission of the agreement under New York law. Determination of the appeal, involving as it does a question of conflict of laws, requires examination of the facts disclosed by the papers before us.

Married in England in 1917, Mr. and Mrs. Auten continued to live there with their two children until 1931. In that year, according to plaintiff, defendant deserted her, came to this country and, in the following year, obtained a Mexican divorce and proceeded to “ marry ” another woman. Unable to come to terms with the ocean between them, plaintiff made a trip to New York City to see and talk to defendant about adjustment of their differences. The outcome was the separation agreement of June, 1933, upon which the present action is predicated. It obligated the husband to pay to a trustee, for the ‘ ‘ account of ” the wife, who was to return to England, the sum of £50 a month for the support of herself and the children. In addition, the agreement provided that the parties were to continue to live separate and apart, that neither should sue in any action relating to their separation ” and that the wife should not “ cause any complaint to be lodged against * * • [the husband], in any jurisdiction, by reason of the said alleged divorce or remarriage ”.

Immediately after the agreement was signed, plaintiff returned to England, where she has since lived with her children, and it is alleged by her — but disputed by defendant — that the • latter is also domiciled in that country. Be that as it may, defendant failed to live up to his agreement, making but a few payments under it, with the result that plaintiff was left more or less destitute in England with the children. About a year after the agreement had been executed, in August of 1934, plaintiff filed a petition for .separation in an English court, charging defendant with adultery. Defendant was served in New York with process in that suit on December 4, 1936, and, in July, 1938, an order was entered requiring defendant to pay alimony pendente lite. This English action — which, we are told. never proceeded to trial — was instituted upon advice of English counsel that it “ was the only method ” by which she “ could collect money ” from defendant; it was done, plaintiff expressly declares, to “ enable ” her to enforce ” the separation agreement, and not with any thought or intention of repudiating it.

The years passed, and in 1947, having realized nothing as a result of the English action and little by reason of the New York separation agreement, plaintiff brought the present suit to recover the sum of $26,564, which represents the amount allegedly due her, under the agreement, from January 1, 1935 to September 1,1947.

In his answer, defendant admitted making the agreement, but, -by way of a separate defense — one of several- — -claimed that plaintiff’s institution of the separation suit in England operated as a repudiation of the agreement and effected a forfeiture of her right to any payments under it. Following a motion by the wife for summary judgment and a cross motion by the husband for like relief, the court at Special Term granted the husband’s cross motion and dismissed the complaint. The Appellate Division affirmed, with leave to the wife, however, to serve an amended complaint, asserting any cause of action which accrued prior to the date of the commencement of the English suit. The ensuing judgment, dismissing all of the wife’s claims which accrued subsequent to that date, is a final judgment of modification, and the wife’s appeal therefrom is properly before us as of right. (306 N. Y. 752; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 88-91, 222-223.)

Both of the courts below, concluding that New York law was to be applied, held that under such law plaintiff’s commencement of the English action and the award of temporary alimony constituted a rescission and repudiation of the separation agreement, requiring dismissal of the complaint. Whether that is the law of this state, or whether something more must be shown to effect a repudiation of the agreement (cf. Hettich v. Hettich, 304 N. Y. 8,13-14; Woods v. Bard, 285 N. Y. 11; Butler v. Butler, 206 App. Div. 214), need not detain us, since in our view it is the law of England, not that of New York, which is here controlling.

Choosing the law to be applied to a contractual transaction with elements in different jurisdictions is a matter not free from difficulty. The New York decisions evidence a number of different approaches to the question. (See, e.g., Jones v. Metropolitan Life Ins. Co., 158 Misc. 466.)

