text:
    City of New Rochelle, Respondent, v. Charles D. Beckwith et al., Appellants.
    (Submitted June 11, 1935;
    decided July 11, 1935.)

      Albert Ritchie and Frederick H. Seacord, Jr., for appellants.
    The court had no authority to impose the sentence which it did. (People ex rel. Stokes v. Riseley, 38 Hun, 280; People v. Garter, 48 Hun, 165; People ex rel. Kane v. Sloane, 98 App. Div. 450; People ex rel. Devoe v. Kelly, 97 N. Y. 212; People v. Bork, 96 N. Y, 188; People ex rel. Tweed v. Lipscomb, 60 N. Y. 559; Polinsky v. People, 73 N. Y. 65; People v. Budd, 117 N. Y. 1; Penal Law, § 22; People v. Knapp, 206 N. Y. 373; People v. McCann, 151 Mise. Rep. 792; People v. McCarthy, 121 Mise. Rep. 56; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25; City of Brooklyn v. Nassau Electric Co., 44 App. Div. 462; City of Buffalo v. Neubeck, 209 App. Div. 386; People v. Jones, 218 App. Div. 443; People ex rel. Kieley v. Lent, 166 App. Div. 550; 215 N. Y. 626.) The complainant had no standing in court. (Matter of Collins v. Moore, 125 Mise. Rep. 777; Stilwell v. Buffalo Riding Academy, 21 Abb. N. C. 472; Owid v. Moushaty, 125 Mise. Rep. 535; Keenly v. McCarty, 137 Mise. Rep. 524; Southern Leasing Co. v. Ludwig, 217 N. Y. 100; People v. Kalbfleisch Co., 174 App. Div. 108; 220 N. Y.' 760.) The information does not state facts sufficient to constitute a violation of the ordinance. (.Blodgett v. Race, 18 Him, 132; McKelvey v. Marsh, 63 App. Div. 396; Matter of Peck v. Cargill, 167 N. Y. 391; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Brown v. Tighe, 146 App. Div. 491; Panzer v. Breen, 139 App. Div. 10.)

      Aaron Simmons, Corporation Counsel (John A. Bodmer of counsel), for respondent.
    The zoning ordinance is constitutional as applied to the defendants’ property and upon the evidence the defendants were lawfully convicted. (Town of Ramapo v. Bocker, 151 Mise. Rep. 613; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Welch v. Swasey, 214 TJ. S. 91; City of Rochester v. West, 164 N. Y. 510; Tene'ment House Dept. v. Moeschen, 179 N. Y. 325; City of New York v. Chelsea Jute Mills, 43 Mise. Rep. 266; People v. Werner, 174 N. Y. 132; People v. Kibler, 106 N. Y. 321; People v. D’Antonio, 150 App. Div. 109.) The defendants waived any question of insufficiency or defects in the complaint by their general appearance and pleas of not guilty. (City of Buffalo v. Neubeck, 209 App. Div. 386; People ex rel. Krohn v. Thomas, 133 Mise. Rep. 145; People ex rel. Dinsmore v. Keeper of Erie County Pentitentiary, 125 App. Div. 137; People v. Carter, 88 Hun, 304; People v. Wiechers, 179 N. Y. 459.)
   The defendants have been charged with a violation of the zoning ordinance of the city of New Rochelle on the 2nd day of July, 1933, and on subsequent days to and including the 23rd day of July, 1933.” The complaint against them was made on information and belief by a resident of the city. After trial in the City Court of New Rochelle they were convicted and each defendant was fined the sum of $750. Upon this appeal the defendants urge that the zoning ordinance is, as construed in the courts below, unreasonable, and an unconstitutional deprivation of their property. They urge further that the evidence is insufficient to show a violation of the ordinance, and finally that the proceedings were improperly prosecuted and that the trial court was without jurisdiction.

The evidence is sufficient to sustain the finding of the trial court that the defendants, acting under cloak of a membership corporation, used property in a part of the city denominated a Residence A ’ District,” for a business prohibited by the ordinance. The power of the city to adopt the ordinance is clear. The question remains whether the court had jurisdiction of this action and power to impose fines of $750 on each defendant.

The zoning ordinance provides that for each violation of the provisions of the ordinance, each of those who participate in such violation " shall be subject to a fine not exceeding one hundred dollars and every day the violation exists shall be deemed to be a separate and distinct violation. Such violation shall also be a misdemeanor.” The courts below have held that the Legislature did not delegate to the city of New Rochelle power to make a violation of its zoning law a misdemeanor. The fines were imposed pursuant to the provisions of the ordinance which subjects persons who participate in a violation to a fine of $100 for each violation. The right of the city to adopt an ordinance providing for such fines is not challenged by the appellant, and the right of the city to make a violation of the ordinance, at the same time, a technical misdemeanor, is not asserted or defended by the respondent. The distinction may then be disregarded upon this appeal.

The ordinance provides also that this ordinance shall be enforced by the building inspector in accordance with the administrative provisions of the building code and of this ordinance.” Here, so far as appears, the building inspector has not sought enforcement of the restrictions of the zoning ordinance. The complaint, as we have said, is made by a private citizen, a resident of the restricted district. Private citizens often have a special interest in the enforcement of a statute. They may often compel a public officer to take appropriate action for the enforcement of a statute or ordinance; none the less where duty of enforcement is intrusted solely to a named public officer, private citizens cannot intrude upon his functions.

The problem thus presented here is whether the ordinance, in placing upon the building inspector a duty to enforce its provisions, provided by implication that fines for its violation should be imposed only upon his complaint. We think that in this zoning ordinance that implication is clear. Otherwise the provision for fines might be diverted from its intended purpose as an instrument of enforcement of the zoning ordinance to purposed of annoyance and oppression. Use of property in violation of the ordinance is essentially a single continuing act, though artificially separated by the ordinance into separate violations for each day that the violation continues. For administrative purposes such separation may be sound. It enables the administrative officer, who is under duty to enforce the ordinance, to bring adequate pressure upon a contumacious offender. We may hardly suppose that the ordinance was intended to subject a person violating the ordinance to the risk and embarrassment of being haled into court, upon complaints of private citizens, for each day’s violation of an ordinance, committed, perhaps, through ignorance and without even notice from the building inspector, charged with duty to enforce the statute, that the ordinance is being violated.

This case indeed illustrates the difficulties and even the injustice that may result from prosecution of a violator of the zoning ordinance upon the complaint of a private citizen. Here the proceedings are brought upon a complaint of a private citizen. The city is made the plaintiff, though it does not appear that any authorized officer of the city has directed that the proceedings be instituted. The complaint is made upon information and belief, and the sources of information are not disclosed. The defendants are charged with a violation of the ordinance from July 2d to July 23d, and they are then convicted of separate violations, the number of which is not specified, and are each fined $750. Perhaps objections to the form of the complaint and to the trial of separate violations of the ordinance, though the complaint charges one continuous violation, were not properly raised at the trial. We do not pass upon them now. The judgment must be reversed and the complaint dismissed, because the court was without jurisdiction to impose any fine where the proceedings for the enforcement of the ordinance are brought by a private citizen.

The judgments should be reversed and the complaint dismissed.

Crane, Ch. J., O’Brien, Htjbbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Judgments reversed, etc.


source: Caselaw Access Project

author: Loughran, J. Finch, J.

license: Public Domain

text:
    Chauncey M. Mayers, Appellant, v. George S. Van Schaick, as Superintendent of Insurance of the State of New York, Respondent.
    (Argued April 30, 1935;
    decided July 11, 1935.)

