text:
    The People of the State of New York, Respondent, v. Michael J. Grogan, Appellant.

      (Argued October 10, 1932;
    decided November 22, 1932.)
    I William H. Daly for appellant.
    It was error for the County Court to hold that the conviction rests upon disputed questions of fact, for the disputed questions of fact tend in no way to sustain a finding of guilt. (People v. Angelo, 246 N. Y. 451; People v. Rosenheimer, 209 N. Y. 115; People v. Waxman, 232 App. Div. 90; Woloszynowski v. New York Co., 254 N. Y. 206; District v. Colts, 282 U. S. 63; People v. Nixon, 248 N. Y. 182.) The information does not charge a criminal offense. (People v. Zambounis, 251 N. Y. 94; People v. Butler, 133 Misc. Rep. 658; People v. Hungerford, 222 App. Div. 710.)

      Elvin N. Edwards, District Attorney

      (Richard H. Brown of counsel), for respondent. The record presents no basis for a review of the facts. (People v. De Simone, 225 N. Y. 261; Ward v. Clark, 232 N. Y. 195.)
   Crane, J.

The defendant has been convicted of violating section 58 of the Vehicle and Traffic Law (Cons. Laws, ch. 71), which reads as follows: “ Reckless driving shall include driving or using any motor vehicle or motor cycle or any appliance or accessory thereof in a manner which unnecessarily interferes with the free and proper use of the public highway, or unnecessarily endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor and shall be punished by a fine not exceeding fifty dollars for the first offense; and by a fine not exceeding fifty dollars or imprisonment not exceeding six months, or by both such fine and imprisonment, in the discretion of the court, for a second or subsequent offense.” This section was formerly section 287-b of the Highway Law (Cons. Laws, ch. 25), being Laws of 1924, chapter 360, section 24. Prior to 1924 the subject was covered by section 287 of the Highway Law, which read as follows: “ Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; provided, that a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent.”

In People v. Winston (155 App. Div. 907) an information was held to be defective which charged the defendant with driving an automobile at a greater rate of speed than thirty miles an hour, but failed to state that it was for a distance of one-fourth of a mile. This present section, 58 of the Vehicle and Traffic Law, being former section 287-b of the Highway Law, attempts to provide for three separate and distinct acts which constitute reckless driving: (1) Driving * * * in a manner which unnecessarily interferes with the free and proper use of the public highway; ” (2) “ driving * * * in a manner which * * * unnecessarily endangers users of the public highway; ” (3) reckless driving is prohibited.” The commission of any one of these three acts is made a misdemeanor. They are separate and distinct offenses and the conviction or acquittal of one does not prevent a prosecution for violating the others. (State v. Andrews, 108 Conn. 209, p. 215.)

Before passing to the attack which has been made upon this statute, we must keep in mind the distinction between a crime, to wit, a 'misdemeanor, and those minor offenses dealt with summarily by justices of the peace or magistrates, known as disorderly conduct, breach of the peace, etc. The distinction is clearly stated by the Appellate Division of the Fourth Department in Matter of Cooley v. Wilder (234 App. Div. 256, 259). The court there said: In passing we may mention a third class of offenses which are neither felonies prosecuted by indictment and triable by a common law jury (Art. 1, § 2), nor misdemeanors triable by Courts of Special Sessions with or without the statutory jury of six (Art. 6, § 18), but petty offenses triable summarily by a magistrate without a jury. Within this category are cases of persons charged with intoxication, vagrancy, with being disorderly persons, etc.; also many cases of violation of municipal ordinances. (Village Law, § 180; Second Class Cities Law, § 183.) These minor offenses, below the grade of misdemeanors, have always constituted in our law a class by themselves. (Tenement House Department v. McDevitt, 215 N. Y. at p. 168.) ”

In this appeal we are dealing with a misdemeanor tried before a Court of Special Sessions (People v. Monahan, 257 N. Y. 388), a crime, not one of those minor offenses dealt with summarily by magistrates. This crime is prosecuted in a Court of Special Sessions upon information instead of indictment. The information must set out the acts constituting the crime with the same clarity as an indictment; it must state the offense and the act constituting the offense. The information cannot be supplemented or pieced out by affidavits in the Magistrates’ Court. (People v. Zambounis, 251 N. Y. 94.) With the exactness required of both indictment and information, the charge against the defendant in this case was under the third subdivision of section 58, as above enumerated. He was charged with reckless driving in the following words: “ That on the 30th day of September, * * * one Michael J. Grogan did wilfully, feloniously and unlawfully operate a motor vehicle, to wit, an automobile, * * * at a rapid and dangerous rate of speed, * * * struck Willy-Knight coupe * * * on the right side * * * which then and there did endanger the life and limbs of the operator of the Willy-Knight coupe, and all such persons as should or might then and there pass along or over the said public highway, in violation of Article 5, section 58, of the New York State Vehicle and Traffic Law.” The learned justice did not find the defendant guilty of the crime charged, that is, of reckless driving at a “ rapid and dangerous rate of speed,” but found that he did unnecessarily endanger the safety of users of the public highway and did unnecessarily interfere with users of the public highway. Rapid ’ ’ is defined by Webster’s Dictionary as very swift, advancing with haste or speed, fast.” This is what the defendant was charged with, but the charge was not proved. The information not only was obliged to state the crime charged against him, but, like the indictment, was obliged to state the fact or the act constituting the crime. The information stated that the defendant was charged with violating section 58 of the Vehicle and Traffic Law in that he did operate an automobile at a rapid and dangerous rate of speed which did endanger the life óf others. The danger arose because of the rapid and dangerous rate of speed. If this means anything it means going fast, exceeding the speed law. There is not a bit of evidence in the case that the defendant was going fast or at a rapid rate of speed, and the judge does not find him guilty of any such act.

Two automobiles met at intersecting crossings, the complainant was driving one,— the Willys-Knight,— and the defendant the other. The complainant testifies that as she approached the crossing she could not see the intersecting street, because of a hedge and a house, until she got at the intersection. She was then going at five or ten miles an hour, and increased her speed to twenty, when the defendant’s car was only fifty feet from her, coming on her right, through the intersecting street. For the prosecution there is not one word of evidence as to the speed of the defendant’s car. The whole case is based upon the fact that a collision occurred, the defendant’s car striking the hind fender of the complainant’s. The defendant testified that he was going about fifteen miles an hour; and that as he was entering the cross street, the plaintiff’s car shot rapidly in front of him. On these facts the defendant has been charged, as above stated, with driving at a rapid and dangerous rate of speed, endangering the lives of the public. The case is entirely barren of any evidence of excessive speed, or driving at a rapid and dangerous rate of speed, and the information should have been dismissed. We cannot try a defendant on a charge of committing an act constituting a crime and then prove him guilty of another act of which he has not been charged. This is a fundamental principle of criminal law.

Besides this, section 58, by its third subdivision, prohibiting reckless driving,” calls for evidence showing something more than mere negligence. In People v. Devoe (246 N. Y. 636) this court said that though merely driving in excess of the speed stated in the Highway Law, section 287, subdivision 2, may not in and of itself constitute the crime of reckless driving under Highway Law, section 287-b, yet the evidence in that case, considering all the circumstances, presented a question of fact for the court. Mere speed in itself in excess of that allowed by the Highway Law is not alone sufficient. In Wood v. Pace (220 App. Div. 386) it was held that one who drove an automobile at between twenty and twenty-eight miles an hour and struck a person crossing the street, was not. guilty of negligence merely because of the speed. As stated in State v. Andrews (108 Conn. 209, at p. 213), The offense of driving recklessly ’ in view of the conditions, as set forth in our own statute, sufficiently meets the requirements of definiteness and certainty. (State v. Goetz, 83 Conn. 437.) The word has a clear and commonly understood meaning, so that one of ordinary intelligence is not left in doubt as to its purport. Though the speed limit imposed in this State has been removed, the term ‘ recklessly still remains definite. Its test does not lie in speed alone, but in that and other circumstances which together show a reckless disregard of consequences.” To the same effect see People v. Angelo (246 N. Y. 451) where this court said regarding the words “ culpable negligence,” that the word culpable ” was equivalent to criminal, reckless, gross, such negligence as is worthy of punishment. It means disregard of the consequences which may ensue from the act and indifference to the rights of others.

Reckless driving, therefore, standing by itself means the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences. Nothing in this evidence tends to show any such reckless driving as makes the defendant guilty of violating this portion of section 58 of the Vehicle and Traffic Law which prohibits reckless driving.

As heretofore stated, the justice did not convict the defendant of the crime charged, that is, driving at a rapid and dangerous rate of speed. He found him guilty under the other two subdivisions of section 58, viz., unnecessarily interfering with free and proper use of the highway and unnecessarily endangering users of the public highway. We have already touched upon the point that the defendant was not charged with these acts, but we pass on to a consideration of the statute, assuming, for the present, that such were the offenses for which he was tried.

