author: Fuld, J. Dye and Van Voorhis, JJ.

text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Reargued May 19, 1954;
    decided June 4, 1954.

      Nathan Kestnbaum for appellants.
    I. The court below entirely misconceived and misinterpreted both the law and the facts. (Matter of Fusco v. Moses, 304 N. Y. 424; Coplon v. United States, 191 F. 2d 749, 342 U. S. 926.) II. An intrusion, whether by force or deceit, into the private consultation between attorney and client constitutes a denial of the right to counsel. (Coplon v. United States, 191 F. 2d 749; Powell v. Alabama, 287 U. S. 45; People v. McLaughlin, 291 N. Y. 480; People v. Snyder, 297 N. Y. 81.)

      SamuelFaile, District Attorney (John J. O’Brien of counsel), for respondent.
    I. Appellants failed to establish that their right to counsel and to a fair trial were interfered with and impaired at any time during their trial. (Bojinoff v. People, 299 N. Y. 145; People v. Richetti, 302 N. Y. 290; People v. Oddo, 283 App. Div. 497.) II. Positive evidence in the record establishes that Rubin did not attempt to overhear conversations between appellants and their counsel and that no one directed Rubin to attempt to overhear such conservations.
   Fuld, J.

On this reargument of the appeal, we are called upon to decide whether the judgments convicting defendants of murder in the first degree should be reversed on the strength of the charges made by defendants in support of an application for coram nobis.

Defendants were tried and convicted in the County Court of Westchester County in December of 1950, and the resulting judgments were affirmed by this court (303 N. Y. 856) and by the United States Supreme Court (346 U. S. 156). Thereafter, defendants applied in the county court for an order, in the nature of a writ of error coram nobis, vacating and setting aside the judgments of conviction on three separate grounds: first, that their right to counsel and to a fair trial was impaired; second, that the district attorney used evidence known by him to be perjured; and, third, that he suppressed material evidence. The county judge denied the application without granting defendants a hearing.

Defendants thereupon sought this court’s consideration of that determination; they took an appeal from the order denying coram nobis and moved this court for reargument of their previous appeal on the basis of the facts alleged in the coram nobis application. We dismissed the appeal from the county court’s order on jurisdictional grounds, but granted the motion for reargument (306 N. Y. 678). Upon such reargument, we ruled that, while the papers themselves revealed a manifest lack of merit insofar as the two specifications relating to the use of perjured testimony and the suppression of material evidence were concerned, issues of fact wTere raised with respect to the other specification and the county court should have held a hearing thereon “ to determine whether defendants’ right to counsel and a fair trial was interfered with and impaired ” (306 N. Y. 867, 868).

As to that matter, it was defendants ’ claim that a police officer, Harry Rubin by name, was stationed in the courtroom — a few feet from the counsel table at which they were sitting — to listen to and report conversations between them and their several lawyers. The purpose, as well as the result, it was alleged, was to enable the officer to overhear private and privileged discussions and consultations amongst attorneys and clients ”. The People denied the charges, it being their claim that Rubin had been assigned to the courtroom simply and solely for security purposes and that, in any event, he had not heard anything that was said. Despite those denials, despite the absence of any allegation that the district attorney or his assistants knew about Rubin and despite the lack of any recital that he had conveyed any information to anyone, we decided that the papers created issues of fact, as to why he was posted in the courtroom and as to what he did there, entitling defendants to an opportunity to show that their rights had been infringed. Accordingly, we directed the county court to hold a hearing upon that specification.

That hearing has now been held, but little has been added to the record previously before us. Defendants called Rubin to the stand — but asked him nothing designed to reveal either the reason for his presence in court or his actions while there — and two other witnesses who cast no light on the issues we considered material. Be that as it may, though, we now have before us the oral testimony of those three witnesses and, as a result of a stipulation between the parties, the affidavits upon which the coram nobis application was grounded. And, from that record, the following facts are to be distilled.

For the first part of the trial, which began on November 1, 1950, the three defendants and their lawyers sat at the counsel table approximately seven feet from a so-called spectators ’ box. Three deputy sheriffs sat immediately behind the accused, and others were stationed about the courtroom, most, if not all, of them in uniform. To avoid being overheard by their guards, defendants and their attorneys spoke in Yiddish, though in tones that probably carried some three or four or five feet ”. Beginning on December 15, 1950, and for the five remaining days of the trial, Rubin sat in the corner of the box closest to the table, which had, by then, been moved three feet closer to the box — to within four feet of it. A deputy sheriff told defendant Cooper not to lean over in speaking to one of his lawyers, which resulted in Cooper’s speaking in “ a louder tone of voice ” than he would otherwise have used, and another deputy, when asked who the man in the box (Rubin) was, replied that he was a reporter. And, although during his service with the county parkway police Rubin had always appeared in uniform, for the five days he was in the courtroom he wore street garb, without a badge or other mark indicating that he was a law enforcement officer, and carried no gun. It further appeared that Rubin understood Yiddish, and that he was the only' individual on the parkway police force who did.

That, however, was as far as the proofs went. Defendants failed utterly to show that Rubin was planted to listen in on or report conversations between defendants and their lawyers. True, there is an assertion in an affidavit' by one of defendants’ lawyers that Rubin had told him that he was “ instructed * * * ‘to listen ’ ” to what, was said, and an article in the Reader’s Digest for March, 1951, relates that, after Rubin took his place in the box, ‘ ‘ the detective was listening to everything the defendants said to each other ” (p. 140), but such hearsay, if it survived Rubin’s actual testimony to the contrary, certainly was entitled to little, if any, weight. In point of fact, defendants did not even ask Rubin what his instructions or directions were when sent to the courtroom, and they refrained from taking the opportunity, afforded by the hearing, of calling as witnesses Rubin’s superior, who was responsible for his assignment, the district attorney in charge of the prosecution, his two assistants or any of a number of others who might have been able to furnish information concerning Rubin’s presence in court. And, beyond that, not only was there no showing that he overheard anything discussed between defendants and their counsel, but he averred in his affidavit, and repeated at the hearing, that he “ heard nothing.”

The affidavits of various public officials associated with the trial that Rubin was placed in the courtroom for good reason and in good faith are wholly uncontradicted. Those affidavits disclose that, on December 13, 1950, a deputy sheriff overheard part of a conversation in jail, in Yiddish, between defendants Cooper and Stein — previously convicted, we note, of serious crimes of violence, such as murder in the second degree and first degree robbery — which suggested to the deputy that they might attempt an escape from the courthouse during one of the luncheon recesses. He immediately made a written report to the under-sheriff in charge of the courtroom, and on December 15 Rubin was assigned to duty in the courtroom, in order ‘ ‘ to- assist * * * with the security measures being taken during the trial.” Rubin swears that he overheard nothing whatsoever that was said at or around the counsel table and the district attorney and his assistants not only deny that they received any information from Rubin or anyone else as to conversations among defendants or between defendants and their lawyers, but they assert that they did not even know about Rubin or his presence in court.

The inference is almost inescapable that it was the report of defendants’ escape-plan conversation that brought Rubin into the courtroom. Although he remained there for five days — December 15,18,19, 20 and 21 — on only two of them (December 18 and 19) were witnesses called and testimony given, the other days being taken up with the summations and the court’s instructions. That strongly substantiates the People’s claim that Eubin was in court for security reasons and goes far, in and of itself, toward refuting defendants’ charge that he was there to poach on lawyer-client confidences. Had the People desired or intended to discover what was said between defendants and their attorneys, reason suggests that they would have planted someone in court long before December 15, six weeks after the trial began, a day when no testimony was taken and when but a few hours of testimony remained before the trial closed. Nor is it likely, unless Eubin was in the spectators’ box simply to help prevent an escape, that he would have remained for the summations and the court’s charge to the jury.