      Leopold K. Simon and Ralph S. Goodman for appellant.
    The assessment became a lien when it was completed and confirmed. (Cons. Laws, ch. 64, §§ 113, 116, 280; Lathers v. Keogh, 109 N. Y. 583; Burr v. Palmer, 53 App. Div. 358.) The existence of the assessment was a risk against which the title company agreed to insure and respondent is Hable to appellant in the amount thereof. (.Empire Development Co. v. Title Guarantee & Trust Co., 225 N. Y. 53; 755 Seventh Ave. Corp. v. Carroll, 266 N. Y. 157.) The measure of appellant’s damages is either the amount of the assessment or the difference between the value of the property subject to the assessment and free from it. (Murphy v. U. S. Title & Guaranty Co., 104 Mise. Rep. 607; Empire Development Co. v. Title Guarantee & Trust Co., 225 N. Y. 53; 755 Seventh Ave. Corp. v. Carroll, 266 N. Y. 157.) The agreement of the title .company was to insure against the existence of any and all Hens and incumbrances not noted in its certificate. (Clarkson v. Western Assur. Co., 92 Hun, 527; Hay v. Star Fire Ins. Co., 77 W. M. 235.)

      Jess H. Rosenberg, Joseph J. Corn, Jr., Irving H. Jurow and Harry Rodwin for respondent.
    The assessment did not create a Hen upon the property. (McNamara v. City of Rochester, 124 Mise. Rep. 229; Real Estate Corp. v. Harper, 174 N. Y. 123; Matter of Sobol v. Common Council, 233 App. Div. 158.) Defendant is not Hable under the express terms of the policy to which plaintiff’s certificate is subject. (De Grove v. Metropolitan Ins. Co., 61 N. Y. 594; Lipman v. Niagara Fire Ins. Co., 121 N. Y. 454; Karelsen v. Sun Fire Office of London, 122 N. Y. 545.)
   Loughran, J.

On May 8, 1928, the Board of Trustees of the village of. Scarsdale resolved to establish a village park and playground and to assess seventy per cent of the expense of that improvement against the owners of lands designated upon an assessment map as comprising the district to be benefited thereby. The cost of the project having meantime been determined, the Board, on June 12, 1928, apportioned seventy per cent thereof upon the respective properties so assessed, including premises of Eleanor M. Grieve against which was allotted $960.65 of the localized burden.

The Board then further resolved: “ That the said assessments become due and payable in forty equal annual installments commencing with the year 1929, with interest on unpaid balances at the rate of four and one-quarter per cent per annum; * ⅜ ⅜ and * * * that the amount of the said assessments falling due in any year, including interest, shall be included in the annual tax levy of such village for such year and become due concurrently with the general village tax.” These proceedings were taken and completed pursuant to section 280 of the Village Law (Cons. Laws. ch. 64) and within fifteen days thereafter became final and conclusive accordingly.

On May 22, 1933, Lawyers Title and Guaranty Company issued to plaintiff its certificate that title to the premises of Eleanor M. Grieve in the village of Scarsdale was, as of that date, vested in her “ clear of all requirements, hens, encumbrances and defects except as in said instrument noted, and agreed to insure plaintiff against the existence of any and all requirements, hens, encumbrances and defects not therein noted.” In rebanee on this instrument, plaintiff thereupon purchased the title thus insured. The certificate made no reference to the above-mentioned local assessment to be borne by the premises after 1928, as part of the expense of the park and playground improvement laid out in that year by the Trustees of the village of Scarsdale. Installments of this assessment had been paid to and including 1932. Under the resolutions of the Trustees, further installments were to become due annually thereafter to and including 1968, in the aggregate sum of $863.97.

This is an action to recover that sum as the amount of a liability covered by the certificate of title insurance issued to plaintiff by Lawyers Title and Guaranty ComNo cause of action for negligence in searching the insured title is alleged. The Superintendent of Insurance, as rehabilitator of Lawyers Title and Guaranty Company, is made defendant. The Special Term granted his motion for judgment on the pleadings and dismissed the complaint. The Appellate Division affirmed. Plaintiff is here by leave of this court.

Title insurance operates to protect a purchaser or a mortgagee against defects in or incumbrances on a title existing at the date of such insurance. It is not prospective in its operation and has no relation to hens or requirements arising thereafter. (Trenton Potteries Co. v. Title Guarantee & Trust Co., 176 N. Y. 65, 72.) The full form of the certificate of insurance of plaintiff’s title is not before us. We have only so much of the text as has been quoted from his pleading. On that text, the issue is whether the unpaid installments of the assessment in question were on May 22, 1933, an existing requirement of, or a hen or incumbrance on, or a defect in, the title then acquired by plaintiff. His contention that such a hen existed at that time is based upon sections 280, 116 and 113 of the Village Law. We find no warrant for his position in these sections.

Section 280 contains the provisions under which the assessment was laid. That section does not provide that any assessment for a local improvement thereby authorized shah be a hen on property benefited. By subdivision 6 of that section it is provided (and the village Trustees here so resolved) that: If the said assessments are payable in more than one installment, the amount thereof becoming due in any year may be included in the annual tax levy of such year * * * and in case of default in payment said assessments, with interest and penalties, may be collected in the same manner as delinquent village taxes.” Section 116 provided: The annual village tax is a hen ⅜ ⅜ on real property on which it is levied from the fifteenth [now the first] day of June of the year in which it is levied * *

AJI installments of this assessment were paid to and including 1932. No installment unpaid on May 22, 1933 (the date on which the certificate of insurance issued), was then a hen on this title, or could become such a hen before June 15 of that year, by force of anything provided in sections 280 and 116 of the Village Law.

Section 113 of that statute has no apphcation here. It defines the effect of assessments for named purposes which do not include the local improvements authorized by section 280.

A village board of trustees may declare and provide that the cost of ah local improvements or of any other work or benefit to or for abutting property as determined by it, shah be a hen upon the property.” (Village Law, § 89, subd. 38.) The Board of Trustees of Scarsdale here elected not to follow that course, but rather to adopt the optional alternative method made available by section 280 of the statute. (See subd. 7.)

It follows, we think, that Lawyers Title and Guaranty Company no more agreed with plaintiff to protect him against habihty for the unpaid assessment in question than it undertook to indemnify him for taxes to be levied against the premises after dehvery of its certificate of title insurance.

/The judgment should be affirmed, with costs.

Finch, J.

(dissenting). The Lawyers Title and Guaranty Company, by a pohcy of insurance, agreed to give the plaintiff a clear title, free of all requirements, objections and defects, except as these were noted in the pohcy of title insurance. It is not necessary that the objection or requirement should amount to a hen, but what is stated in the pohcy of title insurance is that any defect is insured against except those noted. Here, by the conceded facts, this plaintiff’s property was subjected to a fixed assessment for a local improvement which was to become due and payable yearly in forty equal annual installments, commencing in tlie year 1929, with, interest on the unpaid balance at the rate of four and one-quarter per cent per annum, the amount of assessment to be added each year to the annual tax.

The certificate upon which the plaintiff relied certified to the plaintiff that title to the premises was vested in Eleanor M. Grieve, clear of all requirements, hens, incum-brances and defects, except as in said certificate noted, and agreed to insure the plaintiff against the existence of any and all requirements, hens, incumbrances and defects not therein noted. The complaint is based on the foregoing certificate. The plaintiff alleges in his complaint that this defect amounts also to a hen, but the plaintiff may succeed upon proof that the future installments are an objection to title not noted in the pohcy although they do not amount to hens. That this assessment for a park constitutes a defect and objection to title admits of no doubt. It is payable in annual installments for forty years to come, with interest at four and one-quarter per cent from the time the assessment was completed and could have been paid without interest. Such interest also is to be computed on the entire amount of the assessment, and not on the amount of each installment. The interest is either a penalty for non-payment of the assessment or is a charge for the extension of the time for payment by the exercise of the option to pay in installments. In either case, this evidences the fact that the entire assessment was payable when this amount was determined and lends support to the plaintiff’s contention that this objection and defect also amounts to a hen. But, as already noted, this defect in title need not amount to a hen to come within the terms of the certificate, which agrees to protect plaintiff against not only hens but also against all requirements, defects and objections not noted in the pohcy by way of exception as not being insured against.

Every year for forty years this additional amount wiE be added to plaintiff’s ordinary tax biE. In accordance with established practice, the total amount of these unpaid installments of assessments would have been deducted from the purchase price at the time of closing of title, if they had been disclosed to appeEant as the title company agreed to do.

