author:
Lotjghran, J. Finch, J.
      Conway, J.

text:
    Frances Flegenheimer, as Administratrix of the Estate of Arthur Flegenheimer, Deceased, Appellant, v. Thomas A. Brogan, Respondent.

      Argued October 7,1940;
    decided November 26, 1940.

      Ulysses S. Adler for appellant.

      Sydney A. Syme and Irving J. Bland for respondent.
   Lotjghran, J.

Plaintiff sues as an administratrix to recover judgment for a sum of money only. The complaint alleges that her intestate at the time of his death was the real and actual owner of the capital stock of a domestic corporation which had been issued to one Vogel as his dummy and agent. Three causes of action are set forth: (1) That after the death of the intestate the defendant, by the subterfuge of a pretended purchase thereof, acquired the corporation’s capital stock, with knowledge that it belonged to the plaintiff; (2) that through bis control of this stock the defendant prevented payment to the plaintiff of an indebtedness of the corporation to the intestate for cash he had advanced to it; and (3) that by the same means the defendant also caused the corporation to procure and file an instrument of satisfaction of a mortgage for $280,000 which the corporation had given to a third party for the benefit of the intestate.

No argument against the sufficiency of the complaint has been made.

In his answer the defendant sets forth a defense which alleges that the corporation mentioned in the complaint made and sold beer and ales in premises known as the Yonkers Brewery, under permits secured by it from the Federal and State liquor authorities; that the grant of like permits had theretofore been withheld because of the rumored ownership of the Yonkers Brewery by plaintiff’s intestate; that the organization of the corporation and the issuance to Vogel of its capital stock “ were part and parcel of a fraudulent plan, contrivance and scheme to keep secret from the Federal and State authorities the identity of plaintiff’s intestate as the true undisclosed owner and operator of said brewery * * * for the purpose of inducing Federal and State authorities to issue permits for the manufacture and sale of beer and ales at said brewery”; and that at the times in issue “the defendant had no knowledge of the interest of plaintiff’s intestate in said brewery or in the capital stock of the corporation or corporations owning same, or of his interest, if any, in said $280,000 bond and mortgage, or said cash advances, or of the aforesaid plan or scheme.”

Plaintiff moved for an order striking out this defense for invalidity apparent on the face thereof. The motion was granted at Special Term and denied at the Appellate Division where the plaintiff was given leave to present to us the question whether this defense is sufficient in law.

In her capacity as administratrix plaintiff merely continues the personality of her intestate before the law for the purposes of the general administration of his estate. Her present motion is a constructive admission that the foregoing allegations of the challenged defense are true. She so admits that the property upon which she now makes claim through her intestate had been clandestinely devoted by him to ends that were radically contrary to the Alcoholic Beverage Control Law (Cons. Laws, ch. 3-B, §§ 110, 111, 118, subd. 2,130). In effect, then, this action is one brought by an alleged secret owner to vindicate his assertion of beneficial title to property he had parted with in order to perpetrate a fraud upon the statute which regulates and controls traffic in alcoholic beverages.

Conceding all this, plaintiff replies that her intestate’s unlawful use of his property did not empower defendant to convert it. She makes the defendant’s allegation of his own good faith the basis for an argument that he may not question the legality of transactions in which he had no part.

But our primary concern is not with the position of the defendant. The immediate question is whether on the presently admitted facts a recovery by the plaintiff should be denied for the sake of public interests. This is a question of public policy in the administration of the law. “ The principles of public policy remain the same, though the application of them may be applied in novel ways. The ground does not vary. As it w as put by Tindal, C. J., in Horner v. Graves (7 Bing. 735, 743), ‘ Whatever is injurious to the interests of the public is void, on the grounds of public policy.’ ” (Naylor, Benzon & Co. v. Krainische Industrie Gessellschaft, [1918] 1 K. B. 331, 342, 343.)

The transactions of plaintiff's intestate were clearly destructive of the purpose of a statute which was enacted “for the protection, health, welfare and safety of the people of the state.” (Alcoholic Beverage Control Law, § 2.) We think those transactions were so far against the public good as to disable the plaintiff from invoking the aid of the court in her endeavor to disengage herself (as administratrix) from the unlawfulness of the conduct of her interstate. (See American Law Institute, Restatement of the Law, Restitution, § 140; Robertson v. Sayre, 134 N. Y. 97. Cf. Pers. Prop. Law, § 19 [Cons. Laws, ch. 41]; Real Prop. Law, § 268 [Cons. Laws, ch. 50].)

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

Finch, J.

(dissenting). The question before us is whether the first separate defense to the action is sufficient in law.

In brief, plaintiff alleges that her intestate was the owner of certain properties consisting of the common stock of_ a brewery corporation, of a bond and mortgage upon the brewery which was unpaid to the extent of $132,000, and of a floating debt of upwards of $100,000 for money loaned. It is also alleged that as the result of a series of conveyances the name of one Vogel appears as the owner on suchwritten records as there are, but that he was merely an agent and dummy who lent his name for the convenience and benefit of intestate. It is then charged that Vogel conveyed the properties to defendant without consideration, and that defendant converted them to his own use. As part of the transaction between Vogel and defendant, the latter caused the corporation to pay $3,000 to Vogel by way of reimbursing him for his disbursements while holding the properties as a dummy. In addition to converting the common stock, defendant proceeded to render worthless the bond and mortgage and the floating indebtedness by various means including that of having the corporation file a voluntary petition in bankruptcy.

To all of this defendant has interposed a plea of confession and avoidance. By that plea the conversion necessarily is admitted, but defendant seeks to avoid liability upon the ground that intestate employed the name of Vogel as record owner for an illegal purpose. Defendant alleges that it was necessary for intestate to conceal his identity as the true owner in order to obtain permits for the operation of the brewery from the Federal and State authorities, and that such permits were issued by the authorities in ignorance of the real ownership of the brewery. Defendant alleges no facts which show why the licenses to sell and manufacture beer would have been denied to intestate, and there is no averment that there was lawful cause to deny such licenses solely upon the ground of ownership by intestate.

Although the complaint charges defendant with knowledge of the fact that intestate was the real owner, the affirmative defense under consideration contains a denial of any such knowledge until long after the gratuitous transfer by Vogel to defendant. It is not suggested either that defendant’s disclaimer of knowledge is relevant to the plea of illegality, or that the denial is well pleaded as part of the affirmative defense, but for purposes of this appeal it will be assumed that defendant was ignorant of intestate’s ownership, for whatever that fact may avail defendant.

The issue, therefore, is whether a charge of conversion may be answered by the counter-charge that the converted property had been used by the owner in a business requiring governmental licenses and that the licenses were obtained by fraudulent representations.

No claim has been made that the complaint fails to allege a good cause of action. Plaintiff alleges title to certain properties and that defendant has converted them to his own use. That plaintiff had title is also alleged by the very plea whose sufficiency is the subject of this appeal; and upon this appeal involving only the pleadings we must assume that, if the occasion arose, plaintiff would be able to prove her title.

The plea of illegality seeks to invoke the familiar principle which is, in general, that the courts will not aid the parties to an illegal contract. What disposition would be made by the courts in an action between those representing intestate and Vogel need not be considered here. It is sufficient that plaintiff now maintains an action against a third party for the conversion of goods of which plaintiff undeniably had title. In order for plaintiff to prove title it is no necessary part of her case to set up an illegal contract as the basis of her rights. Thus, in Salmond and Winfield on The Law of Contracts (1927), pages 150 and 151, the learned authors consider the rule barring restitution to the parties of an executed illegal contract, and they then state several exceptions to the general rule. By way of the first exception, the authors state the following: “ In the first place, there is an apparent exception in the case where a party seeking restitution is not bound to rely on the illegality of the contract, but relies instead on his subsisting ownership of the property which is the subject-matter of the contract. If, for example, I lend my horse to a man for a week in order that he may use it in the commission of a highway robbery, and he refuses to return it to me at the end of the week, there is no doubt that I can recover it from him, notwithstanding the illegality of the transaction. For I am not bound to sue on the illegal contract, being entitled, instead of doing so, to rely on the fact that I am the owner of the horse and to sue in detinue for the tort of wrongfully detaining it. The borrower could not effectually plead in answer to my claim that he obtained the horse in pursuance of a contract, for I could reply that the contract had come to an end by effluxion of time, and I should not be driven to the inadmissible reply that the contract was illegal. Nor could the borrower plead that the contract under which he obtained the horse was illegal, for the action is not based on any contract. He would therefore have no defence at all, and I should recover the horse without having to rely on any participation of mine in an illegal transaction.”

In Hall v. Corcoran (107 Mass. 251) plaintiff hired out his horse to defendant on Sunday in violation of the statute. Defendant drove the horse and sleigh to a place other than agreed upon and in so doing damaged the plaintiff’s horse and sleigh. It was held that the plaintiff may recover, the court saying: “ But the fact that the owner of property has acted * * * unlawfully with regard to it is no bar to a suit by bim against a wrongdoer, to whose wrongful act the plaintiff’s own illegal conduct has not contributed ” (p. 253).