The right to counsel, based on fundamental principles of justice, is inherent in the concept of a fair trial (see, e.g., People v. McLaughlin, 291 N. Y. 480, 482; Williams v. Kaiser, 323 U. S. 471, 473), and included therein, of course, is the right to consult counsel in private, without fear or danger that the People, in a criminal prosecution, will have access to what has been said, either openly, by forcing the attorney to divulge what he has learned, or secretly, by the use of a concealed recording device or the planting of a human eavesdropper. (See Matter of Fusco v. Moses, 304 N. Y. 424; Coplon v. United States, 191 F. 2d 749, certiorari denied 342 U. S. 926.) Intrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court, contravenes our sense of traditional fair play and due process and is particularly offensive where defendants have sought to keep their conversations and communications secret and confidential by resort to a foreign language. To cull from what was said in Coplon v. United States (supra, 191 F. 2d 749, 759, certiorari denied 342 U. S. 926), “ The prosecution is not entitled to have a representative present to hear the conversations of accused and counsel.”

If, then, defendants — upon whom the burden rested (see People v. Greenfield, 301 N. Y. 724; People v. Oddo, 283 App. Div. 497; People v. Barber, 276 App. Div. 1040) —had proved that Rubin was planted in court with instructions to eavesdrop on conversations between them and their attorneys, a new trial would have been required. (See, e.g., Matter of Fusco v. Moses, supra, 304 N. Y. 424, 433; Glasser v. United States, 315 U. S. 60, 76.) That, however, is not this case. Here, as already noted, defendants failed to adduce any substantial evidence that Rubin was present for other than proper and legitimate reasons or that he reported anything said between defendants and their lawyers or even that he heard any such conversations. Even if we were to assume that Rubin was in a position where he could not help but overhear, we could not say that the intrusion was other than unintentional and excusable as a merely incidental result of necessary and reasonable precautions to frustrate any possible attempt to escape. The law ‘ ‘ is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend ” (Snyder v. Massachusetts, 291 U. S. 97, 122), but it does not prevent the stationing of a police officer in the courtroom near defendants and their counsel, if basis for suspicion exists that an attempt to escape may be made.

The judgments of conviction should be affirmed.

Dye and Van Voorhis, JJ.

(concurring in result). We concur in the decision being made that reargument should be denied and that the judgments of conviction should be affirmed. We find ourselves unable to agree with statements made near the end of the majority opinion, which are not necessary to the decision, that conversations between clients and attorneys conducted in a foreign language in a crowded courtroom, give rise to a confidential status, in the absence of any prior objection addressed to the court that adequate opportunity to confer has been denied during the trial. No privileged communications are recognized between attorney and qlient which are made in the presence of third’persons who stand in no confidential relationship (Doheny v. Lacy, 168 N. Y. 213). Consequently, the presence in the courtroom, close to appellants’ desk, of a plain-clothes police officer, however he came to he there, cannot he said to have intercepted by stealth any privileged communications between appellants and their trial counsel. They knew that a stranger was present within earshot, nor could their constitutional rights have been violated due to the mere circumstance that they were unaware that he understood the language in which they were conversing with their attorneys. We do not doubt the constitutional right to the aid of counsel, which includes reasonable opportunity to consult with counsel. If any of these defendants were deprived of that right during the trial on account of police officers or others being in too close proximity to them or to their lawyers, they had the right to object upon the record at the time when they claim that any infringement of their rights occurred, but not to complain for the first time that they were denied privacy in the courtroom after they have been unsuccessful in the trial.

The situation is different from eavesdropping upon private consultation by wire tapping (Coplon v. United States, 191 F. 2d 749, certiorari denied 342 U. S. 926), or through the agency of a spy posing as a codefendant (Matter of Fusco v. Moses, 304 N. Y. 424). The use of a concealed recording device, instanced in the opinion, would be classifiable with the Goplon and Fusco cases, and should be condemned in our view also. The situation is different where a third person is present who is not in the confidence of defendants, with the consequence that they are chargeable with knowing that whatever is said to their lawyers in his presence will not be privileged. As the majority opinion states, there is a failure of proof that this plain-clothes officer, Harry Eubin, was placed in this courtroom to overhear consultations between these defendants and their attorneys. We agree with that, and, if the opinion had stopped there, would not have written this concurring memorandum. But we do not wish to be committed to an obiter dictum that, in some other case not now before the court, a new trial would necessarily be required if it were to develop that a communication between a defendant and his attorney were to be overheard, even if it were reported to the Sheriff or to the District Attorney. Such practices should be condemned, if they occur, the more emphatically if planned in advance; but it is easy for unscrupulous defendants to fabricate such incidents, and it is so difficult to sift the motives of persons who may thus be charged with deliberately engaging in such practices, especially if they themselves become parties to a conspiracy to manufacture such a defense, that it is wiser not to make the granting of a new trial dependent upon the motive instigating the presence of third persons in the courtroom, i.e., whether they have been “planted” there to listen, but to hold in accord with the traditional law that no confidential status exists if a stranger is known to be in the immediate presence of lawyer and client (Doheny v. Lacy, supra).

The burden would thus be placed upon a defendant of applying to the court to provide opportunity for private consultation during the trial if that right is being infringed.

There is no assertion that appellants were deprived of opportunity to consult with their attorneys outside of the courtroom, nor does the petition set forth that any request was made of the court during the trial to provide appellants with greater privacy in open court. Courtrooms are usually crowded, especially during sensational trials, and, unless an objection of this nature is made at the time, justice is not likely to be served by permitting defendants to keep it secret until after the verdict, and then present it for the first time if the outcome of the trial is adverse and they are convicted.

Lewis, Ch. J., Conway, Desmond and Froessel, JJ., concur with Fuld, J.; Dye and Van Voorhis, JJ., concur in result in a separate memorandum.

Upon reargument: Judgments of conviction affirmed. Questions under the Federal Constitution were presented and necessarily passed upon by this court; viz., as to whether the rights of the defendants to due process under the Fourteenth Amendment to the Federal Constitution were violated in that defendants’ claim (1) that they were deprived of their rights to counsel and a fair trial and that such rights were impaired.; and (2) that the district attorney used evidence known by him to be perjured and suppressed material evidence and that defendants were deprived of a hearing on this claim. This court held that there was no denial of any constitutional right of the defendants.

Judgments of conviction affirmed, etc.

      . By chapter 806 of the Laws of 1954, sections 517 and 520 of the Code of Criminal Procedure were amended — effective September 1, 1954 — to permit a defendant to take a direct appeal to this court from an order of the trial court, made in a capital case, denying a motion for a writ of error coram nobis.

      . It was this article that first alerted defendants’ counsel to the possibility of subterfuge and impropriety. Its highly romantic flavor, however, as well as the failure of the author even to indicate the source of his information, renders it of slight evidentiary value.

      . If, of course, the defendant, knowing third persons to he nearby, speaks in such a way as to indicate that he is not interested in keeping private what he says to his lawyer, the defendant himself has made the choice and his statements will not he considered “privileged” or, more precisely, he will be deemed to have renounced his right to privacy of consultation. Not so, however, in a case such as the present, where defendants went to the extreme in seeking to protect themselves from being overheard. The mere presence of people in the courtroom or in the spectators’ box does not destroy the right to confer with counsel in private and in confidence and, if defendants take every reasonable precaution to preserve the secrecy of their courtroom communications, they may not be regarded as having consented to forego or waive that right.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Mae Diamond, as a Director and Stockholder of Jarold Shops, Inc., Suing on Behalf of Herself and the Right of Said Corporation, Appellant, v. Evelyn Diamond et al., Respondents.
    Argued April 20, 1954;
    decided June 4, 1954.

      Jacob W. Friedman for appellant.
    I. Defendant admits that she misappropriated and illegally diverted for her own benefit funds and property of the corporation, for which breaches of duty she is as a director presumptively accountable. II. There is no evidence to sustain a finding that plaintiff either participated in or ratified the" misappropriation of corporate funds. III. The illegal acts complained of by plaintiff are of a character not capable of ratification, acqtiiescence or estoppel even though all stockholders had consented. (Roth v. Robertson, 64 Misc. 343; Union Elec. Co. v. Boehm, 92 F. Supp. 177; Murray v. Smith, 166 App. Div. 528, 224 N. Y. 40; Schwab v. Potter Co., 194 N. Y. 409; Capitol Wine & Spirit Corp. v. Pokrass, 277 App. Div. 184; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Sheldon Hat Blocking Co. v. Eickemeyer Hat Blocking Mach. Co., 90 N. Y. 607.) IV. The award of $30,000 to the defendant by the judgment appealed from was improper and unauthorized. (Matter of Schwarz v. General Aniline & Film Corp., 198 Misc. 1046, 279 App. Div. 996.)