The title company urges that although no poEcy was issued the certificate is to be construed as containing aE the terms and conditions contained in the poEcy ordinarEy issued by the company. This contention would not seem justified by the facts, but even assuming that it were so, it does not avaE respondent. The agreement of the title company was to note among the exceptions not insured against, the existence of any .and all requirements, objections and defects, and in default thereof to insure against their existence. The fact that the poEcy of insurance to be issued merely stated that plaintiff was not insured against assessments payable in installments is not material to excuse the faEure to comply with the agreement by the title company to bring to the attention of the insured the existence of future installments by way of exception. In any event, the wording of the poEcy in this regard is ambiguous and in accordance with the usual rule must be taken most strongly against respondent.

The measure of damages of the appeEant is at least the difference between the value of the property subject to the assessment and free from it. (755 Seventh Ave. Corp. v. Carroll, 266 N. Y. 157.)

Title insurance policies are intended to inform the purchaser of any defects in the title, claims against or burdens or requirements on the property. Unless defects or objections are noted, at least in the exceptions, the policy becomes valueless. An assessment levied against the property, although not a Een nor payable untE the future, is clearly a burden on the property concerning which the purchaser seeks information. To hold that although, objections to a title are not noted either by way of exception or otherwise, those insuring the title are not hable, is to render useless title insurance.

The judgment dismissing the complaint should be reversed and a trial had for the purpose of determining the damages of plaintiff.

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

Judgment affirmed.


author: Lehman, J. Finch, J.

text:
    The City of Mount Vernon, Respondent, v. Best Development Company et al., Defendants. Edward F. Hallahan, Appellant.

      (Submitted May 22, 1935;
    decided July 11, 1935.)

      Lester D. Stickles and Herbert R. Goldstein for appellant.
    The building and loan association in its corporate capacity was a proper and necessary party to the action. (Van Tuyl v. New York Real Estate Sec. Co., 153 App. Div. 410; 207 N. Y. 691; Yokohama Specie Bank, Ltd., v. Chinese Merchants’ Bank, 219 App. Div. 256; Matter of Bank of United States [Ostertag], 237 App. Div. 104; 262 N. Y. 463; Richardson v. Cheney, 146 App. Div. 686; Lafayette Trust Co. v. Beggs, 213 N. Y. 280; Isaac v. Marcus, 258 N. Y. 257; Broderick v. Aaron, 243 App. Div. 411.) Appellant is entitled to be relieved of his bid where a reasonable doubt exists as to the marketability of title. (Heller v. Cohen, 154 N. Y. 299; Schriver v. Schriver, 86 N. Y. 575; Fleming v. Burnham, 100 N. Y. 1; Vought v. 120 N. Y. 253.)

      Frank A. Bennett, Corporation Counsel (Irving J. Bland of counsel), for respondent.
    The hen of the mortgage originally held by the building and loan association was effectually discharged. (Matter of Goddard, 94 N. Y. 544; Williams v. People, 24 N. Y. 405; Morse v. Press Pub. Co., 71 App. Div. 351; Lafayette Trust Co. v. Beggs, 213 N. Y. 280; Matter of Attorney-General v. Atlantic Mut. Life Ins. Co., 100 N. Y. 279.)
   Lehman, J.

The purchaser at a sale under judgment of foreclosure of a tax lien has rejected title on the ground, that the title is defective. The only alleged defect which requires discussion arises from the fact that at the time of the foreclosure action Model Building and Loan Association of Mott Haven was the owner of record of a mortgage upon the premises, and, it is said, was not named as a party defendant in the- foreclosure proceedings. We are agreed, I think, that the other alleged defects are without substance.

In 1917, long prior to the foreclosure proceedings,, the Superintendent of Banks had taken possession of the property and business of Model Building and Loan Association for the purpose of liquidation. A final dividend was paid in the liquidation proceedings in 1923. The foreclosure action was begun in 1931. “ Joseph A. Broderick, Superintendent of Banks of the State of New York, in charge of the Model Building and Loan Association of Mott Haven in liquidation,” was named as a party defendant. It may be conceded that Model Building and Loan Association was not finally divested of its property when it was taken over by the Superintendent of Banks. None the less, the Superintendent of Banks has the same powers as a receiver over the property of the corporation. He may even convey title to its property. (Banking Law [Cons. Laws, ch. 2], § 69.) He may in the name of the corporation “ prosecute and defend any and all actions and legal proceedings ” (§ 71). He had supervision of its affairs. The ordinary functions of the managers of the corporation were suspended and the liquidator in the meanwhile acted in their stead. (Lafayette Trust Co. v. Beggs, 213 N. Y. 280; Isaac v. Marcus, 258 N. Y. 257.)

There is no evidence that the Model Building and Loan Association has ever been permitted to resume business, and there is no claim that the Superintendent of Banks ever relinquished his right as liquidator to its property. If the corporation had been specifically named as a party defendant, the Superintendent of Banks would have been called upon to decide whether or not to defend the action. No other representative of the corporation would have had such power or duty. Again, the Superintendent of Banks as the officer in charge of the corporation would have been the proper person upon whom service should be made. He was given the required notice and opportunity to defend the action. Defense to the action by him, if successful, would have inured to the benefit of the corporation.

The form of description of the corporation as party defendant is immaterial if, in fact, it was by due notice made a party to the action. It was, perhaps, necessary in the action to name the corporation as defendant, for suits by or against it must, in accordance with the statute, be prosecuted or defended in its name. Its corporate functions were at that time suspended, its property was in “ custodia legis ” and the custodian and the public officer who could act in its behalf was named as the party in charge of the Model Building and Loan Association of Mott Haven in liquidation.” Differentiation between the custodian of property and its owner is proper and carries legal consequences when each has separate functions an d separate rights. It is immaterial when functions and rights are merged in the custodian. That is true here, where, so far as appears, possession of the property had not been relinquished by the Superintendent, and he had not been discharged of his duty and function to prosecute and defend actions in its name. The objection that the corporation should have been named as party defendant, separately from the public officer who was properly described as in charge of the corporation, rests in formalism, long outlived by the law. The essential requirement to bring a defendant into court is that the defendant be named or described in such form as will properly identify the defendant and give notice of opportunity to defend. That has been done here. It has been done here in manner appropriate to secure that purpose. The judgment of foreclosure is binding upon the corporation, since the officer charged with the duty of defending suits against it has failed to present any defense.

The order should be affirmed, with costs.

Finch, J.

(dissenting). The city of Mount Vernon brought an action to foreclose a tax lien for unpaid real property taxes. At the sale the appellant, Edward F. Hallahan, bid in the property for $4,630 and paid to the referee ten per cent of the bid as a deposit. He retained a title company to examine the title and issue insurance thereon. The company’s report showed several exceptions and questions in reference to the validity of the foreclosure proceedings, and as a result Hallahan rejected the deed tendered to him, on the ground that the title was not marketable.

Two and a half years having elapsed, during which time no action was taken by the city of Mount Vernon, Hallahan made this motion to be relieved of his bid and for the return of his down payment. The motion was granted at Special Term, but the Appellate Division reversed.

It is necessary to consider but one of the defects upon which the appellant relies in support of his contention that the title to the property is unmarketable. He urges that the failure to make the Model Building and Loan Association of Mott Haven, the holder of a duly recorded mortgage for $10,000, a party to the action rendered the title offered him defective. In 1917, long before the foreclosure proceedings, the Model Building and Loan Association was taken over by the State Banking Department for the purpose of liquidation, which was completed by the payment of a final dividend in 1923. The summons and complaint in the foreclosure proceeding failed to name the Model Building and Loan Association as a party defendant in its corporate capacity. It did make the Superintendent of Banks a party to the action by the following designation: A. Broderick, Superintendent of Banks of the State of New York in charge of The Model Building and Loan Association of Mott Haven in liquidation.”