In Pelosi v. Bugbee (217 Mass. 579) plaintiff, a peddler, sold a piece of jewelry upon a contract of conditional sale. T,” the buyer, pledged the ring with the defendant, a pawnbroker, who acted in good faith. It was held that the plaintiff may recover in an action for the conversion. The contract between the plaintiff and [the buyer], being illegal, neither party will be allowed to maintain an action to enforce any claim under it. The plaintiff in the case at bar, however, is not seeking to enforce any rights under the illegal contract made with [the buyer], but seeks to recover the value of the ring, to which he claims title and which has been converted by the defendant” (pp. 581, 582).

It is said that the plea of defendant should be sustained not because of any solicitude for defendant, but because of the public interest in the enforcement of the State and National liquor control laws. We must turn, therefore, to see what consequences these statutes impose.

Since intestate used the name of Vogel as the ostensible owner of the brewery for the purpose of procuring the necessary permits, he obtained these permits as a result of fraudulent representations and there is no doubt that the permits could have been rescinded. (Alcoholic Beverage Control Law, § 118.) In fact, we may assume for the purposes of this appeal that in operating under a license obtained through fraud, intestate’s act was the equivalent of running a brewery without a license. In so doing intestate became subject to the fines and imprisonment which are established as the penalties for the violation of the laws. (Alcoholic Beverage Control Law, § 130; U. S. Code, tit. 27, § 207.) However, intestate did not become an outlaw and was not required to suffer that his property be liable to seizure at the hands of any stranger. Thus, while we undoubtedly must enforce the public policy in regard to the control of intoxicating liquors as expressed by the statutes of the State and National governments, we may not extend that policy beyond that which the respective Legislatures have chosen to adopt. To suffer forfeiture of the property at the hands of any stranger is not one of the consequences prescribed by the statutes for the violation of their provisions, and it is not open to the courts to add such a penalty. So far as concerns the doctrine that where the parties are engaged in an illegal scheme the courts will not aid the one or the other (Restatement of the Law, Restitution, § 140), that doctrine is inapplicable here, for in the present action the plaintiff does not have to rely upon any illegal scheme in order to establish a good cause of action,

It is said that this court is committed by the decision in Robertson v. Sayre (134 N. Y. 97). In that case property was conveyed to one person though the consideration had been paid by another, and after the death of the latter his heirs brought an action to recover the property from the person holding under the grantee. The court there construed 1 R. S. p. 728, §§ 50, 51, 52, which provided that where title is taken by one and consideration is paid by another title passes to the former except in so far as the rights of the creditors of the latter are concerned. A reading of the opinion of the court in that case clearly indicates that the person who paid the consideration did not have any title or any other interest as a basis for recovery of the property. Such is not the situation in the case at bar, where not only is title alleged in the complaint, but it is reiterated by defendant as part of the plea of illegality.

To allow the interposition of the affirmative defense offered by the defendant will be to impose consequences of an exceedingly harsh character upon persons who, in dealing with their property, are guilty of some infraction of the law. It is submitted that such a rule goes beyond the bounds heretofore fixed by the authorities and is unnecessary upon any reasons of public policy.

The order of the Appellate Division should be reversed and the question certified should be answered in the negative.

Conway, J.

(dissenting). I concur in the dissenting opinion, but I wish to add this. The prevailing opinion says: “ The immediate question is whether on the presently admitted facts a recovery by the plaintiff should be denied for the sake of public interests. This is a question of public policy in the administration of the law.”

Since it is a matter of public policy rather than of stare decisis, in my judgment the use of the sword of judicial inquiry into the issues raised by the pleadings, after striking out the defense under consideration, would accomplish infinitely more for the public good than permitting the interposition by the defendant of the shield of that defense. A litigation of those issues would terminate the fraud. A case can be conceived, indeed, it could very well be the instant one, where the associates of a man such as the deceased, would, subsequent to bis death, substitute an agent or dummy of their choosing in place of the one selected by the deceased. Under him the fraud upon the statute could be continued. It must be remembered that defendant is not the original agent or dummy but one who, it is alleged by plaintiff, converted the property in suit. As to the original dummy of the deceased, I agree that public policy would require a dismissal of an action brought by plaintiff to obtain the property.

The principles of public policy remain the same, it is true, but as the ways of the evildoer vary with Ms surroundings, the customs and opportunities of the times and the invention of new methods of aggrandizement, currently called “ rackets,” the sound application of the principles of public policy, assuming arguendo their applicability here, may require, in certain periods and in a metropolis. of millions of people, a change in their application. In my judgment the time for that change in application has come in relation to the facts here disclosed. For this reason alone I would vote to reverse.

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

Order affirmed, etc.


source: Caselaw Access Project

author: Conway, J. Lehman, Ch. J.

license: Public Domain

text:
    Ora M. Volk, Appellant, v. City of New York, Respondent.
    Argued June 6, 1940;
    decided November 26, 1940.

      Jacquin Frank, Myron Wisoff and Herman D. Mines for appellant.

      William C. Chanler, Corporation Counsel (James Hall Prothero, Paxton Blair and William F. Miller of counsel), for respondent.
   Conway, J.

This is an action for personal injuries. The plaintiff is a registered nurse employed under a contract by which she was paid ninety dollars per month with board, maintenance and proper medical and surgical 'attention. She became ill in August after partaking of food while on duty and entered the muses’ infirmary which occupied some rooms on one of the hospital floors. In order to stop plaintiff’s vomiting, which had continued for nearly twenty-four hours, injections of magendie, a morphine solution, were there prescribed and administered.

There was used a decomposed and dangerous solution of magendie which had been pronounced unfit for use by the hospital nurse supervisor as early as the preceding February, but which had, nevertheless, been retained among the medical supplies in the drug cabinet in the infirmary with the request by the supervisor that it be not used and with her explanation that if a nurse were so ill as to require magendie she must go to the hospital proper. Following Iancings and, finally, an operation, plaintiff has lost practically the entire use of an arm, Recovery is sought against the city, which is the owner and operator of the hospital, on the theory that there was negligent performance of an administrative duty in that the city furnished and supplied the nurses’ infirmary with medication unfit for use. The facts as outlined stand uncontradicted. Judgment for plaintiff has been reversed upon the law and the complaint dismissed upon the grounds:

1. That plaintiff was debarred from prosecuting the action because of the exclusive applicable provisions of the Workmen’s Compensation Law (Cons. Laws, ch. 67).

2. That the negligence complained of was that of the nurses who administered the decomposed magendie and not that of the hospital in its administrative capacity.

3. That the hospital was protected by the doctrine of governmental immunity. ,

Defendant failed to plead in its answer that the Workmen’s Compensation Law was a bar to plaintiff’s recovery. A motion to amend the answer in that respect, made during the trial, was denied. The risk of the injury which plaintiff suffered was not incidental to her employment. It was a risk to which any one receiving like treatment at the hospital would have been subjected. The occurrence of the injury was not made more likely by the fact of her employment; Consequently, the injury did not arise out of and in the course thereof. (Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter of Daly v. Bates & Roberts, 224 N. Y. 126.)

As to the second ground for reversal, that the negligence was that of the nurses and not that of the hospital in its administrative capacity. It is conceded that the doctrine of respondeat superior is not applicable between nurses, engaged in professional tasks in the treatment of patients in a hospital, and their employer. Nevertheless, if a hospital be negligent in the performance of an administrative function, it is liable in damages. (Schloendorff v. Society of New York Hospital, 211 N. Y. 125.) It is not plaintiff’s contention that the hospital is responsible for the acts of its nurses but that the hospital was negligent in an administrative capacity in making available decomposed medical supplies, in this instance magendie. The supervisor of the infirmary knew six months before the occurrence that the stale magendie was available among the infirmary medical supplies and said that it was never used and was not to be used. That supervisor, if the title meant anything, cognizant of the presence of the stale drug, dangerous and unfit for use, was obligated to remove or destroy it. On the facts proved recovery may be had even though both the negligence of the city and of the administering nurses contributed to the injury.

In Schloendorff v. Society of New York Hospital (211 N. Y. 125, 132), Judge Cardozo said: The superintendent is a servant of the hospital; the assistant superintendents, the orderlies, and the other members of the administrative staff are servants of the hospital.” In that case he cited Hillyer v. Governors of St. Bartholomew’s Hospital (1909) (2 K. B. 820), wherein it was said that the hospital undertakes as far as doctors and nurses are concerned “ that those experts shall have at their disposal, for the care and treatment of the patient, fit and proper apparatus, and appliances.” Further in that opinion Kennedy, L. J., said: “Jt may well be, and for my part I should, as at present advised, be prepared to hold, that the hospital authority is legally responsible to the patients for the due performance of their servants within the hospital of their purely ministerial or administrative duties, such as, for example, attendances of nurses in the wards, the summoning of medical aid in cases of emergency, the supply of proper food, and the like.”

In Reidford v. Magistrates of Aberdeen (1933) (Scot. Cas. 276) the court said: “ All the managers undertake is to provide an efficient, heated, clean, wholesome sick-house, equipped with the necessary furniture and fittings for the reception of patients; to employ a competent staff; and to provide the necessary medicine and food” (p. 281).