Most of the cases rely upon the generally accepted rules that “ All matters bearing upon the execution, the interpretation and the validity of contracts * * * are determined by the law of the place where the contract is made ”, while “ All matter's connected with its performance * * * are regulated by the law of the place where the contract, by its terms, is to be performed.” (Swift & Co. v. Bankers Trust Co., 280 N. Y. 135, 141; Union Nat. Bank v. Chapman, 169 N. Y. 538, 543; see, also, Zwirn v. Galento, 288 N. Y. 428; United States Mtge. & Trust Co. v. Ruggles, 258 N. Y. 32, 38; Restatement, Conflict of Laws, §§ 332, 358; Goodrich on Conflict of Laws [2d ed., 1938], p. 293.) What constitutes a breach of the contract and what circumstances excuse a breach are considered matters of performance, governable, within this rule, by the law of the place of performance. (See Richard v. American Union Bank, 241 N. Y. 163, 166-167; Restatement, Conflict of Laws, § 370; Goodrich, op. cit., p. 293.)

Many cases appear to treat these rules as conclusive. Others consider controlling the intention of the parties and treat the general rules merely as presumptions or guideposts, to be considered along with all the other circumstances. (See Wilson v. Lewiston Mill Co., 150 N. Y. 314, 322-323; Stumpf v. Hallahan, 101 App. Div. 383, 386, affd. 185 N. Y. 550; Grand v. Livingston, 4 App. Div. 589, affd. 158 N. Y. 688.) And still other decisions, including the most recent one in this court, have resorted to a method — first employed to rationalize the results achieved by the courts in decided cases (see Barber Co. v. Hughes, 223 Ind. 570, 586) — which has come to be called the “ center of gravity ” or the grouping of contacts ” theory of the conflict of laws. Under this theory, the courts, instead of regarding as conclusive the parties’ intention or the place of making or performance, lay emphasis rather upon the law of the place “ which has the most significant contacts with the matter in dispute ”. (Rubin v. Irving Trust Co., 305 N. Y. 288, 305; see, also, Jones v. Metropolitan Life Ins. Co., supra, 158 Misc. 466, 469-470; Jansson v. Swedish American Line, 185 F. 2d 212; Barber Co. v. Hughes, supra, 223 Ind. 570; Boissevain v. Weil, [1949] 1 K. B. 482, 490-492; Cook, “ Contracts ” and the Conflict of Laws: “ Intention ” of the Parties, 32 Ill. L. Rev. 899, 918-919; Harper, Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lor'enzen’s Essays, 56 Yale L. J. 1155,1163-1168; Note, Choice of Law Problems in Direct Actions Against Indemnification Insurers, 3 Utah L. Rev. 490, 498-499.)

Although this “ grouping of contacts ” theory may, perhaps, afford less certainty and predictability than the rigid general rules (see Note, op. cit., 3 Utah L. Rev. 490, 498), the merit of its approach is that it gives to the place “ having the most interest in the problem ” paramount control over the legal issues arising out of a particular factual context, thus allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of [the] particular litigation ” (3 Utah L. Rev., pp. 498-499). Moreover, by stressing the significant contacts, it enables the court, not only to reflect the relative interests of the several jurisdictions involved (see Vanston Committee v. Green, 329 U. S. 156, 161-162), but also to give effect to the probable intention of the parties and consideration to whether one rule or the other produces the best practical result (Swift & Co. v. Bankers Trust Co., supra, 280 N. Y. 135, 141; see Vanston Committee v. Green, supra, 329 U. S. 156, 161-162.)

Turning to the case before us, examination of the respective contacts with New York and England compels the conclusion that it is English law which must be applied to determine the impact and effect to be given the wife’s institution of the separation suit. It hardly needs stating that it is England which has all the truly significant contacts, while this state’s sole nexus with the matter in dispute — entirely fortuitous, at that — is that it is the place where the agreement was made and where the trustee, to whom the moneys were in the first instance to be paid, had his office. The agreement effected a separation between British subjects, who had been married in England, had children there and lived there as a family for fourteen years. It involved a husband who, according to the papers before us, had willfully deserted and abandoned his wife and children in England and was in the United States, when the agreement was signed, merely on a temporary visa. And it concerned an English wife who came to this country at that time because it was the only way she could see her husband to discuss their differences. The sole purpose of her trip to New York was to get defendant to agree to the support of his family, and she returned to England immediately after the agreement was executed. While the moneys were to be paid through the medium of a New York trustee, such payments were “for account of” the wife and children, who, it was thoroughly understood, were to live in England. The agreement is instinct with that understanding; not only does it speak in terms of English currency in providing for payments to the wife, not only does it recite that the first payment be made to her “ immediately before sailing for England ”, but it specifies that the husband may visit the children “if he should go to England ”.

