text:
    In the Matter of Walter S. Powley against Dorland Building Co., Inc. Arthur Wiener, as Receiver, Appellant; Harry Strongin, as Receiver, Respondent.
    Argued September 26, 1939;
    decided November 21, 1939.

      Leo E. Sherman and Edgar W. Hendrickson for appellant.

      Gerson C. Young for respondent.
   Hubbs, J.

The Borland Building Co., Inc., was organized in 1922 as a family corporation. The corporation commenced a foreclosure action on a second mortgage against Kalgreen Realty Corporation et al., defendants, on property in the borough of Brooklyn, New York city.' On November 28, 1931, Harry Strongin, the president of the plaintiff corporation, was appointed receiver of rents for the benefit of the plaintiff Borland corporation. His appointment was procured at the request and with the consent of the directors, officers and stockholders of the corporation.

On May 17, 1933, the Williamsburg Savings Bank, holder of a first mortgage on the property, brought foreclosure actions, and on June 1, 1933, it obtained orders extending Strongin’s receivership for its benefit. In May, 1934, the properties were sold, and there resulted large deficiencies. The Borland corporation’s second mortgages were wiped Out. The Borland Building Co., Inc., knew that the only amounts it could receive on its second mortgages were the rents received by the receiver up to June 1,1933, when the receivership was extended for the benefit of the first mortgagee. On December 26, 1934, Strongin filed an account of his receivership running from November 28, 1931, to June 1, 1933, and the account concluded as follows:

Total receipts............................ $27,444 79
Total disbursements....................... 22,595 55
Balance on hand...................... $4,849 24

In fact there was no such balance. The receiver, Strongin, contending that the only party interested in the fund was the Borland corporation, had, he claimed, paid over to that corporation the whole of the balance before the accounting.

On March 1, 1938, the appellant was appointed receiver in supplementary proceedings of the Borland corporation and he served a notice of motion for an order pursuant to section 794 of the Civil Practice Act, directing the third party, Harry Strongin, receiver of the rents and profits in the action pending * * * to turn over to the receiver in supplementary proceedings of the judgment-debtor Borland Building Co., Inc., Arthur Weiner, the sum of $4,849.24, with appropriate interest, in his possession belonging to the judgment-debtor Borland Building Co., Inc.” The court made an order directing that the motion is referred to an Official Referee to take evidence and determine whether the third party is in possession of the funds claimed.”

The referee, after a trial, decided that Strongin as receiver had accounted for $1,532.50 of the sum of $4,849.24, the balance in his possession, but that there remained a balance of $3,316.74 which was still in his possession and still due the judgment debtor. The Special Term made an order directing Harry Strongin to turn over to the appellant the sum of $3,316.74, with interest.

The Appellate Division unanimously reversed the order of the Special Term without prejudice to. the right of the judgment creditor or the receiver in supplementary proceedings to maintain an action against the third party. The court was of the opinion that in a proceeding under section 794 of the Civil Practice Act the court is without power to determine disputed questions of fact as to the existence of an indebtedness.

Section 794 of the Civil Practice Act reads in part: “ 2. At any time after the commencement of a special proceeding authorized by this article, the judgment creditor may by notice of motion served either personally or as the court may direct, upon the judgment debtor and such third party as described in the preceding subdivision of this section, apply to the court for an order directing the said third party to pay to the judgment creditor, unless a receiver has been appointed or a receivership has been extended to the special proceeding and in that case to the receiver, a sum on account of the alleged indebtedness not exceeding the judgment with interest. If it shall appear to the satisfaction of the court that the said third party is indebted to the judgment debtor the court must grant such an order unless the said third party or judgment debtor shall show such facts as may be deemed by the court sufficient to entitle the said judgment debtor or third party to a trial of the issues in an action brought by the judgment creditor or a receiver of the judgment debtor or any claimant to said indebtedness. * * *.”

Section 795 of the Civil Practice Act provides: Where it appears from the examination or testimony taken or other proof satisfactory to the court that a person or corporation is indebted to the judgment debtor, the court may make an order authorizing the judgment creditor to maintain an action against such person or corporation for the recovery of such debt. * *

The Appellate Division is undoubtedly correct in its statement that in proceedings under section 794 of the Civil Practice Act the court is without power to determine disputed questions of fact as to the existence of an indebtedness. (Kenney v. South Shore Natural Gas & Fuel Co., 201 N. Y. 89.) Here, however, the issues have been tried and all the necessary parties were before the court. Nothing could be done in an action brought for the purpose that was not done here. Where it appears that parties have stipulated or acquiesced in the proceedings in a court of general jurisdiction they become bound by the judgment, entered. (Matter of Malloy, 278 N. Y. 429.) The question, here is, assuming that the proper procedure was to have tried the issues in an action brought for that purpose, whether the parties acquiesced in the procedure adopted.

The respondent does not claim that on the hearing before the referee there was any objection made to the power of the referee to hear the issues. On the motion when the referee was appointed no objection was made that the moving party must be relegated to a trial of the issues in an action, pursuant to section 795 of the Civil Practice Act. The claim of respondent made throughout is that the receiver, Strongin, did have funds in his possession but that he had paid them over to the Dorland corporation. The argument made is that the Dorland corporation had the right to all the money and received it; therefore, the referee could not legally determine that Dorland possessed funds of the judgment debtor. That is an argument on the merits. It is not an argument that the referee had no power to examine the question under section 794 of the Civil Practice Act. The argument is, in other words, that, conceding the referee had the power to examine the question of fact as to whether the third party had any money in his possession belonging to the corporation, the facts show that he had no such money. No objection was made to the introduction of evidence before the referee upon the ground that he was without authority to try the issue. The issue tried by the referee without objection was whether the third party, Strongin, as receiver, owed any money to the corporation or had any of its money in his possession. That was a question of fact. The objection that should have been made if Strongin, the third party, did not desire to have the issue as to whether he possessed funds belonging to the Dorland corporation, the judgment debtor, tried, was that the referee was without authority to try that issue. No such objection was made. In fact, the respondent’s attorney asked the referee to find that no money was owed by Strongin as receiver to the judgment creditor. He said: That is my side of the case, sir. If the Court please, I now move that in accordance with the order made referring this matter to you as Official Referee, to take evidence and determine whether the third party, Harry Strongin, as receiver, is in possession of the funds claimed, that you find and hold that the third party is not in possession of any funds whatsoever.”

The respondent cannot put in his evidence and take his chance that he will win and, upon his failure, claim that the reference was illegal. It was within the power of the partiesjfco confer jurisdiction on the court to determine the issues. The reference had the same effect as a reference in a judgment creditor’s action against a third party under section 795 of the Civil Practice Act would have had. The parties conferred jurisdiction on the court by the failure to raise the objection now made. (Baird v. Mayor, 74 N. Y. 382.)

The referee found that the respondent was in possession of $3,316.74 belonging to the judgment debtor. There is evidence to support the finding. The Appellate Division reversed on the law, thereby affirming the findings.

Other questions have been raised which we do not deem it necessary to discuss.

The order of the Appellate Division should be reversed and the orders of the Special Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    In the Matter of National City Bank of New York, Respondent, against Lucy S. Desz, Defendant. John Hancock Mutual Life Insurance Company, Appellant.
    Argued September 26, 1939;
    decided November 21, 1939.

      George W. Riley for appellant.

      J. Courtney McGroarty for respondent.
   Loughran, J.

Proceedings supplementary to judgment are regulated by Civil Practice Act, article 45, Section 779 thereof provides in part: “ Upon proof by affidavit that any person or corporation has, or that there is reason to believe that he or it has, property of the judgment debtor exceeding ten dollars in value, or is indebted to him, in a like sum, the court shall make an order requiring that person or corporation to attend at a time and place specified in the order, to be examined as a third party concerning such property, money or indebtedness. * * * The attorney for the judgment creditor may at any time within two years from the date of such judgment, issue a subpoena directed to a third party * * * where such attorney has reason to believe that such third party has property of the judgment debtor exceeding ten dollars in value, or is indebted to him in a like sum, requiring the attendance of such third party for examination concerning such property, money or indebtedness.” (Subds. 1 and 2.)

The respondent — the judgment creditor — attempted to serve such a third-party subpoena upon the appellant, a foreign mutual life insurance company. Questions as to the validity of the service thereof have been certified to us by the Appellate Division as follows:

“ 1. Does the service of a third party subpoena issued pursuant to section 779, subdivision 2 of the Civil Practice Act, on a managing agent of a foreign mutual life insurance company in the State of New York, constitute valid service thereof on said foreign mutual life insurance company where said foreign mutual life insurance company
“ (a) is lawfully doing business in the State of New York; and
(b) has no president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary or Other officer performing corresponding functions under another name in the State of New York; but
(c) has pursuant to section 30 of the Insurance Law, designated the Superintendent of Insurance of the State of New York as a true and lawful attorney of such corporation upon whom all lawful process may be served?
“ 2. Should service of such sqbpoena made under said circumstances be set aside and vacated on motion of the third party appearing specially for the sole purpose of objecting to jurisdiction over its person?”