There was substantial evidence to sustain the finding by the jury that on the uncontradicted evidence the defendant was negligent in the performance of an administrative duty in failing to have available for the nurses a fresh morphine solution.

As to the third ground of reversal — governmental immunity. The city of New York in this case did not enjoy governmental immunity. (Engels v. City of New York, 281 N. Y. 650; Nathanson v. City of New York, 282 N. Y. 556.) In the Engels case plaintiff went to the Kings County Hospital to take something to her sister who was a paying patient. She was on her way to the first floor when she was injured through the negligence of the elevator operator. Kings County Hospital, like Bellevue Hospital, was operated by the defendant. Defendant’s contention that it was immune from liability because it was performing a governmental function was not sustained. In the Nathanson case plaintiffs’ daughter was a patient in the Gouverneur Hospital, also owned, operated and managed by the city. A charge was made for the services rendered plaintiffs’ daughter. Plaintiff, while passing through a doorway, was injured when a door fell from its hinges and struck her. The city claimed that the hospital “is a charitable city hospital maintained and operated by the city in its exercise of sovereign governmental powers rather than in its private proprietary capacity,” and that, accordingly, “ there is no liability in such a case for any acts of any servants, employees or any claim of negligence in the maintenance of a hospital building or other building devoted to such a function.” That contention was not sustained.

Plaintiff’s claim in the present case is similar to the claim-made in the Engels and Nathanson cases. It is that defendant was negligent in the maintenance and operation of its hospital in that it made available for use by the nurses a supply of medicine dangerous and unfit for use.

It is urged that the Engels and Nathanson cases may be distinguished because in both of them the injuries were caused by non-professional employees and in each case plaintiff was visiting a paying patient as to whom the city was not maintaining a charity. There is no difference between an injury caused by a doctor or nurse and one caused by a non-professional employee if the former be acting in an administrative capacity and not in a professional one.

The second distinction sought to be made, that in the Engels and Nathanson cases the city was not, as to the patient being visited, maintaining a charity, is without basis. Plaintiff at the time of the injury was not a recipient of charity. She was paying for her medical care by her services. She was more than a visitor; she was there in her own right. (Cf. N. Y. City Charter, § 587, effective January 1, 1938.) In the fifth paragraph of the amended complaint plaintiff alleges the making of a contract with Bellevue Hospital under the terms of which she was to render services as a nurse in return for which she was to receive a salary of $90.00 per month with board and maintenance and proper medical and surgical attention.” That was admitted by the answer. Whether Bellevue Hospital is or is not for some purposes operated by the city in its governmental capacity is beside the point. The city was in this instance performing the terms of a contract which it admits in its answer. Presumably the city derived some benefit from the contract. Undoubtedly, if part of plaintiff’s compensation had not been board, maintenance and proper medical and surgical attention, the salary which the city would have had to pay would have been more than ninety dollars per month.

Nor is it apparent how the operation and maintenance of the nurses’ infirmary was a governmental function. When the city acts to protect the health of its citizens and furnish medical and surgical treatment to those who cannot pay therefor, it is engaged in a governmental function. Here the infirmary was open only to nurses. The public was not admitted nor treated. It cannot be said that the operation of the infirmary was for the protection of the public’s health. It was operated, as far as plaintiff is concerned, in the performance of a contractual duty, not a governmental obligation.

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.

Lehman, Ch. J.

(dissenting). The plaintiff’s injury, according to the allegations of the complaint and the evidence introduced to prove these allegations, was the result of negligent treatment administered by the hospital as required by the terms of the contract of employment made by the hospital with the plaintiff. It seems to me entirely clear that such an injury arises out of and in the course of the plaintiff’s employment and that the remedy afforded by the Workmen’s Compensation Law is there exclusive. Even assuming that the pleadings do not permit the defendant to urge that the plaintiff’s exclusive remedy is for compensation under the Workmen’s Compensation Law, the plaintiff has failed, I think, to establish any cause of action against the defendant for damages caused by the negligence of its employees, for the only negligence which may have been the proximate cause of the injury was the negligence of the nurse in administering the drug. J

The judgment should be affirmed.

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

Judgment accordingly.


author: Conway, J.

text:
    Howard S. Palmer et al., as Trustees of New York, New Haven and Hartford Railroad Company, Appellants, v. Larchmont Manor Company et al., Defendants, and Peter L. Flint et al., Respondents.
    Argued October 2, 1940;
    decided November 26, 1940.

      Samuel W. Earnshaw and Edward R. Brumley for appellants.

      Seymour L. Colin for respondents.
   Conway, J.

The plaintiffs in this action are trustees in reorganization of the property of The New York, New Haven and Hartford Railroad Company, debtor, in proceedings pending in the United States District Court for the District of Connecticut under section 77 of the National Bankruptcy Act (U. S. Code, tit. 11, § 205). The action was brought to compel the determination of a claim to real property pursuant to article 15 of the Real Property Law (Cons. Laws, ch. 50). The amended complaint was dismissed upon the ground that the courts of this State had no jurisdiction over the subject-matter of the litigation in view of the factual situation obtaining. This, we think, was correct.

Upon approval of the petition and upon entry of an order thereon, the bankruptcy court had exclusive jurisdiction of the debtor and its property wheresoever situated. (National Bankruptcy Act, § 77, subd. a [U. S. Code, tit. 11, § 205, subd. (a)].) The trustees took possession of the real property in suit following their appointment. That possession was similar to that of a trustee in an ordinary bankruptcy proceeding upon adjudication. (Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 737; National Bankruptcy Act, § 77, subd. c, par. 2 [U. S. Code, tit. 11, § 205, subd. (b), par. (2)].) The trustees were powerless to confer, by bringing suit, jurisdiction upon our courts. (Isaacs v. Hobbs Tie & Timber Co., supra.) It is urged that the bankruptcy court could have consented to an adjudication of rights in this real property by our State courts upon proper application prior to the institution of the action. That, of course, is true, but such consent must be pleaded (Cornell v. Dakin, 38 N. Y. 253, 257) and no consent is pleaded here. It is urged, however, that, in fact, there exists such a consent. Bankruptcy proceedings in the Federal courts are not judicially noted in the State courts or, indeed, in any other than the initial court of bankruptcy. (See 23 C. J., p. 115 and cases cited.) In addition, when we read the alleged consent it is general and to be of efficacy in litigation such as this, it must be for a particular controversy. (Thompson v. Magnolia Petroleum Co., 309 U. S. 478, 483.) Indeed, in that case, decided since the order below, the path to be taken by trustees such as plaintiffs and for bankruptcy courts in litigation involving unsettled questions of State property law was delineated. There it was said (at p. 483):

“ Third. A court of bankruptcy has an exclusive and nondelegable control over the administration of an estate in its possession. But the proper exercise of that control may, where the interests of the estate and the parties will best be served, lead the bankruptcy court to consent to submission to state courts of particular controversies involving unsettled questions of state property law and arising in the course of bankruptcy administration. And, under the circumstances of this case, we conclude that it is desirable to have the litigation proceed in the state courts of Illinois. An order to the trustee to proceed in the Illinois courts for a decision on the ownership of the fee to the right of way lands will be comparable to one in which the bankruptcy court, preserving the status quo the while, orders a trustee to determine in a plenary state court suit the legal right to property alleged by the trustee to have been fraudulently transferred by the bankrupt. Decision with which the federal court of bankruptcy is here faced calls for interpretation of instruments of conveyance in accordance with Illinois law. Neither statutes nor decisions of Illinois have been pointed to which are clearly applicable. And the difficulties of determining just what should be the decision under the law of that state are persuasively indicated by the different results reached by the two Circuit Courts of Appeal that have attempted the determination. Unless the matter is referred to the state courts, upon subsequent decision by the Supreme Court of Illinois it may appear that rights in local property of parties to this proceeding have — by the accident of federal jurisdiction — been determined contrary to the law of the state which in such matters is supreme.” (See, also, Erie Railroad Co. v. Tompkins, 304 U. S. 64.)

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Per Curiam.

text:
    Newburgh Transfer & Storage Company, Inc., Respondent, v. Pure Oil Company, Appellant. Firemen’s Insurance Company, Respondent, v. Pure Oil Company, Appellant.
    Argued October 18, 1940;
    decided November 26, 1940.

      Julius Applebaum and Louis Masheb for appellant.

      Henry Hirschberg and Max J. Gwertzman for respondents.
   Per Curiam.

When the jury returned two verdicts, one in favor of plaintiff Newburgh Transfer & Storage Company, Inc., against defendant and the other in favor of defendant as against plaintiff Firemen’s Insurance Company, the trial court refused to accept both on the ground of inconsistency, and sent the jury back to return verdicts either in favor of both plaintiffs or as against both. This was error since, under the evidence, it was perfectly possible for the jury to have found differently upon the issues of contributory negligence tendered in each case. The defendant urged the acceptance by the court of the verdict of the jury, finding for the defendant as against the Firemen’s Insurance Company. This objection was sufficient to indicate to the court the position of defendant in opposition to the ruling of the court. (Civ. Prac. Act, § 583, subd. 2.) In accordance with the above-mentioned direction the jury were not free to find a verdict but were compelled either to find for defendant as against both plaintiffs or in favor of both plaintiffs. The jury thereupon returned a verdict in favor of both plaintiffs. It follows that the verdict returned in favor of plaintiff Firemen’s Insurance Company was rendered undor an unwarranted compulsion and was properly set aside by the learned trial court. The Appellate Division, therefore, could not treat this verdict as a free verdict of the jury, and, in consequence, there must be a new trial in the plaintiff Firemen’s Insurance Company case, solely on the ground of the error committed at the trial.