The statute has been challenged in these two particulars for indefiniteness and, therefore, as being unconstitutional. As we have above stated, the offense of reckless driving is sufficiently definite, because of the meaning heretofore given to reckless,” to make this portion of the section constitutional. When we consider, however, the other two branches of the statute, “ unnecessarily interfering and unnecessarily endangering,” we have before us other and further considerations. Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited. They must afford some comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how- to comply with its requirements. Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid.” (United States v. Brewer, .139 U. S. 278, 288; Nash v. United States, 229 U. S. 373; International Harvester Co. v. Kentucky, 234 U. S. 216; McBoyle v. United States, 283 U. S. 25-27; Cline v. Frink Dairy Co., 274 U. S. 445, 459.) In the latter case Chief Justice Taft said “ generally that the decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, * * * or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, * * * or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co. (255 U. S. 81, 92), ‘ that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.’ ”

This court recently had before it and very thoroughly discussed the question regarding the constitutionality of a criminal statute claimed to be invalid for uncertainty and indefiniteness (People v. Mancuso, 255 N. Y. 463). The fine drawn as well as it could be in dealing with this difficult subject placed upon the one hand those statutes which defined an offense according to words and terminology which had a common-law meaning or which from long use furnished a standard according to precedents, while on the other side of the line were placed those statutes which were so vague that the standards were wanting. The difference in this court in that case arose not from this rule or this method for determining the constitutionality of statutes, but in determining whether the Penal Law there in question placed the case upon the one side of the line or the other. The authorities were very thoroughly reviewed, for the majority by Chief Judge Cardozo, and for the minority by Judge Kellogg. Negligence, as defined at common law, and according to which the conduct of man has ever been measured, was placed upon that side of the line which made statutes constitutional declaring negligence a crime. But negligence as defined at common law is a term of the profession having a well-defined meaning and affording a reasonably safe standard for human conduct. It has always been defined as the failure to exercise that care which a reasonably prudent person would have exercised under the given circumstances. Innumerable have been the decisions of the courts passing upon the question of negligence. The path has been pretty well cut out and emblazoned along which a man must proceed to avoid the charge of negligence. A statute, therefore, which made “ negligent ” driving of an automobile, causing injury or danger to another, a misdemeanor,” would, we may assume, be constitutional. But a statute falling short of this definiteness would cross the fine as we have tried to draw it, and place the offense among those vague attempts to set up crimes which have resulted in unconstitutional legislation. How can we deal with this question of unnecessarily interfering ” with traffic in a public highway? What is unnecessary interference? What standard have we to measure it by, known to the common law, or to any other realm of jurisprudence? We must not leave it for the judge or jury to guess at; we are obliged to tell them something as a guide and not leave a man’s conduct to be judged solely by the whim of the hour. In driving a car along a street or highway one may stop to ask for directions, or to speak to a passer-by or to look at his tail light or examine his wheels or to assuage his thirst. All these acts may interfere' with traffic and be entirely unnecessary. Can they amount to a crime because a magistrate may determine that in his judgment they unnecessarily interfered with traffic? We have many rules and regulations regarding the use of the highway, the violation of which constitutes an offense. These are specific requirements. We are here dealing solely with this crime which has been defined as “ unnecessary interference.”

Then, too, what is unnecessarily endangering ” the user of the public highway? This is the second crime stated in section 58. Does this mean one who drives or who uses the highway in such a reckless manner as to endanger the fives of the public generally or does it mean the use so as to endanger it for some particular person? Surely we must concede that any person driving an automobile carefully and ivith all the caution of a reasonably prudent person does not unnecessarily endanger other users of the public highway. Every one has a lawful right to use the highway and to use it cautiously and carefully and no law can prevent or prohibit such user. The driving becomes dangerous, or unnecessarily dangerous, in the eyes of the law, only when there is a failure to exercise care or caution under the circumstances. Driving a horse or driving an automobile may be dangerous to pedestrians; this is common every-day knowledge. It only becomes unnecessarily dangerous when negligently driven.

In most of the statutes in other States making dangerous driving of an automobile a misdemeanor we find that the danger is that arising from unlawful or unreasonable or improper speed. (Hood & Wheeler Furniture Co. v. Royal, 200 Ala. 607; Matter of Daniels, 183 Cal. 636; State v. Schaeffer, 96 Ohio St. 215; People v. McMurchy, 249 Mich. 147.) Statutes prohibiting reckless driving, or driving at a rate of speed which is unreasonable under all the conditions, are very generally and by a great weight of authority upheld. (Buddy on Automobiles [8th ed.], p. 408, § 394; p. 1052, § 892.) We find in the cases, however, the words excessive speed,” or “ unreasonable rate of speed,” or the “ driving in such a way as to endanger the lives and safety of the public.” (Commonwealth v. Pentz, 247 Mass. 500; State v. Andrews, 108 Conn. 209.) Some States, however, have gone so far as to declare such phraseology too uncertain to render the law constitutional. (State v. Lantz, 90 W. Va. 738; Strickland v. Whatley, 142 Ga. 802.) (See, also, State v. Goldstone, 144 Minn. 405; Mulkern v. State, 176 Wis. 490; Gallagher v. State, 193 Ind. 629.)

The result of the decisions leads to the conclusion that the standard in all of these cases is and must be that of negligence or the failure to exercise the care of the reasonably prudent man. No man exercising care or measuring up to this standard of the common law is intended to be made guilty by these provisions of our Vehicle and Traffic Law. To do so would penalize the careful man in favor of one who might have been injured through his own carelessness because in criminal offenses there is no such thing as contributing negligence. Therefore, in order to render these two provisions of section 58 of the Vehicle and Traffic Law constitutional and provide for them a standard or measure of conduct, we must read the words unnecessarily interferes ” or unnecessarily endangers ” as “ unreasonably interferes ” or unreasonably endangers,” which means interferes with or endangers the user of the highway through the failure to exercise reasonable care, reasonable caution or the reasonable foresight of a reasonably prudent and careful person.” We then have some standard for the guidance of the court the same as we have in the ordinary negligence case. Without such a standard, without such a measure by which to judge the conduct of man, the criminal statutes are too vague and indefinite for enforcement; they are unconstitutional.

Applying this law to this particular case, small indeed in its consequences, but very important in principle, we find that here, too, the evidence does not bring it within the condemnation of the law. The evidence is lacking of any failure upon the part of the defendant to exercise the care of a reasonably prudent man. He was convicted, not for speeding, but because he struck the other car, without proof that it was his fault through his negligence. The mere collision was insufficient to prove this. As heretofore stated, both cars were approaching the crossing, one at ten miles an hour and the other at fifteen. The complainant, seeing the defendant’s car fifty feet from her for the first time, increased her speed to twenty miles an hour, and the two cars collided. The prosecution failed to prove the speed of the defendant’s car or to show that he could or should have stopped in the distance indicated. There is here lacking that element which makes for negligence or which shows that he was unnecessarily interfering with or unnecessarily endangering users of the highway.

We have argued these latter points because the judge found the defendant guilty of violating the first two subdivisions of section 58, and because of the attack made upon the constitutionality of the statute. Our decision, however, must be for reversal, for the reasons first stated in this opinion. The defendant was charged with reckless driving, prohibited by the third subdivision of the section, in that he drove an automobile at a rapid and dangerous rate of speed, thereby endangering the life of other users of the highway. This charge failed for want of proof, and the information should have been dismissed.

The.judgment should be reversed and the information dismissed.

Kellogg, O’Brien, Hubbs and Crouch, JJ., concur; Pound, Ch. J., and Lehman, J., dissent.

Judgment reversed, etc.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    Standard Oil Company of New York, Respondent, v. George J. Koch, Appellant.

      (Argued October 11, 1932;
    decided November 22, 1932.)

      Herman B. Forman for appellant.
    The plaintiff failed to plead or prove a cause of action. The plaintiff was required to allege and prove the performance on its part, or an excuse for non-performance of the executory consideration expressed in or reasonably inferable from the contract of guaranty; it wholly failed to do so. (Waldheim v. Sonnenstrahl, 8 Misc. Rep. 219; Sun Oil Co. v. Heller, 248 N. Y. 228; Hauswald v. Katz, 216 App. Div. 92; Church v. Brown, 21 N. Y. 315; Utica City Nat. Bank v. Gunn, 222 N. Y. 204; Baker v. Higgins, 2 N. Y. 398; Oakley v. Morton, 11 N. Y. 35.) The written guaranty is insufficient under the Statute of Frauds for the true executory consideration must be expressed in or be fairly inferable from the memorandum. (Church v. Brown, 21 N. Y. 315; Raikes v. Todd, 8 Ad. & El. 846; Drake v. Seaman, 97 N. Y. 230; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Friedman & Co. v. Newman, 255 N. Y. 340; Becker v. Krank, 62 App. Div. 514; Barney v. Forbes, 118 N. Y. 585; Mentz v. Newitte, 122 N. Y. 497; Strong v. Sheffield, 144 N. Y. 392; Union Bank of Louisiana v. Coster Estate, 3 N. Y. 302.)

      Edward A. Fay for respondent.
    There is good and ample consideration to support the giving of the corporate guaranty. (Hamer v. Sidway, 124 N. Y. 538; Union Bank v. Sullivan, 214 N. Y. 332; Seymour v. Warren, 179 N. Y. 1; Powers v. Clark, 127 N. Y. 417; Green v. Odell, 43 App. Div. 494; Traders Nat. Bank v. Parker, 55 Hun, 608; 130 N. Y. 415; Erie Sav. Bank v. Coit, 104 N. Y. 532.)
   Crane, J.

On September 27, 1926, George J. Koch and Peter Caron were copartners doing business under the name of Franklin’s ” in the conduct of a gas service station at Mamaroneck, N. Y. On that day the defendant Koch gave to the plaintiff his written guaranty of payment up to the sum of $3,000 for merchandise “ as may be sold to ' Franklin ’ (Service Station) George J. Koch and Peter Caron, Proprietors,” by the defendant. This partnership guaranty was recorded by the plaintiff in the Queens County Register’s office as a mortgage against the defendant’s property.