The present article 45 became part of the Civil Practice Act on September 1, 1935. (Laws of 1935, ch. 630.) Previously to that date service upon a corporation of an order to attend and be examined in supplementary proceedings could be made upon an officer to whom a copy of a summons was required to be delivered where a summons was to be served upon a corporation, unless in the supplementary proceedings the judge designated an officer by whom the corporation was to attend. (Former art. 45, §§ 798, 790.) When that procedure was in force, service in supplementary proceedings of a third-party order upon a foreign corporation could not be validly made through a person designated by the corporation pursuant to the General Corporation Law (Cons. Laws, ch. 23) for the purpose of personal service of a summons upon it. (Matter of Meyer v. Consolidated Ice Co., 196 N. Y. 471.)

The present article 45 prescribes a different manner of service upon a corporation of an order or of a subpoena made in supplementary proceedings. Subdivision 2 of the present section 783 provides: Service upon a corporation is sufficient if made in the same manner as a summons may be served upon such corporation unless the officer or agent is specifically designated in the subpoena or order, in which case service shall be made upon him.” Since the subpoena here issued to this appellant foreign corporation did not mention any of its officers or agents, the certified questions do not call upon us to consider what the result would have been if appellant’s managing agent to whom the copy was delivered had been specifically designated therein.

Personal service of a summons upon a foreign corporation is regulated by Civil Practice Act, section 229. It is thereby provided:

Personal service of summons upon a foreign corporation must be made by delivering a copy thereof, within the state, as follows:
“1. To the president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary; ¡or, if the corporation lack either of those officers, to the officer performing corresponding functions under another name.
" 2. To a person or public officer designated for the purpose pursuant to law by certificate filed in the department of state, the department of banks or department of insurance, whose designation is in force, or if a designee, other than a public officer, has died, resigned or removed from the state, to the secretary of state as provided by the general corporation law.
“3. To the cashier, a director or a managing agent of the corporation, within the state, if service cannot be effected under subdivision two of this section, or an officer of the corporation specified in subdivision one of this section, with due diligence, cannot be found within the state.”

Under these provisions of section 229, personal service of a summons upon the appellant in the factual situation described by the certified questions could have been made only by delivery of a copy to the Superintendent of Insurance. It follows, we think, that the words above quoted from section 783 of the present article 45 required that the subpoena in question be served in the same manner.

We do not feel free to weigh the respondent’s argument that in supplementary proceedings such service through a public officer will not satisfy the purposes of an examination ¿>f a foreign corporate third party. (Cf. Matter of Meyer v. Consolidated Ice Co., supra.) Subject to constitutional limitations, it has traditionally been the province of the Legislature to declare by general rules what service of process shall be deemed to be sufficient. (Pope v. Terre Haute Car & Mfg. Co., 87 N. Y. 137, 140; Dollar Co. v. Canadian Car & Foundry Co., 220 N. Y. 270.) In this specific instance the Legislature has said that “ Service upon a corporation is sufficient if made in the same manner as a summons may be served upon such corporation.” (§ 783.) The method of service here attempted was something short of the method so prescribed. (Gursky v. Blair, 218 N. Y. 41.) These two methods the respondent would none the less have us bracket together as being equally sufficient. But the present article 45 does not do this and we have no authority to recast it.

The orders should be reversed and the motion to vacate the subpoena granted, with costs in all courts. The first question certified is answered in the negative. The second question certified is answered in the affirmative.

Crane, Ch. J., Lehman, Hubbs, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Orders reversed, etc.


author: Rippey, J.

text:
    Harris Eckstein et al., Copartners Trading under the Firm Name of H. Eckstein & Sons, Respondents, v. Massachusetts Bonding and Insurance Company, Appellant, Impleaded with Another.

      Argued September 26, 1939;
    decided November 21, 1939.

      Emanuel Goodman and S. M. Sprafkin for appellant.

      Mathias Naphtali for respondents.
   Rippey, J.

Plaintiffs brought this action against a city marshal of the city of New York and against his bondsman to recover damages alleged to have been sustained by plaintiffs because of a sale by the marshal of certain personal property belonging to Abraham Lifschitz and Bertha Lifschitz. The complaint was dismissed at Special Term on motion of the bonding company on the ground that plaintiffs had failed to set forth a cause of action. The Appellate Division, by a divided court, sustained the complaint but certified that a question of law is involved which ought to be reviewed by this court, to wit: Does the complaint state facts sufficient to constitute a cause of action?”

On November 4, 1937, a judgment was docketed in favor of one Esther Siegel and against Abraham Lifschitz and Bertha Lifschitz upon which an execution was issued to the marshal. The sale was conducted on November 10, 1937. It is alleged that no levy was made under the execution at least six days before making the sale, that no notices of sale were posted (Civ. Prac. Act, § 707), thereby preventing the plaintiffs from obtaining timely knowledge or notice of the proposed sale, thus preventing them from taking due and timely proceedings to protect their interests, that no inventory was made of the property sold and, consequently, it was not offered for sale in lots in a manner calculated to bring the highest price as required by law (Civ. Prac. Act, § 706), but was sold in bulk at a price far below its real value, that the sale rendered the owners insolvent, that they had no knowledge or notice of the sob, and that the marshal thereby aided, abetted, assisted and enabled the debtors and the said Esther Siegel to prevent the property of the debtors from being made liable for the payment of debts of the debtors of these plaintiffs, or being levied upon by execution or warrant of attachment, contrary to the statute in such cases made and provided.”

The bond upon which liability of appellant must depend provides that the condition of the above obligation is such, that if the said Julius Grabel shall well and faithfully execute the duties of said office of Marshal of the City of New York without fraud, deceit and oppression, and shall answer to the said The City of New York and any parties that may complain, and shall properly account for and pay over any monies and property received by him as such Marshal, then the above obligation to be void, otherwise to remain in full force and effect.”

The contract of suretyship measures the liability of the defendant (Wood v. Fisk, 63 N. Y. 245), is worded according to the requirements of a sheriff’s undertaking (County Law [Cons. Laws, ch. 11], § 180, subd. 2) and additionally is in the form required of a marshal of the city of New York (New York City Municipal Court Code [L. 1915, ch. 279, as amd.], § 146). In the performance of his duties with reference to execution, levy and sale, his powers, duties and liabilities are the same as those of a sheriff' (New York City Municipal Court Code, § 151). The undertaking was given to comply with the requirements of the statute and will be deemed not to create a more extensive liability upon the marshal than that thereby imposed (McCluskey v. Cromwell, 11 N. Y. 593, 598). The statute aims to protect and the form of the bond provides indemnity to not only the city of New York but all parties, whether suitors or not, who may complain, i. e., those who may suffer injury by the official default or misconduct of the officer in the execution of the powers and duties of his office (Crocker on The Duties of Sheriffs, Coroners and Constables [3d ed.], § 882; De Sisto v. Stimmel, 58 App. Div. 486). By its terms, construed in the light of the statute, the bond protects against malfeasance or nonfeasance of the officer as to the parties in behalf of whom or against whom he has process to execute (Carpenter v. Doody, 1 Hilt. 465; Alexander v. McLaughlin, 246 App. Div. 189) and against his malfeasance or misfeasance as to third parties with whose property or rights he unlawfully interferes (Crocker on Sheriffs, supra, § 865; People ex rel. Kellogg v. Schuyler, 4 N. Y. 173); in both cases only while acting within the scope of his official duties and performing ministerial functions or while performing judicial functions where he has maliciously deprived a person of his property or rights (57 C. J. p. 793). In Carpenter v. Doody (supra, p. 468) the conditions of the bond of a constable provided that he should in all things “ well and faithfully perform and execute the duties of the office of constable, without fraud, deceit, or oppression.” There the court said: ‘ ‘ This condition requires two things — one, to perform the duties of the office, and, secondly, to perform such duties without fraud, deceit, or oppression; the first part intended for the protection of the creditor, the second for the protection of the debtor. The constable, if he faithfully perform the duties of his office in regard to an execution, would not incur any liability to the creditor, even if guilty of oppression towards the debtor. For such oppression the debtor has the cause of complaint.” In People ex rel. Kellogg v. Schuyler (supra) the sheriff seized property belonging to a third person and the surety upon his bond was held liable for his official misconduct.