      Jay Leo Rothschild for respondents.
    I. Being a participant in the despoliation of which she now complains, plaintiff may not be the champion through whom the corporation recovers — nominally for itself, but actually for her benefit, again to the extent of at least one half of whatever may be recovered, thus acquiring not less than 100% of the benefits resulting — and may not thus manipulate the corporate fiction for personal gain and in disregard of her personal complicity in the withdrawal of funds of which she complains. (Capitol Wine & Spirit Corp. v. Pokrass, 277 App. Div. 184, 302 N. Y. 734; Home Fire Ins. Co. v. Barber, 67 Neb. 644; Kent v. Quicksilver Min. Co., 78 N. Y. 159; Erickson-Hellekson-Vye Co. v. Wells Co., 217 Minn. 361; Martin v. Niagara Falls Paper Mfg. Co., 44 Hun 130, 122 N. Y. 165; Carney v. Penn Realty Co., 174 App. Div. 86; Clark v. Dodge, 269 N. Y. 410; Jacobellis v. Prudential Ice & Coal Corp., 244 App. Div. 255, 269 N. Y. 632.) II. Plaintiff Mae Diamond is charged with responsibility for all that B. Diamond did or knew. He was her agent plenipotentiary for all purposes. (Krumm v. Beach, 96 N. Y. 398; Hurley v. John Hancock Mut. Life Ins. Co., 247 App. Div. 547; Mayor of City of N. Y. v. Tenth Nat. Bank, 111 N. Y. 446; Henry v. Allen, 151 N. Y. 1; Moody v. Smith, 70 N. Y. 598; Bonham v. Coe, 249 App. Div. 428, 276 N. Y. 540; Sommers v. Cottentin, 26 App. Div. 241; Thomson v. New York Trust Co., 293 N. Y. 58.) III. Since plaintiff was the recipient of B. Diamond’s diversions, her pretended innocence, even if true, would be of no avail. IV. In any event, plaintiff was put on notice sufficiently to charge her with knowledge of all which inquiry would have discovered. Her failure to make any inquiry was at least gross negligence, equivalent to bad faith. (Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; Guild v. Hopkins, 271 App. Div. 234, 297 N. Y. 477; Kittredge v. Grannis, 244 N. Y. 168; Soma v. Handrulis, 277 N. Y. 223; Wright v. Bartholomew, 66 App. Div. 357; State Bank of Binghamton v. Bache, 162 Misc. 128; Bank of United States v. Cooper-Bessemer Corp., 146 Misc. 20; Porter v. Beha, 8 F. 2d 65; Dresser v. Bates, 250 F. 525, 251 U. S. 524.) Y. Taking plaintiff’s own testimony at face value, she was guilty of inexcusable and gross negligence as a director and was a joint tort-feasor with B. Diamond and defendant Evelyn Diamond. (Manson v. Curtis, 223 N. Y. 313; Cuppy v. Ward, 187 App. Div. 625.) VI. Plaintiff’s criticisms of the award for counsel fees and expenses are without substance or foundation. In any event, this appeal does not embrace any issue as to the amount awarded, but solely the question as to whether the court had power to make allowances. (Matter of Schwarz v. General Aniline & Film Corp., 305 N. Y. 395; Dornan v. Humphrey, 278 App. Div. 1010; Messersmith v. American Fidelity Co., 232 N. Y. 161; Salzman v. Prudential Ins. Co., 296 N. Y. 273; Capitol Wine & Spirit Corp. v. Pokrass, 277 App. Div. 184, 302 N. Y. 734.)
   Desmond, J.

We agree for affirmance of so much of the judgment appealed from as dismisses the complaint. We strike out, however, so much of that judgment as, on the supposed authority of section 64 of the General Corporation Law, awards to defendant as against Jar old Shops, Inc., $30,000 for her attorneys’ fees and expenses. The effect of that award is this: although plaintiff and defendant, sole stockholders of Jar old Shops, l'nc., were equally guilty of flagrant and continued wrongdoing, as between themselves and as between each of them and their corporation, defendant’s legal expenses will be paid by the corporation, while plaintiff must pay her own. So unconscionable a result, so unfortunate a preference of one wrongdoer over another, should not be countenanced if there be any escape therefrom.

The trial court found that these two people had participated in and carried out a conspiracy to mulct the corporation of money and property, that each was a guilty participant, and that each enjoyed the ill-gotten gains of the enterprise. Therefore, held the court, the suit, brought on behalf of the wronged corporation, had to be dismissed under the theory of Capitol Wine & Spirit Corp. v. Pokrass (302 N. Y. 734) (see Home Fire Ins. Co. v. Barber, 67 Neb. 644; Kent v. Quicksilver Min. Co., 78 N. Y. 159). The rule is that, when stockholders are individually estopped from questioning wrongs done their corporation, they cannot redress those same wrongs through a suit brought directly by the corporation or derivatively, by themselves, for the corporation. So it was rightly held here that this plaintiff, estopped by knowledge, ratification and participation, could not, by way of a stockholder’s suit, have judgment against her coconspirator, for those wrongs.

All this should, it seems, be ample warrant for denying to both, or either of these stockholders, payment, out of the corporate till, of their court expenses. But Special Term found in section 64 of the General Corporation Law a mandatory requirement that, since defendant was sued as a director and officer, and since no judgment was entered against her, the corporation must reimburse her for her attorneys’ fees and other litigation expenses. We find no such command in that statute. Its direction for payment of such expenses, by a corporation, to a person made a party ‘ ‘ by reason of the fact ” that he is an officer, director or employee thereof, is subject to an exception which here applies. Assessment against the corporation of that person’s expenses is not to be ordered “ in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such officer, director or employee is liable for negligence or misconduct in the performance of his duties.” Of course, if that word “ adjudged ” must be limited in its application to the actual entry of a money judgment against the officer, director or employee, the exception is inapplicable. But “ adjudged” is not so completely a word of art or of such technical meaning (see 2 Words and Phrases, p. 411 et seq.) that we cannot seek out the obvious legislative intent. Section 64, changing the common-law rule that each party pays his own lawyer, is to be construed strictly (see Matter of Schwarz v. General Aniline & Film Corp., 305 N. Y. 395, 405). Rewarding faithless officers and directors was no part of its purpose. In all reason and common sense, this defendant has been, in the affirmed findings below, “ adjudged * * * liable for * * * misconduct in the performance of his [her] duties ”. It is no answer that no one (except the United States Treasury) was hurt, or that the principal apparent purpose of the secret withdrawals of corporate funds was to cheat on corporate (and individual) income taxes. We are not being merely rhetorical when we assert that such cheating is a wrong to the corporation.

Quite appropriate to the construction of section 64 is the language of Briggs v. Easterly (62 Barb. 51, 60-61): “To impute such an intention would be an unjust and unmerited reproach upon the statute, and the legislature which enacted it. It would place the statute in opposition to the fundamental principles not only of law but of good conscience and morals.”

The judgment should be modified by striking out the award to defendant for attorneys ’ fees and other expenses.

The judgment of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, with costs.