The neglect to name the Model Building and Loan Association as a party defendant is not remedied by naming the Superintendent of Banks in its stead. A corporation is not divested of its title to property when it is taken over by the Superintendent of Banks for purposes of liquidation. (Yokohama Specie Bank, Ltd., v. Chinese Merchants Bank, 219 App. Div. 256; Lafayette Trust Co. v. Higginbotham, 136 App. Div. 747.) (See Van Tuyl v. New York Real Estate Security Co., 153 App. Div. 409, at p. 411.) The appointment of a liquidator does not involve the destruction of the corporation or the corporate franchise. Even after it has been liquidated and is no longer doing business, it still exists as a corporation and continues to so exist until dissolved or its charter is annulled or voluntarily surrendered. (Lafayette Trust Co. v. Higginbotham, supra; Wilson v. First State Bank, 77 Kan. 589.) (See Chemical Nat. Bank v. Hartford Deposit Co., 156 Ill. 522, 527; Hawkins v. Glenn, 131 U. S. 319.) The law provides the method by which a building and loan association or any other corporation may be dissolved. (Banking Law, §§ 59, 486; General Corporation Law [Cons. Laws, ch. 23], §§ 71, 72.) The method of annulling the corporation is also prescribed by statute. (General Corporation Law, §§ 90, 91.) Liquidation of the assets is not sufficient to work a dissolution or an annulment of the corporation. After the commencement of liquidation proceedings the Superintendent of Banks may even permit the resumption of business by the corporation. (Banking Law, §§ 61, 61-a.) There is nothing in the record to show that the Model Building and Loan Association has been dissolved or its charter annulled. In consequence there is no legal obstacle to a resumption of business. Not only is its corporate existence continued but it retains title to all remaining assets. In accord with this is the provision of the Banking Law which fixes the power and the in which the Superintendent of Banks may defend and prosecute actions concerning corporations, possession of which has been taken by him. Section 71 of the Banking Law provides that: “ * * For the purpose of executing any of the powers and performing any of the duties hereby conferred upon him, the superintendent may, in the name of the delinquent corporation or private banker, prosecute and defend any and all actions and legal proceedings.”

Mandatory is the requirement in the statute as to the capacity in which the Superintendent is to act. All actions are to be prosecuted and defended in the name of the corporation. The discretion vested in the Superintendent by the use of the word “ may ” lies only in the determinar tion of whether or not it is to the advantage of the corporation to defend or prosecute the action. (See Isaac v. Marcus, 258 N. Y. 257, at p. 265.)

The authorities cited to support the view that title to corporate assets passes to the Superintendent of Banks as liquidator are not in point. Lafayette Trust Co. v. Beggs (213 N. Y. 280) and Matter of Attorney-General v. Atlantic Mut. Life Ins. Co. (100 N. Y. 279) merely decided that creditors may not gain a preference by obtaining judgments against a corporation during the course of its liquidation. The decisions were rested on the ground that the assets of the corporation are impressed with a trust, as of the date of the appointment of the liquidator, in favor of their creditors, and, therefore, not subject to liens or judgments subsequently docketed. The opinion in the Beggs Case (supra), containing dictum which is referred to as not being in accord with the view that title remains in the corporation, was concurred in by only one other judge. Two judges concurred in a separate memorandum and three judges dissented. The case of Isaac v. Marcus (supra) is authority only that stockholders cannot bring a derivative action against directors until they have exhausted all means to induce appropriate action by the Superintendent of Banks. The latter’s right is paramount but not exclusive.

Title to its assets remaining in the Model Building and Loan Association, it had an interest in the mortgage, subject to the rights of its creditors and the Superintendent of Banks, as liquidator, which should have been cut off by making it a party to the foreclosure action. The corporation not having been so named, its rights were not terminated.

A reasonable doubt as to its validity existing, the title may be rejected as unmarketable. (Van Vliet & Place, Inc., v. Gaines, 249 N. Y. 106; Heller v. Cohen, 154 N. Y. 299; Vought v. Williams, 120 N. Y. 253; Fleming v. Burnham, 100 N. Y. 1.)

In Heller v. Cohen (supra) it was said by this court:

(1) A purchaser at a judicial sale will not be compelled to take a doubtful title, * * *.
“ * * * A purchaser ought not to be compelled to take property, the possession of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one that, if he wishes to sell, would be reasonably free from any doubt which would interfere with its market value. If it may be fairly questioned, specific performance will be refused. (Vought v. Williams, 120 N. Y. 253, 257; Shriver v. Shriver, 86 N. Y. 575, 584; Fleming v. Burnham, 100 N. Y. 1.) ” (p. 306).

' It follows that the order of the Appellate Divisiop should be reversed and the order of Special Term affirmed, with costs. (See 268 N. Y. 708.)

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

Order affirmed.


author: Finch, J.

text:
    George E. F. Saum, Respondent, v. Capital Realty Development Corporation, Appellant.

      (Argued May 23, 1935;
    decided July 11, 1935.)

      Jonas J. Shapiro and Jerotne Handler for appellant.
    The uncontradicted evidence establishes that the agreement of June 1, 1933, is supported by consideration and it was error to deny the defendant’s motions to dismiss and to direct a verdict for the defendant. (Colvin v. Post Mortgage & Land Co., 225 N. Y. 510; Bliven v. Lighthouse, 231 N. Y. 64; Verity v. Ottinger, 223 App. Div. 344; Matthews v. Hubbard, 47 N. Y. 428; Laflar v. McCormick, 225 App. Div. 476; Smiley Steel Co. v. Schmoll, 200 App. Div. 655; Larson v. Burroughs, 131 App. Div. 877; Felleman v. Von Luckner, 234 App. Div. 787; Reis Co. v. Zimmerli, 155 App. Div. 260.) Assuming that the plaintiff would have been entitled to a commission upon the mere production of a tenant ready, able and willing to take a lease on terms acceptable to the landlord, the uncon-tradicted evidence establishes that the plaintiff had not done sufficient to earn his commission prior to June 1,1933. {Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Gallagher v. Dullea, 199 App. Div. 119; Maxwell v. Hamilton Apart-

      merits, Inc., 215 App. Div. 348; Haase v. Schneider, 112 App. Div. 336.) The vice-president was without authority to agree to terms for a lease on behalf of the defendant, which fact was known to the plaintiff. (Leinkauf v. Lombard, Ayres & Co., 12 App. Div. 302; Huie v. Allen, 87 Hun, 516; 156 N. Y. 658; Wen Kroy Realty Co. v. Public Nat. B. & T. Co., 260 N. Y. 84.) There was no prospective tenant in existence at any time prior to June 1, 1933, and hence no agreement between lessor and lessee. (Slater v. Citizens Sav. Bank, 242 App. Div. 238; Munson v. S., G. & C. R. R. Co., 103 N. Y. 58; Horowitz v. Broads Mfg. Co., 54 Mise. Rep. 569.) It was error to have excluded the correspondence. (McNamara v. Gregory, 211 N. Y. 21; Melkon v. Kirk & Co., 232 App. Div. 134; Johnson v. Cole, 178 N. Y. 364.)

      Charles Diringer, James F. T. Delaney and Judith B. Cooperstein for respondent.
    The evidence establishes that plaintiff produced a prospective tenant ready, willing and able to lease upon the terms defined by the landlord and that there was a meeting of the minds of such prospective tenant and the lessor prior to June 1, 1933. (Arnold v. Sclimeidler, 144 App. Div. 420; Alt v. Doscher, 102 App. Div. 344; 186 N. Y. 566; Fleet v. Barker, 120 App. Div. 455; Travis v. Graham, 23 App. Div. 214; Flicker v. Ragan, 126 Mise. Rep. 185; Jaffe v. Lederer, 113 Mise. Rep. 356; Baumann v. Nevins, 52 App. Div. 290; Tanenbaum v. Boehm, 202 N. Y. 293.) Plaintiff’s right to commissions having accrued prior to the execution thereof, the agreement relied upon by defendant is without consideration, and nudum pactum. (Amies v. Wesnofske, 255 N. Y. 156; Reis Co. v. Zimmerli, 224 N. Y. 351; Farr el v. Massapequa Holding Corp., 226 N. Y. Supp. 810; Miller v. Rossiter, 125 Mise. Rep. 80; Hough v. Baldwin, 50 Mise. Rep. 546; Swee v. Neumann, 67 Mise. Rep. 605; Tomars v. Sanford Holding Corp., 232 App. Div. 169; Tanenblatt v. Galewski, 108 N. Y. Supp. 588.) Assuming that the agreement relied on by defendant was supported by consideration it may be avoided by plaintiff since its execution and delivery was procured by misrepresentation. (Dayton v. American Steel Barge Co., 36 Mise. Rep. 223; 76 App. Div. 454; Brennan v. National Equitable Inv. Co., 247 N. Y. 486; Erie B. Co. v. International By. Co., 209 App. Div. 388; 239 N. Y. 98; Kelley v. Osborn, 172 App. Div. 6; Wright v. Knickerbocker, 226 N. Y. 578; Per sky v. Bank of America Nat. Assn., 261 N. Y. 212.) The correspondence was properly excluded. v. Hasbrouck, 169 N. Y. 407; City of Buffalo v. De Bon, 232 App. Div. 318; Starrer v. Stern, 100 App. Div. 393; Willie v. Maier, 256 N. Y. 465.)
   Finch, J.