An action was commenced by plaintiffs on their claim against Abraham and Bertha Lifschitz on December 2, 1937, which later ripened into judgment in their favor. At the time of the sale by the marshal, plaintiffs were simple creditors of A. & B. Lifschitz without lien upon or special interest in the property sold. No property interest or established right of the plaintiffs was affected by the alleged misconduct of the marshal nor do the plaintiffs charge the marshal with any fraudulent conduct in connection with the sale and affecting any of their rights. No statutory duty was imposed on the marshal as to simple creditors without hen on or a fixed interest in the property sold except that imposed by section 695 of the Civil Practice Act, which has no application here. There is no allegation that plaintiffs have been deprived of some of their rights because of any malicious, deceitful or fraudulent act of the marshal. Nevertheless, even though there may be spelled out of the allegations in the complaint some assertion of fraud, deceit or oppression on the part of the marshal, that constitutes no aid to plaintiffs in formulating a cause of action against the defendant, for the debtors only may avail themselves of such misconduct (Carpenter v. Doody, supra). No cause of action is alleged or would lie against the marshal in favor of plaintiffs under the Bulk Sales Act (Pers. Prop. Law [Cons. Laws, ch. 41], § 44),under which an action is authorized by interested parties to set aside a transfer where failure of the purchaser to give' ten days’ notice to creditors of the proposed sale occurs, nor under article 10 of the Debtor and Creditor Law (Cons. Laws, ch. 12), where an action may be maintained only against the owner and purchaser and their privies of property fraudulently transferred. Liability of the appellant is as great but no greater than that of the marshal while acting in an official capacity (21 R. C. L. p. 974; People ex rel. Metcalf v. Dikeman, 4 Keyes, 93, 105). No liability was imposed upon the marshal under the pleadings in this case.

If the sale was void for failure of the marshal to comply with statutory requirements (Dauchy Co. v. Wilkinson, 251 App. Div. 53, 55), it might have been treated as a nullity and plaintiffs might have issued an execution on their judgment and levied on and sold the property to satisfy their claim.

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

Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


text:
    The People of the State of New York ex rel. Edward M. Higley, Appellant, against Jess J. Millspaw, as Sheriff of the County of Schoharie, Respondent.

      Argued October 10, 1939;
    decided November 21, 1939.

      S. J. Mauhs, James A. Leary and Walter A. Fullerton for appellant.

      J. Ernest Wharton, District Attorney (Wallace H. Sidney of counsel), for respondent.
   Rippey, J.

On August 5, 1938, the relator was indicted in Baltimore, Maryland, for the crime of deserting his wife in that city on the 16th day of May, 1938, and for failure to support and maintain her between the date of the desertion and the date on which the indictment was found. Upon the requisition of the Governor of Maryland, the Governor of the State of New York issued a warrant on August 29, 1938, for the delivery of relator to the agent of the demanding State together with a direction to any peace officer in the. State so authorized to execute the warrant to arrest and deliver the relator into the custody of said agent. The relator was taken into custody by the Sheriff of Schoharie county on August 31, 1938. A writ of habeas corpus was issued by the County Judge of Schoharie county upon petition of the relator and accompanying affidavits and made returnable before the Supreme Court in and for Schoharie county. Upon the hearing the Sheriff made his return attaching thereto and making a part thereof the warrant issued by the Governor and all papers that were before the Governor upon which the issuance of the warrant was based and produced the body of the petitioner in court. None of the allegations of fact contained in the petition were specifically denied. A traverse was duly filed, but no oral evidence was taken on the hearing before the Special Term. The writ was sustained, whereupon the Sheriff appealed from the order entered thereon to the Appellate Division where the order was reversed upon the law and the facts and the relator remanded to custody. Since the reversal by the Appellate Division was stated in the order to be upon the law and the facts and since there were no separate findings of fact and conclusions of law, this court must review the facts as well, as the law (Civ. Prac. Act, § 589, subd. 2; Matter of Edge Ho Holding Corp., 256 N. Y. 374; Cohen on Powers of the New York Court of Appeals, § 106).

Interstate extradition is governed by article 4, section 2, clause 2, of the Federal Constitution. By section 5278 of the United States Revised Statutes (U. S. Code, tit. 18, § 662) it is provided, so far as material here, that “ whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found * * * charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.” The form of demand is not provided for by the Federal statutes. In section 829 of the New York Code of Criminal Procedure, the Governor of the State of New York is charged with the duty of carrying out the provisions of the Federal Constitution and the acts of Congress enacted in pursuance thereof. The form of demand is provided for in section 830 and, so far as material, reads: “No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, * * * and accompanied by a copy of an indictment found * * *, together with a copy of any warrant which was issued thereon,” etc. It is also provided, that the indictment must substantially charge the person demanded with having committed a crime under the law of the demanding State and that a copy of the indictment must be authenticated by the executive authority making the demand.

There may be determined in- this proceeding questions as to (1) whether the papers upon which the warrant was issued by the Governor of the asylum State are sufficient, (2) whether the indictment charges a crime under the laws of the State seeking the extradition, (3) whether the crime was committed in the demanding State under its laws, (4) whether the accused was in the demanding State on the day when the crime is alleged to have been committed, (5) the identity of the alleged fugitive, (6) whether the person sought to be extradited is a fugitive from justice (People ex rel. Corkran v. Hyatt, 172 N. Y. 176; Roberts v. Reilly, 116 U. S. 80, 95; Pettibone v. Nichols, 203 U. S. 192; Hogan v. O’Neill, 255 U. S. 52, 56; People ex rel. Plumley v. Higgins, 109 Misc. Rep. 328). We may not consider the question of the sufficiency of the indictment as a pleading (Hogan v. O’Neill, supra) nor the possibilities resulting from the trial (Drew v. Thaw, 235 U. S. 432) nor the merits of the defense to the indictment or the motive and purpose of the extradition proceedings (Drew v. Thaw, supra; Smith v. Gross, 2 Fed. Rep. [2d] 507; certiorari denied, 267 U. S. 610; Matter of Bloch, 87 Fed. Rep. 981; Commonwealth v. Superintendent, 220 Penn. St. 401; Edmunds v. Griffin, 177 Iowa, 389).

The identity of the relator is not questioned. Although there is no proof of the laws of the State of Maryland, we can examine and determine for ourselves- what those laws are (Civ. Prac. Act, § 391) and the crime charged is an indictable offense under the laws of the State of Maryland (Flack’s 1935 Supplement to the Annotated Code of the Public General Laws of Maryland, art. 27, § 87, p. 314). The demand of the Governor of Maryland did not contain the statement required by section 830 of the Code of Criminal Procedure that the accused was present in the demanding State at the time of the commission of the alleged crime. Technically, the demand was insufficient. There was, however, presented to the Governor of New York, accompanying the demand and as the basis for its issuance, a certified copy of the indictment in which it appears that relator was in Baltimore, Maryland, when the crime was committed, the statement to the Governor by the State’s Attorney for the city of Baltimore, in which he refers to an affidavit by the wife of the relator, also accompanying the demand, that Edward M. Higley the person indicted as appears by the annexed papers, was in this State [Maryland] at the time of the commission of said crime, that he is a fugitive from justice, having fled this State since the commission of said crime and that he is now in the City of Cobleskill, in the State of New York,” and the due appointment of an agent to take the accused from the authorities of this State. Thus the Governor of New York had before him all the requisite facts to justify him in issuing the warrant of rendition (People ex rel. Lawrence v. Brady, 56 N. Y. 182, 186; Matter of Reggel, 114 U. S. 642, 653; Roberts v. Reilly, 116 U. S. 80, 95).

Whether the accused, was in the demanding State when the crime was committed and whether he is a fugitive from justice were questions of fact before the Governor and are questions of fact here (Roberts v. Reilly, supra). It is competent for the courts of this State to inquire whether he is, in fact, a fugitive from justice and to declare the warrant void and to discharge him from custody and to prevent his rendition to the demanding State if it be found that he is not a fugitive from justice (People ex rel. Corkran Hyatt, 172 N. Y. 176; Pettibone v. Nichols, supra; Matter of Smith, 3 McLean [U. S. Circuit Ct. Rep.], 121). A fugitive from justice is defined to be “ a person who commits a crime within a state, and withdraws himself from such jurisdiction without waiting to abide the consequences of such act ” (Matter of Voorhees, 32 N. J. L. 141, 150). No one can be held to be a fugitive from justice unless he was in the demanding State when the crime was committed (Hyatt v. People ex rel. Corkran, 188 U. S. 691, 712, 713). There were two counts in the indictment. The first count charged that the relator deserted his wife in Baltimore, Maryland, on the 16th day of May, 1938. The second count charged that the relator neglected to provide for the support and maintenance of his wife from the 16th day of May, 1938, to the 5th day of August, 1938, the date of the finding of the indictment. The offense of non-support may exist under the laws of Maryland without desertion (Wald v. Wald, 161 Md. 493, 498). It is essential here to show on either count the personal presence of the accused in the demanding State when the crime is alleged to have been committed, without proof of which there can be no interstate rendition (People ex rel. Gottschalk v. Brown, 237 N. Y. 483; Matter of Reggel, 114 U. S. 642, 651; Hyatt v. People ex rel. Corkran, 188 U. S. 691).