In short, then, the agreement determined and fixed the marital responsibilities of an English husband and father and provided for the support and maintenance of the allegedly abandoned wife and children who were to remain in England. It merely substituted the arrangements arrived at by voluntary agreement of the parties for the duties and responsibilities of support that would otherwise attach by English law. There is no question that England has the greatest concern in prescribing and governing those obligations, and in securing to the wife and children essential support and maintenance. And the paramount interest of that country is not affected by the fact that the parties separate and provide for such support by a voluntary agreement. It is still England, as the jurisdiction of marital domicile and the place where the wife and children were to be, that has the greatest concern in defining and regulating the rights and duties existing under that agreement, and, specifically, in determining the circumstances that effect a termination or repudiation of the agreement.

Nor could the parties have expected or believed that any law other than England’s would govern the effect of the wife’s institution of a separation action. It is most unlikely that the wife could have intended to subject her lights under English law to the law of a jurisdiction several thousand miles distant, with which she had not the slightest familiarity. On the contrary, since it was known that she was returning to England to live, both parties necessarily realized that any action which she took, whether in accordance with the agreement or in violation of it, would have to occur in England. If any thought was given to the matter at all, it was that the law of the place where she and the children would be should determine the effect of acts performed by her.

It is, perhaps, not inappropriate to note that, even if we were not to place our emphasis on the law of the place with the most significant contacts, but were instead simply to apply the rule that matters of performance and breach are governed by the law of the place of performance, the same result would follow. Whether or not there was a repudiation, essentially a form of breach (see Restatement, Contracts, § 318; 4 Corbin on Contracts [1951], § 954, pp. 829-834), is also to be determined by the law of the place of performance (cf. Wester v. Casein Co. of America, 206 N. Y. 506; Restatement, Conflict of Laws, § 370, Caveat), and that place, so far as the wife’s performance is concerned, is England. Whatever she had to do under the agreement — “ live separate and apart from” her husband, maintain, educate and support ” the children and refrain from bringing “ any action relating to [the] separation” — was to be done in England. True, the husband’s payments were to be made to a New York trustee for forwarding to plaintiff in England, but that is of no consequence in this case. It might be, if the question before us involved the manner or effect of payment to the trustee, but that is not the problem; we are here concerned only with the effect of the wife’s performance. (Cf. Zwirn v. Galento, supra, 288 N. Y. 428, 433.)

Since, then, the law of England must be applied, and since, at the very least, an issue exists as to whether the courts of that country treat the commencement of a separation action as a repudiation of an earlier-made separation agreement, summary judgment should not have been granted.

As to defendant’s further contention that, in any event, plain-, tiff’s commencement of the English action amounted to a material breach of her covenant not to sue, barring recovery upon the agreement, we need but say that this question, too, must be governed by English law, and for the same reasons already set forth.

The judgment of the Appellate Division and that of Special Term insofar as they dismiss the complaint should be reversed, with costs in all courts, and the matter remitted for further • proceedings in accordance with this opinion.

Lewis, Ch. J., Conway, Desmond, Dye, Fboessel and Van Voobhis, JJ., concur.

Judgments reversed, etc.

      . Our decision in Rennie v. Rennie (287 N. Y. 86) casts no light on the problem. The court did not there consider whether it is the law of the place where the separation agreement was made or of the jurisdiction where the separation suit or other judicial proceeding was brought which determines the effect that such action may have upon the agreement.

      . In point of fact, the English lawyers, whose affidavits have been submitted by plaintiff, unequivocally opine that the institution of a separation suit and the award of alimony pendente lite did not, under the law of England, constitute a repudiation of the separation agreement or bar the present action to recover amounts due under it.