This is an action by a licensed real estate broker to recover brokerage commission. The complaint alleges that the defendant hired the plaintiff to procure a lessee of certain premises for a twenty-one year period and agreed to pay him the regular and customary rate of commission; that he performed services pursuant to the employment; that he procured a tenant; that a lease was entered into; that he has been paid only $2,000, leaving a claimed balance $6,300. In response to a demand plaintiff furnished a verified bill of particulars, giving May 11th as the date when he had consummated the transaction and earned his commission.

At the trial the defendant offered in defense to the action an agreement entered into between the parties on June 1, 1933, which provided that the commission of the plaintiff was to be $5,000, $2,000 to be paid on the execution of the lease and the balance in installments as the lessee paid its rents. In reply the plaintiff contended that the agreement of June 1st was without consideration and hence unenforceable. The trial court accepted this contention and directed a verdict for the plaintiff. The Appellate Division has affirmed the judgment entered thereon.

To clarify the situation a more complete statement of the facts is necessary. The defendant in this action is a subsidiary of the National Title Guaranty Company, which has b en taken over by the Superintendent of Insurance for rehabilitation. In April, 1932, the plaintiff, a real estate broker, spoke to Mr. Bennett, a vice-president of the National Title Guaranty Company, concerning a building held by the defendant and was told to see if he could find a tenant. Subsequently he submitted an offer from the Steuben people,” but shortly thereafter Mr. Bennett resigned from the company and nothing further was done.

The plaintiff then began negotiations with Mr. Warren, another vice-president of the National Title Guaranty Company. Throughout the negotiations the plaintiff asked that matters be taken up with your committee ” and Warren referred to matters that he had taken up or would take up with “ our committee.” During the course of negotiations Warren sent the plaintiff a letter outlining conditions and provisions which would be required in any offer made by his client. It included a provision “ that no commission or claim of any kind shall be earned or demanded by you until the execution of a lease by its authorized officers.” The plaintiff acknowledged this, stating: we have taken ⅜ the text as outlined in your letter to me under date of December 31, 1932 — making only such exceptions, modifications, and amendments as we believe may be mutually agreeable.” The plaintiff’s letter repeated the provision concerning brokerage and did not dissent therefrom.

The broker’s letter also stated that the proposed tenant would take the lease in the name of a subsidiary corporation. Prior to that time it had been understood that the plaintiff was acting for Steuben Tavern, Inc., the parent company. Even when it was assumed that the parent company would be the lessee, the defendant had insisted that another sign the lease individually or that a surety bond be secured to guarantee completion of repairs if the tenant vacated tbe premises. The change from a proposed responsible lessee to a dummy corporation made the defendant hesitant, but finally, on May 11, 1933, a conference was had among the parties. At the conclusion of this conference plaintiff does not dispute that Warren said he would have to put the proposition to the board of directors. He reported to the board on May 18, 1933, and the following entry is found in the minutes of the meeting: The president announced that negotiations for lease by Steuben Taverns on the ground floor of the Jamaica building are in progress, that the rental is to be $20,000 minimum up to $30,000 maximum per annum; that the lease is to be for a period of 21 years made by Steuben Jamaica, Inc. for the purpose of conducting a restaurant; that the company is to give no bond to assure performance, that the lease was brought about by Mr. Saum as the broker, that the amount of commission is being negotiated. Upon motion of Mr. Henry, seconded by Mr. Jaffee, it was resolved that the president is empowered to consummate negotiations subject to the approval of the Executive Committee of the form of lease.”

On May 31st the plaintiff inquired as to whether any decision had been made and Warren informed him as follows: I told him that we had not, and that no further decision would be made until we could arrange with him if possible to so arrange the matter of the commission. We went over and rehashed various figures. I told Mr. Saum that I could not recommend to the Board of Directors or the Executive Committee of the National Title Guaranty Company any such proposal as he wanted me to accept. I certainly could not in conscience recommend our paying out for a tenant whom I did not believe to be desirable considerably more than we were receiving. I told Mr. Saum that I had no particular idea in reducing his commission except in the interest of the company that I represented, and in reply to his numerous statements about the desirability of the tenant, I told Mr. Saum that if he thought the tenant was so good he should be willing to gamble with him, that if he would not accept the proposal which I made as to the amount of commission that I would recommend that we give the Steuben people a three-year lease, that lease to contain six options for consecutive renewals, and we would pay Mr. Saum the full commission for three years upon its signing each time the renewal was exercised, we would pay him his full commission then. Mr. Saum said, ' let me speak with Mr. Harriman.’ He left the office, came back and said, ‘ Is that the best that you will recommend? ’ I told Mr. Saum ‘ Yes, that is the best I will recommend.’ He said, All right, I suppose I will have to take it.’ I said, Fine. You come to the office tomorrow and you will put that agreement in writing.’ ” On the following day, June 1st, the plaintiff signed an agreement which provided that if a lease were executed and delivered he would receive a commission of $5,000, payable $2,000 in cash upon the closing of the transaction and the balance in installments as the rent was received under the lease. In other words, the dispute was resolved in accordance with what Judge Andeews said in Colvin v. Post Mortgage & Land Co. (225 N. Y. 510, 517): “ No collections, no commissions has a fair business appeal to both seller and broker.” On June 2d a draft of the proposed lease was sent to the Steuben representative. Details as to the form of the lease were straightened out on June 6th and on that day the subsidiary corporation, Steuben Jamaica, Inc., was incorporated. Steuben Jamaica, Inc., signed the lease on June 9th and sent it to the National Title Guaranty Company. In the course of the same day, the executive committee met and approved the lease, and it was executed by the president.

The agreement of June 1st obviously is binding upon the plaintiff and determinative of the case, unless it was given without consideration. ' The plaintiff proceeds on the theory that consideration was lacking, maintaining that the commission was earned prior to June 1st. It sounds trite to reiterate that brokers’ commissions are earned when they produce a customer ready, willing and able to comply with all the terms fixed by the lessor. A meeting of the minds is essential not only on the price but on all the other terms of the contract. It is not necessary, however, that the contract be reduced to writing and signed by the parties. (Arnold v. Schmeidler, 144 App. Div. 420.) But by their contract the parties may vary this rule to any extent.” (Colvin v. Post Mortgage & Land Co., supra, at p. 516.) Vary it in the case at bar, the parties herein surely did. From the outset of thé negotiations Warren, acting for the defendant, stated the conditions on which offers would be entertained. These conditions became an integral part of the contract of hiring. One of the conditions was that no commission would be earned until the execution of a lease by the defendant’s authorized officers. To this condition no objection was made by the plaintiff. It thus became one of the terms of his contract of employment. The production of a customer ready, willing and able to comply with the terms of the defendant’s offer would not suffice to entitle him to his commissions. Not until the lease was executed would his right to such commissions accrue. Until that time, in the absence of bad faith, the defendant could revoke his employment (Donovan v. Weed, 182 N. Y. 43), and a fortiori the defendant could revise the terms of the employment. Such was the case here. The plaintiff was not entitled to commissions until the lease was executed. The lease was not executed June 9, 1933. On June 1st the parties agreed to vary the terms of the original agreement concerning the amount of commissions. Since the plaintiff was not entitled to any compensation at the time the new agreement was entered into, it is binding upon him, unless he can show bad faith or fraud on the part of the defendant.