Lewis, Ch. J., Conway and Van Voobhis, JJ., vote to affirm the judgment, in the following- memorandum: We agree with Special Term and with the Appellate Division that defendant is entitled to an allowance for expenses in this derivative action, which section 64 of the General Corporation Law requires to be paid “ except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such officer, director or employee is liable for negligence or misconduct in the performance of his duties. ’ ’ In order to determine whether such an allowance shall be paid, it is necessary to look to the judgment, which, in this action, contains no determination that the defendant has been guilty of negligence or misconduct. There is no adjudication of tax evasion in this action. If found guilty of such charges, the parties have been or will be required to meet the consequences as an independent wrong not adjudicated herein. Neither does this judgment determine that defendant has wronged plaintiff or the corporation, to whatever extent these two women, who are the sole stockholders, may each have tried to best the other. What the judgment decides is simply that the withdrawals which they made from the corporation were accomplished by mutual consent or ratification by themselves or their husbands, now deceased, who comprised the holders of all outstanding shares. A determination that there has been unanimous stockholder consent or ratification, under Kent v. Quicksilver Min. Co. (78 N. Y. 159) and the other cases cited in Capitol Wine & Spirit Corp. v. Pokrass (277 App. Div. 184, affd. 302 N. Y. 734) is not an adjudication of “ negligence or misconduct ” within the meaning of section 64 of the General Corporation Law.

Dye, Fttld and Froessel, JJ., concur with Desmond, J. ; Lewis, Ch. J., Conway and Van Voobhis, JJ., dissent in a memorandum.

Judgment accordingly.


author: Lewis, Ch. J. Fuld, J.

text:
    In the Matter of Roy M. D. Richardson et al., Appellants. Abe Stark, as President of the City Council of the City of New York, et al., Respondents; Thomas J. Rhatigan, Intervener, Respondent.
    Argued June 28, 1954;
    decided June 28, 1954.

      Charles H. Tuttle, Carmine A. Ventiera, John R. Bartels and Roy M. D. Richardson, in person, for Roy M. D. Richardson and others, appellants.
    I. The layouts of these proposed Assembly districts are grossly violative of each and all of the standards, requirements and restrictions made mandatory by section 5 of article III of the State Constitution. (Matter of Sherrill v. O’Brien, 188 N. Y. 185; Matter of Tishman v. Sprague, 293 N. Y. 42.) II. The courts have repeatedly voided Senate and Assembly districts far less rambling and fantastic than the proposed Assembly districts here involved. (Matter of Livingston, 96 Misc. 341; People ex rel. Carter v. Rice, 135 N. Y. 473; Matter of Timmerman, 51 Misc. 192.) III. The excuses attempted are not only not recognized by the Constitution but are lethal to it. IV. The attempted reference to Congressional districts furnishes no pertinent analogy, because there are no constitutional restrictions for Congressional apportionments, and because no court review is provided. V. The suggestions as to alleged loches and consequential chaos are both unfounded and irrelevant.

      Adrian P. Burke, Corporation Counsel (W. Bernard Richland, Seymour B. Quel, Bernard Friedlander and Blossom G. Saxe of counsel), for respondents.
    I. The Constitution requires the division of Senate districts into Assembly districts which are as nearly equal in citizen inhabitants as may be and which are composed of convenient and contiguous territory in as compact form as practicable. The Assembly districts here involved are unquestionably equal in number of citizen inhabitants; they are manifestly made up of contiguous territory; they are as compact as they could be consistent with convenience. In adhering to the policy of endeavoring to preserve pre-existing Assembly districts, the city council properly and lawfully carried out the basic constitutional requirement that Assembly districts shall be convenient. II. The record was barren of proof to support essential allegations of the petition, and the documentary evidence abundantly supported the denials and affirmative defenses in the answer. (Matter of Smith v. Board of Supervisors of St. Lawrence Co., 148 N. Y. 187; Matter of Sherrill v. O’Brien, 188 N. Y. 185; Matter of Dowling, 219 N. Y. 44.) III. In a situation in which time is of the essence in the very highest degree, petitioners waited weeks before bringing this matter on to be heard. IV. It is already so late that a re-reapportionment of Assembly districts, with necessarily concomitant recasting of election districts and reinitiation of printing of indispensable election supplies, could not be accomplished in time to meet the deadlines in the Election Law timetable. The turmoil which the overturning of the existing reapportionment of almost half of the Assembly districts in Kings County would create would be highly inimical to the public interest and would obstruct essential electoral processes. (People ex rel. Carter v. Rice, 135 N. Y. 473.)

      George Bosling for intervener-respondent.
    I. If, arguendo, the Assembly district lines were now to be in any respect invalidated by the courts, remedial procedures may not be made effective with respect to the 1954 elections; for to do so would create a chaotic condition. (Sherrill v. O’Brien, 186 N. Y. 1; People ex rel. Carter v. Rice, 135 N. Y. 473; Matter of Mitchell v. Boyle, 219 N. Y. 242; Matter of Moore v. Walsh, 262 App. Div. 1060, 286 N. Y. 552; Matter of Torchin v. Cohen, 286 N. Y. 544; Matter of McDonald v. Heffernan, 300 N. Y. 488; Matter of Cavallaro v. Cohen, 293 N. Y. 741; Matter of Smith v. Board of Supervisors of St. Lawrence Co., 148 N. Y. 187; Matter of Baird v. Board of Supervisors of Co. of Kings, 138 N. Y. 95; Matter of Burns v. Flynn, 268 N. Y. 601; Matter of Sherrill v. O’Brien, 188 N. Y. 185.)
   Lewis, Ch. J.

In the proceeding before us, instituted pursuant to sections 1-5 of chapter 773 of the Laws of 1911, the four petitioners-appellants — citizens of Kings County — have challenged the constitutionality of procedure by the city counoil of the City of New York, respondents herein, acting as a board of apportionment, in reapportioning four Assembly districts in Kings County in accord with section 5 of article III of the Constitution of the State of New York, and chapter 893 of the Laws of 1953, as amended by chapters 2 and 497 of the Laws of 1954.

At Special Term, Supreme Court, Kings County, the apportionment by the city council was declared void as violative of section 5 of article III of the State Constitution, and certain of the respondents herein were enjoined from certifying the apportionment to the Secretary of State and to the Clerk of Kings County. At the Appellate Division the order of Special Term was reversed on the law, two Justices dissenting, and the informal findings of fact were affirmed.

The apportionment thus challenged was authorized by legislation (L. 1953, ch. 893) which altered the boundary' lines of certain Senate districts within Kings County and reduced from twenty-four to twenty-two the number of Assembly districts comprised within that county. The particular reapportionment to which petitioners’ challenge is directed involves the third, fourth, fifth and seventeenth Assembly districts, located respectively in the thirteenth, eighteenth, tenth and eleventh Senatorial districts.

The provision of the Constitution (art. Ill, § 5), which governs the apportionment of Assembly districts, is in part as follows: “ § 5. * * * In any county entitled to more than one member * * * the body exercising the powers of a common council * * * shall prescribe, and divide such counties into assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable * * (Italics added.)

Upon this appeal our inquiry goes to the question whether, in reapportioning the four Assembly districts here involved, the respondents, acting as a board of apportionment, complied with the italicized portions of the constitutional provision quoted above.

At the outset it is important to note that the petitioners do not charge a failure by the board of apportionment to reapportian the four Assembly districts * * * as nearly equal in number of inhabitants, excluding aliens, as may be * * Indeed, as to that first and fundamental requirement, it was conceded upon the argument that no challenge is made.

The question for our decision, therefore, is whether there is evidence of record, sufficient as a matter of law, to serve as a basis for the Special Term order which declared the challenged reapportionment void upon the ground that —as indicated by that court’s opinion — the irregular boundary lines of the four reapportioned Assembly districts render those districts neither convenient nor in as compact form as practicable.

The burden of establishing that the reapportionment accomplished by the respondents is unconstitutional rests upon the petitioners-appellants who are the parties asserting its unconstitutionality. (People ex rel. Henderson v. Supervisors, 147 N. Y. 1, 15-16; People ex rel. Carter v. Rice, 135 N. Y. 473, 483-484, 500-501; Matter of Sherrill v. O’Brien, 188 N. Y. 185, 196-199; Matter of Fay, 291 N. Y. 198, 206-207.) As to whether in this proceeding the petitioners have met that burden, we note that the answers interposed by the respondents — after denying allegations of the petition which asserted the invalidity of the four reapportioned Assembly districts — pleaded affirmative defenses including allegations and supporting factual data from which it appears that the changes made in the pre-existing Assembly district lines were dictated not only by changes made by the Reapportionment Act in the territorial content of Senate districts but also by the reduction from twenty-four to twenty-two in the number of Assembly districts in Kings County. According to the allegations and data thus pleaded by the respondents as affirmative defenses, the four Assembly districts as reapportioned by the city council fulfilled in each instance the first constitutional requirement of equality in number of inhabitants and, insofar as is practicable — consistent with that first constitutional requirement — paid due regard to the factors of convenience, contiguity and compactness.