There is evidence to sustain the judgment in the case of Newburgh Transfer & Storage Company, Inc., against the defendant.

It follows that the judgment in the Newburgh case should be affirmed, with costs, and the judgments in the Firemen’s case should be reversed and a new trial granted, with costs to abide the event.

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

Judgment accordingly.


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

text:
    In the Matter of the City Council of the City of New York, Respondent, against Sigismund S. Goldwater, as Commissioner of Hospitals of the City of New York, et al., Appellants.

      Argued October 4, 1940;
    decided November 26, 1940.

      William C. Chanler, Corporation Counsel (Seymour B. Quel and Oscar L. Tucker of counsel), for appellants.

      Thomas H. McManus for respondent.
   Lehman, Ch. J.

A special committee, appointed by the City Council of the City of New York in accordance with section 43 of the Charter of the city (effective January 1,1938) to investigate charges of negligence and maladministration in the treatment of patients at Lincoln Hospital, has issued and served subpoenas duces tecum addressed to the Commissioner of Hospitals of the City of New York and to the Medical Superintendent of Lincoln Hospital which required the production of specified records of the hospital, including: All case records, reports, charts, diagnoses, X-rays and other records relating to the following patients,” etc. The Corporation Counsel advised the Commissioner of Hospitals and subsequently confirmed the advice by letter that No information acquired by physicians or nurses in attending a patient in a professional capacity may be disclosed in any trial or court proceeding by reason of the provisions of section 352 of the Civil Practice Act, except on consent of the persons treated or their duly authorized representatives. The privilege conferred by this section applies to hospital records or documents, as well as to the personal testimony of witnesses. In my opinion, the privilege is applicable to a Councilmanic investigation.” The Commissioner appeared before the committee and produced some of the records called for by the subpoenas, but refused to produce any case cards or records which would disclose “ confidential information relating to the diagnosis and treatment of patients.” Upon the application of the Special Councilmanic Committee an order was made by the Supreme Court directing the persons named in the subpoenas “ to produce before said Committee * * * all the books, papers, records, etc., mentioned and described in the respective subpoenas duces tecum.”

The Legislature has commanded that: “ A person duly authorized to practice physic or surgery, or a professional or registered nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity.” (Civ. Prac. Act, § 352.) The petitioner claims, and the courts below have held, that because the command is contained in the - Civil Practice Act it prohibits disclosure of such information only as evidence in an action or special proceeding brought in a court of record, and that a court may compel a physician to disclose to a committee of the Council of the city information which the physician is forbidden to divulge to a court of justice.

This court has said that: “ The disclosure by a physician of information acquired in Ms professional character in attending a patient, where not made in the course of Ms professional duty, is a plain violation of professional propriety. But the statute does not prescribe a rule of professional conduct for the government of physicians in their general intercourse with society. The common law did not protect a physician from disclosing as a witness information acquired professionally from patients (1 Green. Ev. § 248). The statute was intended to afford this protection and to protect the patient also. If a physician, disregarding the plain obligations of his situation, should, in conversation, disclose the secrets of his patient, he would, so far as we know, violate no statute, however reprehensible his conduct would be. The statute should have a broad and liberal construction to carry out its policy. By reasonable construction it excludes a physician from giving testimony in a judicial proceeding in any form, whether by affidavit or oral examination, involving a disclosure of confidential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself.” (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N. Y. 450, at p. 455.)

Though at common law a physician, unlike a member of the bar, might be compelled to divulge as a witness information acquired by him under the seal of professional confidence, yet in the Civil Practice Act the privilege and duty of a clergyman to refuse to disclose a confession (§ 351), the privilege and duty of a physician to refuse to disclose information acquired in attending a patient in order to enable him to treat the patient (§ 352), and the privilege and duty of an attorney to refuse to disclose confidential communications from a client (§ 353), are accorded the same statutory recognition, sanction and protection. All three sections apply to “ any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client.” (§ 354.)

Doubtless, as the court pointed out in Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic. Mut. Aid Assn. (126 N. Y. 460, 454), “ the primary purpose of the section was to declare the rule governing the examination of a physician as a witness in judicial proceeds ings.” (Italics arenew.) All the sections to which we have referred are part of article 33 of the Civil Practice Act, which is entitled Evidence,” and the term evidence ” is applied ordinarily to proof received in judicial proceedings. Nevertheless, the statute in terms applies to any examination,” and as this court said in the opinion from which we have quoted: The statute should have a broad and liberal construction to carry out its policy.” The issuance of subpoenas by legislative and administrative bodies or officers as well as by a court, the effect of service of a subpoena, the penalty for disobedience to a subpoena properly issued and the proceedings to compel obedience, are defined or regulated by sections 403 to 408 of the Civil Practice Act, which, like the sections invoked by the appellants, are part of the article entitled Evidence.” The policy of the legislative prohibition against the disclosure of information obtained under the seal of professional confidence, as provided in sections 351 to 354 of article 33, would not be carried out if the court read into those sections a limitation which would render them inapplicable in any proceeding brought pursuant to provisions of the same article to compel such disclosure. The statute does not provide such a limitation in express terms, and there is no ground for reading such a limitation into the statute by implication. That would not be a “ broad and liberal construction ” of the statute but a distortion of its language and purpose.

The statutory privilege was conferred upon a physician by 2 Revised Statutes ([1st ed. 1829] p. 406, § 73). This court has pointed out that the revisers in their notes say: “ Unless such conversations are privileged men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without conviction of any offense. Besides, in such cases, during the struggle between legal duty on the one hand, and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will, in most cases, furnish a temptation to the perversion or concealment of the truth, too strong for human resistance.” (People v. Austin, 199 N. Y. 446, at pp. 451, 452.) The Legislature which has conferred the privilege may, if it chooses, limit its application. The courts may not do so.

The question of whether the privilege of a physician or a minister of religion may be asserted by a witness under a subpoena issued by a legislative committee or a person clothed with powers to hold investigations to compel the attendance of witnesses has never been directly presented to this court, but we have said that: Those who are made witnesses in virtue of those powers are entitled to all the privileges and protection extended by the law to witnesses in judicial proceedings.” (Matter of Hirshfield v. Hanley, 228 N. Y. 346, 349.) We now hold that the statutory privilege may be asserted whenever the power of a court is invoked in manner authorized by the provisions of article 33 of the Civil Practice Act to compel a witness to disclose information which under other provisions of the same article he is forbidden to disclose. (Cf. Matter of Doyle, 257 N. Y. 244; McMann v. Securities & Exchange Commission, 87 Fed. Rep. [2d].377.)

The orders should be reversed and the application denied, without costs.

Finch, J.

(dissenting). It does not seem to me that we are compelled by statutory mandate to deny to a legislative committee whose avowed purpose is to uncover abuses the right to ascertain the facts.

As has been pointed out, at common law the information acquired by physicians or nurses acting in a professional capacity was not privileged. (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N. Y. 450, 454; People v. Austin, 199 N. Y. 446, 451. See Wigmore on Evidence [3d ed.], § 2380.) But this State, in 1828, was responsible for the legislative innovation embodying such a doctrine. (Wigmore, op. cit., § 2380; Howe v. Regensburg, 75 Misc. Rep. 132, 134.) However, long ago, in construing this new privilege created by statute, this court stated that the primary purpose of the section was to declare the rule governing the examination of a physician as a witness in judicial proceedings.” (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N. Y. 450, 454.) In the case at bar we are concerned with a legislative proceeding ” to which the statutory rule should not be extended unnecessarily. The distinction seems eminently sound. In a “ judicial proceeding ” the Legislature has specified in the Civil Practice Act that no disclosure shall be made. But where we are concerned with a legislative proceeding,” there arises the transcendent interest of the People of the State in the enactment of proper laws for the conduct of government, as to which it is not unreasonable to require that the protection of the individual by privilege must bow as against the welfare and protection of large masses of citizens. It is urged that if we so deal with the physician-patient privilege we must accord like treatment to other privileges, but this does not follow since each privilege rests upon its own background.

Upon the results of the investigation for which the withheld information is sought in the case at bar, depends the action of the City Council in reference to the management of the city’s own Lincoln Hospital, perhaps vitally necessary for the protection of the public of the city of New York. I am unwilling to. assent, therefore, to the proposition that the State Legislature or its delegated authority, the City Council, are so circumscribed that the alleged maladministration may continue unchecked, by virtue of a liberal construction ” of section 352 of the Civil Practice Act.

The orders should be affirmed.