The relator, in his petition, made all papers that were before the Governor a part thereof by reference. At Special Term the respondent relied on the papers that were before the Governor of New York, together with the return to the writ and the warrant, to make out a prima facie case (People ex rel. Corkran v. Hyatt, 172 N. Y. 176). It then became necessary for the relator to establish by conclusive evidence that he was not in the demanding State when the crime was committed and is not a fugitive from justice (People ex rel. Gottschalk v. Brown, supra; People xe rel. Fong v. Honeck, 253 N. Y. 536). The evidence for respondent that relator was in the demanding State when the crimes were committed is furnished by the statement in the indictment and in the affidavit of his wife to which reference has been made above. Otherwise there -is no denial of any of the facts set up in the petition and accompanying affidavits. On the point under consideration the petitioner shows in the verified petition, made a part of and repeated in the traverse to the return, that his wife was the only witness before the grand jury which found the indictment; that he is now twenty-nine years old and his wife twenty-four; that they were married September 7, 1935, and that there are no living or prospective children of the marriage; that the parties were and are residents of the State of New York; and that he was not in the State of Maryland on May 16, 1938, the date when the crime was committed, or since. There is presented also the affidavit of petitioner’s attorney which the petitioner asserted was made a part of the petition with the same force and effect as though all the facts, statements and circumstances therein set forth were specifically detailed in the petition. From the petition and the affidavit the further facts appear: Immediately following the marriage the parties took up their residence in Niagara Falls, New York, where the petitioner had a financial interest in and was an officer of a manufacturing corporation. His wife did not wish to five in Niagara Falls, which was petitioner’s place of business, and made frequent and extended trips to Baltimore, where she visited her parents. In September, 1937, Mrs. Higley left Niagara Falls and told petitioner that she did not intend to return. Following correspondence between relator and his wife, in December, 1937, the former left Niagara Falls and his employment to join his wife in Baltimore with a view to ascertaining whether he could obtain employment there. Being unable to obtain employment the relator returned to Niagara Falls in April, 1938, and thereupon wrote to his wife and advised her that he was about to take up his old residence and requested her to return to their home in Niagara Falls. The wife failed to answer the letter but her attorney opened negotiations with attorneys representing relator in Niagara Falls for a separation agreement and alimony and financial support for the wife. It is asserted that these negotiations between the attorneys continued either at Niagara Falls, New York city or Baltimore until July 29, 1938, when a separation agreement was duly signed and executed and delivered to Mrs.. Higley’s attorney, whereby it was agreed that the relator should pay to his wife a certain sum of money and deliver to her certain personal property and that the proceedings before the courts in Maryland should be discontinued and the indictment dismissed. It is asserted that on that day the State’s Attorney of Baltimore and the judge of the Criminal Court duly approved the settlement and adjustment and that the indictment was at that time in fact dismissed. It further appears that checks for the amount provided to be paid to the wife were delivered to her attorney. It is alleged that Mrs. Higley thereupon changed her mind and desired more money, as a result of which her attorney refused to deliver the executed agreement to relator to whom the checks were thereafter returned and relator’s attorneys thereupon commenced an action for a separation in the State of New York against his wife. It is alleged that the wife said immediately prior to the making of the requisition by the Governor of Maryland and upon the service of the summons and complaint in the separation action: “ I do not want any settlement or support, what I want is the satisfaction of bringing him back here.” These and the records of the correspondence and dealings between the parties were made a part of the petition and were before the justice at Special Term when he made his findings. The papers presented by the relator corroborate his assertion that he was not in the State of Maryland subsequent to April, 1938. Upon the whole record it seems that relator has overcome the presumption raised by the warrant by the required weight of the evidence demanded by the authorities that the relator was not in the demanding State at the time the crime was committed and, consequently, that he is not a fugitive from justice.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, the warrant of the Governor of the State of New York declared void and the relator discharged from custody.

Crane, Ch. J., Htjbbs, Loughran and Finch, JJ., concur; Lehman, J., dissents; O’Brien, J., taking no part.

Ordered accordingly.


author: Hubbs, J.

text:
    New York State Electric & Gas Corporation, Appellant and Respondent, v. City of Plattsburgh et al., Respondents and Appellants.
    Argued October 11, 1939;
    decided November 21, 1939.

      Wallace E. Pierce, Patrick J. Tierney, C. Edward Paxson and Jesse J. Holland for plaintiff, appellant and respondent.

      Harry P. Kehoe, Corporation Counsel, for defendants, respondents and appellants.
   Hubbs, J.

The defendant City of Plattsburgh, desiring to avail itself of the opportunity of securing funds from the Federal government, in March, 1936, started proceedings to authorize the construction of a municipal electric power plant. The Common Council adopted a local law authorizing its construction. On May 15, 1936, the local law was approved by the electors of the city at a special election. The proceedings were strictly in accordance with the provisions of article 14-A of the General Municipal Law (Cons. Laws, ch. 24). The local law fixed the estimated cost at $520,000, and the maximum cost at not to exceed $594,000. It provided a plan for financing the project by means of a grant from the Federal Emergency Administration of Public Works of $234,000, being forty-five per cent of the estimated cost of $520,000, the balance of fifty-five per cent of $520,000, the estimated cost, to be raised by the sale of bonds in the amount of $286,000.

The local law provided that the project should be constructed substantially in accordance with plans approved by the Common Council and on file and subject to inspection. It also provided that the Common Council should pass the necessary resolutions to authorize the issuance, sale and execution of the bonds, which should constitute a general obligation of the city. In short, the city took the necessary-legal proceedings. The city has not advertised for bids for the construction of the project, made any contracts therefor or sold any of the bonds.

This action, brought by the plaintiff company, is to restrain the city from issuing and selling the bonds. The trial court decided in favor of the plaintiff and enjoined the city from proceeding with the undertaking. The Appellate Division modified the judgment of the trial court and decided that the city might proceed with the project, but directed that it could not issue bonds for an amount in excess of $82,320.54, plus $24,000, if and when outstanding bonds in that amount are retired in accordance with provisions already made therefor.

The trial court found that the issue of bonds to the amount of $286,000, the amount necessary under the estimated minimum cost of construction, would result in an indebtedness of the city in excess of ten per cent of the assessed valuation of its real property and, therefore, that the proposed bond issue was in violation of article VIII, section 10, of the State Constitution as it existed in 1938. (See now art. VIII, § 4.)

The Appellate Division reached the conclusion that the city still possessed borrowing capacity of $82,320.50 plus $24,000 if and when outstanding bonds to that amount have been paid in accordance with provisions already made therefor. It, therefore, decided that the city might proceed with the project but that it could not issue bonds therefor in a greater amount than stated. It reached such decision upon the ground that the city could not be restrained until it had exhausted its borrowing power or entered upon contracts which disclosed that it had contracted beyond its borrowing power.

If we assume that the Appellate Division was right in holding that the sewer bonds hereafter referred to constituted an indebtedness and that the city possessed capacity to borrow only $82,320.54, we might not be willing to agree with the statement that as a matter of law this action was prematurely brought.

If, on the other hand, the city possessed borrowing capacity of $269,000 over and above its present indebtedness, an entirely different factual situation would be presented. In determining the amount of the city’s borrowing capacity over its present indebtedness it is necessary to decide whether certain sewer bonds to the amount of $187,000 constitute an indebtedness of the city.

In 1938 the city, acting under the provisions of the General Municipal Law, article 14-C, sold to the Federal government sanitary sewer revenue bonds to the amount of $187,000. The city had a sewer system which was used without charge by property owners. Desiring to extend and improve its sewer system it procured from the Federal government a gift and issued and delivered to the Federal government for additional funds advanced, the sewer bonds in question. The bonds provided that they should be paid wholly from the revenue received thereafter from the sewer system.