On March 14, 1927, this partnership transferred its business to a corporation called “ Koch & Caron, Inc.,” which continued to do business at the same place, but under a different trade name — “ Bus Terminal.” The plaintiff continued to deliver merchandise to Koch & Caron, Inc., for which it became indebted in an amount in excess of $3,582.11, bills for which were sent to the corporation and remained unpaid. Whether or not the liability of Koch on his guaranty was in any way affected by the incorporation of the partnership is not here in question. The plaintiff refused to sell and deliver any more gasoline to the company. Thereupon, other arrangements were made which have resulted in this action. Koch, the defendant, who was president of the business known as “ Bus Terminal,” called at the office of the plaintiff and took up with its assistant credit manager this matter of the overdue accounts. The credit manager testified regarding this meeting with Koch. He said: “ Consistent with my work I made a demand of payment for what was then a long past due balance and I told Koch if he substantially could not pay me and make satisfactory arrangements for future payments, we would have to start legal action. Koch stated, ' Why must you do that? You have security.’ I went up to our file and took that paper out and found that we had had a $3,000 guarantee on Franklins. * * * During the conversation it had developed that they had incorporated, although I had no knowledge of it. When I saw the guarantee, I told him, ‘ Since we have received this guarantee, you have become incorporated, and we feel if you are to receive consideration of us holding back and not suing you, you must give us a guarantee to cover this account which we now discover to be a corporation.’ He was willing to do that, and I made out the guarantee and he signed it.”

This action is brought upon this new guaranty. It reads: I, George J. Koch, * * * do hereby guarantee to the Standard Oil Company of New York, the payment of any sums due or that may become due up to the sum of Three thousand and 00-100 Dollars ($3,000.00) on such goods, wares and merchandise as the Bus Terminal (Koch & Caron, Inc.), Sunnyside Avenue & Boston Post Road, Mamaroneck, N. Y., may have bought or shall buy of it.

" This guarantee is unconditional and continuous and applies to all sales until terminated by written notice served by the undersigned upon the Standard Oil Company of New York, at 370 Seventh Avenue, New York, N. Y.”

No future deliveries were made by the plaintiff. The action upon this new guaranty of March 19, 1928, is for the past indebtedness of the corporation and the question is whether the consideration, not expressed in the writing, may be proved orally. Beyond question, Koch would be liable on the guaranty for all future deliveries and indebtedness, as an agreement to make such deliveries would be the plain meaning and implication of the written words. (Sun Oil Co. v. Heller, 248 N. Y. 28.) Under .the Statute of Frauds, now section 31, subdivision 2, of the Personal Property Law (Cons. Laws, ch. 41), every agreement to answer for the debt of another person is void unless it, or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith. Must this guaranty express the contract, including the consideration? That there was a consideration is evident; action against Koch was to be held back, his property was to be released from the hen of the first guaranty, and credit was to be extended. This consideration, however, was not expressed in the second guaranty. Can it be shown by oral testimony, or must the written guaranty, upon which this action is brought, contain all of the contract, including the true consideration?

These questions have heretofore been answered by this court. Drake v. Seaman (97 N. Y. 230) is one of the leading authorities. It was there held that the writing must contain all the substantial and material terms of the contract, and must show on its face what the whole agreement is, so far as the same is executory and remains to be performed and rests upon unfulfilled promises. The arrangement or agreement made between the plaintiff and Koch was that the Standard Oil Company would surrender' the first guaranty and refrain from suing Koch thereon; also extend further credit to his corporation by future deliveries of gasoline, in consideration of his guaranteeing both past and future indebtedness up to $3,000.

The writing fails to state this agreement. By its terms Koch guarantees past and future indebtedness for an extension of credit on the delivery of gasoline to his corporation. On the face of the guaranty there is no consideration other than this for assuming responsibility for past indebtedness. The plaintiff has failed to make any further delivery of its product. This court, in Poel v. Brunswich-Balke-Collender Co. (216 N. Y. 310, 314) expressed the law upon this point in these words: “ It is not sufficient that the note or memorandum may express the terms of a contract. It is essential that it shall completely evidence the contract which the parties made. If instead of proving the existence of that contract, it establishes that there was in fact no contract or evidenced a contract in terms and conditions different from that which the parties entered into, it fails to comply with the statute.” As late as Friedman & Co. v. Newman (255 N. Y. 340, 343) this court reiterated the substance of this statement, by citing the Poel case and saying: “ The Statute of Frauds merely declares void ’ or ‘ unenforceable ’ a contract not in writing or evidenced by a note or memorandum in writing. It does not declare expressly or by implication that a written note or memorandum of an oral contract is conclusive evidence of the terms of the contract. Doubtless a note or memorandum may constitute an admission of the making of the oral contract and of its terms, but neither the parol evidence rule nor the statute prevents the introduction of evidence contradicting the admission. Except as evidence of the oral contract, the memorandum has no force or effect unless and until the oral contract has been established by a preponderance of evidence. Then, if accurate and complete, it prevents the interposition of the Statute of Frauds as a bar to the enforcement of the oral contract.” (See, also, 1 Williston on Contracts, pages 1095-1097, wherein it is stated that if the consideration agreed upon is executory it must be accurately stated.)

We, therefore, have in this case oral evidence of a contract about which there seems to be little or no dispute. It cannot be enforced because the action, to be performed by both parties, was executory and the writing required by the statute fails to state the agreement.

On the other hand, should we consider this writing as sufficient within the statute, there can be no recovery because of failure of consideration. Concededly, the agreement for the new guaranty was to make future deliveries and to extend credit. (Sun Oil Co. v. Heller, supra.) This the plaintiff refused to do. Whichever way we look at this case the plaintiff is not entitled to judgment.

The judgments below should be reversed, and the complaint dismissed, with costs in all courts.

Pound, Ch. J., Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Judgments reversed,jste.


text:
    John R. Peterson, Appellant, v. The City of New York, Respondent.
    (Argued October 12, 1932;
    decided November 22, 1932.)

      William T. Griffin and Francis R. Peterson for appellant.
    The ramp constitutes an illegal invasion of the public street and the trial court properly ordered its removal. (City of New York v. Rice, 198 N. Y. 124; Bradley v. Degnon Contracting Co., 224 N. Y. 60; Coleman v. City of New York, 70 App. Div. 218.)

      Arthur J. W. Hilly, Corporation Counsel (Alfred D. Jahr, Edwin J. Talley and John E. Duffy of counsel), for respondent.
    The city of New York in the proper exercise of its corporate functions imposed by law possesses the inherent right to use a portion of the wharf or dock at the foot of Tiffany street for purposes of garbage disposal and other lawful purposes. (L. 1901, ch. 466, §§ 535, 539, 540, 542; Coleman v. City of New York, 70 App. Div. 218; 173 N. Y. 612.)
   Crane, J.

The streets of the city of New York are for the usé of the public and cannot be permanently occupied by the city for any of its activities except as specifically authorized by the Legislature. They are acquired and held in trust for the use of all the people. For ordinary and general transportation and traffic they are free and common to all citizens. (City of New York v. Rice, 198 N. Y. 124; Bradley v. Degnon Contracting Co., 224 N. Y. 60; Callanan v. Gilman, 107 N. Y. 360; Matter of McCoy v. Apgar, 241 N. Y. 71; 3 Dillon on Municipal Corporations, § 1175; Knickerbocker Ice Co. v. 42nd St. R. R. Co., 176 N. Y. 408.) The Borough President, by section 383 of the Greater New York Charter (L. 1901, ch. 466; amd. L. 1907, ch. 383; L. 1921, ch. 170; Local Law No. 1 of 1929), is given jurisdiction over the public streets, the power to remove incumbrances and the right to issue permits to use or open them. The Dock Department, -as the name would suggest, has control of the wharves and docks of the city. By section 818 of the charter (amd. L. 1918, ch. 515) the Commissioner has exclusive charge and control of the wharf property of the city, including wharves, piers, bulkheads and structures thereon and water adjacent thereto and all slips, basins, docks, water fronts, land under water and structures thereon and the appurtenances, easements, uses, reversions and rights belonging thereto. The President of the borough, however, shall have control of regulating, grading, curbing, flagging, guttering and draining of marginal wharves, streets or places and laying crosswalks thereon, but the President shall have no other jurisdiction or control of a marginal wharf, street or place. Marginal wharves are provided for in another section, referred to hereafter. Section 535 says that the term “ streets ” shall not include such wharves, piers and bulkheads or slips and parts of streets and places as are by law committed to the custody and control of the Department of Docks, while section 540 imposes upon that department the duty of cleaning wharves, piers, bulkheads, heads of slips and portions of any streets and places by law committed to its custody and control. Also section 542 (amd. L. 1915, ch. 500) directs the Dock Department or Commissioner to set apart for the Street Cleaning Commissioner suitable and sufficient slips for the performance of their duties; that is, suitable to be used to carry away refuse.