When the proceeding came on for trial at Special Term, the denials and allegations contained in the answers tendered sharp issues of fact which, in our view, made proof essential to decision. In this record there is a total lack of such proof.

In Matter of Dowling (219 N. Y. 44) —a case in which the constitutionality of an apportionment of Senate districts was challenged — districts were laid out not substantially unlike those with which we are here concerned (see petitioners’ Exhibits D, H, I and 11 in Dowling case). There Judge Chase, who nine years earlier had also written for the court in the Sherrill case (supra), had occasion to note (p. 58) that a similar constitutional provision as here involved “ * * * does not provide unqualifiedly for compactness. Senatorial districts are not required to be in the form of geometric figures, as a square or perhaps a circle. Such a provision would be impractical and impossible to carry out. It is expressly provided that the districts shall be as compact as practicable. This permits of a consideration in good faith of existing lines, topography, means of transportation, etc.” (Italics — are in original text.)

Significant to our consideration of the present case — where the record indicates that, at Special Term, the decision rested primarily on a visual examination of maps of the area involved — is the further statement by this court in its opinion in the Dowling case (supra, p. 59): “ While some of the districts in the counties named may be subject tó criticism with respect to compactness, we are unable to say from a mere inspection of the maps that, the constitutional provision in regard -to- compactness has been violated.”

As in the Dowling case (supra) — where the shape of each Senate district depended in some measure upon surrounding county boundaries — so in the case at hand — where Assembly districts are involved — the shape of each of the four reapportioned Assembly districts depends in some measure upon the shape of the Senate district of which it is a part. Here the shifting of Senate district lines in accord with the Reapportionment Act served to alter the boundaries of each of the integrated Assembly districts; here new Assembly district lines — thus altered to conform with the new Senate district boundaries — which must enclose territory wherein are inhabitants “ * * * as nearly equal in number * * * excluding aliens, as may be ”, could not be fixed without some resulting irregularity, and without affecting to some degree — favorably or unfavorably — the factors of convenience and compactness.

In the absence of proof before the court at Special Term that the reapportionment here challenged was — as alleged in the petition and denied by the respondents in their answers — u arbitrary and based on personal and political considerations and not on the convenience of the voters * * * or any factor relating to the public interest, and the lines thereof were drawn with the purpose of assuring the continuous election of the candidates of one particular political party and the control of such respective districts by particular political leaders ’ ’; ‘ and in the absence of proof that territory within the Assembly districts as reapportioned is not convenient, contiguous and in as compact form as practicable, we conclude, in the circumstances disclosed by this record, that there was no basis, suffi-cient in law, to support the order made at Special Term.

■, Accordingly, the order of the Appellate Division, reversing on the law the order of Special Term, should be affirmed.

Fuld, J.

(dissenting): It has long been settled that the courts have a duty to see that the act of apportionment or reapportionment, the formation of senate or assembly districts, does not conflict with any mandate of the Constitution. (See Matter of Sherrill v. O’Brien, 188 N. Y. 185, 195 et seq.) In my opinion, the constitutional requirement that assembly districts be 6 6 of convenient and contiguous territory in as compact form as practicable” (N. Y. Const., art. III, § 5), has been plainly violated.

"While some irregularity in shape of a district may not alone condemn the proposed reapportionment, and while more than mere inspection of * * * maps ” may be necessary in cases where the lack of compactness is debatable (Matter of Dowling, 219 N. Y. 44, 59), here each of the four districts challenged is so peculiarly shaped, so many sided and multiangled, of such a bizarre character, as only to reflect the sort of proscribed gerrymandering at which the constitutional provision was directed. (See, e.g., Matter of Sherrill v. O’Brien, supra, 188 N. Y. 185.) In the Sherrill case (supra, 188 N. Y. 185) this court condemned a senate district, in shape, quite different from those in Dowling, but not unlike those here involved, for lack of compactness with these words (pp. 210-211)":

“ A reference to the diagram will show how grossly the provision of the Constitution in regard to compactness has been violated * * *. The reasons alleged .for the rambling territory comprising the thirteenth senate district with its boundaries of many sides and various angles are wholly immaterial and not recognized by the Constitution in the apportionment of senate districts. * * * Within the limits of a city entitled to many senators the requirements for compactness would seem to exclude all possibility of a district in the shape of the thirteenth senatorial district as shown on the diagram.”

Petitioners met the burden of proof imposed upon them once it appeared that the districts were so irregularly and grotesquely shaped, so rambling in character, as to lack all semblance of compactness. It was then incumbent upon respondents, the public officials responsible for the creation of the districts and the only parties conversant with the facts and the reasons, if any, for the sort of districting effected, to come forward with some reasonable explanation for the character of the districts and show, if possible, that they were “in as compact form as practicable.”

The order of the Appellate Division should be reversed and that of Special Term reinstated.

Conway, Desmond, Dye and Froessel, JJ., concur with Lewis, Ch. J.; Van Voorhis, J., concurs in the result with respect to the fourth Assembly district in the eighteenth Senate district, but votes to reverse the order of the Appellate Division and reinstate that of Special Term with respect to the other Assembly districts involved for the reasons stated in the dissenting opinion by Fuld, J.; Fuld, J., dissents and votes to reverse in an opinion.

Order affirmed.

Shaded portion represents the Third Assembly District of the Thirteenth Senate District, one of the. four districts which the court is now upholding:

Shaded portion represents the Fifth Assembly Districts of the Tenth Senate District, another of the four districts

Shaded portion represents the district in Matter of Sherrill v. O’Brien which this court held violative of the constitutional provision (art. III, § 4) that each senate district shall be “in as compact form as practicable ” (188 N. Y., at pp. 205, 210-211):

      . Attached as an Appendix to this opinion are diagrams of two of the four districts here in question, and, for purposes of easy comparison, the diagram of the senate district involved in the Sherrill case which appears at page 191 of 188 New York.


author: Lewis, Ch. J. Van Voorhis, J.

text:
    In the Matter of the Estate of Frank Wolf, Deceased. Betsy Wolf, as Administratrix C. T. A. of Frank Wolf, Deceased, Appellant; Ethel Wolf, Respondent.
    Argued March 8, 1954;
    decided July 14, 1954.

      Harry J. Winick and Allan L. Winick for appellant.
    I. The Decedent Estate Law (§ 18, subd. 1, par. [a]) prescribes a limitation upon the amount a surviving spouse can take by virtue of her right of election. (Matter of Ittleson, 197 Misc. 786; Matter of Goldsmith, 177 Misc. 298; Matter of Peters, 275 App. Div. 950.) II. The words “ any estate tax ” as used in section 18 (subd. 1, par. [a]) of the Decedent Estate Law mean all estate taxes. (Matter of Ryan, 280 App. Div. 410.) III. Section 124 of the Decedent Estate Law deals solely with apportionment of taxes and not the extent of the elective share of the surviving spouse. IY. The marital deduction is a deduction permitted by law to the estate and is not a deduction personal to the widow. V. The tax caused by the terminable interest of the widow in the insurance fund should be paid from the insurance fund. VI. By the exercise of her right of election, the widow is limited to the amount designated by the Legislature with proper effect given to all deductions permitted by law and benefits conferred by law. VII. The enactment of section 18 of the Decedent Estate Law did not guarantee that the surviving spouse would receive any particular portion of the resources possessed by the deceased spouse prior to death. (Hart v. Hart, 194 Misc. 162; Newman v. Dore, 275 N. Y. 371; Matter of Kalina, 184 Misc. 367.)