It is conceded that all proceedings growing out of the issuance of those bonds and the construction of the sewerage system were in strict accordance with law. It is urged by the plaintiff, however, that the bonds constitute an indebtedness of the city and should be included with all other conceded indebtedness of the city in computing the total amount which the city can lawfully contract as indebtedness under section 10, article VIII of the State Constitution as it existed in 1938 when those bonds were purchased by the Federal government. That question has been definitely settled by this court contrary to the contention of plaintiff. Section 10, article VIII of the State Constitution provides that no city shall be allowed to become indebted to an amount which shall exceed ten per cent of the assessed valuation of the' real property of such city subject to taxation. The question here involved arose in the case of Robertson v. Zimmermann (268 N. Y. 52) and we decided that bonds issued by “ Buffalo Sewer Authority ” in accordance with the provisions of a statute similar to those of the General Municipal Law did not constitute an indebtedness of the city of Buffalo and should not be included with the other indebtedness of the city in computing and fixing the ten per cent over which the city could not lawfully become indebted under section 10, article VIII of the Constitution. The facts in that case and in the one at bar differ in minor respects, but the fundamental principles established by the decision in that case are controlling in this. (Cf. City of Rochester v. Union Free School District, 255 App. Div. 96; affd., 280 N. Y. 531.)

An entirely different situation exists in relation to the proposed issue of bonds to the amount of $286,000, the proceeds from which are to be used in constructing the proposed new electric system. Those bonds are to be paid, not solely from the revenue to be derived from the electric system, but from the general taxes levied upon all the taxable property within the city. They will, therefore, constitute an indebtedness of the city and must be included in ascertaining the total amount of indebtedness which the city may lawfully contract under the provisions of the Constitution. When so considered, after excluding the sewer bonds amounting to $187,000, it appears that the city has a leeway of $269,000 before reaching the debt limit. The proposed issue of bonds for the electric system for $286,000 is, therefore, only $17,000 more than the present debt limit of the city. The estimated cost of the proposed electric system to be constructed in substantial compliance with the plans on file is $520,000. It may appear later that the system may be constructed in substantial compliance with such plans for at least $17,000 less than the estimated costs. If so, the bonds required to be issued would not exceed the city debt limit. Or it may happen that prior to the time for issuing the bonds the debt limit of the city may have in some way been increased.

The judgment of the Appellate Division should be modified by providing that the present debt limit of the city is $269,000 instead of $82,320.54 and as so modified affirmed, without costs.

Crane, Ch. J., Lehman, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


author: Finch, J.

text:
    The People of the State of New York, Respondent, v. Max Silverman, Appellant.

      Argued October 3, 1939;
    decided November 21, 1939.

      Sol A. Klein and M. E. Davidson for appellant.

      John J. Bennett, Jr., Attorney-General (Hiram C. Todd of counsel), for respondent.
   Finch, J.

On the present trial of defendant for conspiracy to obstruct the administration of justice, he entered a plea of former conviction. The facts out of which this plea arises are as follows: On March 3, 1935, Samuel Drukman was found murdered in a garage in Brooklyn. Three persons were arrested on suspicion of murder, whereupon defendant, with many others, entered into and engaged in a conspiracy to prevent the authorities from prosecuting the Drukman murderers. For this latter crime defendant, together with other conspirators, was indicted on May 18, 1936, This is known as indictment No. 14.

The plan of the conspiracy was to conceal possible witnesses, both within and without the State, As part of defendant’s participation in the conspiracy, he fled from New York in November, 1935, so as to prevent his being called as a witness in the prosecution of the Drukman murderers.

On February 20, 1936, the Druckman murderers were convicted. After May 18, 1936, defendant was charged a second time by indictment No. 20, for engaging in a new conspiracy. This second conspiracy was alleged to have for its object the prevention of the arrest of defendant for his participation in the first conspiracy.

In September, 1937, defendant was apprehended in California and brought back to New York, where he has since been, tried and convicted under indictment No. 20 for his part in the second conspiracy.

The case at bar involves the trial of defendant under indictment No. 14, i. e., the primary conspiracy to prevent the prosecution of the Drukman murderers. The trial judge ruled as a matter of law that the prior conviction of defendant under indictment No. 20 would not subject defendant to double jeopardy in the case at bar, i. e., the trial of indictment No. 14.

When a defendant interposes a plea of a former conviction, the burden of proof rests upon him to show that the offense charged in the indictment is the same offense as that for which he was previously convicted. (Wharton on Criminal Evidence [11th ed.], § 219, and cases cited; Underhill on Criminal Evidence [4th ed.], § 363, and cases cited.)

The gravamen of the crime of conspiracy is the corrupt agreement. (People v. Flack, 125 N. Y. 324; People v. Tavormina, 257 N. Y. 84.)

Did defendant engage in two separate conspiracies, one to save the Drukman murderers (indictment No. 14), and two, to save himself from prosecution as a defendant for attempting to save the Drukman murderers (indictment No. 20)? Or was there a blanket agreement that defendant would keep away from New York State until the prosecution of the Drukman murderers and until any unlawful acts committed in connection therewith had blown over or for defendant to keep away from New York and “ come back as soon as Mr. Todd would get out of office?

The absence of defendant from New York was a continuous absence. The proof concerning such absence was the same in the previous trial under indictment No. 20 as in the present trial under indictment No. 14. Such proof in brief is as follows: In November or December, 1935, defendant became a fugitive from justice and continued such fugitive until September, 1937, when he was apprehended by the police in California and brought back to New York. During the two years he was a fugitive, defendant went to various places in California and Nevada, using various false names and directing the chauffeurs employed by him to use false names. The automobile of defendant was registered in California under a false name, with the defendant obtaining a license to drive under a false name. The family of defendant in New York carried on correspondence with him under false names. Defendant frequently stated during the two years he was a fugitive that he used aliases, moved from one place to another and lived in apartments instead of hotels in order not to be detected. While away from New York, defendant was not employed but received $800 to $1,000 per month, which was forwarded by members of his family. These moneys were sent under false names. In May, 1936, defendant learned that he had been indicted in Brooklyn in connection with the Drukman murder (indictment No. 14, under which defendant was tried in the case at bar).

The only witnesses called on behalf of defendant were the clerk of the court who testified concerning the court records bearing on the claim of defendant of former conviction, and Honorable Hiram C. Todd, Special Assistant Attorney-General, who was called to testify with respect to a report made by a psychiatrist concerning the mental capacity of a witness for the People, namely, Detective Corbett. Defendant did not take the stand, and no testimony by him was adduced contradicting that given by the witnesses for the People.

Upon the foregoing state of the record, could the trial court say as a matter of law that there was no evidence from which the jury could find that there was one blanket agreement to keep away from New York until Mr. Todd would get out of office? It is true that, comparing the two indictments, the allegations differ as to the dates of the commission of the crimes, the names of the conspirators, the object of the conspiracy and the purpose of the overt acts of defendant Max Silverman. Even with these differences it appears, as a part of the case for the People, that defendant repeatedly stated that it was necessary for him to keep away from New York ” and that he would come back as soon as Mr. Todd would get out of office.” This and other testimony shows that there arises at least a question of fact for the jury, whether there was one blanket agreement or two. It may well be that defendant has participated in two distinct conspiracies. But on this record that was for the jury to say, since a question of fact was presented. Authority is not lacking. In Short v. United States (91 Fed. Rep. [2d] 614) it was contended that because of differences in periods of time covered by the conspiracies as alleged, differences in the places charged as the place of conspiring, differences in the persons charged as conspirators, differences in the overt acts alleged to have been committed in furtherance of the conspiracies, and in the charge of the violation of an additional statute as being within the object of the conspiracy, no question of double jeopardy arose. Nevertheless the court held that there was evidence from which the jury might have drawn the conclusion that the conspiracies were in fact the same. Therefore, the question should have been submitted to them for their determination,

In applying the constitutional safeguard against double jeopardy, this constitutional protection is not a mere matter of formal pleading, but the courts have consistently held that a single conspiracy may not be split up into different indictments. (Matter of Snow, 120 U. S. 274; Short v. United States, supra; People v. Farson, 244 N. Y. 413, 419.) A test is set up which considers evidence and not the theory of the pleader. (Murphy v. United States, 285 Fed. Rep. 801; certiorari denied, 261 U. S. 617.)

The judgments should be reversed and a new trial ordered.

Crane, Ch. J., Lehman, Loughran and Rippby, JJ., concur; Htjbbs, J., dissents; O’Brien, J., taking no part.

Judgments reversed, etc.


text:
    In the Matter of the Accounting of William C. Limberg, as Executor of Charles A. Limberg, Deceased, Respondent. Lucille Limberg, Individually and as Administratrix of the Estate of Charles A. Limberg, Deceased, Appellant.
    Argued October 4, 1939;
    decided November 21, 1939.

      Matthew J. Shevlin for appellant.

      Frederick W. Ritter and Henry Koch for respondent.
   Hubbs, J.

