text:
    The People of the State of New York ex rel. William Prince, Respondent, against Joseph H. Brophy, as Warden of Auburn State Prison, Defendant. The People of the State of New York, Appellant.

      Submitted January 7, 1937;
    decided January 19, 1937.

      William Copeland Dodge, District Attorney (Felix C. Benvenga of counsel), for appellant.
    Where jurisdiction of the court issuing the process under which the prisoner is detained is established, there can be no inquiry into the manner of its exercise. Accordingly, errors or irregularities in the exercise of jurisdiction, however serious, do not constitute want of jurisdiction. Such errors render the judgment or the mandate, which is returned as the cause of detention, voidable, but mot void. They are reviewable on appeal, but not on habeas corpus
      (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Danziger v. House of Mercy, 128 N. Y. 180; People ex rel. Scharff v. Frost, 198 N. Y. 110; People ex rel. Hubert v. Kaiser, 150 App. Div. 541; 206 N. Y. 46; People ex rel. Doyle v. Atwell, 232 N. Y. 96; People ex rel. Friedman v. Hoyes, 172 App. Div. 442; People ex rel. Bailey v. McCann, 222 App. Div. 465; People ex rel. Smith v. Barr, 223 App. Div. 168; People ex rel. Frank v. McCann, 227 App. Div. 57; 253 N. Y. 221; People ex rel. Haines v. Hunt, 229 App. Div. 419; People ex rel. Rosen v. Warden, 234 App. Div. 349; People ex rel. Holt v. Lambert, 237 App. Div. 39; 262 N. Y. 511; People v. Quartararo, 76 Misc. Rep. 55.) The court acquired jurisdiction of the felony of which the prisoner was charged by the filing of the indictment, and obtained jurisdiction of the prisoner by his plea of not guilty thereto. (People v. Perrin, 170 App. Div. 375; People ex rel. Tweed v. Liscomb, 60 N. Y. 559.) Error or irregularity is not a jurisdictional defect, but merely one in the exercise of jurisdiction, which is reviewable on appeal and not on habeas corpus. (Matter of Gregory, 219 U. S. 210; Matter of Watkins, 3 Pet. 193; Matter of Parks, 93 U. S. 18; Henry v. Henkel, 235 U. S. 219; People ex rel. Schneider v. Hayes, 108 App. Div. 6; People v. Quartararo, 76 Misc. Rep. 55.) The defendant should not be permitted, at this late day, to take advantage of a situation that he himself brought about. He must be held to the position which he assumed and upon which he requested and secured a favorable judgment or other personal advantage. (People v. Meakim, 61 Hun, 327; 133 N. Y. 214; People ex rel. Weiner v. Warden, 237 App. Div. 28; 261 N. Y. 621; People v. Schmidt, 216 N. Y. 324.)
    No appearance for respondent.
   Crane, Ch. J.

On May 1, 1931, an indictment was filed in the Court of General Sessions of the County of New York against William Prince, the relator, and Joseph Wynne and James Miller, charging them in proper counts with the crimes of robbery in the first degree, assault in the second degree, petit larceny and criminally receiving stolen property.

On June 2, 1931, after pleading not guilty to the indictment, the defendants were placed on trial. In the course of the trial the jury was withdrawn and Prince and Wynne were permitted to plead guilty of grand larceny in the second degree and the indictment was dismissed as against Miller.

On June 9, 1931, the defendants Prince and Wynne were each sentenced to State prison for a term of not less than two years and six months and not more than five years, the execution of the sentence being suspended during good behavior, and the defendants placed on probation.

On February 20, 1933, the Court of General Sessions revoked the suspension of sentence for the crime for which Prince had pleaded guilty and ordered that the sentence be executed. The prisoner was thereupon sent to Sing Sing Prison and released on parole on September 29, 1934.

On February 26, 1935, a second indictment was filed against Prince in the Court of General Sessions, charging in three counts the crimes of robbery in the first degree, assault in the first degree and criminally receiving stolen property. On his plea of guilty of attempted robbery in the third degree an information was filed against him pursuant to section 1943 of the Penal Law, charging the previous conviction of grand larceny in the second degree. He admitted his conviction and on March 18, 1935, was sentenced to State prison for the term of ten years, of which five years were imposed as increased punishment for being armed. (Penal Law, § 1944.)

When the defendant was received at Sing Sing Prison he was charged with owing three years, three months and eight days on the previous conviction of grand larceny in the second degree, i. e., he had to make up his full sentence on the first conviction as he had violated his parole. Prince was, therefore, detained on a judgment of conviction for grand larceny in the second degree, the first conviction, as well as on the conviction of attempted robbery in the third degree, sentenced as a second offender.

The defendant obtained a writ of habeas corpus asking his discharge from the first sentence on the ground that the judgment of the court was void as well as his plea of guilty. The point is this: The indictment charged the defendant with robbery in the first degree in that on the 3d day of March, 1931, in the night time he did make a felonious assault upon one John Marston and took from his presence his personal property amounting to $97. Section 445 of the Code of Criminal Procedure says that a defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment. If the indictment had said that the $97 were taken from the person of John Marston, the defendant could have been convicted of larceny in the second degree. A person is guilty of larceny in the second degree who steals or unlawfully obtains property of any value by taking the same from the person of another. (Penal Law, § 1296.) Because the indictment failed or omitted to state that the property was taken from the person, and alleged that it was taken by force from the presence of Marston, the defendant claims that he could not be convicted of or plead guilty to larceny in the second degree.

Stealing property, no matter how taken, of the value of more than $100 and not exceeding $500 is larceny in the second degree; talcing property of any value from the person is also larceny in the second degree. The stealing of Marston’s $97, if not taken from his person, constituted petit larceny (Penal Law, § 1298), unless it were taken in such a way as to constitute robbery. (Penal Law, §§ 2120-2128.)

That the court had jurisdiction of the defendant and jurisdiction of the crimes charged must be conceded. Section 1251 of the Civil Practice Act says that the court before whom the prisoner is brought by virtue of a writ of habeas corpus must make a final order discharging him from custody if no lawful cause for the imprisonment or restraint or for the continuance thereof is shown. The return in this case of the warden of Auburn State Prison shows the judgments under which the defendant is detained. The courts below have wholly discharged the prisoner from the first judgment of conviction. In this they were clearly in error. Even if the plea and the indeterminate sentence for grand larceny in the second degree were void, this did not wipe out the indictment for robbery in the first degree, assault in the second degree and the other counts in the indictment. At most the courts would have to treat the plea and the judgment as void and send the prisoner back for a retrial upon the indictment as though there had been no plea.

If convicted of robbery in the first degree, the defendant could be sentenced for not less than ten years or more than thirty years (Penal Law, § 2125), and the imprisonment which he had served under a void or improper judgment would be credited on his time pursuant to section 2193 of the Penal Law.

The Appellate Division was also in error in remanding the relator to serve the balance of the second sentence for the second crime, to wit, attempted robbery in the first degree under the indictment of February 26, 1935, as he was sentenced on the second conviction as a second offender to a straight sentence. (Penal Law, § 1943.)

If his first conviction on his plea were void, there had never been a first or previous conviction when he was sentenced in March of 1935. This point, however, was not before the court.

Such are the complications which arise if the courts below can be right in assuming that the plea to larceny, second degree, under the first indictment was void and no legal judgment followed. When the defendant was put on trial for robbery in the first degree under the indictment the court had jurisdiction of him and of the crime charged. If the indictment had stated that the $97 were taken from the person of Marston instead of from his presence, it would have sufficiently alleged a crime of larceny, second degree, or at least this crime would have been included in the facts as alleged for robbery in the first degree. The indictment, on its face was, therefore, insufficient as a larceny, second degree, indictment. The defendant asked in the midst of his trial that the court accept from him a plea of larceny in the second degree instead of continuing his case for robbery in the first degree, a much more serious charge. The plea was accepted. The defendant could have moved in arrest of judgment alleging the insufficiency of this indictment to cover the larceny in the second degree, but he did not do so. He entered upon his parole first given by the sentencing judge. Later this was revoked and he went to Sing Sing. He accepted a parole from the prison authorities and when sent back to jail for a subsequent crime, raises for the first time objection to the first indictment and to his plea thereunder. There is authority that the writ was not intended to run as against such a case. (People ex rel. Schneider v. Hayes, 108 App. Div. 6, and People v. Austin, 63 App. Div. 382; affd., 170 N. Y. 585.) In the former case the count upon which the defendant pleaded was insufficient to constitute a crime or the crime to which the defendant pleaded. The opinion states: "The relator assails the right of the People to imprison him on the judgment of conviction because, as he claims, the count in the indictment to which he pleaded guilty charges no crime, for the reason that certain allegations are omitted which are deemed by him to be essential. * * * it seems to us sufficient to say that the question cannot be presented for the first time after judgment without a motion made in arrest of judgment or by a direct appeal. The provisions of the Code of Criminal Procedure for the redress of grievances relating to jurisdictional and other defects in the prosecution and trial of indictments are ample, and should be deemed in this case exclusive. By section 321 of the Code of Criminal Procedure it is provided that the only pleading allowable on the part of an indicted defendant is either a demurrer or a plea. * * * It thus appears that the relator might have raised the question now presented by demurring to the indictment, or upon the trial under a plea of not guilty, or after his plea of guilty had been entered, upon a motion in arrest of judgment. On the adoption of any of those courses, an adverse decision would have been subject to appellate review. But we do not think the relator was at liberty to treat the indictment as sufficient, to plead guilty to one of the counts, to permit judgment to be entered against him upon that plea without protest or objection, to assert, as the record in this case indicates he did, that he had nothing to say when asked whether he had any legal cause to show why judgment should not be pronounced against him; and after judgment has been so pronounced, with his voluntary and deliberate assent, to procure his discharge from the sentence imposed because of defects or irregularities of which he might have availed himself upon the trial, or by motion in arrest of judgment. A somewhat similar question was similarly decided by this court in People v. Austin (63 App. Div. 382; affd., 170 N. Y. 585).” It will be noted that two of the justices who concurred in this opinion (Bartlett and Miller, JJ.) were subsequently members of this court.

In People v. Austin the defendant was charged with murder and convicted of manslaughter as to which the Statute of Limitations had run, and for which he could not either be tried or convicted. Yet the judgment was sustained and affirmed by this court in 170 N. Y. 585.