By these provisions of the charter we readily see that the Dock Department has full and complete control of the wharves and docks and may permit them, as necessary, to be used for street cleaning purposes. It also has control of marginal wharves, streets or places. These are referred to in the above sections as streets or places committed by law to the custody and control of the Department of Docks. What are these? Section 819 (amd. L. 1913, ch. 327) tells us. This section provides a method for the improvement of the water front and the creation of marginal wharves and streets which after the plans therefor shall have been adopted cease to be public streets. All wharves and piers are to be laid out and built according to these plans which must have the approval of the Sinking Fund Commissioners. Herein we find the following: Whenever the plan so determined upon and adopted, or hereafter to be determined upon and adopted, shall include the widening of an exterior street or avenue, or the opening and construction of a new exterior street or exterior avenue, or the abandonment or closing of such street or avenue already in existence, the power to widen, open, construct, abandon or close the same shall exclusively reside with the said commissioner of docks, who is hereby authorized to take such steps as may be necessary in that regard, and after the same shall have been so widened or opened, the right to maintain the widened portion of a street or avenue already opened, and such new street or avenue shall also reside with the said commissioner of docks; but the street or avenue so widened to the extent of the part so widened, or such new street or avenue opened under this plan shall not be a public street, but shall be a marginal wharf, and shall be used in that regard in such manner from time to time as the commissioner of docks shall, by resolution, determine. The commissioner of docks shall have exclusive power to regulate the use of marginal streets so that the land and buildings upon all such marginal streets may be used to the best advantage in connection with the wharves and bulkheads; and the commissioner of docks shall have the power to regulate, by license or by any other suitable means, the transfer of goods and merchandise upon, over or under all such marginal streets; * *

All other streets remain under the supervision and control of the Borough President.

With this brief statement of the respective rights and powers of the Department of Docks, the Borough President and. the public, let us look at Tiffany street in the Bronx as it appears in this appeal record. It rims down to the bulkhead at the river front and is admittedly a public street; the city’s answer in this case pleads it as such. The findings of the trial judge, affirmed by the Appellate Division, state that Tiffany street is and was at all times mentioned a public street, the southerly termination of which is the present United States bulkhead Une. And the Corporation Counsel on the trial said: “ I also respectfully wish to call your Honor’s attention to the fact that if there are any encroachments on the public street that it is the duty of the Borough President of the county where the encroachment on the street is situated to be brought in as a party defendant.” The city does not claim that Tiffany street has been committed by law to the custody and control of the Commissioner of Docks or that it is a marginal wharf, street or place laid out and constructed according to plans pursuant to section 819 of the charter.

Tiffany street, therefore, being a pubhc street down to the bulkhead Une in the river and under the supervision of the Borough President, the Dock Department had no right to build a structure in the street and shut off part of it from use by the public. The pier and double-decker dock running out into the river was under the exclusive control of the Dock Department and it could authorize its use by ash carts or garbage wagons but it could not build a ramp in the public street to afford a driveway up to the second or upper floor of the dock. The trial court found that this encroachment or ramp was built into, upon and over Tiffany street leading up to the upper platform of the pier and extended along Tiffany street, a distance of fifty-two feet, with a width of twenty-five feet. These findings were reversed by the Appellate Division, but no others were made in their place. The findings of that court are silent on encroachments. As the maps and photographs are not clearly explained in the evidence we turn to the brief of counsel, wherein we find the appellant stating: “ This ramp runs from the United States bulkhead line, which is the southern boundary of Tiffany Street back into the street for a distance of 64.79 feet.” The opinion of the Appellate Division says the same thing. (235 App. Div. 41, 42.)

On the argument the Corporation Counsel frankly stated that the surveys showed an extension into the public street of fourteen feet. No one denies that the approach ramp does encroach upon Tiffany street to some extent and for some distance. This encroachment must be removed as it is an illegal usurpation of the public rights in the highway. The carts of the Street Cleaning Department can go onto the dock from the street level like any other conveyance. (McCarthy v. Mills, 214 App. Div. 70; Coleman v. City of New York, 70 App. Div. 218.)

In all fairness to the Appellate Division, we must mention that this question of encroachment on the public street, of which nothing is said in the findings, was in all probability not pressed upon the court’s attention. Here also the main point on the appeal has been the insistence of the appellant that by reason of covenants and conditions in a predecessor’s deed, the pier itself, or the present user of it, was illegal and a violation of those conditions. To this matter the learned court below gave its attention and we can add nothing to what has been so ably said by the learned justice writing the opinion. We agree with him.

For the reasons stated the relief asked for must be granted to the extent of requiring the city to remove the ramp from the street.

The judgment should be modified in accordance with this opinion and as so modified affirmed, with costs in this court.

Pound, Ch. J., Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Judgment accordingly.


author: Hubbs, J.

text:
    Meyer Rosenberg, an Infant, by Freda Rosenberg, His Guardian ad Litem, Appellant, v. Louis Schwartz, Respondent, Impleaded with Others.
    (Argued October 13, 1932;
    decided November 22, 1932.)

      Sidney J. Feltenstein and Irwin George Robbins, for appellant. Plaintiff made out a prima facie case against the defendant-respondent.

      (Besner v. Central Trust Co., 230 N. Y. 357; Jacoby v. Browning, 105 Misc. Rep. 312; Kesten v. Einhorn, 232 App. Div. 144; Koch v. Fox, 71 App. Div. 288; Boyle v. Robinson, 154 App. Div. 1; McLauglin.y. Eidlitz, 50 App. Div. 518; Lester v. Graham, 157 App. Div. 651; Pedusin v. Brewing Co., 156 App. Div. 383; Slaviz v. Wadleg, 167 App. Div. 658; Antes v. Watkins, 112 App. Div. 860.) The rule of res ipsa loquitur applies. (Griffen v. Manice, 166 N. Y. 188; Uggla v. Brokaw, 117 App. Div. 586; Moore v. Wills, 250 N. Y. 426; Boyle v. Robinson, 154 App. Div. 1; Wolf v. American Tract, 164 N. Y. 30; Kesten v. Einhorn, 232 App. Div. 144; Heffernan v. Benkard, 24 N. Y. Super. Ct. 432; Ketchum v. Ketchum, 116 N. Y. 422; Antes v. Watkins, 112 App. Div. 860; Slaviz v. Wadleg, 167 App. Div. 658; Pedusin v. Brewing Co., 156 App. Div. 383; McLaughlin v. Eidlitz, 50 App. Div. 518; Lester v. Graham, 157 App. Div. 651; Altz v. Lieberson, 233 N. Y. 16; Pluckham v. American Bridge, 186 N. Y. 561; Bohnhoff v. Fisher, 210 N. Y. 172; Hooey v. Airport Construction Co., 253 N. Y. 486; Willy v. Mulledy, 78 N. Y. 310.)

      Walter L. Glenney for respondent.
    The evidence was insufficient to permit a jury to find that the absence of a toeboard was the proximate cause of the accident. (Sandler v. Garrison, 249 N. Y. 236.) No violation of section 194 of the Building Code was shown to have been a proximate cause of the accident. (Sabbatino v. Roebling Construction Co., 136 App. Div. 218; Egan v. Thompson-Starrett Co., 209 N. Y. 114; Genovesia v. Pelham Operating Co., 130 App. Div. 203; Duggan v. National Const. & Eng., Inc., 223 App. Div. 163.)
   Hubbs, J.

The defendant Schwartz was the general contractor engaged in building a church in Brooklyn. He sublet the brick work to Blumkin and Schular, brick masons. At the time in question, the brick wall on one side of the church had reached a height of thirty or thirty-five feet and the masons were engaged in laying brick from a scaffold built on the outside of the wall. The scaffold was erected by extending beams from the interior of the building and placing planks thereon. The workmen stood on the planks while preparing the brick and laying them into the wall. The scaffold was not guarded in any way. There was no rail or screen as required by article 10, section 194, of the Building Code of the City of New York which reads: “All scaffolds used in connection with the erection, * * * shall be constructed in a manner to secure the safety of the workmen on them and of all persons passing under or near them. All scaffolds used on or about buildings at a height of more than twenty feet above the street or ground level, or a door, except scaffolding wholly within the interior of a building and covering the entire floor space or any room therein, shall be provided along the outer edges and ends with substantial railings or enclosures of wire mesh or other suitable material, extending at least three feet above the working platform.”

There was a solid fence on the lot line on that side of the church building about four or five feet from the foundation wall. On the lot next to the building there was a small two-story frame dwelling with a yard in the rear. On the day in question, the plaintiff, a boy twelve years of age, was playing in the yard with bis friend, a son of the occupant of the dwelling. They stood two or three feet from the fence on the side toward the dwelling, watching the work going on in and about the church building.

At that time there were eight men working on the scaffold, which was about two feet below the top of the wall. There were pans of cement and piles of brick on the scaffold. Some of the men were laying brick into the wall, others were bending over breaking brick in half with trowels. Plaintiff’s companion in turning around noticed a piece of brick faffing from where the workmen were breaking the brick on the scaffold. He tried to warn the plaintiff, but it was too late and the brick hit him on the head, causing serious injuries.

This action is to recover the damages resulting from the injury, which it is alleged was suffered because of the defendant’s negligence. At the close of the plaintiff’s evidence, the trial court dismissed the complaint upon the ground that there was no evidence that some one inside the church had not thrown the brick or that boys might not have been playing in the locality. In effect it was held that the evidence did not establish prima facie that the brick which hit plaintiff fell from the scaffold. The evidence introduced by the plaintiff made out a prima facie case, and it was error to dismiss the complaint.

The scaffold was being used in violation of the provisions of section 194 of article 10 of the Building Code. It was not provided along the outer edge with a substantial inclosure extending three feet above the working platform. In fact, there was nothing along the outer edge of the platform to protect the workmen from faffing or to prevent material from being knocked off.

The failure to provide a scaffold which was protected as required by the provisions of the Building Code constituted evidence of negligence, not only as to the workmen using it, but also as to persons passing under or near it. (Martin v. Herzog, 228 N. Y. 164; Schumer v. Caplin, 241 N. Y. 346.)

Whether the accident resulted from the negligent construction of the scaffold was a question of fact which should have been submitted to the jury.

The plaintiff was not a trespasser. He was where he had a legal right to be, in the yard of his friend which adjoined the lot upon which the church was being erected. The scaffold was twenty-five or thirty feet above him and a line dropped from the outer edge of the platform would have touched the ground four or five feet in front of him.