On the death of Charles A. Limberg, his son, William C. Limberg, offered for probate an alleged will. It was contested on the ground of fraud and undue influence exerted by William C. Limberg and his wife. The will purported to give all of decedent’s property to William C. Limberg and his family, and it named William C. Limberg as executor. The contestants were two grandchildren, children of a deceased son. The jury found that the execution of the will was procured by fraud and undue influence. The Appellate Division reversed and directed probate. Thereupon the will was admitted to probate and William C. Limberg acted as executor. Meanwhile an appeal was taken to this court and we decided that a question of fact was presented for determination by the july. We reversed the decision of the Appellate Division, which was made upon the law, and we reinstated the verdict of the jury. (277 N. Y. 129.) The letters of William C. Limberg as executor were revoked and one of the grandchildren was appointed administratrix.

The deceased owned a two-family house. The son, William C. Limberg, occupied one apartment. The other was rented. The administratrix collected the'rent for that apartment. On the accounting of William C. Limberg his account was surcharged by the Surrogate for the rental value of the apartment, which he occupied, from the date of testator’s death. The rental value is conceded. The Surrogate surcharged him with the value of the rent ($1,035) and denied him conunissions in part, but allowed him $547.90 commissions. William C. Limberg appealed to the Appellate Division from the "surcharge for rent, and the administratrix appealed from the allowance of $547.90 commissions. The Appellate Division reversed the Surrogate as to the surcharge of $1,035 for rent and reduced the allowance for commissions to $129.55. The administratrix appealed to this court.

The first question is whether a distributee in possession of part of a building can be charged in Surrogate’s Court on an accounting as executor for the rental value of the part of the premises occupied by him where the assets of the estate have been used by him to pay the upkeep and expenses of. the real property used, and where one of the distributees is an infant. Concededly the general rule is that a tenant in common cannot be successfully sued for rent by a cotenant,.the occupation being presumed to be for the benefit of all. (Adams v. Bristol, 126 App. Div. 660; affd., 196 N. Y. 510; Wood v. Phillips, 43 N. Y. 152, 156.) That general rule is, however, subject to the exception that where there is an ouster, or acts amounting to a denial of the rights of cotenants, the tenant .in possession may be charged with rental. (Zapp v. Miller, 109 N. Y. 51; Adams v. Bristol, supra.) William C. Limberg was in possession as devisee under the will, which has been held to be void because of his fraud and undue influence. His possession was hostile to the cotenants and he is liable for the rent. He collected the rent from the lessee of the other apartment and accounted for it. He, as executor, failed to account for the value of the use of the apartment which he occupied. The Surrogate’s Court had jurisdiction to make the surcharge as William C. Limberg was accounting in that court as executor and the surcharge grew out of his account. The administratrix represented the estate after his removal as executor and insisted on the surcharge in the performance of her duty as administratrix. As administratrix she was entitled to collect the rent. (Cf. Decedent Estate Law [Cons. Laws, ch. 13], § 123; Limberg v. Limberg, 281 N. Y. 821, decided herewith; People ex rel. Sheftman v. McGuire, 281 N. Y. 713; Matter of Burstein, 153 Misc. Rep. 515.)

The second question is whether one who procures the execution of a will by fraud and undue influence, appeals from a decision of a Surrogate’s Court and contests until a final decision of this court, which affirms the decree entered upon the verdict of a jury that the will was procured by fraud and undue influence, is entitled to any commissions alleged to have been earned while acting as executor. It seems to us that a statement of the question carries with it the answer. This is not like a case where one named as executor is not a party to a fraud and offers a will for probate which on its face is in legal form, and the will is offered in good faith. Here the jury has found not only a lack of good faith, but actual fraud and undue influence. In such circumstances one named as executor should not be permitted to benefit by his own wrongful act.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court modified in accordance with this opinion, and as so modified, affirmed, with costs in this.,court and in the Appellate■ Division to the appellant payable out of the estate.

Crane, Ch. J., Lehman, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


author: Per Curiam.

text:
    Mae Cutter et al., Respondents, v. Maxweld Corporation, Appellant.
    Argued October 4, 1939;
    decided November 21, 1939.

      Fred L. Gross and James F. Clarity, Jr., for appellant.

      Harold M. Kennedy and Francis J. Nicosia for respondents.
   Per Curiam.

Defendant corporation appeals from a judgment in favor of plaintiffs in a personal injury action. The occurrence arose through the negligent operation of an automobile by the president of the defendant corporation, whereby plaintiffs were injured.

All the plaintiffs wure riding in the car which was struck by the automobile driven by the president of the defendant except the plaintiffs Mae Cutter and Patricia Sickles. These two ladies, a night club entertainer and her sister,, were invited, between seven and eight o’clock in the evening, by the president of defendant corporation, to accompany him from Brooklyn to his country home at Northport, Long Island, in an automobile which was registered in the name of the president and paid for by him, but was used at times upon the business of the corporation. The plaintiffs recovered upon a special verdict of the jury (1) that the car was owned by the defendant, and (2) that the car was being used by the president in the business of the corporation that evening. In regard to this latter question, it appeared in the evidence that he met at the house in North-port two gentlemen who looked over some pamphlets bearing pictures of the wares manufactured by the defendant corporation and that they wrote down certain data and discussed pricés, taking about an hour or more in so doing. There is no evidence in the record upon this appeal showing that the ladies took any part in promoting the business between the president and the two callers. The trial court improperly excluded all evidence relating to what the president said to the ladies when he invited them to go on the trip. The exclusion of what was said was error, as it might have contained evidence showing that these plaintiffs had a part in the business of the corporation.

The judgments, therefore, in favor of Mae Cutter and Patricia Sickles should be reversed and new trials granted, with costs to abide the events. The judgments in favor of the other plaintiffs should be affirmed, with costs.

Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


text:
    Thomas J. Carr, Appellant, v. City of New York, Respondent, Impleaded with Another.
    Argued October 10, 1939;
    decided November 21, 1939.

      Cornelius Bregoff and Irving Ginsberg for appellant.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for respondent.
   Hubbs, J.

The plaintiff slipped and fell in the street on a pavement sixty feet from a street intersection and three or four feet from the curb at a point used as a terminal by a bus corporation. At the point in question buses stopped two or three times an hour for from five to eight minutes each time. The constant use of the area as a terminal resulted in an accumulation of oil and grease along the roadway varying up to one-half inch in thickness and covering a space two or three feet wide and about one hundred feet long. At the point where the plaintiff fell the oil was one-half inch deep. It was not fresh oil. The condition had existed for at least six months prior to the accident and there is evidence that the same condition had existed for several years. The defendant city had actual notice of a prior accident which occurred about three weeks before the one in question and which resulted from the same cause. A witness who was injured by a fall at the same place called' up the Bureau of Highways and informed it of his injury and the condition existing.

Upon these facts the trial court submitted to the jury the question of the defendant city’s negligence. The jury found for the plaintiff. The Appellate Division reversed on the law and dismissed the complaint, stating that the condition existing did not constitute actionable negligence on the part of the city.

The place where plaintiff was injured was on a paved city street which had been used with the acquiescence of the city for years as a bus terminal. The alleged negligent condition of the street was not slight and of a casual nature caused by automobiles passing. It was a continuing condition resulting from the unusual use made of the street as a bus terminal. The city had notice of the condition and that the condition had resulted in at least one other accident. In the peculiar circumstances of the case we believe that a question of fact existed for the determination of the jury and that it was error for the Appellate Division to reverse as a matter of law the judgment in favor of the plaintiff.

If the oil spot had been a casual spot made by a parked or moving vehicle a different situation would be presented. It may well be that an accident arising out of the ordinary use of a city street caused by oil thereon deposited by passing vehicles would not give rise to a cause of action against the city. This is not such a case. Here it was a continuing condition, created by a permitted use of one portion of the street for a purpose beyond ordinary use for passing and repassing, and of stopping for the purpose of receiving and discharging passengers or freight. Here a particular portion of the street was devoted to an unusual use akin to but in excess of the ordinary use to which a street is customarily put. (People v. Cunningham, 1 Den. 524.) It is because the city has acquiesced in or permitted that use and has failed to remedy a known dangerous condition resulting therefrom that a question of fact arises as to its liability for an accident growing out of that known condition.

This court early laid down the rule that a person desiring to cross a street, either in the night time or day time, is not confined to a crossing and has a right to assume that all parts of the street intended for travel are reasonably safe. (Brusso v. City of Buffalo, 90 N. Y. 679.) A city is not an insurer of the condition of its streets and should not be held liable for accidents resulting to pedestrians where it maintains them in a reasonably safe condition, such that it may not reasonably be anticipated that an accident will occur. Neither should it be absolved from liability when it fails so to maintain them. What constitutes a reasonably safe condition or reasonable care under a given state of facts is ordinarily a question of fact. (Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320.)