Reviewing the facts, we find that no bad faith exists-From the outset, the defendant had sought to assure itself of payment of the rent in an amount sufficient at least to pay the broker’s commission and to restore the building to its original condition so that the last state of this lessor would not be worse than the first. It had insisted that in addition to the lessee another sign the lease, or that a bond be procured. This at a time when it still believed that the lessee was to be the parent corporation, Steuben Tavern, Inc. Upon learning that its lessee was to be a subsidiary corporation, formed for that purpose, it became fearful lest it pay a commission for a tenant which could not pay its rent. The financial setup of the new corporation was not such as to assuage these fears. It might find itself, with the commissions paid, the tenant unable to pay its rent and a building plastered with mechanics’ liens for unpaid bills for alterations to .suit the proposed tenant’s plans. When the board of directors of the defendant met, they looked to the president to protect the defendant from the foregoing result and delegated the power to him to consummate negotiations with the Steuben interests but on the basis of certain general terms. They required that the amount of commissions be negotiated and that any arrangement made by the president was to be “ subject to the approval of the Executive Committee of the form of lease.” It is evident that this was not an acceptance of an offer made by the Steuben interests. It merely clothed the president with the power to accept, subject to the approval of the executive committee. Certainly an essential term of the contract, the question of broker’s commissions, remained It is not a case where the lessor has determined to accept an offer to lease and is merely attempting to force the broker to reduce his commissions. Under the circumstances, the president clearly had the power to refuse to consummate a lease unless plaintiff agreed to a change in the terms of his arrangement for commissions.

The plaintiff claims that the situation was misrepresented to him, that he was misled by the statements made to him by Warren in reply to his inquiry on May 31st. The reply is quoted in the statement of facts. Warren said that no further decision would be made until the matter of commissions was arranged; that he could not recommend the acceptance of a lease under the original terms concerning commission; that if his proposal were not accepted he would recommend that a series of short term leases be negotiated. He did not employ the precise language of the minutes of the meeting of the board, but he did make a fair statement of the situation. Fuller it might have been, but there was no concealment of material facts. A consideration of the actual circumstances and the reply of Warren makes it obvious that the defendant was amply justified in refusing to proceed except in accordance with the terms of the agreement of June 1st.

Summing up, we find that the parties entered into a contract of luring concerning commissions, under which the plaintiff was not entitled to remuneration unless and until a lease was executed; that prior to that time the defendant, in good faith, insisted that the terms of this employment be modified. Plaintiff accépted that modification. The modified agreement is a complete bar to this action.

Since the parties constantly dealt with each other under a contract of hire that commissions were not to become due until the lease was executed, it becomes immaterial that error was committed in excluding letters sent by the defendant to the Steuben interests together with the lease. The letters should have been admitted as part of the res gestae. They show that the lease was not to be binding upon the defendant until ratified by it. The ratification did not occur until June 9th. For the same reason, we need not consider the effect of the allegation by the plaintiff in his verified bill of particulars that he had earned his commissions on May 11th, when he does not dispute that on that date the whole matter by the consent of all was to be submitted to the board of directors of defendant.

It follows that the judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Judgments reversed, etc.


author:
Finch, J.
      Crane, CL. J.

text:
    Christine E. Carlock, as Administratrix of the Estate of William F. Deceased, Appellant, v. Westchester Lighting Company, Respondent.

      (Argued May 24,1935;
    decided July 11, 1935.)

      L. Daniel Danziger, Raymond E. Barnett and Thomas J. O’ Neill for appellant.
    The trial court erred in ruling as matter of law that it was immaterial whether or not the ordinance was, as matter of fact, violated; that no causal connection between such violation, if any, and the accident could be found, as matter of fact; and in prohibiting a finding, as matter of fact, that the violation of the ordinance was not some evidence of the first link in the chain of concurrent proximate causes resulting in the death of plaintiff’s intestate. (Martin v. Herzog, 228 N. Y. 164;
      Meyers v. Barrett, 167 App. Div. 170; McGrath v. Home Ins. Co., 88 App. Div. 153; Ring v. City of Cohoes, 77 N. Y. 83; Ivory v. Town of Deerpark, 116 N. Y. 476; O’ Neill v. City of Port Jervis, 253 N. Y. 423; DeHaen v. Rockwood Sprinkler Co., 258 N. Y. 350; Rosenberg v. Schwartz, 260 N. Y. 162; Kalinowski v. Truck Equipment Co., 237 App. Div. 472; Donnelly v. Piercy Contracting Co., 222 N. Y. 210; Braun v. Buffalo General Electric Co., 200 N. Y. 484; Casualty Co. v. Swett Electric Light & Power Co., 230 N. Y. 199.)

      Herbert C. Smyth for respondent.
    The ordinance is inapplicable. Its claimed violation was not the proximate cause of the accident. (Carlock v. Westchester Lighting Co., 242 App. Div. 778.)
   Finch, J.

William F. Carlock, a member of the New York city fire department, responded with his company to an alarm of fire at a building under construction at Two Hundred and Thirteenth street and White Plains avenue. There was no sign of fire at the building when the firemen arrived. Carlock, carrying a fire hose, scaled the ladder to a scaffolding on the unfinished side of the building and, as he stepped upon the platform, his foot came in contact with live wires which electrocuted him.

Some years before, the defendant Westchester Lighting Company had erected poles to support its high tension wires on this corner. At that time the lot on which the building was being constructed was vacant and the wires were suspended only thirty feet above the ground. They were so hung that when building construction was commenced they crossed over the private property inside of the building line. After the brick men had been working on the building three or four weeks, the wall approached within three or four feet of the high tension wires and one of the building employees raised the wires to about eight feet above the scaffolding, by means of a wooden strut, so that the bricklayers could proceed without coming in contact with them A rain storm occurring during tire evening soaked the wooden strut, the wires short circuited and fell to the scaffold. It was on these wires that Carlock stepped. The wires were originally insulated with a covering known as “ waterproofing insulation.” There is testimony that the wires were frayed. Plaintiff duly offered in evidence section 301, subdivision b, of article 3 of chapter 9 of the New York City Code of Ordinances, reading as follows:

“ b. Line wires shall be at least eight feet from the nearest point of buildings over which they pass, and if attached to roofs the roof structures shall be substantially constructed. Wherever feasible, wires crossing over building shall be supported on structures which are independent of the buildings.” (New York Code of Ordinances, ch. 9, art. 3, § 301, subd. b.)

This ordinance was fust admitted in evidence. Later it was stricken out and thereafter reinstated. Finally, the jury was directed to disregard the ordinance, because the evidence does not disclose any causal connection between the claimed violation of the ordinance, * * * and the happening of the accident. I say that you may not find negligence on the part of the defendant by reason of any violation of the ' eight foot over the roof ordinance. That did not cause or contribute to the happening of this accident.” Thus the court took this issue away from the jury and ruled upon it as a matter of law.

Three specific questions were submitted to the jury, the first being: “Was the defendant guilty of negligence in the maintenance of its high tension wires, which was the or a proximate cause of the injury and death to Mr. Carlock? ” The jury answered this question in the negative and was then directed to return a verdict in favor of the defendant. The judgment enteied thereon has been affirmed by the Appellate Division.

The live wires, contrary to the ordinance, had not been kept at least eight feet from the nearest point of the building. If they had been so placed there would have been no need for the workman to have raised the wires in order that the bricklayers might work in safety. If the wires had not been raised on the wooden strut, the rain storm might not have caused them to fall and short circuit. Though the rain storm may have been the “ immediate cause ” of the death, it would be well within the province of a jury to find that the violation of the ordinance was a proximate cause. The failure to comply with the ordinance made necessary the act of the workman; his act created a situation whereby the natural phenomenon of rain could cause a short circuit. These intervening acts were not of such nature as to break the chain of causation. Where harmful consequences are brought about by intervening and independent forces, the operation of which might have been reasonably foreseen, there is no break in the chain of causation of such character as to relieve the actor from liability. This is so even though they are deliberate and independent, but innocent, acts of a human being. As Judge Andrews, speaking for the court, said in Donnelly v. Piercy Contracting Co. (222 Y. 210, at p. 213); In the case before us the question is whether the act of the defendant gave rise to the stream of events which culminated in the accident.”