We prefer, however, to place our decision on the following grounds:

Robbery in the first degree is committed (Penal Law, § 2124, subd. 4) When the offender inflicts grievous bodily harm or injury upon the person from whose possession, or in whose presence, the property is taken, * *

An indictment may state in different counts the accomplishment of the crime charged in various ways as long as the facts relate to the same deed or transaction. Thus, this indictment could have alleged in one count the commission of robbery in the first degree, by taking the property from the presence of the owner and in another count by taking the property from the person of the owner.

This is permitted where there may be doubt or uncertainty as to whether the facts and circumstances will show or do show one or the other to be the exact fact. (People v. Young, 207 N. Y. 522, 532, and section 279 of the Code of Criminal Procedure, 1935, and prior thereto. The present section 279 was adopted by chapter 328 of the Laws of 1936. See, also, People v. Altman, 147 N. Y. 473, 475.)

Section 295-j of the Code of Criminal Procedure, added by chapter 176 of the Laws of 1929, permits the amendment of an indictment by adding another count, such as we have just mentioned. It reads: “ Upon the trial of an indictment, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable, by adding thereto new counts, where it is made to appear that the crimes to be charged therein relate to the transaction upon which the defendant stands indicted.”

Section 293 of the Code of Criminal Procedure relates to the amendments of the indictment having reference to variances between the allegations therein in respect to time, thé name or description of any place, person or thing and the proof. As to these matters the court may permit an amendment upon the trial on such terms as to postponement as may be reasonable. To such power is now added the provisions of section 295-j, permitting the adding of a new count.

As to any of these amendments, the defendant can consent in open court or they may be made at his request, or he may waive objection to any such amendment in such a way as to amount to consent.

Where, therefore, as in this case the indictment could have been amended so as to contain a count for taking the property by force from the person of Marston, which would include the crime of larceny in the second degree, • the defendant in requesting that such a plea might be accepted, in effect, waived any objection that the indictment did not contain such a count or at least consented that it be amended so as to allege such a count. An amendment, which he could have consented to or which in the discretion of the court could have been made without his consent, cannot be pleaded as a defect depriving a court of jurisdiction when he and his counsel specifically asked the court to reduce the indictment from robbery in the first degree to larceny in the second degree, and the court complied with the request.

For these reasons, the orders below should be reversed and the writ of habeas corpus dismissed.

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

Orders reversed, etc.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    In the Matter of the Accounting of Alice C. Rowland et al., as Executors of George B. Rowland, Deceased. Alice C. Rowland et al., Individually and as Executors of Charles B. Rowland, Deceased, Appellants; Cyrus S. Jullien, as Special Guardian for Ann E. Rowland, an Infant, Respondent.

      Argued January 5, 1937;
    decided January 19, 1937.

      Royd C. Lutz for appellants.
    Testator intended that the Continental property should be sold when it became unproductive, thereby effecting an equitable conversion of same. (Matter of Jackson, 258 N. Y. 281; Furniss v. Cruikshank, 230 N. Y. 495; Spencer v. Spencer, 219 N. Y. 459; Lawrence v. Littlefield, 215 N. Y. 561; Matter of Lott, 148 Misc. Rep. 1; Matter of Hopkins, 133 Misc. Rep. 554; 226 App. Div. 180.) The testator intended that lot 37 should be sold and thereby effected an equitable conversion as to it. (Matter of Jackson, 258 N. Y. 281; Furniss v. Cruikshank, 230 N. Y. 495; Spencer v. Spencer, 219 N. Y. 459; Lawrence v. Littlefield, 215 N. Y. 561.) The taxes and other carrying charges on the Continental property and the other unproductive property were properly charged against principal. (Matter of Satterwhite, 262 N. Y. 339; Matter of Jackson, 258 N. Y. 281; Furniss
      v. Cruikshank, 230 N. Y. 495; Spencer v. Spencer, 219 N. Y. 459; Lawrence v. Littlefield, 215 N. Y. 561; Matter of Wainwright, 157 Misc. Rep. 531; Matter of Wardman, 154 Misc. Rep. 255; Matter of Schuster, 150 Misc. Rep. 444; Matter of Lott, 148 Misc. Rep. 1; Matter of Lichtenberg, 114 Misc. Rep. 89; Cram v. Cram, 2 Redf. 244.) The surrogate erred in holding that, because the Continental property produced a net income at date of execution of will and at date of testator’s death, the equitable conversion doctrine was not applicable. (Lawrence v. Littlefield, 215 N. Y. 561; Matter of Schuster, 150 Misc. Rep. 444; Matter of Satterwhite, 262 N. Y. 339; Matter of Jackson, 258 N. Y. 281; Furniss v. Cruikshank, 230 N. Y. 495; Spencer v. Spencer, 219 N. Y. 459; Matter of Wardman, 154 Misc. Rep. 255; Matter of Martens, 16 Misc. Rep. 245; Matter of Pulitzer, 139 Misc. Rep. 575; 237 App. Div. 808; St. Johns v. Montgomery, 265 Ill. 21; Mertz v. Guaranty Trust Co., 247 N. Y. 137; Toronto General Trusts Co. v. C., B. & Q. R. R. Co., 64 Hun, 1; 138 N. Y. 657.)

      Cyrus S. Jullien, as special guardian for Ann E. Rowland, an infant, respondent.
    As between the life tenant and the remainderman the former is bound to pay the taxes and other ordinary operating expenses of real property forming the subject-matter of a trust. (Matter of Albertson, 113 N. Y. 434; Woodward v. James, 115 N. Y. 346; Lawrence v. Littlefield, 215 N. Y. 561; Spencer v. Spencer, 219 N. Y. 459; Furniss v. Cruikshank, 230 N. Y. 495; Matter of Jackson, 258 N. Y. 281; Matter of Satterwhite, 262 N. Y. 339; Matter of Stevens, 187 N. Y. 471.) The will contained no mandatory power of sale and there are no inferences to be drawn from the circumstances attending the execution thereof that the testator intended the apportionment of carrying charges of the real estate between income and principal or of proceeds of sales between life tenant and remainderman. (Furniss v. Cruikshank, 230 N. Y. 495; Matter of Satter

      white, 262 N. Y. 339; Matter of Weil, 151 Misc. Rep. 841; Matter of McCafferty, 142 Misc. Rep. 371; 236 App. Div. 678; Matter of Frank, 153 Misc. Rep. 688; Matter of Bates, 152 Misc. Rep. 627.)
   Hubbs, J.

Charles Bradley Rowland died November 1, 1926, leaving a last will and testament executed November 2, 1918. He owned real property in this State as tenant in common with' his brother Thomas Fitch Rowland, Jr., one of the executors. All of the real property in which deceased had an interest at the date of his death, except three parcels, was under lease to the Continental Iron Works, pursuant to which lease the tenant was required to pay the taxes and all other expenses in connection with the upkeep of the property and an annual rental of $15,000. That lease continued in existence until November 14, 1927. It was then surrendered by a duly executed surrender of lease, the reason for such surrender being the dissolution of the tenant, the Con-' tinental Iron Works. The executors and Thomas Fitch Rowland, Jr., have endeavored to sell the property but have been unable so to do. From the time of the surrender of the lease down to the close of the accounting period herein, income to the extent of $15,834.35, representing one-half of the total rental, was received by the executors, but of that sum $7,817.50 was paid by the Continental Iron Works prior to its dissolution. During the accounting period, one-half of the total expenses on account of the real property amounted to $60,272.30, leaving a net operating loss to the estate on the property in question of $44,546.37. The Continental Iron Works was largely, if not wholly, a family concern in which testator and his executors retained an interest until its dissolution. The interest of Thomas Fitch Rowland, Jr., also continued until its dissolution.

Of the other parcels of real property in which deceased had a one-half interest at the date of his death, two were productive and are not involved on this appeal. The remaining parcel, appraised at $1,250, was unproductive at the date of the decedent’s death and continued unproductive to the date of its sale, which occurred on June 27, 1930, in conjunction with three of the lots included in the Continental Iron Works property. The sale price of the four lots sold was $29,000, and the estate’s share of the net proceeds amounted to $13,556.25. The Continental Iron Works property as a' whole had a total appraised value of $656,936.25, testator’s share having an appraised value of $328,468.12.

The executors in their account requested instructions as to whether the taxes and expenses in connection with the upkeep of the Continental Iron Works property might properly be charged to principal, having paid them out of principal; as to whether the proceeds from the sale of the property already sold should be apportioned between principal and income; and, if it be held that such proceeds should be apportioned between principal and income, as to the method of such apportionment. The Surrogate decreed that the taxes and operating expenses totaling $44,546.37 should have been charged against income of the trust created under paragraph Ninth ” of the will hereinafter set forth and since they had been paid out of the principal of the estate, surcharged the executors with the amount thereof. He also decreed that the net proceeds of the property sold should not be apportioned between principal and income, but that all of same remains principal. Such decree has been unanimously affirmed by the Appellate Division.

The first question to be considered is whether taxes and other expenses of real estate, held by the executors in trust under the will, which became unproductive subsequent to the death of the testator, should be paid out of principal, subject to apportionment between principal and income upon a sale of the property, or should be charged solely to income. The second question is as to whether the net proceeds of the sale of a portion of the real estate should be apportioned and if so in what manner. The pertinent paragraphs of the will are the following:

Ninth. The rest, residue and remainder of my estate, real and personal, 1 devise and bequeath to my Executors hereinafter named, the survivors or survivor of them in trust, nevertheless, to receive the income and profit thereof and apply the same to the use of my wife during her life. Upon her death said residue shall vest in my descendants then living, per stirpes and not per capita, but if on the happening of that event there be no descendants of mine'living, it shall vest in my heirs-at-law, as determined by the Law of the State of New York, as it is at the date of the execution of this Will.

“ If all of the descendants of my said wife and self shall predecease her, me surviving, said residue shall on the death of the last descendant so surviving, vest in her absolutely and forever.

Tenth. It is my desire that the portion of my estate represented by my interest in The Continental Iron Works, and the joint interest I have with my brother, Thomas Fitch Rowland, Jr., in the real estate devised to us by our honored father, Thomas Fitch Rowland, shall be handled in conjunction with the interest of my said brother in such properties, if practicable, to the end that each of us may obtain the same benefits from their manipulation.”