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

Orders reversed, etc.


author: Lehman, Ch. J.

text:
    In the Matter of Eugene M. Dusinberre et al., Doing Business as Seneca Guernsey Farms, Respondents, against Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Argued October 7, 1940;
    decided December 3, 1940.

      Robert O. Blabey and Milo R. Kniffen for appellant.

      Henry S. Manley for respondents.
   Lehman, Ch. J.

The Commissioner of Agriculture and Markets has rejected an application of Eugene M. Dusinberre of Geneva, New York, and Nathan Oaks, Jr., of Oaks Corners, New York, for a license to handle, sell, or distribute milk, pursuant to the provisions of Article 21 of the Agriculture and Markets Law.” The Appellate Division has annulled the determination of the Commissioner on the ground that it is not supported by any credible evidence and is purely arbitrary and capricious. Two judges dissented.

Each of the applicants owns a farm on which he produces Guernsey milk. Dusinberre’s farm is one and one-half miles from the city of Geneva. The average daily production of his farm is about two hundred quarts of milk. He sells that milk to White Springs Dairy, a milk dealer in Geneva. The farm belonging to Oaks is about five miles from the Dusinberre farm. The average daily production of his farm is about four hundred quarts. With the exception of about eight or nine gallons daily, which Oaks sells at his farm to retail customers, the milk produced on the Oaks farm is shipped to Syracuse.

The applicants have proposed to erect, equip and operate a small pasteurizing and bottling plant on the Dusinberre farm which, it was estimated, will cost $6,000 or $6,500. The applicants have signed articles of partnership defining their rights and obligations in relation to the operation of the pasteurizing plant and the milk business which they propose to conduct. Dusinberre is to be charged with the management and supervision of the pasteurizing plant and the sale of the milk treated and bottled there, though he has had no experience in handling or selling pasteurized milk. The applicants expect to sell daily about forty quarts of the milk to two stores in Oaks Corners and about one hundred quarts in the hamlets of Seneca Castle, Flint, Stanley and Hall. The remainder of the milk the applicants expect to sell at the farm for nine cents a quart requiring in addition a deposit on each bottle. The price obtained by retailers in Geneva for milk delivered by them, with a smaller butter-fat content and sold in bottles with an inferior cap, is twelve cents. At least one of the three licensed dealers in Geneva sells milk to customers, who call at his plant, for ten cents per quart. The applicants have agreed that the milk produced by Dusinberre should be sold first and that Oaks should furnish the remainder of the milk sold by the applicants. Oaks stated that he is not dissatisfied with his present market but he believes that the proposed plan would result in more money for his milk.

These facts are not disputed and for the most part are embodied in findings made by the Commissioner. Testimony was also produced intended to show the probable demand by consumers for milk prepared and sold in the manner proposed by the applicants, the probable effect of such sales upon the market in which such sales would be made, and the probable receipts and expenses of the applicants under the proposed plan. The Commissioner formulated in writing his conclusion, drawn from the findings and the testimony presented, that “ The applicants now have markets for their milk which, from the standpoint of prices received, are more satisfactory than the market of the average producer. The proposal which they now put forward would require the expenditure of considerable sums of money and the results, from the standpoint of the producers securing as good as their present returns, are doubtful at best. The City of Geneva has long been provided with milk of a satisfactory quality at a price at least as low as the price charged in most other cities. This is possible because the number of distributors in the City of Geneva is not excessive, and because of that fact, economies are possible. If a license is granted to the applicants, it will tend to disturb the stability of the market, and bring about a decreased return to producers. In short, it will tend to a destructive competition in a market already adequately served, and it does not appear to be in the public interest. The application for a license should be denied.”

The Agriculture and Markets Law provides that No license shall be granted to a person not now engaged in business as a milk dealer * * * unless the commissioner is satisfied that the applicant is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business, that the issuance of the license will not tend to a destructive competition in a market already adequately served, and that the issuance of the license is in the public interest.” (Cons. Laws, ch. 69, § 258-c.)

The Appellate Division has held, in effect, that the Commissioner is not concerned with economic questions affecting the return which the producer would receive. “ The statute,” it is said, does not make respondent the guardian of the farmer; whether they suceed or fail in their proposed venture will not affect him. The statute does not vest him with any authority to decide such an issue.” (259 App. Div. .582, 584.) It is true that the statute is not intended for the protection of a dealer who may propose to engage in an ill-advised venture, nor does it give the Commissioner power to reject an application for a license, otherwise in the public interest, merely because he doubts whether the dealer’s anticipations of profits will be realized. E an applicant “ is qualified by character, experience, financial responsibility and equipment to properly conduct the proposed business ” and if the issuance of the license will not tend to a destructive competition in a market already adequately served,” and if the issuance of the license is in the public interest,” the Commissioner may not reject an application for a license; but the Legislature has entrusted to the Commissioner the duty of determining whether an applicant has shown facts which entitle him to the grant of the license. Within that field he is charged with responsibility and must exercise discretion and judgment. He may be required to make findings of fact sufficient to enable a court to determine the question whether the rejection of an application for a license is reasonable and in accord with the rule or standard formulated by the Legislature; but where findings of the Commissioner give reasonable support to his conclusion and the findings in turn are supported by the evidence, a court should not substitute its judgment for the judgment of the Commissioner charged by the Legislature with responsibility.

The matters which may properly be considered by the Commissioner cannot be determined by any rigid general rule applicable in all cases. Substantial evidence sustains the findings of the Commissioner that “ if a license is granted to the applicants, it will tend to disturb the stability of the market, and bring about a decreased return to producers. In short, it will tend to a destructive competition in a market already adequately served, and it does not appear to be in the public interest.”

The order of the Appellate Division should be reversed and the determination of the Commissioner of Agriculture and Markets confirmed, without costs.

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

Ordered accordingly.


author: Sears, J. Lewis, J.

text:
    The People of the State of New York, Respondent, against Giro Ligouri and William Panaro, Appellants.
    Argued October 9, 1940;
    decided December 4, 1940.

      Harry G. Anderson and Samuel Bader for Giro Ligouri, appellant.

      Harry G. Anderson and Samuel Bader for William Panaro, appellant.

      William O’Dwyer, District Attorney (Henry J. Walsh of counsel), for respondent.
   Sears, J.

The defendants, Giro Ligouri and William Panaro, were indicted together for the crime of murder in the first degree. They have been found guilty by the verdict of a jury of the crime of murder in the second degree. Their convictions have been unanimously affirmed by the Appellate Division in the second department, and are brought before this court by an order granted by one of the judges of this court.

It is not disputed by either appellant that Ligouri, on October 24, 1938, shot and killed Nicholas Cosaluzzo. In fact, Ligouri, himself, sworn in his own behalf, testified to the shooting. The affair occurred about three o’clock in the afternoon in a public street in the borough of Brooklyn, New York city, at or near the comer of McDonald avenue and Avenue X.

In the latter part of September or early part of October, 1938, Ligouri, while taking part in a dice game, was held up and robbed of some money by two hooded men. One of the robbers was the deceased, Cosaluzzo; the other, a man named Gallo, who was sworn as a witness upon the trial. After this occurrence, Ligouri’s first meeting with the deceased of which we have proof, took place on the day of the fatal shooting about an hour earlier. Ligouri and Panaro had gone to a street near McDonald avenue, several blocks north from the place where the shooting later occurred, to place a bet. There they met the deceased and Gallo. Proof of what took place at this meeting is conflicting. On these facts, however, there is accord; the deceased and Gallo had left Gallo’s automobile; deceased came to the side of the automobile in which Ligouri and Panaro were sitting, and the deceased and Ligouri talked. Gallo testified that Ligouri beckoned to the deceased and when he came over, Ligouri asked him a question which he answered with an oath that it was none of Ligouri’s business. Ligouri testified that the deceased came over to the automobile in which he and Panaro were sitting and asked him whether he knew the speaker or knew Gallo and that he answered in the negative but said, I surmise who you are,” whereupon the deceased said, “ I’ll be seeing you soon.” After this conversation Ligouri and Panaro drove to Ligouri’s house which was near McDonald avenue and Avenue X, and the deceased and Gallo drove to the deceased’s home and later to a restaurant on McDonald avenue and Avenue U, about six blocks from Avenue X. From there, Gallo testified, the deceased took Gallo’s car at about three o’clock and drove toward Avenue X. • When recalled by the defense, Gallo testified that at about a quarter before three o’clock he made a telephone call for Ligouri on behalf of the deceased, and that after the speaker at the other end of the telephone line said that it was Ligouri speaking, the deceased, himself, took the telephone. Gallo did not give the conversation which the deceased had with Ligouri, but Ligouri testified that he was called to the telephone by a man named Criscuola while he was playing with one of his children in the hallway of his home; that he went to the telephone, which was in a candy store on the comer of McDonald avenue and Avenue X, and that the man calling identified himself to Ligouri by giving his name and by saying that he was the fellow with whom Ligouri had just been talking. Further, according to Ligouri, the deceased said, “ If you don’t come down here, I’m coining down to get you.” Ligouri said that he then went home and got two pistols. He explained this by saying that he “ figured on getting Panaro to help him out because he figured that they were coming down in a mob because he (deceased) told him he would be down there.”