Under the facts of this case, the evidence of the defendant’s negligence created a question for the jury’s consideration as to whether the failure to guard the scaffold as required by law established causal connection between the lack of guards and plaintiff’s injury. The jury might reasonably have found that the plaintiff’s injury was the direct result of the defendant’s negligence. The plaintiff was not required to offer evidence which positively excluded every other possible cause of the accident. .(Martin v. Herzog, supra, at p. 170.)

The defendant contends that the duty of guarding the scaffold did not rest upon him. The jury could have fairly found that the defendant was in control of the work and had actually directed that certain changes should be made in the scaffold. He was always present and supervised all the work being done.

An independent general contractor, who is present and sees and realizes that a subcontractor is doing his work in an unlawful.and dangerous manner may be liable for an injury resulting directly to a third person from such unlawful and negligent conduct. (Besner v. Central Trust Co., 230 N. Y. 357; Lotocka v. Elevator Supplies Co., 246 N. Y. 295; De Haen v. Rockwood Sprinkler Co., 258 N. Y. 350.)

The facts in this case make it an exception to the general rule that a general independent contractor is not liable for the negligent acts of a subcontractor. (Moore v. Wills, Inc., 250 N. Y. 426.)

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to the appellant to abide the event.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and. Crouch, JJ., concur.

Judgments reversed, etc.


text:
    New York Society for the Suppression of Vice, Respondent, v. Macfadden Publications, Inc., et al., Appellants.
    (Argued October 13, 1932;
    decided November 22, 1932.)

      Lewis F. Glaser, Joseph Schultz and Aaron Frank for appellants.
    The plaintiff is a corporation, not engaged in an enterprise for profit or pecuniary gain; and since it failed to allege and prove special damage, it could not maintain an action for libel. (Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Norske Ameriekalinje v. Sun Printing & Pub. Assn., 226 N. Y. 1; First Nat. Bank v. Winters, 225 N. Y. 47; N. Y. Bureau of Information v. Ridgway-Thayer Co., 119 App. Div. 339; 193 N. Y. 666; Kemble & Mills v. Kaighn, 131 App. Div. 63; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377; Electrical Board of Trade v. Sheehan, 210 N. Y. Supp. 127; Matter of Watson, 171 N. Y. 256; Membership Corporations Law, § 10.) Plaintiff relied solely on its general allegation of damage and did not introduce any evidence of actual pecuniary loss. The plaintiff’s right to recover substantial compensatory damages is defeated thereby, and the award for substantial compensatory damages was, therefore, without support in law. (Abell v. Cornwall, 241 N. Y. 327; Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377; Union Assoc. Press Co. v. Heath, 49 App. Div. 247; First Nat. Bank v. Winters, 225 N. Y. 47; Taylor v. Bradley, 39 N. Y. 129; N. Y. Rubber Co. v. Rothery, 132 N. Y. 293; Mann v. Groom, 133 Misc. Rep. 260; Zator v. Buchel, 231 App. Div. 334; Gressman v. Morning Journal, 197 N. Y. 474; Osterheld v. Star Co., 146 App. Div. 388; Bishop v. N. Y. Times, 233 N. Y. 446; Young v. Fox, 26 App. Div. 261; Wuensch v. Morning Journal, 4 App. Div. 110; Kemble v. Kaighn, 131 App. Div. 63; Erick v. Jensen, 17 Fed. Rep. [2d] 255.)

      Martin Conboy and David Asch for respondent.
    The right of a corporation to recover for libel, without allegation or proof of special damages, is not confined to a corporation engaged in an enterprise for profit or pecuniary gain. (Union Assoc. Press Co. v. Heath, 49 App. Div. 247; Town Topics v. Collier, 114 App. Div. 191; Reporters’ Assn. v. Sun Printing & Pub. Assn., 186 N. Y. 437; Finnish Temperance Soc. v. Socialistic Pub. Co., 238 Mass. 345; Chinese Empire Reform Assn. v. Chinese Newspaper Pub. Co., 13 Brit. Col. 141.) Punitive damages were properly awarded. (Crane v. Bennett, 177 N. Y. 106; Cohalan v. N. Y. Press Co., 212 N. Y. 344; Devoy v. Irish World, 208 App. Div. 319; Tim v. Hawes, 87 Misc. Rep. 30; Pecue v. Collins, 204 App. Div. 142; .Wise v. Brotherhood of Locomotive F. & E., 252 Fed. Rep. 961; Cruikshank v. Gordon, 118 N. Y. 178; Corrigan v. Bobbs-Merrill Co., 228 N. Y. 58.)
   Hubbs, J.

The plaintiff is a domestic corporation organized under an act of the Legislature (Laws of 1873, ch. 527) to enforce the laws for the suppression of the trade in and circulation of obscene literature * * * and articles of indecent and immoral use.” The act authorized it to take and hold real and personal property. It is dependent upon voluntary contributions for its support.

The defendant corporation, Macfadden Publications, Inc., is the publisher of the newspaper, the New York Evening Graphic and the individual defendant is the president of that corporation in personal charge and control. Articles were published in that paper which charged the plaintiff with crimes and highly improper and reprehensible conduct. The articles were libelous upon their face.

In this action to recover a judgment for damages against the defendants growing out of the publication of those articles, the trial court directed a judgment for the plaintiff for $10,000, and stated that the articles are libelous, false and defamatory and such that they cannot help but have been injurious, damaging to the plaintiff in its financial support.” The evidence fully justified the statement of the learned trial justice.

It is earnestly insisted by appellants that as “ plaintiff is a corporation, not engaged in an enterprise for profit or pecuniary gain; and since it failed to allege and prove special damage, it could not maintain an action for libel.”

It is clearly settled in this jurisdiction by controlling authority that a corporation may maintain an action for libel without proof of special damage in case a false publication is defamatory and injuriously and directly affects its credit or the management of its business and necessarily causes pecuniary loss.”

The same rule is applicable to a corporation as to individuals. Where the latter may recover without proof of special damage, a corporation may also.” (First Nat. Bank v. Winters, 225 N. Y. 47, 52; Reporters’ Assn. v. Sun Printing & Publishing Assn., 186 N. Y. 437.)

The appellants, while recognizing the general principle enunciated in those cases, contend that it has no application under the facts in this case, the argument being that the principle applies only to corporations engaged "in business for pecuniary gain, and as plaintiff is not such a corporation, and is not engaged in a commercial enterprise for profit, no presumption of actual damage exists, and to justify a recovery, special damage should have been alleged and proved.

No such differentiation is made in the opinions in those cases between business corporations, so called, and non-business corporations.

Corporations engaged in charitable, social welfare, benevolent and religious work, have the right to acquire and hold property which may produce a profit or income. Indeed, the statute under which plaintiff was organized expressly grants that power to it. Many such corporations own and control very valuable properties, and in their management such corporations establish a reputation, rights and interests similar to the reputation, rights and interests acquired by individuals and corporations engaged in business for profit. To decide that such corporations have no reputation acquired in the management of their affairs and property which can be injured or destroyed by a malicious libel, unless special damage is proved, would constitute a reflection upon the administration of justice. Benevolent, religious and other like corporations have interests connected with property and its management which should have the same protection and rights in courts in case of injury as corporations engaged in business for profit.

Their usefulness, depends largely upon their reputation for honesty, fair dealing and altruistic effort to improve social conditions.

The respondent depends entirely upon voluntary contributions for its support. The number and amount of such contributions would necessarily be affected by the publication of false and malicious articles to the effect that it engaged in illegal and reprehensible conduct in the management of its affairs.

It has never been decided by this court that a non-business corporation could not maintain an action for libel without alleging and proving special damages.

In other jurisdictions it has been decided that such corporations may recover in an action for libel without such proof. (Finnish Temperance Society Sovittaje v. Finnish Socialistic Pub. Co., 238 Mass. 345; Chinese Empire Reform Assn. v. Chinese Daily Newspaper Publishing Co., 13 Brit. Col. 141.)

We are in full accord with the decisions in those cases.

We have examined the other points raised by the appellant, but find no error therein requiring a reversal.

The judgment should be affirmed, with costs.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur.

Judgment affirmed.


author: Crouch, J. Crane, J. (dissenting).

text:
    The People of the State of New York, Appellant, v. Arthur L. Lewis, Respondent.

      (Argued October 13, 1932;
    decided November 22, 1932.)

      Frank L. Wooster, District Attorney (Samuel H. Pearis of counsel), for appellant.
    The constitutional guaranties respecting a defendant in a criminal case do not apply in a delinquency case. (Matter of Naccarat, 41 S. W. Rep. [2d] 176; Matter of Broughton, 192 Mich. 418; State v. Dunn, 53 Ore. 304; State v. Zirbel, 173 Wis. 498; State ex rel. Berry v. Superior Court, 139 Wash. 1; Bryant v. Brown, 151 Miss. 398; Lamport v. Smedley, 213 N. Y. 82.)

      Joseph E. North for respondent.
    The infant defendant was not accorded'a hearing nor was testimony taken, in violation of section 22 of the Children’s Court Act. (State v. Road Commission, 131 S. E, Rep. 7; State v. Rogers,
      31 N. M. 485; People ex rel. Keech v. Thompson, 94 N. Y. 451; People v. Fitzgerald, 244 N. Y. 307; People ex rel. Peltz v. Brewster, 232 App. Div. 1; People v. Steinmetz, 240 N. Y. 411; People ex rel. Sabatino v. Jennings, 248 N. Y. 258; People ex rel. Deordio v. Palmer, 230 App. Div. 397; People ex rel. Van Ripper v. N. Y. City Protectory, 106 N. Y. 609; State v. Ray, 63 N. H. 406.)
   Crouch, J.