“ Thirteenth. I nominate and appoint my wife, Alice Cary Rowland, Executrix, and my brother, Thomas Fitch Rowland, Jr., and my cousin, George Attwater Tibbals, Executors of this my Will and direct that no bond be required from them as such or as Trustees. I authorize and empower them as such and as Trustees to retain for investment or for specific distribution any securities of which I may die possessed, with power to sell the same and reinvest the proceeds and to sell my real estate at public or private sale, and to lease or mortgage the same.”

It is a general rule that as between the fife tenant and the remainderman, the former is bound to pay ordinary expenses of maintenance of the property forming the subject-matter of the trust. (Matter of Albertson, 113 N. Y. 434; Matter of Satterwhite, 262 N. Y. 339.)

When the character of the trust property, the circumstances surrounding the execution of the will and the relationship of the testator to the beneficiary are such that intent to that effect on the part of testator may be presumed, a discretionary power of sale will be deemed in certain circumstances a mandatory power for the purpose of effecting an equitable conversion. The learned Surrogate, because the bulk of the property here in question was substantially productive at the time of the execution of the will and so continued until subsequent to the death of the testator, has taken the view that the facts contradict an inference of intent on the part of the testator for equitable conversion; that the existence of such an intent is necessary and that a decree that, in the circumstances, the power of sale herein should be deemed mandatory would amount to a re-writing of the will and attribute to the testator an intent not existent when the will was executed.

A consideration of the cases where a discretionary power of sale has been held to become an imperative power of sale as to unproductive real estate demonstrates quite clearly that no definite principle can be stated applicable to all cases because of the varying nature of testamentary provisions and, further, that the relationship of the beneficiary to the testator and the nature of the interest of the residuary legatee have largely influenced the courts in the application of the rule as laid down in particular cases.

In Lawrence v. Littlefield (215 N. Y. 561) a niece of the testatrix, whom she had treated as a daughter, was the life beneficiary of one-quarter of the residuary estate. The testatrix gave her executors power and authority to sell, as in their judgment they should deem proper, real property which was -unproductive at the death of the testatrix. This court determined, in an action for construction of the will, that the power of sale was imperative as to all the property of the testatrix except that specifically devised; that there was an equitable conversion as of the time of her death, and that the niece was entitled out of the proceeds of the sale to an apportionment.

The next case was Spencer v. Spencer (219 N. Y. 459, 467). There real estate unproductive at the death of the testator constituted the corpus of a trust for the benefit of the widow. The carrying charges consumed all of the income derived from the balance of the residuary estate. The will granted discretionary power of sale to the trustees. This court decided because of the unproductive character of the real estate, the carrying charges of which would consume all of the income from the balance of the trust estate, and the fact that the widow, who was the first object of the testator’s bounty, would be deprived of all benefit under the will, and in view of certain inferences to be drawn from the wording of the will, that it was within the testator’s intent that the taxes and carrying charges should be paid from principal. The court said, to give his widow the income from the unproductive farm would be somewhat of.a mockery.”

In Furniss v. Cruikshank (230 N. Y. 495, 500) trusts were created for children of the testator. The funds set up for one of his daughters included unoccupied and unproductive real estate which was held for many years and finally sold at a greatly enhanced value. The will gave the trustees a discretionary power of sale. The court restated the rule that the interpretation of a will and the inferred intent of the testator must be gathered from the language used, the circumstances and conditions surrounding the execution of the will, as well as the relationship of the testator to the object of his bounty. The conclusion reached was that the testator here designed an imperative power of sale with discretion only as to the time of its exercise.”

In Matter of Jackson (258 N. Y. 281) unproductive real estate was included in a trust created by a testator for the benefit of his wife. The will authorized the trustee in its discretion to sell at any time • any of the improductivo real estate. The power to sell was held to be imperative, leaving the time of sale only to the discretion of the trustee. The court decided that the widow was entitled to an apportionment of the proceeds of the sale of the unproductive property.

It will be noted that in each of the foregoing cases, the real property involved was unproductive at the date of the death of the testator. In Matter of Satterwhite (262 N. Y. 339) and Matter of Chapal (269 N. Y. 464) the same principle was applied.

That the tendency of legislation is toward exempting the beneficiary of a trust from liability for carrying charges on unproductive property and toward apportionment between principal and income of the net proceeds of the sale of such property is indicated by section 11 of the Uniform Principal and Income Act, Uniform Laws Annotated (Vol. 9, Supplement, p. 171), approved by the National Conference of Commissioners on Uniform State Laws in 1931, and already in force in Oregon, Virginia and North Carolina. That such is proper practice in the administration of trusts is expressed in the Restatement of the Law of Trusts, American Law Institute (Vol. 1, §§ 240 and 241). Yale Law Journal (Vol. XL, p. 275) contains a note which makes a strong argument for the adoption of a general rule disregarding intent and specifying a positive duty on the part of the trustee to so act as to save the beneficiary from loss by a prompt sale of the property and, in the meantime, exempting the beneficiary from liability for carrying charges. We have not gone to that extent in this State.

The principle that a discretionary power of sale becomes an imperative power of sale and effects an equitable conversion in favor of the beneficiary of a trust who is a special object of the"testator’s bounty as respects property which becomes unproductive subsequent to the death of the testator, is not without authority to sustain it.

In Matter of Jackson (supra, p. 291) it was said that the rule here relied on by the courts below “ thwarted the testator’s probable purpose by loading carrying charges of unproductive real property upon the life tenant although such tenant was obviously the first object of his solicitude so long as she lived.” Also that The distinction between this case and cases where there is no imperative power of sale or equitable conversion; where the testator directs the trustees to sell only in their discretion and where it is, therefore, said that the only inference is that testator intended to benefit the principal of his estate * * * may not ultimately prevail.”

The learned Surrogate has in effect held that an intent to have an apportionment will only be imputed to the testator where the testator knew that the inclusion of the property in question would wholly or materially destroy the value of the gift.

It seems to us that it would be at least as reasonable to assume an intent that the power should be imperative as to property known to be productive but which later becomes unproductive. We think under the facts of this case the existence of an intent that the power of sale was to become imperative upon failure of productivity with likelihood of continuance of that status, may be imputed to the testator. The life tenant was primarily the object of the testator’s bounty. While he knew that the real property was productive he also knew that its productivity depended upon the continued existence and prosperity of the Continental Iron Works, a business in which he was financially interested and the management of which, through stock ownership, in part was in the hands of the executors and in part in the hands of his brother, who was one of the executors. It is not to be presumed that if he had foreseen the dissolution of the corporation and the surrender of the lease, with a resultant substantial loss of income to his wife, he would not have given an imperative power of sale which would result in saving so much as possible of the income to his wife or would not have provided that if the property be held, the carrying charges should be paid out of principal pending a sale of the property. We hold, therefore, in the circumstances of this case under the provisions of the will, that an equitable conversion occurred upon the surrender of the lease and that the carrying charges on the Continental Iron Works property pending a sale are properly to be charged against principal and thereafter upon sale apportioned. In so far as the property sold is concerned, there should be an apportionment. Since the sale included a part of the iron works property which as a whole earned some income but was subject to large expense and also another lot wholly unproductive but subject to expense separately accounted for, determination of the net proceeds as to each portion must first be arrived at. The apportionment should be made according to the formula prescribed in section 241 of the Restatement of the Law of Trusts.

The intent of this decision is not to lay down a general rule, applicable to all trusts involving real property which becomes unproductive during administration of the trust. The decision is based on the facts of the particular case.

The orders appealed from should be reversed and the proceeding remitted to the Surrogate’s Court for a decree in accordance with this opinion, with costs to all parties payable out of the estate.

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

Ordered accordingly.


author: Loughran, J.

text:
    Dominic Dandino, Appellant v. New York Central Railroad Company, Respondent.
    Argued January 14, 1937;
    decided January 26, 1937.

      John W. Miles for appellant.
    It was the duty of the defendant to maintain this crossing in a safe condition for the ordinary use of the resident farmer. When defendant’s employees blocked the crossing with the speeder, defendant breached this duty and committed an act of negligence which caused plaintiff’s injuries. (Cons. Laws, ch. 49, § 52; Wademan v. Albany & Susquehanna R. R. Co., 51 N. Y. 568; Har

      riman v. New York, C. & St. L. R. R. Co., 253 N. Y. 398; Gale v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 594; Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 247; Hoffman v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 605; Allen v. N. Y. C. R. R. Co., 228 App. Div. 382; Smith v. N. Y. & O. M. R. R. Co., 63 N. Y. 58; Prince v. N. Y. C. & H. R. R. R. Co., 60 Hun, 581; Cotton v. New York, L. E. & W. R. Co., 65 Hun, 625; Laible v. N. Y. C. & H. R. R. R. Co., 13 App. Div. 574; 162 N. Y. 621; Wood v. N. Y. C. & H. R. R. R. Co., 83 App. Div. 604; 179 N. Y. 557.) The negligence of defendant’s servants was the proximate cause of plaintiff’s injuries and the accident was a probable consequence of such negligence. (O’ Neill v. City of Port Jervis, 253 N. Y. 423; Halstead v. Village of Warsaw, 43 App. Div. 39; Daly v. Horton Ice Cream Co., 166 App. Div. 28; Tinker v. New York, O. & W. R. R. Co., 71 Hun, 431; McGlone v. Angus, Inc., 248 N. Y. 197; Condran v. Park & Tilford, 213 N. Y. 341; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Lilly v. N. Y. C. & H. R. R. R. Co., 107 N. Y. 566; Ehret v. Village of Scarsdale, 269 N. Y. 198.)

      Paul Folger and Harlan F. Calkins for respondent.
    The evidence was insufficient to charge the defendant with negligence. (Palsgraf v. Long Island R. Co., 248 N. Y. 339; O’ Neill v. City of Port Jervis, 253 N. Y. 423; Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Digelormo v. Weil, 260 N. Y. 192; Lake Erie R. R. Co. v. Juday, 19 Ind. App. 436; Scaggs v. President, etc., D. & H. Co., 145 N. Y. 201; Vandewater v. N. Y. & N. E. R. R. Co., 135 N. Y. 583; Hohman v. N. Y. C. & H. R. R. R. Co., 100 App. Div. 17; 184 N. Y. 591; Burns v. D. & H. Co., 110 App. Div. 592.)
   Loughran, J.