      Moses Kooperstein, Sidney Leichter and Raphael H. Rhodes for respondent.
    I. The legislative intent of section 18 of the Decedent Estate Law was to enlarge the share of a surviving spouse. (Matter of Clark, 169 Misc. 202; Matter of Byrnes, 260 N. Y. 465.) II. The respondent widow’s contention is consonant with the express language of section 124 of the Decedent Estate Law. III. Section 18 (subd. 1, par. [a]) of the Decedent Estate Law, as construed by the petitioner-appellant, could result in the wiping out of the surviving spouse’s share. IV. The marital deduction statutes support the respondent widow’s interpretation of section 18 of the Decedent Estate Law. V. Legal authorities and decisions support the respondent widow’s interpretation of section 18 of the Decedent Estate Law. (Matter of Peters, 275 App. Div. 950; Matter of Ryan, 201 Misc. 632, 280 App. Div. 410.) V. Petitioner-appellant’s interpretation of section 18 of the Decedent Estate Law results in a larger total tax than there would be under the respondent widow’s interpretation. VII. The respondent widow does not receive more than one half of the estate. VII. Petitioner-appellant is wrong in deducting taxes resulting from the insurance fund in determining the net estate for distribution.
   Lewis, Ch. J.

The petitioner-appellant, Betsy Wolf, mother of Frank Wolf, deceased, and one of two administratrices with the will annexed of the estate of the decedent, instituted this proceeding in Surrogate’s Court, New York County, for a decree instructing her as to the legal basis for computing the share of the decedent’s widow, Ethel Wolf, respondent herein and a coadministratrix with the will annexed, who elected to take her intestate share against the decedent’s will. By her answer, the respondent widow and coadministratrix, joins the petitioner in seeking instructions and a determination as to the correct application of the Decedent Estate Law (§ 18, subd. 1, par [a]) in computing her intestate share of the decedent’s estate.

The decree by the Surrogate was affirmed by the Appellate Division, one Justice dissenting and voting to modify. The administratrix (mother of the decedent) has appealed as of right to this court.

The will of the decedent Frank Wolf bears the date September 2, 1930, at which time he was unmarried and both his parents were living. By his will the testator made the following bequests: (1) to his father and mother, $2,000 “ to be donated by them to any Jewish Hospitals of the City of New York, as in their discretion they see fit * * * (2) to his father and mother, $50,000 to be divided equally between them or, if one should predecease the other, to the survivor; (3) to his executors, from the residuary of his estate, a sum not to exceed $10,000 to be held in trust for a nephew, Morton Schoenbach; (4) to his father and mother the residue, if any, of his estate to be divided equally between them. The will contained no direction with respect to the payment of taxes.

On March 15, 1942 — eleven years subsequent to the date of the decedent’s will — the decedent married the respondent Ethel Wolf. He died ten years later, on March 22, 1952 — without having changed his will executed September 2, 1930 — leaving him surviving his wife, his mother and his nephew, Morton Schoenbach. No children were born of decedent’s marriage with the respondent.

Included within the taxable gross estate is a sum amounting to $64,290.52 — the proceeds of insurance policies which directed that monthly payments be made therefrom to decedent’s wife during her life with contingent remainders to his niece and his nephew.

The appellant does not question the validity of the notice of election, filed and served by the respondent, to take her intestate share of decedent’s estate.

The computation which the appellant claims conforms with all legal requirements for arriving at the widow’s intestate share, gives effect to appellant’s claim that, under applicable law, the widow’s intestate share is computed by deducting from decedent’s gross estate all the estate taxes due therefrom before arriving at the widow’s intestate share as limited by the Decedent Estate Law (§ 18, subd. 1, par. [a]). The appellant also contends that any estate tax attributable to the avails of life insurance policies shall be paid out of the life insurance fund thus created as allocated pursuant to section 124 of the Decedent Estate Law.

Opposed to the above formula by which the appellant would compute the respondent’s intestate share of her husband’s estate, the respondent asserts that in making such computation to determine the amount of her intestate share under the statutory election she has made, no deduction may he made for any estate tax because she is entitled, under section 249-s (subd. 4, par. [a]) of the Tax Law to a “ marital deduction ” for any amounts passing to her by virtue of her right of election under the Decedent Estate Law (§ 18, subd. 1, par. [a]). The respondent contends further that the tax attributable to the avails of life insurance policies should be paid from the fund so created and that no deduction should be made from the gross estate for the amount of estate taxes attributable to such insurance in determining her share by reason of her right of election.

Thus the question for decision is whether — as the appellant contends — the respondent takes her intestate share — as limited by the various provisions of section 18 — •after deducting all estate taxes; or — as claimed by the respondent — before estate taxes have been deducted.

The Surrogate’s opinion — which is the basis for affirmance by the Appellate Division — favors the widow. The dissenting opinion at the Appellate Division favors the position taken by the appellant.

As to applicable statutes: the Decedent Estate Law (§ 18, subd. 1) provides: “ Where a testator dies after August thirty-first, nineteen hundred and thirty, and leaves a will thereafter executed and leaves surviving a husband or wife, a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy, subject to the limitations, conditions and exceptions contained in this section.”

We have seen that the decedent left no children but was survived by his wife and his mother. In those circumstances we turn to the Decedent Estate Law (§ 83, subd. 3) which provides in part: “ * * * If the deceased leaves one parent surviving, and no child or descendant, and a surviving spouse, the surviving spouse shall take five thousand dollars and one-half of the residue, and the surviving parent shall take the balance; if there be no surviving spouse, the surviving parent shall take the whole.”

However, in exercising the statutory right of election, the amount a widow is entitled to take is limited by the Decedent Estate Law (§ 18, subd. 1, par. [a]) as follows: “ In exercising the right of election herein granted a surviving spouse shall in no event be entitled to take more than one-half of the net estate of the decedent, after the deduction of debts, funeral and administration expenses and any estate tax, and the words ‘ intestate share ’ wherever used in this section shall in no event be construed to mean more than one-half of such net estate. ’ ’

Applying the statutes quoted above to the computation of the present respondent widow’s intestate share of her husband’s estate, the maximum or ceiling fixed by section 18 (subd. 1, par. [a]) serves to reduce the share she would otherwise take under section 83 (subd. 3). Thus — referring to the two proposed computations set forth supra in footnotes- — the decedent’s net estate is tentatively computed to be $374,827.51. It is the respondent’s contention that, although under section 83 (subd. 3) she would take $187,413.75 plus $5,000, she is limited by section 18 (subd. 1, par. [a]) to $187,413.75. However, the administratrix-appellant — disagreeing with the computation by the respondent — would deduct from the net estate computed at $374,827.51 the additional sum estimated at $4,193.58 for New York estate taxes and the estimated sum of $53,497.09 for Federal estate taxes, thus reducing the net estate subject to the respondent widow’s election to $317,136.84, of which her maximum one half would be $158,568.42.

The enactment of section 18 of the Decedent Estate Law by chapter 229 of the Laws of 1929 was one of a number of legislative alterations affecting the Decedent Estate Law made upon the recommendation of the Commission to Investigate Defects in the Laws of Estates. By its terms, however, the new legislation did not become effective until September 1, 1930.

Prior to September 1, 1930, estate taxes were payable, primarily at least, out of the residuary estate, and were deducted therefrom prior to the determination of the shares payable to beneficiaries. (Matter of Oakes, 248 N. Y. 280, 282; Matter of Hamlin, 226 N. Y. 407, 416-419; Matter of del Drago, 287 N. Y. 61, 69, 71, revd. on other grounds sub nom. Riggs v. del Drago, 317 U. S. 95).

The Legislature changed that rule by the enactment of section 124 of the Decedent Estate Law (L. 1930, ch. 709), effective September 1,1930, which statute provided that, in the absence of a direction to the contrary by the testator, estate taxes shall be apportioned and prorated among those who share in the estate. Thus, in a case where section 124 is applicable, the share of each beneficiary is first determined and computed and then his prorata share of the tax is deducted therefrom.