The case of Karl v. State (279 N. Y. 555) involves á situation quite comparable to that here involved. In that case it appeared that on the surface of a tarred road was a so-called “ fat spot,” a spot where there was an excessive amount of bituminous material which made the road slippery when wet. The State had notice of prior accidents and had failed to remedy that condition. The claimant’s automobile slipped on the fat spot ” when it was wet, and was damaged. He recovered a judgment against the State and his wife recovered for personal injuries. The judgments were reversed by the Appellate Division on the law. It did not, however, reverse the finding of negligence on the part of the State. Hence this court could only consider whether there was any evidence to sustain the finding of negligence. This court held that there was such evidence, reversed the judgments of the Appellate Division and affirmed those of the Court of Claims.

We believe that the condition existing in the circumstances of this case presented a question of fact for the consideration of the jury.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lougkran and Rjppey, JJ., concur; Lehman and Finch, JJ., dissent; O’Brien, J., taking no part.

Judgment accordingly.


text:
    Robert L. Eisenbach, Respondent, v. Gimbel Bros., Inc., Appellant and Respondent; Chas. Wissmann Co., Inc., Appellant and Respondent, and John J. Felin & Co., Appellant.
    Argued September 26, 1939;
    decided November 21, 1939.

      Thomas F. Keane, Charles F. Bachmann and John P. Smith for Gimbel Bros., Inc., appellant and respondent.

      Arthur K. Wing and James G. Purdy for John J. Felin & Co., appellant.

      Leo M. Wieder for Chas. Wissmann Co., Inc., appellant and respondent.

      Norman Winer, Eugene L. Bondy and Stephen BrooksRosenthal for plaintiff, respondent.
   Loughran, J.

Plaintiff was served smoked pork tenderloin at a restaurant and thereafter became infected with trichinosis, a disease caused by parasites (trichinae) commonly found in the meat of hogs. He sued the restaurant keeper, Gimbel Bros., Inc., for breach of warranty of the fitness of the pork tenderloin for human food. Pursuant to Civil Practice Act, section 193, subdivision 2, Gimbel impleaded its vendor, Chas. Wissmann Co., Inc., a wholesaler; and Wissmann in turn impleaded its vendor, John J. Felin & Co., a packer.

The jury at first found only a verdict for the plaintiff against Gimbel. The trial judge thereupon repeated to them his charge that, “ if you find for the plaintiff, there should be the same verdict all the way down the line — the plaintiff against Gimbel’s, Gimbel’s against Wissmann, and Wissmann against Felin.” Three verdicts in that sequence were then returned, each in the amount of the plaintiff’s damages. The judgment entered thereon has been affirmed by the Appellate Division, one justice dissenting and voting to modify by dismissing the cross-complaint of Gimbel against Wissmann and the cross-complaint of Wissmann against Felin. From that affirmance each of the three parties defendant has separately appealed as of right to this court.

A motion by plaintiff to dismiss the appeal of Gimbel should first be disposed of. In Municipal Service R. E. Co. v. D. B. & M. Holding Corp. (257 N. Y. 423) we held “ that an indemnitor or other third person made a party to the action under the provisions of subdivision 2 of section 193 of the Civil Practice Act does not thereby become a party to the original controversy and may enter a defense only to the claim for indemnification or contribution, made against him by the original defendant ” (p. 430). Hence, argument may here be made that the dissent in the Appellate Division from the judgment as against Wissmann and Felin did not touch the plaintiff’s recovery against Gimbel. In that view, the affirmance as to Gimbel was unanimous and, therefore, not appealable as of right. (Cf. Landi v. Ludin Realty Co., 266 N. Y. 614.) We prefer to take a less restricted approach to the standing of Gimbel in this court. Dismissal of its appeal would not be practically consistent with the virtually indivisible theory of the consolidated trials of all the issues here involved. Nor would that result befit the judgment below in its formation as a single determination of the rights of all the parties as a whole. These considerations persuade us that plaintiff’s motion to dismiss the appeal of Gimbel should be denied. (See Alexander v. Torridaire Co., 264 N. Y. 672.)

Gimbel’s evidence tended to show that the pork tenderloin served to the plaintiff had been cooked by it in boiling water for at least two hours, There was evidence from Felin that when pork tenderloin of like weight was so cooked every part of the meat was subjected to heat at a temperature in excess of 137 degrees Fahrenheit. In his charge to the jury, the trial judge said: “ Of course, if the pork tenderloin was cooked so that all of it reached a temperature of at least 137 degrees, it is conceded by everybody that it did not have any live trichinae left in it. * * * So, if you believe the chef’s testimony that he cooked this pork tenderloin for two hours or more in boiling water, and if you believe the testimony * * * to the effect that if pork tenderloin is cooked for even an hour in boiling water the temperature reaches 137 degrees even in the center of the pork tenderloin, then you have a right to conclude that trichinae were no longer alive in this pork tenderloin, even if they were there to start with, and that the plaintiff could not have gotten his trichinosis from this particular piece of pork tenderloin.”

In view of these instructions, the verdict for plaintiff against Gimbel must be taken as a finding that Gimbel did not adequately discharge its undertaking properly to cook the pork tenderloin it served to the plaintiff. We find no error in the trial of the case against Gimbel. On that branch of the controversy, our conclusion is that the plaintiff’s recovery should be affirmed.

The trial judge ruled that plaintiff’s verdict against Gimbel necessarily entailed a recovery over by Gimbel against Wissmann and a further recovery over by Wissmann against Felin. His opinion was that these successive consequences of Gimbel’s liability to the plaintiff were dictated by our decision in McSpedon v. Kunz (271 N. Y. 131).

In the McSpedon case, as this court there said, the plaintiff housewife testified that she knew nothing about the requisite degree of heat or about trichinae ” (p. 134). The fact here is that Gimbel’s chef] after an experience of more than twenty-five years, did know those things. This plaintiff had a case only in the event that the pork tenderloin had not been cooked as Gimbel concededly knew it ought to have been cooked. But in that event, Gimbel had no case against Wissmann (and so Wissmann had none against Felin), for then Wissmann was entitled to invoke against Gimbel the principle that a party cannot recover for a loss that he could have averted by the exercise of due care, (Fredendall v. Abraham & Straus, Inc., 279 N. Y. 146; Razey v. Colt Co., 106 App. Div. 103. Cf. 1 Beven on Negligence in Law [4th ed.], p. 44.)

The judgment should be modified so as to dismiss the cross-complaint of the defendant Gimbel Bros., Inc., against the defendant Chas. Wissmann Co., Inc., and the cross-complaint of the defendant Chas. Wissmann Co., Inc., against the defendant John J. Felin & Co., and, as so modified, affirmed, with costs to the plaintiff against Gimbel Bros., Inc., and with one bill of costs to the defendants Chas. Wissmann Co., Inc., and John J. Felin & Co., against the defendant Gimbel Bros., Inc., in all courts. The motion to dismiss the appeal by Gimbel Bros., Inc., should be denied.

Crane, Ch. J., Lehman, Hubbs, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


text:
    Dorothee G. McDonnell, Plaintiff, v. Francis R. McDonnell, Appellant. Robert A. Siebert, Respondent.
    Argued September 27, 1939;
    decided November 21, 1939.

      Stanley N. Ohlbaum for appellant.

      William J. Rapp for respondent.
   Rippey, J.

Judgment was recovered in the Municipal Court of the City of New York, Ninth District, Borough of Manhattan, and docketed with the clerk of that court on April 23, 1932, in favor of Dorothee G. McDonnell, plaintiff, and against the appellant here, Francis R. McDonnell, defendant, for $367.52, a transcript of which was filed in the office of the Clerk of the County of New York on July 21,1932. The parties had previously been husband and wife but had been divorced prior to the institution of that suit. Mrs. McDonnell, the judgment creditor, died in August, 1932. On January 6, 1939, an order was made by a justice of the Supreme Court directing that a garnishee execution issue and the same was issued upon that date pursuant to the order and was served upon the Columbia Broadcasting System, Inc., the judgment debtor’s employer, on January 9, 1939, since which time ten per cent has been deducted from his wages of eighty dollars per week to apply on the aforesaid judgment (Civ. Prac. Act, § 684). The instant proceeding was instituted in the Supreme Court under section 793 of the Civil Practice Act by an attorney who claims to hold legal title to the judgment in connection with which the garnishee execution is outstanding to compel payment by McDonnell out of his salary of an additional sum to apply toward payment of the same judgment. On February 25, 1939, an order was made directing the judgment debtor to pay out of his wages and income to the judgment creditor the sum of seven dollars per week beginning January 20,1939. The order was affirmed by the Appellate Division by a divided court, whereupon the judgment debtor has appealed to this court.