In this action for personal injuries the plaintiff had a verdict. The Appellate Division reversed on the law and dismissed the complaint. The decisive issue was neatly stated by that court in this manner:

' Was the accident, not just exactly as it happened but, as it might have happened, reasonably foreseeable by defendant’s servants acting with due regard for the plaintiff’s rights? ” Unless we are prepared to say that all reasonable minds would give a negative answer on ah the facts of the plaintiff’s case, then there was evidence of the defendant’s negligence proper to go to the jury and the dismissal of the complaint cannot be upheld.

Foui" tracks of the defendant’s railroad traversed the plaintiff’s farm east and west. Defendant maintained on the property a farm crossing for passing and repassing north and south over its right of way. (See Railroad Law [Cons. Laws, ch. 49], § 52.) ' For a distance of nineteen feet on the defendant’s roadbed the crossing was surfaced with crushed stone and planking on a level with the tops of the rails. East and west of that nineteen-foot fill the drop from the top of the rails was six inches.

Plaintiff drove from the south side of his farm to the crossing on a so-called roller drawn by two horses. On the opposite brink of the railroad tracks was a motorized work car which a section gang of the defendant had left on the crossing roadway between the tracks and a gate in the fence on the north fine of the defendant’s right of way. This vehicle was seven feet long and five feet three inches wide. The roller on which the plaintiff was riding was an iron cylinder eight feet in horizontal length and two feet in diameter.

When I got up to the crossing,” plaintiff said to the jury, there was this thing standing on the crossing in my way.” The work car, he said, “ was right in the center of the crossing.” We accept the view of the Appellate Division that it was not required of the plaintiff as matter of law that he should have tried to turn around with a team of horses and a farm roller in the middle of a four-track railroad for the purpose of retreating in the direction from which he came.” Plaintiff drove to the right around the obstruction. • As he did so, one end of the roller moved off the east' edge of the crossing surface and the roller bounced against the rails.” We tell the plaintiff’s story-in his own words: When the roller hit the rails, then it scared my horses and they started going * * *. I got them through the gate all right, and I tried to stop them you know, and they hit a stone in the lot and that is the time they threw me off * * *. When the roller hit those rails on the right it bounded on the rails and scared my horses * * *. I started for the field. I tried to stop them, but I couldn’t stop them.” Neighbors of the plaintiff described bis horses as gentle and well-behaved.

On these facts (which the jury must be taken to have found) it has been held that there was no evidence of negligence of the defendant. The Appellate Division said: “ That such an occurrence would cause a team of farm horses to become unduly frightened and unmanageable is not a thing defendant was bound to foresee and guard against.”

We find ourselves unable to say that it was not open to any reasonable mind to come to a contrary conclusion on the whole case for the plaintiff. His horses were harnessed to the roller by a gear of some sort. That they were agitated to an unusual degree by the mishap on the crossing is not altogether improbable. The cases of another day instruct us that restiveness in horses may be brought about -under a wide variety of circumstances. The question here is not whether the combination and sequence of incidents were in our judgment likely to induce steady horses to bolt. The question here is whether the jury were perverse or fanciful in the view they took of the occurrence. (Hart v. Hudson River Bridge Co., 80 N. Y. 622.) Looking at the case in that way, we think it was properly handled at the trial.

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

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

Judgment accordingly.


text:
    Harrison E. Fryberger, Appellant, v. N. W. Harris Company, Inc., et al., Respondents, Impleaded with Others.
    Argued January 13, 1937;
    decided January 26, 1937.

      Harrison E. Fryberger, appellant in person.
    Appellant is entitled to prosecute this appeal as a matter of right for the reason that a constitutional question is involved. (Brookman v. Hamill, 43 N. Y. 554; Delaney v. Brett, 51 N. Y. 78; Gambold v. MacLean, 254 N. Y. 357; Marcus v. Kane, 18 Fed. Rep, [2d] 722; Borgfeldt v. Wood, 92 Hun, 260; First National Bank v. Frankel, 235 App. Div. 96; Niles v. Yoakum, 179 App. Div. 75; Commercial C. Corp. v. Third & Layfayette Sts. Garage, Inc., 226 App. Div. 235; Seneca W. & Mfg. Co. v. Leach, 247 N. Y. 1; Place v. Minster, 65 N. Y. 89; Northern Pacific Ry. Co. v. Boyd, 228 U. S. 482; Silver King v. Silver King, 204 Fed. Rep. 166; Central Imp. Co. v. Cambria Steel Co., 201 Fed. Rep. 11; Hurd v. New York & C. Steam Laundry Co., 167 N. Y. 89; Pierce v. U. S., 255 U. S. 398; Kansas City Ry. Co. v. Central Union Tr. Co., 271 U. S. 445.) Where the decisive question is whether a judgment is the result of due process, the appeal lies to this court as a matter of right. (Valz v. Sheepshead Bay B. Corp., 249 N. Y. 122; Bradt v. McClenahan, 118 App. Div. 768.)

      David B. Landis for N. W. Harris Company et al., respondents.
    The appeal must be dismissed as it does not lie as of' right and appellant has failed to obtain leave to appeal. (Matter of Haydorn v. Carroll, 225 N. Y. 84; Cowles v. Cowles, 235 N. Y. 559; Matter of Weiss v. Wickwire Spencer Steel Corp., 242 N. Y. 533; Harper v. Thompson, 249 N. Y. 617; Gans v. Callaghan, 256 N. Y. 552; People ex rel. Moss v. Bd. of Supervisors, 221 N. Y. 367.) Error on the part of the trial court does not violate the Fourteenth Amendment of the Federal Constitution or section 6 of article 1 of the Constitution of the State of New York. (Hanna v. Stedman, 230 N. Y. 326; Mulligan v. Bond & Mortgage Guarantee Co., 193 App. Div. 741; Kilpatrick v. Argyle Co., 199 App. Div. 753.)

      Arthur M. Boal for Consolidated Electric and Gas Company et al., respondents.
   Hubbs, J.

Appellant has appealed without permission from a judgment of the Appellate Division, which unanimously affirmed a judgment of the Special Term dismissing his complaint upon the merits after a trial.

TMs court is without jurisdiction under the Civil Practice Act (§ 588, subd. 5) to entertain this appeal from an unanimous affirmance by the Appellate Division taken without consent. Such consent has not been granted. Appellant insists that this court has jurisdiction under the Civil Practice Act (§ 588, subd. 1) because there is directly involved the construction of the Constitution of the State or of the United States.” If he is right in such contention, the court has jurisdiction.

The action has been treated and tried as an action in equity. Appellant denominates it as an action in the nature of a creditor’s bill. The Appellate Division referred to it as an action for rescission. Appellant charges that the defendant corporations, their agents and confederates, made certain false and fraudulent representations to appellant and his assignors which induced them to purchase certain shares of stock of the Central Public Service Corporation; that respondent, Central Public Service Corporation, and their confederates and respondent, N. W. Harris Company, entered into a conspiracy to transfer all of the assets of the Central Public Service Corporation to two new corporations, the respondents Consolidated Electric and Gas Company and Central Public Utility Corporation for the purpose of hindering and defrauding creditors; that when he discovered the fraud, he and his assignors rescinded the purchases and demanded back the purchase price paid for the stock and that by reason of the rescission they were converted from stockholders to creditors. He demands an equitable lien on the assets so transferred, that all entries in the books showing'him a stockholder be canceled, and for a personal judgment against the individuals who took part in the conspiracy.

The alleged constitutional question directly involved is that the judgment violates the Fourteenth Amendment to the United States Constitution, for the reason that the decision and judgment are not responsive to the issues; that the court failed to give due weight to the evidence produced by appellant; and that the court acted arbitrarily in applying erroneous principles of law. Appellant made a motion for a new trial, in which he stated: “ That the findings in favor of defendants, the decision and judgment of the Court deprive plaintiff of his property without due process of law and in violation of the Fourteenth Amendment to the Constitution of the United States and of Article 1, Section 6, of the Constitution of the State of New York.”

The gist of his claim is that the judgment granted by the Special Term and unanimously affirmed by the Appellate Division is wrong, and that he has been deprived of his property without due process of law. We are unable to see that there is any constitutional question directly involved on this appeal. Appellant has had his day in court; has had a trial lasting about nine days; and all issues which the court decided relevant under the applicable rules of law have been decided by the court in a decision which contains over a hundred findings of fact.

“ It is firmly established that when parties have been fully heard in the regular course of judicial proceedings an erroneous decision of the State court does not deprive the unsuccessful party of his property without due process of law within the Fourteenth Amendment of the Constitution of the United States.” (Bonner v. Gorman, 213 U. S. 86, 91.)

The appeal should be dismissed, with costs. (See 273 N. Y. 584.)

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

Appeal dismissed.


author: Finch, J. Crane, Ch. J.

text:
    Squaw Island Freight Terminal Company, Inc., Respondent, v. City of Buffalo, Appellant.

      Argued September 28, 1936;
    decided March 9, 1937.

      Gregory U. Harmon, Corporation Counsel (Frank C. Westphal of counsel), for appellant.
    The judgment entered by the Appellate Division is not sustained by evidence at the trial. (Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Graser v. Stellwagen, 25 N. Y. 315; Allen v. Patterson, 7 N. Y. 476; Blair v. Bartlett, 75 N. Y. 150; Shaw’s Jewelry Shop, Inc., v. New York Herald Co., 170 App. Div. 504; 224 N. Y. 731; Gilman v. City of Philadelphia, 70 U. S. 713; Rutz v. St. Louis, 10 Fed. Rep. 338; Escanaba Co. v. Chicago, 107 U. S. 678; Cummings v. Chicago, 188 U. S. 410; Rocky Point Oyster Co. v. Standard Oil Co., 265 Fed. Rep. 379; Pound v. Turck, 95 U. S. 459.) The plaintiff’s right to recover is barred by its own acts or those of its licensee. (Bowman v. Humphrey, 132 Iowa, 234; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; McKay v. Syracuse R. T. Ry. Co., 208 N. Y. 359.) Chapter 341 of the Laws of 1882 constitutes a complete defense to the action. (Sayre v. Newark, 60 N. J. Eq. 361; Commonwealth ex rel. Attorney-General v. City of Newport News, 164 S. E. Rep. 689; City of Richmond v. Test, 48 N. E. Rep. 610; City of Valpariso v. Hagen, 54 N. E. Rep. 1062; Strawberry Island Co. v. Cowles, 79 Misc. Rep. 279; Illinois Central R. R. Co. v. Illinois, 146 U. S. 387; City of Cleveland v. Standard Bag Co., 72 Ohio St. 324.) The action of the United States government in respect to the modification and withdrawal of dredging permits in and about Squaw Island bars the granting of an injunction against the defendant, and also bars a recovery of damages. (McMorran Milling Co. v. Little Co., 201 Mich. 301; United States v. Gleason Coal Co., 14 Fed. Rep. [2d] 233; Archer v. Greenville Sand & Gravel Co., 233 U. S. 60; Appleby v. City of New York, 271 U. S. 364; People ex rel. Lehigh V. Ry. Co. v. State Tax Comm., 247 N. Y. 9; Wear v. Kansas, 245 U. S. 154; Strawberry Island Co. v. Cowles, 79 Misc. Rep. 279.) The Appellate Division erred as a matter of law in granting the judgment which it did. (McCann v. Chasm Power Co., 211 N. Y. 306; Knoth v. Manhattan Ry. Co., 187 N. Y. 243.)