In a situation where taxes are not to be apportioned, the formula for determining a widow’s intestate share under section 18 (subd. 1, par. [a]) is to deduct the total of estate taxes from the net estate and then give the widow one half the balance. (See Matter of Ryan, 280 App. Div. 410.) Where, however, as here — under section 124 — the taxes are to be apportioned, the correct formula is to give the widow one half of the net estate before taxes and then deduct from her share any tax chargeable against that share (see Matter of Peters, 275 App. Div. 950).

In the present case, where the widow’s share qualifies for the statutory marital deduction (Tax Law, § 249-s, subd. 4, par. [a]), then, of course, there is no tax to be deducted from her share. In this connection it should be noted that the Decedent Estate Law (§ 124, subd. 3, par. [ii]) provides in part that ‘ ‘ any exemption or deduction allowed under the law imposing the tax by reason of the relationship of any person to the decedent or by reason of the fact that the property consists of life insurance proceeds * * * shall inure to the benefit of the person bearing such relationship or receiving such insurance proceeds * * *."

The argument against employing the formula of Matter of Peters (supra) is that the Legislature of 1929, which enacted section 18 of the Decedent Estate Law, had no way of knowing that the Legislature of 1930 would adopt the rule of apportionment of taxes contained in section 124. Consequently, so the argument goes, the phrase “ any estate tax ” contained in section 18 must be read as though section 124 had never been enacted.

We cannot agree with that argument. The same commission that recommended section 18 also recommended section 124. Both statutes went into effect September 1, 1930, and were parts of the sweeping revision of the law of decedent estates that then became effective. Both statutes had the same object. Thus the purpose of section 18 was to increase the share of the surviving spouse in a decedent’s estate. (Matter of Byrnes, 260 N. Y. 465, 472.) The purpose of section 124 was also to increase the share of the surviving spouse — who, as the residuary legatee, formerly had to pay the entire estate tax — by requiring each legatee to pay the portion of the tax allocable to his own share. (Combined Reports of Commission to Investigate Defects in the Laws of Estates, 1928-1933 [Reprint ed.], p. 338). In our view, therefore, these statutes should be read together. Moreover, were we to decide otherwise, the formula which prevailed prior to the enactment of section 124 of the Decedent Estate Law would have to be used to determine the widow’s intestate share and the apportionment formula of that statute in other calculations. Thus construed the statute would bring about needless complexity.

One other consideration is to be noted: Should a testator make someone other than his spouse the beneficiary of a substantial life insurance policy and the estate tax on the proceeds thereof were deducted from the estate before the surviving spouse’s maximum share was determined, it might occur that the entire testamentary estate — the sole source of the surviving spouse’s share — would be exhausted by the payment of taxes.

Our conclusion is that adoption of the formula advocated here by the respondent widow will serve better to carry out the intent of section 124 (subd. 3, par. [ii]), quoted above, by allowing her to have the full benefit of exemptions and deductions. Further, it will minimize the possibility that a widow’s intestate share will be whittled away because the testator made valid inter vivas transfers of property which are nevertheless includible in his estate for estate tax purposes. This consideration is compelling since the Legislature has said, in adopting section 18, that its purpose was “ to increase the share of a surviving spouse in the estate of a deceased spouse, either in a case of intestacy or by an election against the terms of the will of the deceased spouse ” and has further directed that 1 ‘ such provisions shall be liberally construed to carry out such intention ” (L. 1929, ch. 229, § 20; and see Matter of Byrnes, 260 N. Y. 465, 472; Combined Reports of Commission to Investigate Defects in the Laws of Estates, supra, p. 18).

In the circumstances thus disclosed, we think it clear that the preferred construction — the one more likely to carry out the intention of the Legislature — is that which enlarges, rather than decreases, the share of the surviving spouse.

The order should be affirmed, with costs to both parties payable out of the estate.

Van Voorhis, J.

(dissenting). The question is whether, where a widow takes her elective share against her husband’s will pursuant to section 18 (subd. 1, par. [a]) of the Decedent Estate Law, she can receive more than half of the net estate after estate taxes. This section expressly states that this computation is to be made after “ any estate tax”. There is a difference between what a widow inherits in case of intestacy of her husband, and what she receives as her ‘ ‘ intestate share ’ ’ if she takes against a will. In case of intestacy, this decedent’s widow would have taken $5,000 and one half of the residue computed before estate taxes (Decedent Estate Law, § 83, subd. 3). In taking against the will, the widow’s intestate share “ shall in no event be construed to mean more than one-half of such net estate ” computed “ after * * * any estate tax ” (italics supplied). The effect of the order appealed from is to disregard, as it seems to me, this limiting language in section 18 (subd. 1, par. [a]) and to construe it as though this section provided that the widow’s share shall be computed before estate taxes as section 83 directs to be done where there is no will.

Section 124 of the Decedent Estate Law does not purport to eliminate this ceiling imposed on the widow’s intestate share by section 18 (subd. 1, par. [a]). It merely apportions the estate taxes to the various beneficiaries in proportion to the amounts which they receive, unless the will otherwise directs. Here the will contains no contrary direction, but there is no part of the estate taxes to be apportioned against the widow’s elective share for the reason that what she receives has not increased the estate taxes due to the recently enacted Federal and State tax exemptions. Nothing in my view of the case prevents the widow from obtaining complete estate tax exemption for her share in the estate, nor is she required by section 124 to bear any part of the estate taxes imposed upon the estate. Section 124 does not apply to her at all.

Nothing in the widow’s tax exemptions nor in section 124 purports to change the language of section 18 (subd. 1, par. [a]) which creates the widow’s right to take against the will, and defines the amount of her elective share by limiting it to one half of the decedent’s net estate after any estate taxes. The amount of estate taxes to be deducted before dividing by two is materially less than it would have been if she had not exercised her election, and her half of the net estate is thereby increased, nor is her share required to assume any part of the estate taxes after it has been computed. Nevertheless it seems to me that there is no other method of arriving at the amount of her intestate share than by dividing the decedent’s net estate by two after deducting the taxes as reduced by the widow’s election. The estate taxes are not imposed by the tax laws on particular legacies, but on the estate as a whole. Section 18 (subd. 1, par. [a]) is not a taxing statute, as Mr. Justice Callahan pointed out at the Appellate Division. It provides a formula for determining the amount of the widow’s intestate share. I do not understand how this formula can be changed except by amendment to the statute. The words 1 ‘ after * * * any estate tax” cannot be construed as meaning “before any estate taxes ” except by legislative action. Unless they are thus altered, there is no way to apply the formula except by deducting the estate taxes before computing the widow’s share. It was so held in Matter of Ryan (280 App. Div. 410). Whether the estate taxes to be deducted before computing the widow’s intestate share shall be limited to such as accrue by reason of decedent’s actual estate where the taxable estate includes inter vivas trusts, or similar items, is a different question which is not presented by the facts of this case that should be reserved for decision when it arises.

The order appealed from should be modified to accord with the method for computation of the widow’s share set forth in the petition, as voted by Mr. Justice Callahan at the Appellate Division, with whose dissenting opinion I am in agreement.

Conway, Desmond, Dye and Fuld, JJ., concur with Lewis, Ch. J.; Van Voobhis, J., dissents in opinion in which Froessel, J., concurs.

Order affirmed.

       The computation for which appellant contends is set forth in her petition as follows:
      “ Gross Estate $478,772.11
      Less Insurance— (Not qualifying for Marital Deduction — terminable Interest— widow life tenant — no part of distributable estate) $64,290.52
      Joint property 2,394.70
      Adm. Exp. 23,794.45
      Debts 13,164.93
      Exemption 300.00 103,944.60
      Net Estate for Distribution Subject to Taxes $374,827.51
      Less: N. Y. Estate Taxes 4,193.58
      Federal Estate Taxes 53,497.09
      Total Taxes 57,690.67
      Net Estate $317,136.84
      Share of Widow (50%) $158,568.42
      Included in the sum of $57,690.67, the total estate taxes, is the sum of $12,642.67, which is the apportionment of Federal and New York Estate Taxes allocable to the Insurance Funds which did not qualify for Marital Deduction in which the widow, Ethel Wolf, is a life tenant.”
      (Other than as may be indicated in this opinion, we do not pass upon the validity or accuracy of the computation quoted above.)