Ligouri and Panaro went back to the corner of McDonald avenue and Avenue X. As they reached the comer they saw Cosaluzzo drive up in an automobile. Both testified that as he got out of the car he put a gun in his pocket, and that as he walked toward them, he said to Panaro, “ Get the hell out of here. I don’t want to see you.” Panaro, according to the testimony of both Ligouri and himself, then walked away at least a few steps. Ligouri testified that the deceased said, “ Come around the comer. I want to talk with you,” and that he replied by saying, ‘ Listen, Nick, let’s talk this over. Let’s go in the ice cream parlor and have a soda and talk it over. You caused enough trouble.” The deceased declined the invitation and an acrimonious discussion arose. According to Ligouri’s statement on the witness stand, and that of Panaro, the deceased drew a gun and pointed it at Ligouri’s face and snapped the trigger. Thereupon, Ligouri pulled out his guns, “ the two of them,” and as described in his own words, I just put it up, shot once and kept shooting.” Ligouri said that after the_shooting he hurried away, joined Panaro around the corner and besought Panaro to stay with him, saying, “ Come on, Willie, keep me company because l’m afraid. I think I killed Nick.”

While no other witnesses testified directly as to any happenings occurring immediately before the shooting, two witnesses, sworn on behalf of the People, gave testimony inconsistent in some degree with that already referred to. Adrian Gillam, a man employed by the Brooklyn Borough Gas Company as a service man, told of driving his automobile near the scene of the shooting at the time it occurred. As he arrived at the corner of the two streets, he heard a noise that sounded like the backfiring of an automobile. He continued to drive northerly on McDonald avenue, where he saw two men pursuing and shooting at another man. He did not see the guns in their hands. All three men were ahead of him and running in the direction that he was going. The man pursued was bent over, his arms folded across his abdomen, he was stumbling and finally fell near a billboard, where deceased was picked up. Gillam heard as many as eight shots discharged. The pursuers went into the vacant lot beyond the billboard and disappeared, and the witness continued on his way passing by the billboard. He could not identify any of the men.

Guiseppi Scalli, a street sweeper, was at the time of the shooting under the stairway of the elevated railway station on McDonald avenue near Avenue X. He heard several shots discharged. Turning around, he observed a man on the ground near the billboard on McDonald avenue with two other men, one to the right and the other to the left of the prostrate man, who lay on his back. One of the two men who were standing there was shooting at the fallen man and fired four or five shots. After the two men passed beyond the billboard and disappeared, the witness went over to the man on the ground and lifted his head. He summoned the police.

Nine bullets had been discharged into the body of the deceased, some apparently were fired into his back. A revolver, concededly belonging to the deceased and seen in his possession by his brother an hour and a half before the shooting, was found on the ground beside the fallen man.

"Another witness for the People, Criscuola (the man who Ligouri said called him to the telephone), testified that just before the shooting he was at the comer of McDonald avenue and Avenue X and saw an automobile make “ a four comer turn ” on Avenue X; the man in the car motioned to someone on the comer; the defendants were near him, and they walked toward the car which stopped at the billboard on McDonald avenue, a short distance northerly from the corner of Avenue X and beyond the steps of the elevated railway station. He further testified that the defendants told him before the shooting to get off the corner as there might be some trouble. The witness walked away on Avenue X and heard a lot of noise * * * like backfiring or shots,” He saw the police coming, and went home.

After the shooting the defendants fled to Jersey City. A “ couple of days ” afterwards, Criscuola received a message in response to which he went to Jersey City and met the defendants. Criscuola at this meeting asked Ligouri what had happened and Ligouri said, referring to the man who was killed, that was one of the guys that stuck him up.” As to a conversation had with Panaro at the same time, the witness’ testimony on direct examination was as follows: Q. Did Willie Panaro say anything? A. He just told me to go to his mother’s house and tell his mother that he was getting a job on the Fair and not to worry. Q. Did you ask Willie what had happened on the 24th of October? A. Well, as a matter of fact — (By the court) Q. Yes or no? A. Yes. Q. (by the Assistant District Attorney) What did he say to you and what did you say to him? A. I asked him what happened there that afternoon. He said that was one of the guys that stuck Giro Ligouri up, and they let him have it. I asked him why they did that. He said that he tried to pull a gun on them.”

On cross-examination, Criscuola testified that it was Ligouri who said that the man drew a gun on him and We let him have it ” and that it was not Panaro who said this.

Such, in brief, are the main facts bearing on the guilt of the defendants.

The defendant Ligouri urges that the trial court in its charge in respect to justification committed error. The court was requested on behalf of Ligouri to charge in this language: “ If the defendant Ligouri was attacked feloniously by the deceased, Cosaluzzo, the defendant Ligouri had a right to shoot Cosaluzzo.” The court declined to charge as requested, stating that it had already been covered. Defendant continued, I ask Your Honor to charge the jury that a person who is feloniously attacked is under no obligation to retreat but may stand his ground, and if necessary, kill his opponent.” This the court declined, saying, If a person kills another whom he claims assaults him, he is under an obligation to retreat as far as possible, unless the circumstances are such that unless he acted as he did he would be the recipient of irreparable and grievous bodily harm.” Exceptions were taken to the court’s declining to charge as requested and to the charge. In the main charge the court had said on the subject of self-defense: “ The defendant Ligouri claims that while he discharged these revolvers, what he did was done in self-defense. As I have already said, the law is that an act otherwise criminal is justified when done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and theJnjury could only have been prevented by the act, nothing more being done than is necessary to prevent the injury. A person who is attacked before he can resort to acts which result in death, is bound to retreat and to avoid the attack, unless the circumstances be such that he believes that he is in such imminent danger of irreparable injury, and the only thing he could do to protect himself and prevent that injury being inflicted upon him, would be to act as he did, and to do no more to prevent it than was necessary. If the circumstances justified the belief on bis part that he is in danger of inevitable and irreparable injury, although it should turn out he was mistaken, an ordinarily prudent man under the same circumstances would be justified in doing what he did, if he thinks he is in danger of death. If you believe that Nick unexpectedly pulled this gun and snapped it on him, and under those circumstances he felt the only thing for him, to do was to do what he did, discharge and empty both of his guns into him, even though death resulted, that would be justifiable under the law, but he could not do more than necessary, more than what an ordinarily prudent man under the same circumstances would be justified in doing. He does not have to satisfy you that the situation existed, but if, upon considering all the evidence in the case, there is a reasonable doubt, he must have the benefit of it, and your verdict willbe not guilty, because the People must establish to your satisfaction beyond a reasonable doubt that this was a wilful, wanton killing, and was not excusable and not justifiable. That is their burden.”

The applicable statute, Penal Láw, section 1055, contains the following language:

“ Homicide is also justifiable when committed:
“ 1. In the lawful defense of the slayer, or of his or her husband, wife, parent, child, brother, sister, master or servant, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, or to any such person, and there is imminent danger of such design being accomplished; or,
“ 2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling or other place of abode in which he is.”

The language employed by the court in the main charge is that applicable in the usual case of self-defense and falls within the first subdivision as above cited. (People v. Governale, 193 N. Y. 581, 587, 588.) This is not, however, the ordinary case. Here, on the assumption in the request, a felony was in process of being committed. So in substance the court charged. To avoid the felonious aggression against his person, if it occurred, Ligouri was justified under the second subdivision of the section in standing his ground and, if necessary, destroying the person making the felonious attack. (People v. Tomlins, 213 N. Y. 240; People v. Fiori, 123 App. Div. 174, 188.) “ General statements to the effect that one who is attacked should withdraw, must be read in the light of the facts that led up to them.” (People v. Tomlins, supra, p. 245. Cf. People v. Johnson, 139 N. Y. 358; People v. Constantino, 153 N. Y. 24; People v. Kennedy, 159 N. Y. 346; People v. Governale, supra; People v. Lumsden, 201 N. Y. 264.) To the facts in this case the language of Mr. Justice Holmes in Brown v. United States (256 U. S. 335, 343) is ' particularly applicable: “ Detached reflection cannot be demanded in the presence of an uplifted knife.”

We reach the conclusion that error occurred in the refusal of the trial court to charge as requested. It may be argued that the charge amounted to granting the request as no one could consider escape as reasonably possible from a pistol purposefully and directly aimed at the assailed. The charge, however, left this matter to deduction. The defendants were on trial for crimes punishable by death. They were entitled to have the judge charge the jury definitely and directly that if they found that the felonious assault, assumed in the request, was occurring, the defendant against whom it was being perpetrated was justified in killing the felonious aggressor if such were necessary in resisting the assault. This error goes to the very foundation of the defense, and necessitates a reversal of the conviction of Ligouri.

Error was concededly committed by the People in producing on rebuttal evidence to contradict the defendant Ligouri’s testimony on a collateral issue brought out on his cross-examination by the People. (People v. Perry, 277 N. Y. 460.) Alone this might not be considered of sufficient importance to require the reversal of the judgment of conviction.