      James A. Deckop, Adrian Block and John F. Huber, Jr., for respondent.
    The plaintiff has a common law right to have the waters of Niagara river flow by its premises in a state of natural purity, subject to a reasonable use thereof by upper riparian owners, and this right is property which cannot be taken for a public use, other than navigation, without due compensation. (Sweet v. City of Syracuse, 129 N. Y. 316; Smith v. City of Rochester, 92 N. Y. 463; Kingman v. Sparrow, 12 Barb. 201; Matter of Commissioners of State Reservation, 37 Hun, 537; Jones v. Llanrwst Urban District Council, [1911] 1 Ch. 393; Lyon v. Wardens of Fishmongers, [1876] 1 App. Cas. 662; Matter of City of New York, 168 N. Y. 134; Western New York Water Co. v. City of Niagara Falls, 91 Misc. Rep. 73; 176 App. Div. 944; 226 N. Y. 671; Strobel v. Kerr Salt Co., 164 N. Y. 303; City of New York v. Blum, 208 N. Y. 237; Butler v. Village of White Plains, 59 App. Div. 30; Mann v. Willey, 51 App. Div. 169; 168 N. Y. 664; Huffmire v. City of Brooklyn, 162 N. Y. 584; Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79; Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75; Hedges v. West Shore R. R. Co., 150 N. Y. 150; Thousand Island

      Steamboat Co. v. Visger, 179 N. Y. 206; Town of Brookhaven v. Smith, 188 N. Y. 74.) Even though plaintiff’s damages were consequential, it is entitled to redress. (Huffmire v. Brooklyn, 162 N. Y. 584; Sammons v. City of Gloversville, 175 N. Y. 346; Western N. Y. Water Co. v. City of Niagara Falls, 91 Misc. Rep. 73; 176 App. Div. 944; 226 N. Y. 671; Hill v. Mayor, 139 N. Y. 495; Morton v. Mayor, 140 N. Y. 207; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18.) The plaintiff is entitled to an injunction restraining the defendant from discharging sewage upon and adjacent to its lands, and from polluting the waters flowing over, along and adjacent to its lands. (Fonda v. Village of Sharon Springs, 70 Misc. Rep. 101; Lawatsch v. City of Kingston, 68 Misc. Rep. 236; Adams v. Popham, 76 N. Y. 410; Chapman v. City of Rochester, 110 N. Y. 273; Huffmire v. City of Brooklyn, 162 N. Y. 584; Snow v. Williams, 16 Hun, 468; Bolton v. Village of New Rochelle, 84 Hun, 281; Sammons v. City of Gloversville, 175 N. Y. 346; Butler v. Village of White Plains, 59 App. Div. 30; Moody v. Village of Saratoga Springs, 17 App. Div. 207; 163 N. Y. 581.) Plaintiff is entitled to recover damages for loss of rental value of its lands and the value of the destroyed sand and gravel deposits. (Whitbeck v. N. Y. C. R. R. Co., 36 Barb. 644; Rock v. Belman Contracting Co., 141 Misc. Rep. 242; Argotsinger v. Vines, 82 N. Y. 308; Carpenter v. City of Buffalo, 137 Misc. Rep. 618; 232 App. Div. 868; Michel v. Supervisors of Monroe Co., 39 Hun, 47; Rumsey v. N. Y. & N. E. R. R. Co., 136 N. Y. 543; Doyle v. M. R. Co., 128 N. Y. 488; Roberts v. N. Y. E. R. R. Co., 128 N. Y. 455; Reisert v. City of New York, 174 N. Y. 196.) Whether plaintiff now has or ever had a permit to excavate sand and gravel has no bearing on the action. (Archer v. Greenville Sand & Gravel Co., 233 U. S. 60; Waterford E. L. H. & P. Co. v. State, 208 App. Div. 273; 239 N. Y. 629; Miller v. Mayor, 109 U. S. 385; Converse v. Portsmouth Cotton Oil Refining

      Corp., 260 U. S. 724; Huffmire v. City of Brooklyn, 22 App. Div. 406; 162 N. Y. 584.)
   Finch, J.

This action is brought by the plaintiff, as part owner of Squaw Island, for an injunction restraining the city of Buffalo from committing a permanent, continuing trespass upon, and interfering with, the rights of the plaintiff arising from' emptying its sewage into the Niagara river and for damages. Plaintiff further alleges that unless the plaintiff obtains relief by restraining such trespass, nuisance, and illegal and wrongful acts on the part of the defendant, the plaintiff will be compelled to bring its actions from day to day against the defendant to recover its damages. Thus a bill of complaint is stated praying equitable relief on the ground of multiplicity of suits.

The Niagara river is a navigable fresh water stream which forms part of the international boundary line between the United States and Canada. It bounds the city of Buffalo on the west. Close to the east bank of the river and within the city limits is Squaw Island, the major portion of which was purchased by the plaintiff in 1916. In 1926 the plaintiff purchased from the State thirty acres of land under water. The plaintiff, through a licensee, has been engaged in dredging sand and gravel from the island. The dredging is done in the water along the shore of the island and this causes the upland close to the dredged areas to fall into the water. As a result the river has gradually widened, covering many acres of the plaintiff’s land. This dredging by the plaintiff’s licensee created or enlarged a “ bay ” along the shore of the island.

In 1882 the State Legislature authorized the city of Buffalo to construct a sewer running into the Niagara river. This sewer was constructed and is known as the Swan street sewer. It removes the sewage from almost half of the city of Buffalo. Adjacent to the sewer is a city pier known as the Bird Island pier. In the course of years the outlet of the sewer has been moved slightly and extensions have been built which, for the purposes of this appeal, it is unnecessary to describe in detail. In 1917 a new concrete wall or pier was constructed by the city close to the Bird Island pier and from time to time this wall has been extended.

Prior to 1925 the sewage emitted through the Swan street sewer does not seem to have affected the property of the plaintiff to any appreciable extent, but in that year it began to settle upon the sand and gravel which was being dredged. From then till 1927 these deposits became more and more polluted by sewage and since 1927 they have been so badly polluted that it is claimed that they are useless for commercial purposes.

Subsequent to 1922 the dredging had been done under Federal licenses. The last license of the plaintiff ran to 1929 and was never renewed. Another license of the plaintiff for a portion of the island seems to have been revoked in May, 1927, but the plaintiff had stopped dredging in May, 1927, before the revocation of this license and long before the expiration of the other license.

At the trial there was dispute and conflicting' testimony on the question whether the pollution of the sand and gravel in 1925, after many years during which the discharge of the sewage had not polluted the plaintiff’s land, was the result of the erection of the new stone wall and its extensions and the changes in the sewer outlet by the city, or whether it was the result of the creation or extension of the bay by the plaintiff’s dredging. The trial court found that the bay acted as a settling basin drawing the sewage and other matter upon the sand and gravel under the waters of the bay and that but for the contributing acts of the plaintiff in excavating the sand and gravel, and thereby forming the bay in question, the sewage would have passed down the river without damage.

The trial court in its opinion stated that the Niagara river, being a navigable stream and an international boundary, and title in the bed of the stream being in the State, is subject to the same rule as tidal waters and that, therefore, riparian owners are not entitled to have the water flow by their property in its natural unpolluted state and that municipalities may sewer into it. It found that the State had granted the city of Buffalo the right to sewer into , the river and that the city had acted in compliance with this grant. It also found that the pollution was the result of the plaintiff’s own acts. The trial court further found that at all times since the construction of the sewer down to the present time the said Swan street sewer has continually discharged and now discharges into the Niagara river upstream from Squaw Island great quantities of domestic, raw, untreated sewage, offal, trade waste, street sweepings, filth and other matter all coming from the city of Buffalo through the various branches of the districts served by said Swan street trunk sewer and that the average dry weather flow and discharge of the Swan street sewer is and has been at the rate of 90 cubic feet per second. Moreover the court found that the first traces of sewage and filth appeared on the land of the plaintiff in the summer of 1925 and that thereafter said sewage and pollution continued to increase until May, 1927, when the destruction of all sand and gravel deposits on said land became complete.

The order and judgment of the Appellate Division recited a reversal on the law and facts. Since only four insignificant findings of fact were reversed, this statement in the order and judgment must be applied in light of what the reversal actually accomplishes. In addition to the reversal of the four findings of fact, the conclusions of law are reversed, but no new findings are made. The reversed findings of fact are either of minor importance or, in substance, conclusions of law. Thus we find that in effect the reversal left intact the findings of fact of Special Term but, instead of exonerating the defendant, as a matter of law it imposed liability upon the city on the ground that it lacked the right to discharge sewage in such manner as to pollute the sand and gravel of the plaintiff. The Appellate Division further ordered that the action be remitted for the ascertainment of damages and for the issuance of an injunction but that the injunction be withheld till Special Term determined means adequate to avoid the pollution and a reasonable time to put such means into effect, and that the effective date of the injunction should be fixed accordingly and upon such further terms and conditions as in the discretion of the trial court will best preserve the legal rights of the parties. In its opinion accompanying the order, the Appellate Division stated that it did not determine the question of weight of evidence, but assumed that there was proof sufficient to support the findings of the trial court.