       The computation for which the respondent (widow) contends is set forth in her answer as follows:
      “Gross estate (for tax purposes) $478,772.11
      Less: Insurance Fund $64,290.52
      Joint property 2,394.70
      Adm. expenses 23,794.45
      Debts 13,164.93
      Exemption 300.00 103,944.60
      Net Estate subject to election by surviving spouse $374,827.51
      Elective share of surviving spouse 187.413.75
      Balance of Estate subject to taxes 187.413.75
      Insurance in which surviving spouse has a terminable interest subject to taxation 64,290.52
      Net taxable estate $251,704.27
      Est. Federal Estate tax $45,770.20
      Est. New York Estate 3,385.22
      Est. Total taxes $49,155.42
      Est. tax allocable to Insurance Fund 11,790.82
      Taxes to be paid by Named legatees $37,364.60 ”
      (Other than as may be indicated in this opinion, we do not pass upon the validity or accuracy of the computation quoted above.)


author: Lewis, Ch. J.

text:
    The People of the State of New York, ex rel. Michael Sedotto, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent. The People of the State of New York, Respondent.
    Argued April 22, 1954;
    decided July 14, 1954.

      Arnold D. Roseman for appellant.
    I. The sentence of February 21, 1952, was valid, legal, proper and in conformity with law. (People v. Bellinger, 269 N. Y. 265; City of Buffalo v. Murphy, 228 App. Div. 279; People v. Stock, 26 App. Div. 564, 157 N. Y. 681; Chapman v. Selover, 225 N. Y. 417; People ex rel. Gately v. Sage, 13 App. Div. 135; Colon v. Lisk, 13 App. Div. 195, 153 N. Y. 188; People v. Robarge, 142 Misc. 457, 235 App. Div. 896.) II. The County Court was without power to revoke, vacate, interrupt or modify a valid and legal sentence once having commenced. (Matter of Cedar, 240 App. Div. 182, 265 N. Y. 620; People ex rel. Mendola v. Brophy, 237 App. Div. 529; Ex Parte Lange, 18 Wall. [U. S.] 163; United States v. Murray, 275 U. S. 347; United States v. Benz, 282 U. S. 304; United States v. Rosenstreich, 204 F. 2d 321; Furman v. Furman, 153 N. Y. 309; Matter of Holden, 271 N. Y. 212; Matter of Hogan v. Supreme Court of State of N. Y., 295 N. Y. 92; Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Gersewitz, 294 N. Y. 163.)

      Nathaniel L. Goldstein, Attorney-General (Benjamin A. Gil-man, Wendell P. Brown and Raymond B. Madden of counsel), for J. Vernel Jackson, Warden of Clinton Prison, respondent.

      George B. De Luca, District Attorney (Walter E. Dillon of counsel), for People of the State of New York, respondent.
    I. A court of record has the power to correct erroneous sentences and to impose proper ones. (People ex rel. Miresi v. Murphy, 253 App. Div. 441; People ex rel. Bork v. Gilbert, 96 N. Y. 631; People ex rel. Devoe v. Kelly, 97 N. Y. 212; People ex rel. Friedman v. Hayes, 172 App. Div. 442; People ex rel. Mendola v. Brophy, 237 App. Div. 529.) II. The direction, in a judgment, for imprisonment to enforce a fine is not a sentence, but is a separable part of the judgment. (American Sur. Co. of N. Y. v. Town of Islip, 268 App. Div. 92; United States v. Mitchell, 163 F. 1014; City of Buffalo v. Murphy, 228 App. Div. 279; People ex rel. Gately v. Sage, 13 App. Div. 135; People ex rel. Stokes v. Riseley, 38 Hun 280; Chapman v. Selover, 225 N. Y. 417; Matter of McKinney v. Hamilton, 282 N. Y. 393.) III. Recommitment of the relator does not place him twice in jeopardy. (People ex rel. Youell v. Hunt, 258 App. Div. 846, 283 N. Y. 560; Ratzky v. People, 29 N. Y. 124; People ex rel. O’Berst v. Murphy, 256 App. Div. 58; Bryant v. United States, 214 F. 51; De Benque v. United States, 85 F. 2d 202.) III. If the corrected sentence is found to be invalid then the original commitment, imposing a valid sentence, is still operative. (People v. Schneider, 194 Misc. 746, 276 App. Div. 781.)
   Lewis, Ch. J.

By this habeas corpus proceeding the relator challenges the legality of the judgment by which he was confined in Clinton Prison.

At Special Term the writ was sustained and the court directed that the relator be discharged from custody. At the Appellate Division.the order of Special Term was reversed on the law, the writ was dismissed and the relator was remanded to State prison confinement. His appeal to this court is taken as of right.

The relator stands convicted in the County Court of Bronx County of perjury in the first degree, a crime punishable under subdivision 1 of section 1633 of the Penal Law, which provides as follows: “ Perjury in the first degree and subornation of perjury in the first degree are felonies and are punishable by imprisonment for a term not exceeding- five years, or by a fine of not more than five thousand dollars, or by both.”

On February 21, 1952, the relator was sentenced to a term of two and one-half to five years in State prison and was fined the sum of $5,000. When, following- the imposition of that sentence, the relator had been delivered to a State prison for confinement, and after he had commenced serving his sentence, the prison warden sent to the Clerk of the County Court of Bronx County a communication in which the fact was noted that, although commitment papers incidental to the relator’s confinement had recorded the imposition of a fine as a part of the sentence, they had failed to indicate ‘ how the fine * * * is to be served ” in the event it is not paid.

Thereafter, on April 4, 1952, the relator was brought back to the County Court of Bronx County for resentence before the County Judge who had pronounced the original judgment. At that time the following occurred, according to a “ Certificate of Disposition ’ ’ of record before us: 1 ‘ * * * the sentence of Feb. 21,1952 was vacated and the defendant was re-sentenced to State Prison for 2% to 5 years. Fined the sum of $5,000.00. One year in jail in lieu of payment of fine, to run consecutively to sentence imposed, nunc pro tune as of Feb. 21,1952 * * ”

The Appellate Division order of reversal dismissing the writ was based upon that court’s conclusion that the neglect to provide in the original sentence a direction for enforcement of payment of the fine imposed was “ a defect in the judgment ” — an omission of an alternative which the court should have provided originally in the interests of certainty and uniformity.

We are unable to agree with the Appellate Division that the omission from the original sentence of a provision implementing payment of the fine made the judgment defective. Our conclusion in that regard is supported by section 718 of the Code of Criminal Procedure which provides: A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied; specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine. * * *” (Italics supplied.) (And see Code Crim. Pro., § 484.)

The statute last quoted above is permissive, not mandatory; choice as to whether the sentence shall include the statutory formula in aid of payment of the fine is in the discretion of the court. The omission does not make the sentence void or illegal.” (People v. Robarge, 142 Misc. 457, 462, affd. 235 App. Div. 896.) It “ is merely a means of compelling obedience to the judgment of the court.” (City of Buffalo v. Murphy, 228 App. Div. 279, 287; and see Hill v. United States ex rel. Wampler, 298 U. S. 460.)

Concluding, as we do, that the original sentence was not defective but was a valid exercise of judicial discretion, the County Judge of Bronx County who imposed it on February 21, 1952, was without power thereafter — -on April 4, 1952-— to vacate the original judgment and impose a new sentence of the same penal exactions to which was added the provision — “ One year in jail in lieu of payment of fine, to run consecutively to sentence imposed * * (People ex rel. Hirschberg v. Orange Co. Ct., 271 N. Y. 151, 156-157; Bohlen v. Metropolitan El. Ry. Co., 121 N. Y. 546, 550-551; Herpe v. Herpe, 225 N. Y. 323, 327; Corr v. Hoffman, 256 N. Y. 254, 268; Schenectady Trust Co. v. Emmons, 290 N. Y. 225, 229; and see United States v. Murray, 275 U. S. 347, 358.)

The order of the Appellate Division should be reversed, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion, with due regard for the application of section 220 of the Correction Law.

Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Order reversed, etc.