The defendant urges that the ordinance is not applicable; that being in derogation of the common law, it should be construed as applying only to buildings already constructed. Obviously this is too narrow a construction, in view of the protective nature of the legislation and its applicability to a municipality in which new buildings are constantly being erected.

In Braun v. Buffalo General Electric Co. (200 N. Y. 484) an electric fight company, under written permission, had strung two electric wires diagonally across a vacant lot suitable for the erection of a dwelling. While engaged in working upon the second story of a house which was being erected on the lot, a carpenter came in contact with the wires and received an electric shock from which he died. In reversing a dismissal of the complaint by the trial court, this court found that it was a question for the jury whether the company, in the exercise of reasonable care and foresight, should not have apprehended that the lot over which, the wires were strung might be so used as to bring people in contact with them. So here, it might be found that the defendant in the exercise of reasonable care and foresight as a prudent lighting company, supplying electricity to all the buildings in this neighborhood, should have anticipated that a building might be erected upon this comer lot which was suitable for a building of any description or height. In the same way is answered the contention of the defendant that the plaintiff did not prove direct notice to the lighting company that this building was in the course of erection. Of course, the defendant knew that these high tension wires were within the building line and were only about thirty feet above the ground, so that they would be well within the reach of any building to be erected upon the property. Sufficient time elapsed between the commencement of building operations and the time that the wall came within the eight-foot limit to make the question of constructive notice one for the jury. Where an owner of realty permits a condition out of which an accident may arise to exist on his premises for as many days as it took weeks for this building to reach within eight feet of these wires, the issue of constructive notice is submitted to the jury; nor does it matter that the condition may have been caused by the intentional act of a tenant, which was not within the realm of the reasonably foreseeable. As against the evidence sustaining the submission to the jury of the issue of constructive notice, the lighting company did not offer any evidence of lack of knowledge that a building was being erected. The errors of the court were serious and vital, and unquestionably affected the result of the trial.

It follows that 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.

Crane, CL. J.

(dissenting). I take a different view regarding this case than that expressed by my associate Judge Finch.

The Westchester Lighting Company maintained its electric light poles and wires on the southeast corner of Two Hundred and Thirteenth street and White Plains avenue, Bronx, New York city. Wires, extending from pole to pole, were thirty-four to thirty-five feet off the ground. There was no building on the adjoining lot. It was a vacant lot. The wires were properly constructed and, as placed, not dangerous or illegal. The company in maintaining them had complied with every law.

The Code of Ordinances of the City of New York, chapter 9, article 3, section 301, subdivision b, reads as follows:

“ b. Line wires shall be at least eight feet from the nearest point of buildings over which they pass, and if attached to roofs the roof structures shall be substantially constructed. Wherever feasible, wires crossing over building shall be supported on structures which are independent of the buildings.”

This ordinance did not apply to these wires when they were constructed. It is said, however, that there came a time when the ordinance did apply, and that the company violated it. When did this occur? These are the facts.

Someone — we are not told who — commenced the erection of a building on this vacant lot. Two or three days before the fatal accident in this case the brick structure had reached the vicinity of the wires. The brick mason testified as follows: “ Q. Previous to the 29th day of August, 1927, when Mr. Carlock met with his unfortunate death, had you noticed any wires of the defendant — electric wires? A. Well, about two or three days before that I seen the wires coming across the corner of the building, * * * about a foot of the roof.”

No one notified the company to remove its wires or that a building was being erected on the lot. The most natural thing to expect of a contractor as he approached in his work electric wires would be to ask the owner to remove or replace them. Nothing of this kind was done. Somebody — we do not know who — took a stick and shoved the wires up to the height of about eight feet, and left the stick resting on the scaffolding or building. This was done in the morning, and in the afternoon when a heavy storm came up the wood, resting against the wire, together with the moisture, caused the wire to burn out or melt and drop upon the scaffold. At the same time firemen came to the building and one of them, going upon the scaffold, struck the wire and was killed. Wherein lies the negligence of the company?

As before stated, it constructed its wire according to law, and had a right to maintain it until such time as it knew, or had reason to know, that it might be dangerous to others. Only two or three days before the accident had the building, in process of construction, come near to the wire or within eight feet of it. The company was not notified of this fact or given an opportunity to remove or replace its wire. Apparently some workman undertook to do this for himself and, on the very day of the accident, pushed it up with a stick, causing the break.

The company is now blamed for the recklessness of third parties in failing to notify it, and, for the culpable negligence of a third party shoving the wire out of the way by a stick which caused the trouble and, ultimately, the death of the fireman. It is said that the company was negligent in not discovering that the building had approached the wire within eight feet. This would require a constant lookout over all vacant property or building operations, which is too strict a rule to apply. A telephone call or a notice of any kind would in all probability have caused the company to have removed or replaced the wire at once. Besides, the fireman was not killed because lie struck a wire within eight feet of a scaffold or the roof of the building. His sad accident resulted from the negligence of a third party attempting to do that which the company never had a chance to do, i. e., replace the wires.

Failing to see any want of care upon the part of the Westchester Lighting Company, I am for the affirmance of the judgment for the defendant.

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

Judgments reversed, etc.


text:
    Central Hanover Bank and Trust Company, nt, v. Hamilton Pell et al., as Administrators with the Will Annexed of Alice B. Pell, Deceased, et al., Appellants; Reynal de St. M. Thebaud, Jr., Respondent, Impleaded with Others.

      (Argued June 10, 1935;
    decided July 11, 1935.)

      Joseph B. Kelley and Ignatius M. Viilkinson for appellants.
    The deed of trust clearly provides by its terms for a distribution of the entire remainder to the appellants in equal parts. (Matter of Farmers Loan & Trust Co. {Durant), 231 N. Y. 41; Matter of Union Trust Co., 170 App. Div. 176; 219 N. Y. 537; Matter of Lawrence, 238 N. Y. 116; Matter of Mortimer, 147 Mise. Rep. 543; Matter of Pond, 133 Mise. Rep. 242; Matter of Farmers Loan & Trust Co., 213 N. Y. 168; Dexter v. Inches, 147 Mass. 325.) The deed of trust is barren of any evidence of an intent to distribute among issue per capita. (.Fleisch-man v. Furgueson, 223 N. Y. 235; Matter of Farmers Loan & Trust Co. [Durant], 231 N. Y. 41; Matter of Fanners Loan & Trust Co., 213 N. Y. 168; Matter of Union Trust Co., 170 App. Div. 176; 219 N. Y. 537; Dexter v. Inches, 147 Mass. 325; Petry v. Petry, 186 App. Div. 738; 227 N. Y. 621; Vincent v. Newhouse, 83 N. Y. 505; New York Life Ins. Co. v. Winthrop, 237 N. Y. 93.)