The Appellate Division has certified questions to this court.

The appeal is on certified questions from an interlocutory judgment, and, therefore, even though there are reversed findings of fact, this court cannot consider the weight of evidence. We must accept as true the facts found by the Special Term in so far as they have support in the evidence. Special Term has found that sewage from the city sewer has polluted the sand and gravel of the plaintiff, but that the plaintiff brought this upon itself by excavating its sand and gravel and thereby creating the bay, which acts as a settling basin.

The general rule is that a riparian owner in a non-navigable fresh water stream is entitled to have the water that passes his land free from pollution. Such riparian owners, therefore, are entitled to an injunction against a city which pollutes the water of such a stream. (Sammons v. City of Gloversville, 175 N. Y. 346.) As to tidal waters the rule is that riparian owners are not entitled to have such waters free from pollution. (Seaman v. City of New York, 176 App. Div. 608; affd., 227 N. Y. 572; Darling v. City of Newport News, 249 U. S. 540.) The underlying basis for this exception as to tidal waters is that the State is the absolute owner of the bed of the stream and may grant rights therein of benefit to the public, subject only to the right of the public to use the waters for purposes of navigation. (9 R. C. L., p. 682.) The State, however, has title to the bed of the Niagara river (Matter of Commissioners of State Reservation, 37 Hun, 537), and it is a navigable stream. The questions of how far the city of Buffalo, if duly authorized by the State, may pollute the waters of the Niagara river, and whether the tidal waters rule is applicable to that river, are not before us for the following reason.

The rule permitting the pollution even of tidal waters has been always subject to the limitation that in the absence of express sanction the pollution must not result in a direct trespass or nuisance to the property of riparian owners. (Bolton v. Village of New Rochelle, 84 Hun, 281; cases in 15 British Ruling Cases, p. 1027; 9 R. C. L., p. 683; 84 Am. St. Rep., p. 922. See Huffmire v. City of Brooklyn, 162 N. Y. 584.) Certainly a municipality cannot escape liability for the pollution of waters which results in a continuing direct trespass and nuisance to riparian owners, unless the State has sanctioned such nuisance or trespass. (1 Farnham on The Law of Waters and Water Rights, § 138b.) No such permission or sanction is to be found in the case at bar. The statute merely authorizes the construction of the sewer with an outlet in the-Niagara river. (Laws of 1882, ch. 341.) This does no more than grant permission to discharge sewage into the river. It does not expressly confer authority to create a nuisance or commit a trespass. The rule is that legislative authority, which will justify an injury to private property and afford immunity for acts which otherwise would be a nuisance, must be express, and it applies in full vigor to statutes authorizing municipalities to discharge sewage into rivers. (Sommons v. City of Glovers ville, 175 N. Y. 346; British Ruling Cases, p. 1035 et seq.; Montgomery & Phelps, Stream Pollution, p. 124 et seq.) Whether legislation authorizing pollution which creates a nuisance would be constitutional, it is unnecessary for us to decide at this time.

The point is made that the defendant is not guilty of creating a nuisance, or at least is not responsible for the nuisance, since Special Term- has found that the dredging by the plaintiff resulted in the formation of the bay, which contributed to the nuisance. The plaintiff, however, was doing what it had a perfect right to do. We cannot hold that the plaintiff cannot recover for the nuisance on the ground that, if it did not use its land in the manner in which it had a right to use it, there would be no nuisance. Thus, one who owns or purchases a plot of unimproved land may construct a dwelling house upon it and then complain that noxious gases emitted from a neighboring factory constitute a nuisance. Of course, the owner of the dwelling house brought the damage upon himself by building upon his land adjacent to the factory. But, although there may have been no one in a position to complain prior to the erection of the house of the plaintiff, the plaintiff had the right to build, and the owner of the factory did not have the absolute right to persist in emitting fumes which had become a nuisance. Similarly, the city of Buffalo, which has the right to discharge the sewage into the river, may not persist in doing so in a manner which results in a continuing trespass upon, or a nuisance to the land of the plaintiff while the plaintiff is using the land in a manner in which it has a right so to do.

Leeds v. New York Telephone Co. (178 N. Y. 118), relied upon by the defendant, is not at all in point. That was a personal injury action, in which it was held that negligence of the defendant, if the defendant was negligent at all, was not the proximate cause of the injury, but merely a remote cause, the proximate cause being the negligence of another. Nor does Bowman v. Humphrey (132 Iowa, 234) aid the defendant. That case held that the doctrine of contributory negligence was not applicable to an action to recover for a nuisance, but that the erroneous charge on the point had not prejudiced the plaintiff since he had been awarded damages. The opinion contains dicta to the effect that the plaintiff cannot recover for damages occasioned by his own neglect or wrongdoing, but in the case at bar it has not been found that the plaintiff was guilty of neglect or wrongdoing.

The city also argues that the plaintiff is barred from recovering damages because its Federal licenses have been revoked or have expired. The plaintiff, however, has not made application for new licenses. Such licenses might be granted or refused upon present application, but even if refused now, they might be granted in the future. The lack of licenses, therefore, cannot bar the plaintiff from recovering damages, but may be considered in mitigation of damages and even perhaps to the entire elimination thereof.

We conclude, therefore, that the first certified question should be answered in the affirmative, and the second, third, and fourth questions should be answered in the negative.

It is unnecessary to answer the fifth and sixth certified questions except as follows. In view of the fact that an essential municipal activity is involved, and, since the plaintiff, lacking the necessary license, cannot dredge at present, the Special Term, in carrying out the judgment of the Appellate Division, in the event that the city is unable to find means adequate to avoid the pollution, should find the amount of permanent damages, if any, to the plaintiff and withhold the injunction unless the defendant fails to pay or tender to the plaintiff the amount so found within a reasonable time to be fixed by Special Term. (Ferguson v. Village of Hamburg, 272 N. Y. 234.)

The order and interlocutory judgment of the Appellate Division should be modified in accordance with this opinion and as so modified affirmed, without costs. The questions certified should be answered as indicated herein.

Crane, Ch. J.

(dissenting). On this appeal we are obliged to take the findings as they come to us affirmed by the Appellate Division, for it is on these findings that the court has determined that an injunction should issue. The facts as stated in these findings are the following:

The Niagara river is a navigable fresh water stream connecting Lake Erie with Lake Ontario, the current of which flows in a northerly direction from Lake Erie to Lake Ontario at a velocity from four to six miles per hour. (A good brisk walk for a man.)

Since June 21, 1916, the plaintiff has been and now is the owner in fee of all that portion of Squaw Island here in question. On the 21st of April, 1926, the People of the State of New York by letters patent granted to "the plaintiff certain lands under the waters of Niagara river mentioned and described in the complaint in this action; that since acquiring title to Squaw Island the plaintiff, through its licensee, dredged sand and gravel in the Niagara river in the vicinity of Squaw Island, the operation of which was conducted through scows and boats equipped with powerful hydraulic suction pumps, and caused portions of the uplands of Squaw Island to slide and fall into the water by reason of the removal of support thereof. This operation was conducted to such an extent that the original shore line of said island was changed and a large bay or indentation was formed on the southwesterly end thereof. The digging itself was done by the Squaw Island Sand and Gravel Corporation, a licensee of the plaintiff, which had a iicense_from the United States government for certain areas in the southerly end of the island. This company never exercised any of the rights under said permit, which expired December 31, 1929.

Under date of April 27,1926, the United States, through its district engineer in the city of Buffalo, served notice upon various persons, firms and corporations that any dredging operations in progress in the Niagara river must cease on or before May 15, 1926, as they were in violation of section 10 of the River and Harbor Act, approved March 3, 1899. (30 U. S. Stat. pp. 1121, 1151.)

I quote the 14th finding in full:

“ 14. That in addition to the dredging of sand and gravel in and around Squaw Island, the plaintiff through its licensee, the Squaw Island Sand and Gravel Corporation, excavated a channel between the shore line of said island and the interior thereof, and that by the dredging of sand and gravel from the lands under water, the dredging away of the shore line of Squaw Island and the excavation of a channel toward the interior of the said island by the plaintiff in and along the westerly and southerly portion of said island, the said plaintiff created a bay therein which acted as a settling basin drawing sewage and other matter from Niagara River upon the sand and gravel existing on lands under the waters of said bay.”

That by chapter 341 of the Laws of 1882 the city of Buffalo was granted authority to construct the Swan street trunk sewer in the city of Buffalo and to outlet said sewer into the Niagara river north of the waterworks and south of Albany street. The sewer was built and has been maintained and used by the defendant, pursuant to such act, since about the year 1883.

The following findings I quote in full:

“ 17. That for a long time prior to the plaintiff’s ownership of Squaw Island, other agencies besides the defendant, the City of Buffalo, polluted and are at the present time polluting the waters of Niagara River before they reach the lands of plaintiff.” ■

“ 19. That as the plaintiff through its licensee dredged sand and gravel from the lands under water east of the Harbor Line and east of the bulkhead line at Squaw Island, sewage and other material were drawn upon the lands of the plaintiff by the suction produced in such dredging.

“ 20. That the Swan Street Trank Sewer of the City of Buffalo at all times since 1883 carried and now carries not only the dry water flow or sanitary sewage so-called of the district served, but also the storm Water drainage of said district.”

22. That there was no pollution of the sand and gravel upon the lands of said plaintiff from the time the defendant commenced to sewer into Niagara River until the creation of the bay and channel by the plaintiff, or its licensee, on the southwesterly side of Squaw Island.”

The findings further state that the method adopted by the plaintiff and its assignee in producing sand and gravel resulted in making a portion of its lands a part of the bed of the Niagara river.

Again I quote:

“ 25. That the method adopted by the plaintiff, and its licensees, in such removal, not only subjected its lands to the effect of any pollution that there might be of the waters of Niagara River, but also interfered with the current of the stream by causing the collection of water in the artificial bay at the southern extremity of the Island, and reducing the flow of the water, generally, along the west shore of the Island.

26. That but for the plaintiff’s own acts, no sewage from the Swan Street sewer, either as originally constructed, or as reconstructed by the City, including the building of the Bird Island Pier, would have been deposited upon the lands of the plaintiff, but rather, by reason of the swift current of the river, would have been carried past the lands of the plaintiff without damage thereto.”