As to the defendant Panaro, his conviction must also be set aside, both because it falls with the reversal of the conviction of Ligouri and because there has been a failure of requisite proof of guilt to justify the verdict as to him. He was with Ligouri before the shooting, accompanied him to the place where the tragedy occurred and fled with him. That is all that was established beyond a reasonable doubt. Such proof falls far short of establishing that he aided, abetted or otherwise participated in the homicide.

For these reasons the judgments should be reversed and a new trial ordered as to both defendants. .

Lewis, J.

(dissenting). Without repeating facts descriptive of the homicide, which are accurately stated in the prevailing opinion, I have reached the conclusion that as to the defendant Panaro the record of proof is not sufficient to establish beyond a reasonable doubt that he aided, abetted or participated in the killing of Nicholas Cosaluzzo. His conviction should be reversed and the indictment, as to him, should be dismissed.

As to the defendant Ligouri — I find ample proof of his guilt of the crime of which he stands convicted. In the circumstances which surrounded the tragedy the conceded fact that nine bullets were discharged into the body of Cosaluzzo from two revolvers in the hands of Ligouri, three of which bullets entered the back of the deceased, was sufficient to belie Ligouri’s claim that he acted in lawful self-defense.

Passing to Ligouri’s challenge to that portion of the court’s charge relating to the law of self-defense, “ The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision ” (People v. Russell, 266 N. Y. 147, 153). I believe the rules applicable to the facts here involved were correctly charged. When the evidence closed Ligouri had testified that just prior to the homicide, Cosaluzzo, pulled out bis gun and put it towards me,” and that thereupon “ I pulled out my guns, the two of them * * * I just put it up and shot once and kept on shooting.” The court charged the jury that the act of the deceased Cosaluzzo constituted a felonious assault upon Ligouri. There was thereupon submitted for the jury’s determination the question whether in the circumstances surrounding this incident the defendant could justify his act under the law of self-defense. Upon that subject the jury was instructed: “ The defendant Ligouri claims that while he discharged these revolvers, what he did was done in self-defense. As I have already said, the law is that an act otherwise criminal is justified when done to protect the person committing it, or another whom he is bound to' protect, from inevitable and irreparable personal injury, and the injury could only have been prevented by the act, nothing more being done than is necessary to prevent the injury. A person who is attacked, before he can resort to acts which result in death, is bound to retreat and to avoid the attack, unless the circumstances be such that he believes that he is in such imminent danger of irreparable injury, and the only thing he could do to protect himself and prevent that injury being inflicted upon him, would be to act as he did, and to do no more to prevent it than was necessary * * *. If you believe that Nick unexpectedly pulled this gun and snapped it on him, and under those circumstances he felt the only thing for him to do was to do what he did, discharge and empty both of his guns into him, even though death resulted, that would be justifiable under the law, but he could not do more than necessary, more than what an ordinarily prudent man under the same circumstances would be justified in doing.” At a later point the court charged: “ If a person kills another whom he claims assaults him, he is under an obligation to retreat as far as possible, unless the circumstances are such that unless he acted as he did he would be the recipient of irreparable and grievous bodily harm.”

Believing this charge to be in accord with applicable law (Penal Law, § 1055; People v. Governale, 193 N. Y. 581, 588; People v. Kennedy, 159 N. Y. 346, 348; People v. Constantino, 153 N. Y. 24, 31; People v. Johnson, 139 N. Y. 358, 363), I conclude that the conviction of the defendant Ligouri should be affirmed.

Lehman, Ch. J., Loughran and Rippey, JJ., concur with Sears, J.; Lewis, J., dissents in opinion in which Finch, J., concurs as to Ligouri but concurs in the grant of a new trial to Panaro; Conway, J., concurs in the opinion of Lewis, J., as to Ligouri but votes to affirm as to both defendants.

Judgments reversed, etc.


text:
    Samuel Zirn, Appellant, v. Clifton N. Bradley et al., Respondents, Impleaded with Others.
    Argued November 13, 1940;
    decided December 4, 1940.

      I. Maurice Wormser and Adolph Feldblum for appellant.

      Neil P. Cullom and Henry W. Steingarten for respondents.
   Per Curiam.

Plaintiff was found guilty of contempt of court and judgment entered dismissing Ms complaint. TMs was a final order. Neither the court at Special Term, nor the official referee, made any order of which the provisions were violated by plaintiff. The official referee properly refused to make such an order since he was presiding at an examination before trial and not trying any issues in a motion, action or proceeding referred to him under section 117 of the Judiciary Law (Cons. Laws, ch. 30).

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

The motion to dismiss the appeal should be denied.

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

Judgment accordingly.


text:
    The People of the State of New York ex rel. Stephen I. Markov, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted November 15, 1940;
    decided December 4, 1940.

      Stephen I. Markov, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle and Bernard L. Alderman of counsel), for respondent.
   Per Curiam.

The sentence of from fifteen years minimum to twenty years maximum plus an additional punishment of from five to ten years for being armed is properly recorded as the equivalent of a sentence with a twenty-year minimum and a thirty-year maximum. Good time is earned based on the twenty-year minimum and the prisoner is considered as eligible for parole by the Parole Board after he has served twenty years less good time ” reduction. (People ex rel. Temple v. Brophy, 248 App. Div. 442; affd., 273 N. Y. 487; People v. Procito, 261 N. Y. 376; Matter of Siraguso v. Moore, 273 N. Y. 59.)

The order appealed from should be affirmed.

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

Order affirmed.


author: Lewis, J.

text:
    In the Matter of Lawyers Mortgage Company. Title. Guarantee and Trust Company, as Trustee, Appellant; Louis H. Pink, as Superintendent of Insurance of the State of New York, Respondent.

      Argued November 14, 1940;
    decided December 31, 1940.

      Abraham Feinstein for appellant.

      Daniel A. Dorsey and Edward F. Keenan for respondent.
   Lewis, J.

We are to determine whether a charge made by the Mortgage Commission of the State of New York, to cover the cost of “ servicing ” a certificated mortgage during the period of rehabilitation of Lawyers Mortgage Company, was a violation of an order of Special Term which approved the plan of reorganization relating to that mortgage.

Prior to 1933, Lawyers Mortgage Company had issued and sold to the public a large number of guaranteed mortgage certificates secured by participations in mortgages upon real property in the metropolitan area of New York. On August 2, 1933, the company was placed in rehabilitation under the Superintendent of Insurance who administered the mortgages from August 2,1933, until May 20,1935. On May 21, 1935, the administration of such mortgages was turned over to the Mortgage Commission which was created by chapter 19 of the Laws of 1935. Among the mortgages thus administered by the Mortgage Commission we are concerned upon this appeal with only one — a mortgage designated as No. 29,617,” which was in the principal amount of $380,000 and was a lien upon a six-story, seventy-nine-family apartment at 40 Lincoln road in Brooklyn.

In September, 1935, the holders of more than fifteen per cent of the certificates participating in mortgage No. 29,617, presented to the Mortgage Commission a plan for reorganizing the mortgage under the provisions of the Schackno Act (L. 1933, ch. 745) and the Mortgage Commission Act (L. 1935, ch. 19). The mortgage was then in default and the fact becomes important that the Commission, through its predecessor, Lawyers Mortgage Company, had taken ..an assignment of rents from the owner of the mortgaged premises for the benefit of the certificate holders. In fact the Commission was then managing the apartment property under such assignment. It was in these circumstances that the plan for reorganizing mortgage No. 29,617 was proposed and ultimately received approval by Special Term by an order which contained the following provisions: The party so servicing this mortgage shall be entitled to deduct from the interest payments collected one-quarter of one of 1%) per centum per annum of the principal amount of the mortgage as its service fee or charge. There shall be no service charge to certificate holders on account of arrears of interest collected or paid under this plan.” (Emphasis supplied.)

By the present proceeding Title Guarantee and Trust Company, as trustee of Series No. 29,617 of Lawyers Mortgage Company, seeks an order directing the Mortgage Commission, or its successor, to repay the sum of $2,774.75 which was deducted by the Commission from funds belonging to the certificate holders and was paid to itself for servicing ” mortgage No. 29,617. The application by the trustee, which was granted at Special Term, was reversed by the Appellate Division which in turn denied the motion by the trustee for an order requiring repayment by the Commission of the “ servicing ” charge. The trustee has appealed to this court as of right.

At the outset we meet the respondent’s challenge to our jurisdiction to entertain this appeal. It is said that the order from which appeal is taken is not final and that, in the absence of leave to appeal granted by the Appellate Division, as required by subdivision 4 of section 588 of the Civil Practice Act, the order may not be reviewed. This question requires for its answer a statement of additional facts.

In May, 1935, the Mortgage Commission took over from the Superintendent of Insurance more than seven thousand certificated mortgage issues of twenty-three title and mortgage companies then in rehabilitation or liquidation. In its relation to these mortgage issues — which, we are told, aggregated in principal approximately $680,000,000 — the Commission performed three functions: (1) Servicing — which included the collection of moneys due under each mortgage and distributing it to the certificate holders. In those instances where an assignment of rents had been made the Commission took over the management of the mortgaged properties, including leasing, collection of rents, paying of all operating expenses and performing all functions common to the operation and management of improved real estate. (2) Foreclosure — taking legal action required to prosecute foreclosure actions, supervising receivers appointed in such actions and acquiring title to mortgaged properties for the benefit of certificate holders. (3) Reorganization — taking legal action under the Schackno Act, supra, and the Mortgage Commission Act, supra, which became necessary to accomplish reorganization of certificated mortgages.