This is a juvenile delinquency proceeding under chapter 393 of the Laws of 1930, known as the Children’s Court Act of the State of New York. Its proper title is not “ The People of the State of New York against Arthur L. Lewis,” as printed on the record and briefs. It was commenced and carried to judgment under the correct title of “In the Matter of Arthur Lewis, a child under the Age of Sixteen Years.” (§ 10.) The distinction is not without significance.

Arthur Lewis, fifteen years old, in company with a younger boy, broke into a store in Binghamton and stole twelve dollars.. Afterward the two boys, together with two other boys, made their way to Buffalo by means of three automobiles stolen in succession. Brought home, each boy, in separate proceedings, was charged in Children’s Court with juvenile delinquency. In this particular case the charge was based upon the theft of the money. No fault is found with the proceedings had prior to the hearing. The hearings in the four cases were held in succession on the same day. Each boy was examined separately in his own proceeding in the presence of his parents, relatives and friends. When so examined the other boys were not in the room. The entire testimony thus taken was apparently deemed evidence in each case. The course of the hearing in this case, then, was as follows: The boy, in company with his mother, sister and the family clergyman, appeared and their appearances were noted. They were advised by the judge that they might have the aid of counsel if they so desired. The boy was then questioned by the judge. The other boys were thereafter examined in the manner above stated. All the testimony thus given appears in the record by question and answer. Each boy told substantially the same story. The testimony sustains the charge beyond any doubt. Indeed, there was full admission and no attempt at denial. The judge then inquired if any one desired to speak on behalf of the boy. There was no answer. The boy was thereupon adjudged a delinquent child and was committed to the State Industrial and Agricultural School at Industry, N. Y.

Upon appeal to the Appellate Division, the judgment was reversed. The decision is placed upon the ground that the specific act upon which the delinquency charge is based would be a felony if committed by an adult and must be proved in substantially the same manner. The judgment, it is said, is supported by no evidence received in the boy’s presence, and hence rests solely upon his own confession made without a warning against self-incrimination.

Even in a criminal trial the confession which requires corroboration to sustain conviction is only the extrajudicial confession, not the admission made in open court on the witness stand. (16 C. J. 735, § 1514.) If the hearing here had been a criminal trial, its sole defect would have been the failure to warn against self-incrimination. But it was not a criminal trial and there was no defect.

The decision of this court in People v. Fitzgerald (244 N. Y. 307) is cited by respondent as conclusive authority. That case arose under the provisions (since repealed) of chapter 385 of the Laws of 1925, relating to the Children’s Court, so called, of Buffalo. As the opinion points out, that act was little, if any, different in substance and effect from section 486 of the Penal Law. Broadly speaking, it did little more than to set up a separate local court to administer existing law in cases falling under that section. As the opinion also points out, a distinction existed under both statutes between children who fell within the neglect and delinquency provisions not involving acts of a criminal nature, and children who had committed specific acts which had always been and were still regarded as criminal. That distinction was a recognized if not an adjudicated one under section 291 of the Penal Code, which was the forerunner of section 486 of the Penal Law. In the one case, the proceeding was not regarded as criminal in its nature; rather, it was said to be benign and protective. In the other, though often resulting in a commitment to a reformatory instead of to a prison, the proceeding was one to punish for crime; the child was a defendant ” standing in the attitude of a criminal duly convicted of crime.” (Matter of Knowack, 158 N. Y. 482, 487.)

The Buffalo statute by its express terms established a Children’s Court with criminal jurisdiction.” (§ 344-a.) The judge was vested with discretion to consider the child either as upon trial for the commission of a crime, or as one in need of the care and protection of the State. (§ 344-x.) If he took the latter view, he might suspend the trial, inquire into all the facts and surrounding circumstances and then, in lieu of proceeding with the trial, deal with the child in the manner provided in section 486 of the Penal Law in the case of a child without proper guardianship. If the trial proceeded, it might, upon “ competent evidence,” eventuate in a judgment of “ conviction ” whereby, among other things, a fine might be imposed. (§ 344-x.) A judgment upon conviction was appealable to the County Court as prescribed in title 3 of part 5, of the Code of Criminal Procedure, which is entitled “ Of Proceedings in Courts of Special Sessions and Police Courts.” The record in the Fitzgerald case shows that the proceeding was begun by the filing of a petition, also called an information, charging juvenile delinquency by the commission of burglary and larceny. Upon the trial the charge ” was burglary,” not delinquency. The plea ” was “ not guilty.” Defendant was “informed of his constitutional rights.” A judgment of conviction ” resulted, which was affirmed by the County Court and reversed by this court because the trial was a criminal trial in fact and in law, and the conviction rested not on competent evidence as required by the statute under which the proceeding was had, but on grossly incompetent evidence.

The proceeding here is under a widely different statute, which clearly and unmistakably abolishes the distinction referred to above between the two classes of children. The concept of crime and punishment disappears. To the child delinquent through the commission of an act criminal in its nature, the State extends the same aid, care and training which it had long given to the child who was merely incorrigible, neglected, abandoned, destitute or physically handicapped. All suggestion and taint of criminality was intended to be and has been done away with. The legislative intent is made as plain as language can make it. The statute (§ 45) says: “ No adjudication under the provisions of this act shall operate as a disqualification of any child subsequently to hold public office or as a forfeiture of any right or privilege or to receive any license granted by public authority; and no child shall be denominated a criminal by reason of such adjudication, nor shall such adjudication be denominated a conviction. Neither the fact that a child has been before the Children’s Court for hearing, nor any confession, admission or statement made by him to the court or to any officer thereof while he is under the age of sixteen years, shall ever be admissible as evidence against him or his interests in any other court.”

“ All provisions of the penal law or code of criminal procedure or other statutes inconsistent with or repugnant to any of the provisions of this act shall be considered inapplicable to the cases arising under this act.”

The final mandate of the statute is that “ This act shall be construed to the end that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that as far as practicable they shall be treated not as criminals but as children in need of aid, encouragement and guidance.”

So much has been written, judicially and extra-judicially, about the sociological and legal aspects of juvenile delinquency, and about the public policy which underlies such statutes as the one in question, that a detailed discussion here would be trite. For the purposes of this case, the fundamental point is that the proceeding was not a criminal one. The State was not seeking to punish a malefactor. It was seeking to salvage a boy who was in danger of becoming one. In words which have been often quoted, “ the problem for determination by the judge is not, Has this boy or girl committed a specific wrong, but What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.” (23 Harvard Law Review, 104, 119, The Juvenile Court,” by Julian W. Mack.)

The evidence of his specific acts was relevant as an aid in answering those questions. Since the proceeding v was not a criminal one, there was neither right to nor necessity for the procedural safeguards prescribed by constitution and statute in criminal cases. Many cases in many jurisdictions so hold. See, inter alia: Commonwealth v. Fisher (213 Penn. St. 48); Cinque v. Boyd (99 Conn. 70); State v. Elbert (115 Conn. 589); Wissenburg v. Bradley (209 Iowa, 813); Mill v. Brown (31 Utah, 473) ; Matter of Daedler (194 Cal. 320); Matter of Januszewski (196 Fed. Rep. 123); 1 Wharton Crim. Law [11th ed.], § 370, note 2.

Whatever the power of the Legislature may be in the case of adults (cf. Lawton v. Steele, 119 N. Y. 226, 233), there is no doubt about its power to say that an act done by a child shall not be a crime. “ No act or omission is a crime except as prescribed by statute.” (Penal Law, § 22; People v. Knapp, 206 N. Y. 373, 380.)

In the administration of Children’s Courts there is evidence of a tendency to confuse the procedure usual in mere dependency cases with that necessary in delinquency cases involving an issue of fact. To serve the social purpose for which the Children’s Court was created, provision is made in the statute for wide investigation before, during and after the hearing. But that investigation is clinical in its nature. Its results are not to be used as legal evidence where there is an issue of fact to be tried. When it is said that even in cases of lawbreaking delinquency constitutional safeguards and the technical procedure of the criminal law may be disregarded, there is no implication that a purely socialized trial of a specific issue may properly or legally be had. The contrary is true. There must be a reasonably definite charge. The customary rules of evidence shown by long experience as essential to getting at the truth with reasonable certainty in civil trials must be adhered to. The finding of fact must rest on the preponderance of evidence adduced under those rules. Hearsay, opinion, gossip, bias, prejudice, trends of hostile neighborhood feeling, the hopes and fears of social workers, are all sources of error and have no more place in Children’s Courts than in any other court. (People v. Pikunas, 260 N. Y. 72.) (Cf. U. S. Children’s Bureau Publication No. 97 [1922], p. 55, How Far Can Court Procedure Be Socialized Without Impairing Individual Rights,” Judge Edward F. Waite; 13 Jour. Criminal Law and Criminology [1922], pp. 61, 64, “ Socialization of Juvenile Court Procedure,” Dr. Miriam Yan Waters; Juvenile Courts in the United States,” H. H. Lou, p. 138.)

The rights of the child and of the parents are thus amply safeguarded, for the statute provides not only for appeals (§ 43) but it also provides (§ 25) that in delinquency cases, such as this, the court on its own motion or upon application *by any interested person may set aside or arrest judgment or grant a new hearing in the exercise of its powers of protection over the child, either before or after final adjudication or commitment. Moreover, though it is not now necessary so to hold, it may be that the Supreme Court has power, under its general chancery jurisdiction, to intervene in any given case. (Matter of Knowack, supra.)