The trial judge dismissed the complaint, finding as a question of law that the defendant has not invaded or injured any property of the plaintiff. This conclusion of law was reversed by the Appellate Division which, however, affirmed all the findings of fact just stated. The Appellate Division on these facts gave judgment remitting the case to the Special Term, (1) for the purpose of determining the amount of damages, if any, to which the plaintiff is entitled; (2) for the issuance of an injunction restraining the city of Buffalo from disposing of its sewage into the Niagara river in such a manner as will invade the legal rights of the plaintiff as a lower riparian owner; (3) suspending the injunction until the Special Term shall determine adequate means to avoid the pollution of which the plaintiff complains, and a reasonable time to put it into effect; (4) the date of the injunction to be fixed accordingly, and upon such further terms as the court in its discretion deems best to preserve the legal rights of the parties hereto.

The question comes down to this: Is this a case where the plaintiff is entitled to an injunction or any equitable relief? Can it compel the city to change its sewer system to prevent damage which the plaintiff has caused itself in the past and which may never exist again? Here is a large drainage sewer serving a large part of the city of Buffalo. We are told that the Niagara river has a current which flows at the velocity of from four to six miles an hour. From 1883 to 1925, a period of forty-two years, the sewer was in operation without causing any damage whatever to the plaintiff’s land or its sand. Thereafter the plaintiff changed the course and current of the river, created a large bay, thus preventing its natural flow. By this means the plaintiff drew upon its land, or the land under the water, the sewage which no longer could be carried off by the flow of the river and which remained to do damage, solely by reason of the plaintiff’s interference.

This is not a case where a riparian owner is complaining because the water has been polluted, as it flowed by his place in its usual and natural course; neither is it a case where a riparian owner has been damaged because of the usual and ordinary use made of a flowing stream, such as for mill purposes, irrigation or the watering of cattle or for navigation. The plaintiff has changed the course of the river; it has stopped its natural flow, has slowed down the current, has created bays by digging out its upland, and complains against the city because these changes, created by it for commercial purposes, failed to carry off the sewage and damaged its sand or land under water. Is it for such a purpose that equity should require the city of Buffalo to change its extensive sewerage system? I think not.

The United States government must be consulted before the natural flow of navigable waters can be changed and the courses of waterways interfered with. In this case the plaintiff’s licensee obtained a license from the government. Later the United States government notified property owners along the river that dredging operations therein must cease. I mention these matters simply to show that riparian rights are more or less limited to the natural and ordinary flow of navigable rivers and uses which are customarily made of them; that riparian rights do not necessarily include the right to change the course of rivers and the depth of river bottoms.

The city of Buffalo should not be obliged to devise and submit plans to the courts modifying its sewer system so as to prevent any future damage to the plaintiff’s sand in its bays. The plaintiff may never be able to dredge there again without permission from the United States government. Shall the city undertake extensive sewer alterations in view of such contingencies or doubtful expectancies? The Special Term has been ordered to determine an adequate means to avoid the pollution of which ihe plaintiff complains and an injunction is to issue after the city has had a reasonable time to put the means or plan into effect.

We all agree, I think, that no such injunction should issue.

Suggestion, however, is made by Judge Finch that the Appellate Division judgment should be modified by providing that the injunction issue should the city fail to pay the plaintiff’s damage as determined by the Special Term. This might be reasonable procedure if we were convinced that the plaintiff has suffered any damage for which the city of Buffalo is responsible. The facts as detailed show, in my judgment, that the plaintiff has suffered no damage through the acts of the city for which it should pay. The authority relied upon, Huffmire v. City of Brooklyn (162 N. Y. 584), is not in point. Huff-mire was authorized by an act of the Legislature to plant his oysters in well-defined, licensed oyster beds. He had placed his property, personal property, on such a bed. The city of Brooklyn collected coal tar in its sewer and dumped or threw it onto these oysters. Here was a direct act of damage which was unnecessary and unjustified, as the city of Brooklyn could have built its sewer elsewhere.

The city of Buffalo has not collected sewage and discharged it upon the land of the plaintiff. For forty years the Niagara river carried off the city’s sewage without damage to anybody. For the purpose of selling its sand the plaintiff dug away the shore of the Niagara river, virtually stopped or retarded its flow, dug out a bay, drawing into it from the river the sewage of which it complains. We have the fact clearly stated in the fourteenth finding, that the plaintiff, by dredging away the shore line of Squaw Island, and by the excavation of a channel toward the interior, created a bay therein which acted as a settling basin, drawing sewage and other matter from the Niagara river upon the sand and gravel existing on lands under the waters of said bay. This is not a riparian right which has been destroyed or injured by the city of Buffalo. The plaintiff bases its cause of action upon injury to its riparian rights. What were its riparian rights? So far it has been assumed in this case, without question, that the plaintiff was entitled to a flow of clear water, no matter what it did to the shore line or to the Niagara river. If the plaintiff, under the conditions which it created, has no riparian rights, it has suffered no damage.

Judge Vann, in Strobel v. Kerr Salt Co. (164 N. Y. 303, 320), has defined these rights so clearly that I quote his words in full: "‘A riparian owner is entitled to a reasonable use of the water flowing by his premises in a natural stream, as an incident to his ownership of the soil, and to have it transmitted to him without sensible alteration in quality or unreasonable diminution in quantity. While he does not own the running water, he has the right to a reasonable use of it as it passes by his land. As all other owners upon the same stream have the same right, the right of no one is absolute, but is qualified by the right of the others to have the stream substantially preserved in its natural size, flow and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must, therefore, be consistent with the rights of the others, and the maxim of sic utere tua observed by all. The rule of the ancient common law is still in force; aqua currit et debet currere, ut currere solebat. Consumption by watering cattle, temporary detention by dams in order to run machinery, irrigation when not out of proportion to the size of the stream, and some other familiar uses, although in fact a diversion of the water involving some loss, are not regarded as an unlawful diversion, but are allowed as a necessary incident to the use in order to effect the highest average benefit to all the riparian owners. As the enjoyment of each must be according to his opportunity and the upper owner has the first chance, the lower owners must submit to such loss as is caused by reasonable use. Surrounding circumstances, such as the size and velocity of the stream, the usage of the country, the extent of the injury, convenience in doing business and the indispensable public necessity of cities and villages for drainage, are also taken into consideration, so that a use which, under certain circumstances, is held reasonable, under different circumstances would be held unreasonable. It is also material, sometimes, to ascertain which party first erected his works and began to appropriate the water.” This was followed in Pierson v. Speyer (178 N. Y. 270) and City of New York v. Blum (208 N. Y. 237, 242), where Judge Miller wrote regarding riparian owners: Each is entitled to a reasonable use of the water flowing by his premises and each is entitled to have the stream preserved in its natural size, flow and purity.”

Riparian rights are such as grow out of the ownership of banks of streams and not of the ownership of the bed of the stream. (Rome Railway & Light Co. v. Loeb, 141 Ga. 202.)

Gould on The Law of Waters ([3d ed.] § 148) says: " Riparian rights. * * * The distinction between tide waters and fresh, or between public and private waters, is not necessarily a material consideration in determining questions relating to riparian rights, since riparian rights proper depend upon the ownership of land contiguous to the water, and are the same whether the proprietor of such lands owns the soil under the water or not.”

Again, in section 92, the author states: The owners of lands bordering upon navigable waters may lawfully throw sewage and other refuse matter into them, provided they do not create a nuisance to others; for it is a natural office of the sea and of all running waters to carry off and dissipate, by their perpetual motion and currents, the impurities and offscourings of the land.”

The plaintiff’s riparian rights were not enlarged by reason of its property being an island instead of the main land. It could make reasonable use of the Niagara river for purposes stated in these opinions or reasonable use for any other purpose connected with the use of its main land, but it had no right to divert the stream, permanently retard the flow of the water, or change its current and then complain of the results. As before_ stated, for forty-two years the current of the Niagara_river carried off the drainage of the city of Buffalo without injury to the plaintiff or anybody else. The plaintiff dug away the bank or shore of the river, created bays and canals, creating in the words of the finding, “ a settling basin drawing sewage and other matter from Niagara Biver upon the sand and gravel.” In other words, the flow of the river at this point was retarded and its natural current interfered with, not for temporary use, but permanently. These excavations and changes in the watercourse, under all the circumstances stated here, were not the reasonable use which a riparian owner can make of a navigable river.

The Appellate Division has certified six questions, and in my opinion they should be answered in the following order:

“ 1. Is the judgment entered by the Appellate Division sustained by evidence presented at the trial?” Answer: No.

“ 2. Is plaintiff’s right to recover barred by its own acts or those of its licensee?” Answer: Yes.

“3. Does chapter 341 of the laws of 1882 constitute a complete defense to this action? ” Answer: On the findings here made, yes.

4. Do the actions of the United States government in respect to the modification and withdrawal of dredging permits in and about Squaw Island bar a recovery of damages?” Answer: No.

“ 5. Do the actions of the United States government in respect to the modification and withdrawal of dredging permits in and about Squaw Island bar the granting of an injunction against the defendant?” Answer: No.

6. Did the Appellate Division err as matter of law in granting the judgment which it did?” Answer: Yes.

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

O’Brien, Hubbs and Loughran, JJ., concur with Finch, J.; Crane, Ch. J., dissents in opinion; Lehman, J., dissents.

Ordered accordingly.


author: Crane, Ch. J.

text:
    Henni Mansbacher, Respondent, v. Prudential Insurance Company of America, Appellant.
    Argued January 14, 1937;
    decided March 9, 1937.

      Solon Weit, Joseph G. Telchin and Abraham Gruber for appellant.
    As a matter of law, the insured’s death, from having intentionally and voluntarily taken veronal, was not the result of bodily injuries effected solely through external, violent and accidental means. (Appel v. Ætna Life Ins. Co., 86 App. Div. 83; 180 N. Y. 514; Pixley v.
      Commercial Travelers Mut. Acc. Assn., 165 App. Div. 950; 221 N. Y. 545; Fane v. National Association of Ry. Postal Clerks, 197 App. Div. 145; Barnstead v. Commercial Travelers Mut. Acc. Assn., 204 App. Div. 473; Gould v. Travelers Ins. Co., 244 App. Div. 274; 270 N. Y. 584; Caldwell v. Travelers Ins. Co., 305 Mo. 619; United States Mut. Acc. Assn. v. Barry, 131 U. S. 100; Landress v. Phœnix Mut. Life Ins. Co., 291 U. S. 491; Naggy v. Provident L. & Acc. Ins. Co., 218 Iowa, 694; Calkins v. National Trav. Ben. Assn., 200 Iowa, 60; Lehman v. Great Western Acc. Assn., 155 Iowa, 737; Parker v. Provident Life & Acc. Ins. Co., 178 La. 977.)