We think a creditor holding a particular judgment may resort to the remedy provided by section 684 of the Civil Practice Act or he may resort to the remedy provided by section 793. He cannot resort to both at the same time. The sections must be read together and brought into harmony if possible (Matter of Kaplan v. Peyser, 273 N. Y. 147, 150), having in mind the purpose of the Legislature and the general policy of the State. It would certainly be contrary to the policy of the State to deprive a man for the benefit of a creditor of income at least sufficient to meet the reasonable requirements for the support and maintenance of himself and of his dependents. No such purpose can be imputed to the Legislature. The intent of the Legislature in the enactment of section 793 was to provide a remedy for a creditor where the remedy under section 684 could not be invoked or would be inadequate or, in a proper case, to allow judgment creditors, other than the one then collecting on a garnishee execution, to procure some payment on their judgments without waiting for full payment of the judgment on which the garnishee execution was then outstanding.

Section 793 of the Civil Practice Act provided an additional remedy for creditors in the matter of the collection of their judgments out of income to that provided in section 684 (Dillon v. Spilo, 275 N. Y. 275, 280). It contains no provision for consideration by the court in making an order thereunder of the fact that the applicant for such an order then is exercising his remedy under section 684 to collect the same judgment which forms the basis of the application under section 793. It provides that the order may be made only after “ due regard for the reasonable requirements of the judgment debtor and his family, if dependent upon him, as well as any payments required to be made by the judgment debtor to other creditors under the aforesaid sections six hundred and eighty-four and six hundred and eighty-five or prior order of a court hereunder.”

In view of all of those considerations, having elected to take advantage of one remedy the creditor is debarred from taking advantage of the other while the first is being pursued. We find no intention on the part of the Legislature to give a creditor two concurrent cumulative remedies to collect the same judgment out of income, nor do the two sections by their express terms so provide. The question raised in the instant case for decision was not involved or decided in Dillon v. Spilo (supra).

The statute provides that the remedy under either section is given only to a judgment creditor. There is no evidence presented in this case that the attorney who has initiated and is prosecuting this proceeding is a judgment creditor within the meaning of the statute. On the contrary, under the allegations of his own affidavit it must be inferred that he has no property interest in the judgment. There is no evidence from which it may be concluded that the judgment was legally assigned to him.

Bince the foregoing requires a reversal of the order, other important questions which would otherwise require determination need not be given further consideration here.

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

Crane, Ch. J., Lehman, Hubbs, Lottghran and Finch, JJ., concur; O’Brien, J., taking no part.

Orders reversed, etc.


text:
    Anna Homin, as Administratrix of the Estate of Charles Homin, Deceased, Respondent, v. Cleveland & Whitehill Company, Appellant.
    Argued October 17, 1939;
    decided November 21, 1939.

      Elbert N. Oakes for appellant.

      Henry Hirschberg, Daniel Becker and David Copans for respondent.
   Rippey, J.

Actions were here brought by Charles Homin against the defendant as the owner of a public building located at 54-72 Liberty street in the city of Newburgh, New York, to recover damages for injuries received by him on August 20, 1936, when he fell from a window which he was washing from the outside and by his administratrix for his death as a result of those injuries. The actions were consolidated and tried together. At the close of plaintiff’s case and again at the close of the whole case defendant moved for a nonsuit and for a dismissal of the complaint and, at the close of the case, for a directed verdict in its favor. Plaintiff likewise moved for a directed verdict in her favor. Decision on all those motions was reserved and the case was sent to the jury, over the objection and exception of defendant, solely on the question of damages. Verdicts in substantial amounts were rendered, after which defendant moved for a new trial under section 549 of the Civil Practice Act and decision on that motion was also reserved. Later, the trial justice granted defendant’s motion to dismiss the complaint. On appeal, the Appellate Division unanimously reversed on the law, denied the motion to dismiss the complaint and directed entry of judgment upon the verdicts in favor of the plaintiff, with costs. Defendant has appealed to this court.

There is no allegation in the complaint of negligence which caused the injury to and death of Homin (Cf. Schmidt v. Merchants Despatch Transportation Co., 270 N. Y. 287). Liability of defendant is alleged to be based solely (1) upon violation by defendant of section 202 of the Labor Law (Cons. Laws, ch. 31) which, it is alleged, prohibited the defendant from requiring or permitting any window in its building to be cleaned from the outside unless means were provided to enable such work to be done in a safe manner ” and (2) upon violation of its duty imposed by the provisions of the Labor Law of the State of New York, the Industrial Code and the Rules of the Industrial Board of the State of New York to provide anchors attached to the side frames of the windows or to the building at a point not less than forty-six (46) inches nor more than fifty-one (51) inches above the window sill, as a means to enable the windows of the said building to be cleaned from the outside in a safe manner.” The complaint was subject to the same objections and infirmities as was the complaint in Teller v. Prospect Heights Hospital (280 N. Y. 456) and must necessarily have been dismissed had a motion been made to its form and sufficiency. No such motion was made nor was that question raised by the defendant at any stage of the trial. Under such circumstances, our review must be confined to the theory, adopted by the parties and the courts below,” and we must give the plaintiff the benefit of any cause of action established by the evidence ” (Baily v. Hornthal, 154 N. Y. 648, 654). The theory upon which the case was tried by the plaintiff and which was adopted by the courts below was that the defendant, as owner and in charge of the building, was hable as a matter of law for requiring or permitting the window to be cleaned from the outside without means being provided to enable the work to be done in a safe manner or without equipping the building with anchors or providing equipment required by the Labor Law and the Rules of the Industrial Board (Labor Law, § 202, Industrial Code, Bulletin No. 21).

Section 202 of the Labor Law in effect at the time of the accident, so far as material, reads as follows: “ The owner, lessee, agent, manager or superintendent in charge of a public building shall not require nor permit any window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner.” Various means are specified in the Rules of the Industrial Board. Violation of the statute and the Industrial Code or the Rules of the Industrial Board is a penal offense (Penal Law, § 1275). Violation of a statute, without other evidence, constitutes evidence of negligence (Martin v. Herzog, 228 N. Y. 164; Rosenberg v. Schwartz, 260 N. Y. 162), and might constitute negligence per se (Amberg v. Kinley, 214 N. Y. 531; Schmidt v. Merchants Despatch Transportation Co., supra), and if such violation is the proximate cause of the accident liability is established. But violation of a rule of the Board constitutes some evidence of negligence only (Teller v. Prospect Heights Hospital, supra). There was some evidence that no means whatever were provided to enable the work of cleaning the window from the outside to be done in a safe manner. On the theory on which the case was tried, plaintiff had a right to rely on a statutory violation by a person in charge of the building who permitted or required the window to be cleaned without having provided the means for safety of the cleaner required by the statute and Rules of the Board.

The defendant insisted, as grounds for the nonsuit and for the direction of a verdict in its favor, that the defendant was not in charge of the building and particularly not in charge of the first floor occupied by a tenant where the window washing was done on the day in question, that there was lack of proof that the defendant required or permitted the deceased to wash the window from the outside and lack of proof that the defendant knew that the deceased was there and engaged in washing the windows on the date he received his injuries.

The statute holds the owner liable only in the event that it was in charge of the building and required or permitted the window to be cleaned from the outside without providing safety devices required by the statute and the Rules of the Industrial Board. The evidence established that the building in question was one of four stories in height, all of which had been leased and was in the possession and control of others. The entire floor above the basement, from a window of which Homin is alleged to have fallen, was leased to Licht and Kaplan, Inc., by an instrument dated June 22, 1936, for a term of two years beginning August 1, 1936. By the terms of the lease the tenant agreed “ to keep the said premises, and every part thereof, in good repair during the said term.” The landlord was required to provide steam for heating the building and electric current necessary for the operation of the elevator which was used in common by all tenants. The landlord reserved the privilege to enter to examine the premises or to make repairs which it thought to be requisite. The tenant was in exclusive possession of the premises under the lease. Homin was employed by the tenant under an agreement that he would wash all of the windows on its floor on the occasion in question for a definite sum. There was evidence that the principal officer of defendant, who collected the rents and paid the taxes on the building, had a small office space in the building. There was no evidence that the defendant was in charge of the building within the meaning of the statute. Mere reservation by the landlord of the right to inspect the building or to make repairs, if necessary, did not operate to place it in charge of the building or of the particular premises where the accident happened nor impose upon it any obligation to the deceased (Cullings v. Goetz, 256 N. Y. 287). The decision in Appel v. Muller (262 N. Y. 278), relied on by the court below, holds nothing to the contrary. There, a part of a building fell on a person passing along on a sidewalk adjoining the building. There was no covenant here on the partof the landlord to make repairs nor was the question of repairs involved in this case. Nor is the case of Novitz v. Maine (273 N. Y. 573) controlling, since there the defendant was in charge of the building and the plaintiff her employee. There was no evidence in this case that defendant required or permitted the window to be cleaned or that its officers or agents had any knowledge or information that work was to be or was being done. On the contrary, the undisputed evidence was the other way.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with' costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.