The judgment of the Appellate Division should be reversed and that of the Children’s Court affirmed.

Crane, J. (dissenting).

Do the Constitution of the United States and the Constitution of the State of New York apply to children or only to adults? By the Fifth Amendment to the Federal Constitution, applicable to Federal courts, no person shall be compelled in a criminal case to be a witness against himself, nor deprived of his liberty, without due process of law. The latter provision, by the Fourteenth Amendment, is made binding on all the States.

These provisions are also in the New York State Constitution. Article 1, section 6, says that no person shall be compelled in any criminal case to be a witness against himself nor deprived of his liberty without due process of law. Again, I ask the question, do these protections and safeguards, found necessary against arbitrary and abusive power, apply only to grown-ups, or do our children share the protection? May a child be incarcerated and deprived of his liberty in a public institution by calling that which is a crime by some other name; and if so, at what age may the Legislature take from him the constitutional right? Again, let me put this more concretely, that we may realize just what we are doing. A man charged with burglary or larceny cannot be compelled to be a witness against himself. He cannot be forced to testify and then be convicted on his own statement. This law is as old as our Constitution. Can a child be deprived of his liberty, taken from his home and parents and incarcerated in an institution for a term of years, by changing the name of the offense from burglary ” or “ larceny ” to “ juvenile delinquency? ” If the Legislature can thus wipe out the constitutional protection by changing a name, the substance and reality remaining the same, at what age of an accused does this power begin and end? May the Legislature call forgery, larceny, burglary, assault, “ moral delinquency,” and send a person twenty years of age to Elmira Reformatory, or some other correctional institution, on his own confession, wrung from him by an inquisitorial process in court, compelling him to be a witness against himself? If this legislative power exists regarding a boy fifteen years of age, why is it not also possible to do the same thing to a young man twenty years of age? At what age do the constitutional safeguards and protection begin? The Constitution of this State and the Federal Constitution, in so far as it is applicable, cannot be nullified by a mere nomenclature, the evil or the thing itself remaining the same.

In this case, young Arthur L. Lewis, a boy fifteen years of age, was charged with violating section 486 of the Penal Law, by willfully, wrongfully and unlawfully forcibly breaking and entering a building, to wit, the Grand Union grocery store, situated at 126 Schubert street in the city of Binghamton, N. Y., and stealing and carrying away therefrom lawful money of the United States. Section 486 of the Penal Law provides that a child over seven, and under sixteen years of age, is a delinquent, who commits an act, which, if committed by an adult, would be a crime, not punishable by death or life imprisonment. This is the only act of delinquency charged against young Lewis. If he had been sixteen years of age, the act charged would have been a crime.

. Under the provisions of the Constitution, above mentioned, he could not be forced to be a witness against himself, which means that the charge could not be proved by questioning him about it as a witness in court.

Other provisions of the Code of Criminal Procedure would also apply to him, such as the inability to convict him on his own confession, without corroboration and the right to be confronted with witnesses and to cross-examine them. We brush these aside for the present, and deal only with the constitutional provision, which the Legislature cannot undermine. Therefore, Lewis, if he were sixteen years of age, would be charged with a crime, and the crime would have to be proved in accordance with the restrictions and prohibitions of the Constitution; he could not be compelled to be a witness against himself, or convicted and sent away on such testimony. Lewis being under sixteen years of age, all these safeguards have been brushed aside; the Constitution means nothing. The acts committed are exactly the same for a boy over sixteen as for a boy under sixteen, but the Legislature has called the one a crime ” and the other juvenile delinquency.” Changing the name for the same series of acts, the Legislature permits and authorizes a judge to question the accused in his court or in his chambers on the charge made against him; can compel him to be a witness against himself, and on his sworn or unsworn statement unsupported by any other evidence, send him to an institution until he is twenty-one years of age. This court should be very slow in sustaining any such arbitrary power.

We fully realize that all these measures were adopted in behalf of the infant, and out of so-called charitable considerations for his welfare. The motives behind all our reform movements are probably commendable and beyond criticism. Some are ever on the lookout to improve civic conditions and the morals of the individual by the force of law, and yet, we must be careful that in these endeavors to correct others, we do not exceed well-recognized principles of municipal government. Absolute power in the hands of a careful and just man may be a benefit, but most of our Constitutions have been adopted out of experience, with human nature as it is, and is apt to be in the future. We must minimize the chance of abuse and place limitations even upon those who have the best of purposes and the most benevolent dispositions. To send a young man to prison for a crime is a serious matter for him and his family. To take a young lad, filled with the wild dreams of childhood, from his parents and his home and incarcerate him in a public institution until he is twenty-one years of age, is equally as serious, and the consequences are not lessened by the emollient term, “ juvenile delinquency.”

The Children’s Court Act of the State of New York (Laws of 1930, ch. 393) provides that a delinquent child is a person less than sixteen years of age who commits any act which, if committed by an adult, would be a crime, not punishable by death or life imprisonment. This is the part we are dealing with here in this case, but the act provides much more. It deals mainly with those children who are incorrigible, ungovernable, habitually disobedient and beyond the control of their parents, those who are habitually truant, and repeatedly desert their home, or who associate with unmoral and vicious persons, or who habitually use obscene or profane language or beg or solicit alms or money in public places. Juvenile delinquency is the commission by a child of any of the offenses enumerated in the foregoing, none of which are crimes if committed by adults or by anybody else. These charges are more or less informal, although records of the proceedings must be kept and sufficient evidence must be produced to prove the condition covered by the act. We are dealing here, however, with a charge of a crime, or that which would be a crime in an adult; it is a single act, not a continuing one. The doing of the deed constitutes the offense which this law caffs juvenile delinquency,” and which in a child a year older would be called a crime.” It is such acts and deeds, call them what you will, which lead to the consequences or punishment; permit incarceration in a protective institution. When the only charge is one of crime ■ — ■ called out of charity juvenile delinquency ”— it must be surrounded in prosecution by the safeguards and limitations of the Constitution. This fundamental document of our State government, if it protects a boy sixteen years of age, must also protect a boy fifteen years of age. Once remove the barriers and where will we stop? If we say sixteen years of age is the limit today, the next Legislature may say twenty. Wise it is for this court to follow the Constitution as it is written, for even under it the field remains wide open for all experiments in the upbringing and developmént of our citizenry.

The Children’s Court Act refers to neglected children and abandoned and destitute children and those physically handicapped. Surely here the Children’s Court, as established, performs a most human function in caring for these unfortunates. In dealing with this subject, even at the expense of repetition, we must be careful to note that we are here touching upon only one minor portion of this progressive legislation, and that is, the juvenile delinquency existing solely upon the charge of an offense which in an adult would be a crime. That recognized procedure is to be followed as far as the circumstances permit is evidenced by section 14 of the Children’s Court Act, which reads: Where the method of procedure in a case or proceeding in which the court has jurisdiction is not provided in this act, such procedure shall be the same as provided by law, or by rules formally adopted by the court within the scope of this act, but the court may hear and determine causes in which it has jurisdiction with or without a jury, in the discretion of the court. If there be a jury, the number of jurors shall be six and the jury shall be drawn and a trial had in the same manner as obtains in the trial of criminal actions in the county court of said county, and the jury shall be in charge of the county officers the same as though said trial was in fact held in the county court.”

Section 22 also provides that upon the return of a summons after a child has been taken into custody, the court shall proceed to hear and determine the case * * * and inquire into the habits, surroundings, conditions and tendencies of the child.” The judge made no such inquiry. What did the judge do in this case?

Arthur Lewis, a boy fifteen years of age, was, as already stated, charged with willfully, wrongfully and unlawfully breaking and entering a building and stealing money, that is, he was charged with acts which would constitute burglary and larceny if he had been one year older. The record shows that the boy appeared before the judge and was questioned by him. Whether he was sworn does not appear. The recital in the judgment of conviction says that the judge advised the boy and his mother that they might have the aid of counsel if they so desired. He at least must have had an idea that the proceedings were in the nature of a judicial inquiry. The questions put by the judge and the answers given by the boy have been written out and form the sole record of the proceeding. The boy confessed and the judge sent him to the State Industrial and Agricultural School at Industry, N. Y., to stay there until he was twenty-one years of age, unless sooner discharged. No other evidence was taken and no other proof given outside the confession. The accused having been forced to be a witness against himself, was sent away to be locked up on his own testimony. This was in direct violation of the Constitution of this State, and the Appellate Division- was right in reversing the judgment.

We had this same question before us' in People v. Fitzgerald (244 N. Y. 307, 313), and while it arose under the Children’s Court Act of Buffalo (Laws of 1925, ch. 385), in essence there is no difference. This court was unanimous in saying: “ Where, therefore, a child is arrested and charged with being a delinquent child because it has committed an offense which would be a crime in an adult, that offense must be proved, and proved by competent evidence. If our own good sense and judgment did not tell us this, the act itself creating the Children’s Court of Buffalo would remind us of it. Section 344-x of the act notes the difference between a trial for an offense requiring competent proof before conviction and the other informal hearings whereby children may be provided with homes or proper guardianship. This section says:

“ ‘ Upon the return of the summons * * * after any child has been taken into custody, and at the time set for the hearing, the court shall proceed to hear and determine the case. The court from time to time may adjourn the hearing and inquire into the habits, surroundings, conditions and tendencies of the child.’ ”

These are the identical words as now found in section 22 of the Children’s Court Act of the State of New York (Laws of 1930, ch. 393).