      Joseph L. Hochman and Emanuel Morganlander for respondent.
    The death of the insured resulted from bodily injuries effected solely through external, violent and accidental means within the meaning of the policy. (Lewis v. Ocean Accident & Guaranty Corp., 224 N. Y. 18; Gallagher v. Fidelity & Casualty Co., 163 App. Div. 556; 221 N. Y. 664; Hodgson v. Preferred Accident Ins. Co., 100 Misc. Rep. 155; 182 App. Div. 381; Dezell v. Fidelity & Casualty Co., 176 Mo. 253; Townsend v. Commercial Travelers Mut. Acc. Assn., 231 N. Y. 148; Hoenig v. N. Y. Life Ins. Co., 282 N. Y. Supp. 443; Schwartz v. Commercial Travelers Mut. Acc. Assn., 132 Misc. Rep. 200; 227 App. Div. 711; 254 N. Y. 523; McQueen v. Prudential Ins. Co., 143 Misc. Rep. 682; Clancy v. John Hancock Mut. Life Ins. Co., 282 N. Y. Supp. 510; Hahn v. Home Life Ins. Co., 84 S. W. Rep. [2d] 361; Penfold v. Universal Life Ins. Co., 85 N. Y. 317; U. S. Casualty Co. v. Griffis, 186 Ind. 126; Miller v. Fidelity & Cas. Co., 97 Fed. Rep. 836; Lewis v. Iowa State Traveling Men’s Assn., 248 Fed. Rep. 602.)

      J. Alvin Van Bergh for policyholders, amici curiæ.

    The language of the policy negatives any distinction between “ accidental death ” and “ accidental means.” (Carter v. Standard Accident Ins. Co., 65 Utah, 465; Lewis v. Ocean Accident & Guarantee Corp., 224 N. Y. 18;
      Jensma v. Sun Life Assur. Co., 64 Fed. Rep. [2d] 457; Zurich v. Flickanger, 33 Fed. Rep. [2d] 853; Dezell v. Fidelity & Casualty Co., 176 Mo. 253; Brown v. Continental Cas. Co., 161 La. 229; Carter v. Standard Accident Ins. Co., 65 Utah, 465; Æna Life Ins. Co. v. Kent, 73 Fed. Rep. [2d] 685; U. S. Mutual Accident Assn. v. Barry, 131 U. S. 100; Gustafson v. N. Y. Life Ins. Co., 55 Fed. Rep. [2d] 235; McQueen v. Prudential Ins. Co., 143 Misc. Rep. 682; Maryland Ins. Co. v. Massey, 38 Fed. Rep. [2d] 724; Schwartz v. Commercial Travelers Mut. Acc. Assn., 254 N. Y. 523; Gohlke v. Hawkeye Commercial Men’s Assn., 198 Iowa, 144; Ashley v. Agricultural Life Ins. Co., 241 Mich. 441.)
   Crane, Ch. J.

The plaintiff, a widow, brought this action as beneficiary under a policy of life insurance issued by the defendant, wherein her deceased husband, Paul Mansbacher, was the insured. The policy provided for $2,000 life insurance which was paid to the plaintiff after the insured’s death, and $2,000 Accidental Death Benefit.”

The insured died on January 3, 1934, by accidentally having taken an overdose of veronal. His death was not intentional, and, therefore, was accidental. The family doctor, about two weeks before the insured’s death, had advised him to take one and a half tablets each morning and evening to cure his sleeplessness. This amounted to a total of fifteen grains per day. About two years before the insured had also taken veronal for an earache. On the morning of December 31, 1933, Mr. Mansbacher was suffering from earache and, not finding any aspirin in the home, went to an adjoining apartment occupied by friends, to see if they had any. Not being successful in obtaining aspirin, he told his wife he would take veronal, which he did, apparently to an excessive amount which resulted in his death three days later.

His death was found by the trial court to be accidental, not intentional. The evidence of friends and associates as well as the circumstances surrounding the occurrence justified the trial court in concluding that the case was not one of suicide. The death was accidental, but the insurance company claims that although the death may have been an accident, it was not occasioned by “ accidental means.” The policy in large letters refers to Accidental Death Benefit. The clause referring to this coverage is headed “ Accidental Death Benefit ” and provides for the payment of $2,000. Accidental Death Benefit, if the death of the insured occurred “ as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means * * * provided, however, that no Accidental Death Benefit shall be payable if the death of the insured resulted from suicide ■ — whether sane or insane.” Other exceptions are mentioned not now material.

Any one reading this policy would take it to mean —• would understand it as meaning — that the insurance company would pay $2,000 for death caused solely by accident through external means; if death is caused by any external accident the company pays. The only exception, pertinent here, is suicide. The insurance company now emphasizes the words “accidental means,” and would have an exception drawn between “ accidental death ” and “ death caused by accidental means ” as though any ordinary person seeking a $2,000 policy would understand this logomachy. The large type letters refer to accidental death, and the attention of the insured by the signs and paintings of the company is directed to accidental death. The company now says that this policy does not refer to accidental death; that it has not insured against accidental death; that the accidental death must be caused by an accidental means. In other words, it concedes that the deceased may have taken an overdose of veronal to cure his earache but, as he intended to take veronal, he intended the means of death although he did not intend his death. We have said more than once that insurance policies upon which the public rely for security in death, sickness or accident, should be plainly written, in understandable English, free from fine distinctions which few can understand until pointed out by lawyers and judges. Accidental death means death by accident, and excludes suicide; death occurring through “ accidental means ” in this case and under these circumstances is the same as death occurring by means of an accident.” . . ,

The plaintiff’s case comes within the coverage of this policy. Her husband intended to take veronal but he never intended to take a lethal dose, nor did he intend to take enough to do him any harm; he desired to get relief from pain, -not relief from life. He took too much veronal; it was a mistake, a misstep, an unexpected effect from the use of his prescribed medicine. It was an accident, and must have been an accident unless it was intentional. In other words, if the insured did not intend to kill himself he intended to take enough veronal, as he had done theretofore, to relieve the pain of earache. By mischance he took too much. .His death was accidental and, as we use these words in common parlance, we would speak of it as an accidental death. Contracts are to be interpreted in the light of the language which we commonly use and understand; in other words, our common speech. Such at least should be the rule applied to the interpretation of these policies, and which we sometimes refer to as a liberal .construction. (Abrams v. Great American Ins. Co., 269 N. Y. 90; Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 303.)

. The authorities in this State sustain this conclusion. Lewis v. Ocean Accident & Guarantee Corp. (224 N. Y. 18) . where the puncturing of a pimple on the insured’s lips causing death was held to be death by .accidental means. Infection resulting from .the use of a hypodermic. needle was held to be caused by accidental means. (Marchi v. Ætna Life Ins. Co., 205 N. Y. 606; Townsend v. Commercial Travelers Mut. Accident Assn., 231 N. Y. 148.) Unexpected consequences may constitute accidental means. (See, also, Gallagher v. Fidelity & Casualty Co., 163 App. Div. 556; affd., 221 N. Y. 664.) This was death caused by sunstroke, and it was claimed that as the deceased had voluntarily submitted himself to the heat of the sun it was not an accidental means. The courts discarded such strained interpretation and quoted from Richards on the Law of Insurance, 3d ed. (§ 385), wherein it was said that accidental means are those which produce effects which are not their natural and probable consequences. (See, also, Schwartz v. Commercial Travelers Mut. Assn., 254 N. Y. 523, affg. 227 App. Div. 711, which affd. 132 Misc. Rep. 200.) Cooley in his Briefs on the Law of Insurance (Vol. 4 [1st ed.], p. 3156) says: Strictly speaking, a means is accidental perhaps only when disassociated from any human agency, but this narrow interpretation is not recognized in the law of accident insurance.” Our lower courts have consistently applied this rule. (See Hodgson v. Preferred Accident Ins. Co., 100 Misc. Rep. 155; 182 App. Div. 381.) Instances of the repeated application of this interpretation, showing it to be fairly well understood, may be seen by reference to Hoenig v. New York Life Ins. Co. (282 N. Y. Supp. 443); McQueen v. Prudential Ins. Co. (143 Misc. Rep. 682); Clancy v. John Hancock Mutual Life Ins. Co. (282 N. Y. Supp. 510). There are some cases which have justified the stand taken by the appellant in this case, but we have not followed them in this State. (Carnes v. Iowa State T. M. Assn., 106 Iowa, 281; Lehman v. Great Western Accident Assn., 155 Iowa, 737.)

The facts differ in most every case. In Gould v. Travelers Ins. Co. (244 App. Div. 274; affd., 270 N. Y. 584) and in Appel v. Ætna Life Ins. Co. (86 App. Div. 83, affd., 180 N. Y. 514), loss was not due solely to “ bodily injuries effected directly and independently of all other causes.”

The satisfactory opinion written by the Appellate Division in this case would render it unnecessary for us to add anything further were it not that much reliance has been placed upon Pixley v. Commercial Travelers Mut. Accident Assn. (165 App. Div. 950; affd., 221 N. Y. 545), as indicating that our views differ from the courts below. The Pixley case was an entirely different case as the conditions specifically stated that the policy should not extend to nor cover injuries of which there should be no external, visible mark on the body of the insured, nor to injuries or death resulting from or caused by a poison taken voluntarily, involuntarily or accidentally. The insured there died from the effects of a dose of morphine from which there was no external, visible mark on the body, and further, it was a poison which, even if taken accidentally, did not bring the case within the terms of the policy. -

The reader of this opinion must bear in mind that this court is bound by the finding of the trial court that Mansbacher's death was not suicide. There is some evidence to sustain the finding. We start our opinion from this point — unintentional, accidental death.

For these reasons the judgment below should be affirmed, with costs.

O'Brien, Hubbs, Loughran and Rippet, JJ., concur; Lehman, J., dissents; Finch, J., taking no part.

Judgment affirmed.