During the life of the Mortgage Commission, which extended from May, 1935, until September, 1939, it is said to have administered and reorganized, assigned to trustees or satisfied certificated mortgages of a total principal amount which approximated $668,000,000 — all but about $12,000,000 in principal amount of the mortgages originally taken over. This accomplishment necessarily involved large expense, the amount of which was segregated under the headings of the three functions outlined above: Servicing costs,— $3,187,000; Foreclosure costs, $860,000; Reorganization costs,— $2,551,000. The total of these three items was approximately $6,598,000 which, excepting the salaries of the Commission and other minor items of expense, the Commission and its successor, the Superintendent of Insurance, are required by statute to allocate among all the certificated mortgages thus administered. The statute authorizing such recoupment by the Commission is section 24 of the Mortgage Commission Act (L. 1935, ch. 19, as amd. by L. 1936, ch. 729) which provided in part:

§ 24. Reimbursement for expenses. The commission shall allocate and charge to each property, bond or mortgage, or group thereof, such of its expenses incident to the exercise of any of its powers and such expenses as shall have been advanced by the superintendent of insurance or the superintendent of banks as it may determine are properly allocatable and chargeable to such property, bond or mortgage, or group thereof. All other expenses including the compensation of members of the commission, incident to the exercise of its powers by the commission shall constitute a charge against the moneys appropriated out of the general funds of the state. Allocatable and chargeable expenses shall include disbursements made by the commission and its subsidiaries and by the superintendent of insurance or the superintendent of banks, as well as an allowance to the commission and such of its subsidiary corporations as may be involved, of a sum sufficient reasonably to compensate it or them for any services, including legal services, rendered to such property, bond or mortgage, or group thereof, and also for the servicing of such property, bond or mortgage or group thereof, excepting therefrom compensation paid to the members of the commission. The commission may apply to the court at any time for an order confirming the allocation of such disbursements, and upon such application the court shall allow to the commission and such of its subsidiary corporations as may be involved such reasonable amount as shall compensate it and them for any services including legal services, rendered to such property, bond or mortgage, or group thereof, and also for the servicing of such property, bond or mortgage, or group thereof; such application shall be made upon such notice as the court may direct, and the order of the court when entered shall be binding upon the commission and all holders of mortgaged investments affected. Subject to any prior lien or charge imposed pursuant to subsection four of section five hereof, the commission shall have a hen or charge upon the property, bond or mortgage, or group thereof, affected thereby superior to the right or interest therein of all holders of mortgage investments affected thereby for the reimbursement and payment of its expenses and the expenses of the superintendent of insurance and the superintendent of banks and the allowance made by the court and shall reimburse and pay itself and the said superintendents out of any moneys which constitute the proceeds thereof. * * * ” (Emphasis supplied.)

It is the claim of the respondent that the deduction by the Commission of $2,774.75, the item here in controversy, for servicing mortgage No. 29,617 is of an amount which is tentative and that under section 24 of the Mortgage Commission Act, quoted above, an order which finally fixes the amount of that hen for servicing will not be made until the Commission has accounted for its total expense and has allocated that sum among ah of the mortgages which it administered between May 21, 1935, and September 30, 1939.

In its challenge to the jurisdiction of this court to entertain the present appeal the respondent fails to distinguish between a proceeding in which some judicial action remains to be taken, and a proceeding — such as the one at bar — where the results of the order which is the subject of appeal may be modified by court action at some later date in an entirely separate proceeding. There is also to be considered the fact that we are dealing with an order in a proceeding which involves a liquidation or rehabilitation by a statutory body, as distinguished from a proceeding in a judicial liquidation. In a proceeding of the latter type the court, through its receiver, conducts the affairs affecting the liquidation in the single proceeding in which the receiver is appointed, and motions for the adjudication of claims and other matters relating to the liquidation are addressed to the court, and remedies are sought in that proceeding only.” (People v. American Loan & Trust Co., 150 N. Y. 117,122.) In the former type of proceeding — a liquidation or rehabilitation by a statutory body, such as the present proceeding, the rule prevails that a motion addressed to a statutory liquidator or rehabilitator serves to commence a special proceeding. (Matter of Carnegie Trust Co., 206 N. Y. 390, 394, 395. See Cohen, The Powers of the New York Court of Appeals, § 33, at pp. 108-112.)

Finality in the present proceeding — which we regard as a separate special proceeding under the rule last mentioned above — results from the fact that no further judicial action is either directed or contemplated by the order to be reviewed. (Matter of President Self Service, Inc., v. Affiliated Restaurateurs, Inc., 280 N. Y. 354, 361; Matter of Grade Crossings [N. Y. C. R. R. Co.], 255 N. Y. 320, 322; Stimson v. Vroman, 99 N. Y. 74, 79. See, also, Cohen, supra, § 3, at p. 14.) True it is that, at some future date not yet fixed, another proceeding separate from the one now before us, may be instituted by the Commission for an accounting of its administration of all mortgages placed in its charge on and after May 21, 1935. In such separate proceeding an adjustment of the servicing charge of $2,774.75, which it has made in connection with its administration, of mortgage No. 29,617, may result either in a partial restitution to the certificate holders or an increase in the item itself. As no such adjustment can be effected in the present proceeding the order by which this proceeding is determined is final.

Passing to the merits of the question presented — there is involved that provision of the reorganization plan for mortgage No. 29,617 which presumed to prohibit a service charge to certificate holders on account of arrears of interest collected or paid under ” the proposed plan. In May, 1935, the arrears of interest and taxes under the mortgage requirements were approximately $53,000. Under the plan of reorganization the interest accrued and unpaid to July 1,1934, was waived; the owner of the property was required to pay the back taxes in full and the term of the mortgage was extended for a period of five years from the date of closing the extension agreement. The plan also required that interest from July 1, 1934, to the date of closing should be computed at the reduced rate of three and one-half per cent per annum and was to be “ paid in cash and in full by the owner simultaneously with the execution and delivery of the extension and modification agreement.” On that basis the total amount of interest to be paid by the owner at the closing was $33,250. Meantime, however, between May 21,1935, and December 22,1936 (the date of closing), the Mortgage Commission, acting under an assignment of rents from the owner, had collected as income from the premises the sum of $16,730.58. That sum was to be credited upon the mortgage and when added to cash furnished by the owner in the amount of $16,519.42, made up the total of $33,250, which the plan required should be paid by the owner at the closing. It is this entire sum which the appellant trustee contends should have been paid over for the benefit of the certificate holders, undiminished by a “ servicing ” charge by the Mortgage Commission. Our conclusion is to the contrary.

No charge was made by the Commission against the cash contribution of $16,519.42 by the owner. But the sum of $16,730.58, to be credited upon the mortgage, represented rentals collected by the Commission from the mortgaged property. Such collections, as an incident to management of the mortgaged property by the Commission, constituted the servicing of such property * * * or mortgage ” under the terms of the statute (L. 1935, ch. 19, § 24, as amd. by L. 1936, ch. 729) and thus became a legal basis for a “ servicing charge.” The phrase “ arrears of interest collected or paid,” as it appears in the clause of the plan which the appellant trustee asserts was intended to prohibit a servicing charge by the Commission, refers to that part of the owner’s contribution at the closing which was paid in cash, viz., $16,519.42. It had no reference to the sum of $16,730.58 which was collected by the Commission after it had taken over the management of the property under an assignment of rents from the owner.

Such interpretation of the clause in question is in accord with the intent of the Legislature made clear in the statute last cited above — that the cost of servicing a mortgage, including the collection of rents as an incident of management of the mortgaged property, shall be borne by the mortgagee or fund benefited thereby, not by the State or by other mortgages being administered by the Commission. If the plan for the reorganization of mortgage No. 29,617 was designed to circumvent the statute, then to the extent of such circumvention it was ineffective. The provisions of the statute were impliedly read into the plan of reorganization. (Home Building and Loan Assn. v. Blaisdell, 290 U. S. 398, 435.) They could not be cast out or waived by any one assuming to represent the Commission. (Cf. City of New York v. Wilson & Co., 278 N. Y. 86, 90.) What was said in Matter of People (Title & Mtg. Guarantee Co.) (264 N. Y. 69) in relation to authority granted to the Superintendent of Insurance under certain provisions of the Schackno Act, supra, applies here with equal force where administrative authority under the Mortgage Commission Act, supra, is involved (p. 90): “ When the Legislature authorized the Superintendent to administer that fund in place of the corporation, it is plain that it could also direct that the expenses should be a charge on the fund just as the expenses would have been in case such administration had been made by any other authorized person. The certificate holders are relieved of fees or compensation payable ordinarily to trustee or agent. * * * [p. 91]. We construe the statute as authorizing deductions only for collection and ‘ other functions performed by the Superintendent in the -administration of the property or mortgages in which a single group of certificate holders are interested.”

The order should be affirmed, with costs.

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

Order affirmed.