Reference may again be made to the caution suggested by Judge Andrews in People ex rel. Van Riper v. New York Catholic Protectory (106 N. Y. 604, 609), in dealing with this summary jurisdiction for the disposition of children. It was quoted at length- in the Fitzgerald case.

The judgment of the Appellate Division should be affirmed.

Pound, Ch. J., Lehman, O’Brien and Hubbs, JJ., concur with Crouch, J.; Crane, J., dissents in opinion in which Kellogg, J., concurs.

Judgment accordingly.


text:
    New York Auction Company, Inc., Appellant, v. United States Fidelity and Guaranty Company, Respondent.
    (Argued October 18, 1932;
    decided November 22, 1932.)

      Stephen Brooks-Rosenthal and Max Edelman for appellant.
    When parties have made an agreement, and there is no allegation of any mistake in it, and in reducing it to writing, they, by mistake, either because they did not understand the meaning of the words used, or their legal effect, failed to embody their intention in the instrument, equity will grant relief by reforming the instrument, and compelling the parties to execute and perform their agreement as they made it; and it matters not whether such a mistake be called one of law or of fact. (Maher v. Hibernia Ins. Co., 67 N. Y. 283; Susquehanna Steamboat Co. v. Anderson, 239 N. Y. 285; Pitcher v. Hennessey, 48 N. Y. 415; Born v. Shrenkeisen, 110 N. Y. 55; Baird v. Erie R. R. Co., 210 N. Y. 225; Paskie v. Commercial Casualty Ins. Co., 223 App. Div. 603; Millspaugh v. Cassidy, 191 App. Div. 221; Tilden v. Tilden, 8 App. Div. 99; Clarksburg Trust Co. v. Commercial Casualty Co., 40 Fed. Rep. [2d] 626; Philippine Sugar Development Co., v. Government of Philippine Islands, 247 U. S. 385; Welles v. Yates, 44 N. Y. 525.) The defendant is bound by the agreement of its underwriters that employees in charge of merchandise on plaintiff’s premises at night time were covered, whether watchmen or otherwise. (Moran v. Standard Oil Co., 211 N. Y. 187.)

      William J. McArthur for respondent.
    There is no evidence that the defendant ever made any agreement to issue a policy of insurance covering the plaintiff against loss occurring in its premises in the absence of a custodian as defined in the policy and while watchmen only were on duty. (Devens v. Mechanics & Traders Bank, 83 N. Y. 71; Northrop v. Piza, 43 App. Div. 284; Robertson v. Globe, 223 App. Div. 296; Metzger v. AEtna Ins. Co. 227 N. Y. 411; Curtis v. Albee, 167 N. Y. 360; Southard v. Curley, 134 N. Y. 148.)
   Crane, J.

The defendant is a Maryland corporation carrying on insurance business in New York State with its principal office at 75 William street, New York city. At all the times herein mentioned Mr. Fausel and Mr. Ditman were the New York underwriters authorized to issue policies. “If the underwriters feel that the-risk is writable, why they issue a policy of coverage.” Alonzo G. Oakley and Edward R. Lewis were the managers of the New York office with one Keam J. Mullen “Assistant to the Managers.” This is the designation of titles on the authorized letterhead of the company for its New York business. Mullen was an employee on salary and commission who had been with the company over twenty years. While not an official he had been made “Assistant to the Managers ” to facilitate him in procuring business. The managers needed no assistant but they wanted business, and this title was conferred on Mullen to give him a standing with customers. This was the company’s representation for its benefit; prospective policyholders would think Mullen an employee of standing and importance with his concern.

Mullen procured the insurance of the New York Auction Company, Inc., in 1922. He was friendly with John G. Noakes, its president, and solicited its insurance. This company was and is a raw fur selling organization, doing a strict brokerage business, selling for the account of shippers on a commission basis. Sales in one year amounted to eight or nine millions of dollars; another fifteen millions. At first it occupied 218 West Twenty-sixth street, and later and in 1929, 218 to 222 and 226 West Twenty-sixth street, New York city.

Mullen placed with the defendant burglary, also “ hold-up ” insurance. This latter is in question here. In 1922 Mullen examined the plaintiff’s premises and became fully acquainted with conditions and requirements. The plaintiff acted on his advice and suggestions at all times. Another employee of the defendant named Stock made examinations of the premises for the burglary insurance and advised modifications in building equipment and construction which were made. Reports were made to the company. Both Mullen and Stock knew that the plaintiff’s business was transacted in the day time and its place closed at night with only watchmen in charge. At first the auction company employed its own watchmen, later those of the Holmes Electric or Patrol Company. The insurance policies were renewed from year to year up to and including 1929.

In the spring of that year Noakes’ attention was called to the wording of the “ hold-up ” policy which indicated that there was a lapse in the coverage. The policy agreed to indemnify the assured for all loss or damage to property occasioned by robbery within the assured’s premises. It was a twenty-four hour coverage, the mistake of making it only twelve hours having been cured by Mullen. Section “ e ” of item 5 of the declaration covered the property “ while at least one custodian is on duty therein.” Item 12 read: “A watchman or guard with no other duties will be on duty in the premises or at the door of the premises when regularly open for business, while this policy is in force, except as herem stated: Three watchmen on duty within the premises.” The policy was subject to conditions called “ definitions,” one of which was “ In no event shall a watchman or a porter be considered a custodian.”

The company knew at the inception of the first policy in 1922 and had continuing knowledge not only from Mullen, but from Stock, that watchmen were in charge of the defendant’s place at night when everybody else had gone home. Noakes desired to know before the premium for the 1929-30 policy was paid just what these provisions meant. At least one custodian must be on duty on the premises. The insured had stated that three watchmen were on duty within the premises. Custodian is one having custody and custody is to have watch, care or charge of something. This is the English language according to the dictionary (Funk & Wagnalls).

The defendant through its employees at the taking of the insurance knew that the plaintiff had its property in the custody of watchmen at night and nobody else. What then was the meaning of the definition “In no event shall a watchman or a porter be considered a custodian? ” Mullen was sent for and he assured Noakes that the policy covered watchmen and that the plaintiff was fully protected. Noakes, however, wanted something more. Mullen talked with the underwriters Fausel and Ditman who issued the policies for the insurance company, and it was their understanding that the policy covered the risk as understood by Noakes and Mullen. In other words, the agreement was to insure the plaintiff as it transacted its business and as it left its property guarded at night solely by watchmen.

Mullen swears positively that this was his understanding and he testifies: They [Ditman and Fausel] agreed that employees of the New York Auction Company were covered by the policy — whether watchmen or otherwise.” Thereupon Mullen wrote the following letter to the plaintiff:

“ R. Howard Bland, President.
“ United States Fidelity and Guaranty Company,
“ 75 William St.,
“ New York City, May 24, 1929. “Alonzo Gore Oakley,
“ Edward R. Lewis,
“ Managers.
“ Kearn J. Mullen,
“Assistant to the Managers.
“ Mr. J. Gordon Noakes, Manager,
“ New York Auction Co.]
212 West 26th Street,
“New York City.
“ Dear Sir: In reference to Messenger and Interior Robbery Hold-Up Policy number MIR-39724, dated March 23, 1929 — it is the intent of this policy to protect the interior of your building against loss of property for twenty-four hours each day while the policy is in force. Employees on duty when you are not open for business will be considered as custodians.
“ Very truly yours,
“ K. J. MULLEN
“Assistant to the Managers.”
“KJM:P

Thereafter the plaintiff kept the policy for 1929-30 and paid the premium.

On January 16, 1930, between the hours of two a. m. and five a. m., a robbery occurred inside the plaintiff’s premises while watchmen employed by it were in charge,. and property taken to the value of $22,678 and over.

The insurance company now claims that the policy did not cover watchmen as custodians and refuses to pay. This action was brought to reform the policy so as to make it conform to the understanding and agreement of all the parties to it, the plaintiff and the agents and the representatives of the defendant who wrote it. Upon the evidence as presented the case seems clear. Mullen, the defendant’s employee, says this was bis understanding and he supposed the policy covered such a risk. He expressed himself in writing. This was the understanding of the underwriters and surely it was the expressed intention of the plaintiff’s president before he paid for the insurance. This is not a case where the terms of a policy are sought to be modified later by some unauthorized agent. (Drilling v. New York Life Ins. Co., 234 N. Y. 234.) The underwriters authorized to write policies understood they were covering this risk and the mistake is that the writing does not express the agreement they intended. The courts have repeatedly met such cases by affording relief. (Maher v. Hibernia Ins. Co., 67 N. Y. 283, 290; Susquehanna Steamship Co. v. Andersen & Co., 239 N. Y. 285, 297; Pitcher v. Hennessey, 48 N. Y. 415, 424; Born v. Schrenkeisen, 110 N. Y. 55, 59; Baird, v. Erie R. R. Co., 210 N. Y. 225, 231, 232.)

Whether in view of Mullen’s knowledge of plaintiff’s affairs and methods of doing business, the defendant Would be estopped from denying coverage to watchmen (Plumb v. Cattaraugus County Mut. Ins. Co., 18 N. Y. 392, 394), we need not discuss nor need we touch upon the responsibility of the defendant for the acts and representations of an employee held out as assistant manager. All we now hold is that the complaint should not have been dismissed as the plaintiff on the evidence presented was entitled to the relief demanded.

The judgment of the Appellate Division and that of the Special Term should be reversed and a new trial granted, with costs tcTabide the event.

Pound, Ch. J., Lehman, Kellogg, Q’Bbien, Hubbs and Cbouch, JJ., concur.

Judgments reversed, etc.