      Frank Delaney and Michael J. Kiely, Jr., for defendant-respondent.
    A direction to distribute among “ issue ” requires a per capita distribution unless a contrary intent appears in the instrument. (Matter of Silsby, 229 N. Y. 396; Soper v. Brown, 136 N. Y. 244; Schmidt v. Jewett, 195 N. Y. 486; Bisson v. West Shore B. R. Co., 143 N. Y. 125; Drake v. Drake, 134 N. Y. 220; Kernochan v. Whitney, 125 App. Div. 371; Chwatal v. Schreiner, 148 N. Y. 683; Rasquin v. Haitnersley, 152 App. Div. 522; Petry v. Petry, 186 App. Div. 738; Matter of Mann, 138 Mise. Rep. 42; Matter of Farmers Loan & Trust Co. [Durant], 231 N. Y. 41; Matter of Lawrence, 238 N. Y. 116; Matter of Flint, 118 Mise. Rep. 134; Matter of Farmers Loan & Trust Co., 213 N. Y. 168; Matter of Carroll, 153 Mise. Rep. 649.) A direction to distribute among “ the respective issue, in equal parts ” imports a. per capita distribution. (Matter of Bailey, 124 Mise. Rep. 466; Matter of Moody, 122 Mise. Rep. 541; Matter of Trombly, 138 Mise. Rep. 220; Matter of Droney, 231 App. Div. 674; Matter of Verplanck, 91 N. Y. 439; Stevenson v. Lesley, 70 N. Y. 512; Matter of Farmers Loan & Trust Co., 213 N. Y. 168; Bisson v. W. S. R. R. Co., 143 N. Y. 125.) The word “ issue ” must be given its normal meaning under the law existing at the time the deed of trust was executed. (Tier v. Pennell, 1 Edw. Ch. 354; Murray v. Bronson, 1 Dem. 217; Matter of Cornell, 5 Dem. 88; Post v. Horning, 6 N. Y. St. Repr. 716; U. S. Trust Co. v. Tobias, 21 Abb. N. C. 392; Drake v. Drake, 3 N. Y. Supp. 760; 56 Hun, 590; Matter of Mann, 138 Mise; Rep. 42; Matter of Corlies, 150 Mise. Rep. 596.)
   Finch, J.

In 1889 various members of the Bates family executed and delivered to a trustee a deed of trust, providing for the payment of the entire income for life to Albertina M. Bates (herein referred to as the “ primary beneficiary ”). Upon her death, the deed provided for the establishment of five equal trusts for the benefit of five persons named therein, including Alice Bates Peil. Albertina M. Bates was the widow of Martin Bates, Jr., and Alice Bates Pell and the four other persons named as beneficiaries of the separate trusts were children of the said Martin Bates, Jr., and Albertina M. Bates. These five beneficiaries are hereinafter referred to as “ the secondary beneficiaries.”

The deed of trust provided that at the death of Alice Bates Pell her share should be paid over to her “ respective issue, in equal parts.” Albertina M. Bates died shortly after the execution of the deed. In 1933, Alice Bates Pell died, leaving two children, Alice B. Tainter and Hamilton Pell. Alice B. Tainter has three children and one grandchild. Her brother, Hamilton Pell, has no issue. This action, while brought for the judicial settlement of the accounts of the plaintiff, as trustee under the deed of trust, actually involves the question of who is entitled to share in the remainder of the trust for Alice Bates Pell. The learned Special Term has held, as has the Appellate Division, with two justices dissenting, that the language in the deed granting the remainder to the issue of the deceased beneficiary in equal parts imported a per capita distribution to all descendants, in whatsoever degree. In consequence, the infant respondent, the great grandson of the deceased beneficiary, shares equally in the remainder with the appellants, his grandmother, Alice B. Tainter, and his grand uncle, Hamilton Pell, both of whom are still living. The effect of this decision is to allocate to Mrs. Tainter, her children and her grandchild eighty-three and one-third per cent of the remainder, while Mr. Pell, her brother, receives sixteen and two-thirds per cent, notwithstanding his equality in degree of relationship to Alice Bates Pell. In terms of dollars, the decision allocates to Mrs. side of the Pell family $350,000 and to Mr. Pell $70,000, the same amount as that of the infant respondent, his grand nephew. No question arises as to the rights of the children of Alice B. Tainter, including the respondent’s mother, for. the reason that they have relinquished all claims in favor of the appellants.

The correctness of the decision depends solely upon the proper construction and interpretation of the deed of trust.

The principles applicable are clear and have been many times reiterated. The word “ issue ” in its strict legal sense, for reasons largely historical, generally is construed to include all descendants, in all degrees. (Petry v. Petry, 186 App. Div. 738; affd., 227 N. Y. 621.) When the word “ issue,” therefore, is found in a formal legal document, with nothing in the text to modify it, it is entitled to its strict legal meaning. To this course the courts have felt constrained by authority. When, however, there is a slight indication of another meaning being intended, the courts readily deviate from this presumption of per capita distribution. In other words, a gift to issue will be distributed per stirpes whenever there is slight evidence that the author so desired, because that mode of distribution is often more equitable and works less hardship and inequalities.

In Matter of Farmers’ Loan & Trust Co. (213 N. Y. 168, 173) the court said: The presumption in this state favors a per capita distribution (Schmidt v. Jewett, supra; Bisson v. West Shore R. R. Co., 143 N. Y. 125), but the presumption yields to ‘ a very faint glimpse of a different intention.’ (Ferrer v. Pyne, 81 N. Y. 281, 284; Vincent v. Newhouse, 83 N. Y. 505, 513; Bisson v. West Shore R. R. Co., supra.)

Applying these principles to the case at bar, we find that this deed when properly construed provided for a distribution to issue per stirpes, and not per capita. The language of the instrument, in two related instances, clearly shows an intent upon the part of the grantors to provide for such distribution to issue, per stirpes, and no reason is shown to ascribe to them a different intent in reference to the clause involved in the case at bar. Equality among those of equal degree in relationship is the keynote of the entire instrument. This is ruthlessly destroyed by a construction which provides for a distribution per capita among the immediate and remote descendants, while the immediate descendants are still living.

The deed of trust sets forth a comprehensive plan for the enjoyment of a substantial estate by Albertina M. Bates and her five sons and daughters and the ultimate distribution thereof among their issue. The deed first establishes an income for life from the whole fund for the widow, Albertina M. Bates. It then provides for the equal division of the fund into five separate trusts for the benefit of her five children. Up to this point it is clear that the authors of the deed intended absolute equality of enjoyment as among the five children of the primary beneficiary, according to their natural rights. The third and last part of the trust concerns the distribution of the principal of the trusts created for the benefit of the secondary beneficiaries “ to their respective issue, in equal parts.” The deed thus provided for the equal enjoyment and ultimate distribution according to natural rights and in the natural order of succession. First the widow of the head of the family was provided for; then her five children, separately and equally. Finally, on the supposition that the children, the secondary beneficiaries, would be survived by issue, provision was made for ultimate distribution of the separate funds to such issue, in equal parts. Two other contingencies were then provided for: that one or more of the secondary beneficiaries might die without issue at any time or that they might die leaving issue before the death of the primary beneficiary. Two paragraphs were added to the deed, providing for both contingencies. Shou]d one or more of the secondary beneficiaries die at any time without issue, it was provided that the fund belonging to him or her should pass to the surviving secondary beneficiaries and to the issue of any deceased secondary beneficiary who might have died leaving issue, such issue to take equally among them “ the share their parent would have taken if alive.” Here is evidence of a conscious purpose to maintain and preserve equality among the stocks. In like manner, it was provided that if a secondary beneficiary should predecease the primary beneficiary leaving issue, such issue should take upon the death of the primary beneficiary the share that would have gone to their parent if alive. The underlying purpose of the whole scheme was to provide for succession equally among the respective stocks springing from Martin Bates, Jr., and Albertina M. Bates.

Not only is there this underlying purpose to make equal gifts to those in the same degree of relationship, showing an intent to distribute per stirpes, but in the provisions for the issue of a deceased brother or sister to take equally among them, if more than one, the share their parent would have taken, if alive, the term issue ” is used in antithesis to the word parent ” and it is clearly intended to mean “ children.” It does not follow that under no circumstances could the more remote issue of Alice Bates Pell take as “ issue.” If one of her children had predeceased her, his or her children would be entitled to share by way of representation. Primarily the word issue ” is used in antithesis to parent ” and may be construed to mean “ children.” It is only secondarily, that is by way of representation, that more remote issue are embraced by the term. (Matter of Farmers’ Loan & Trust Co., supra; Dexter v. Inches, 147 Mass. 324.)

The respondent urges that a different intent may be assumed from an apparent difference in terminology, but in all three contingencies the same word, issue,” is used to describe the class entitled to the remainder. Consistency and harmony is more likely to be intended when all three provisions are in pari materia and relate to the distribution of the same remainders to the same classes on the termination or failure of the same intermediate estates. No reason appears from the instrument itself requiring a different construction, but, on the contrary, the application of a different construction would result as heretofore noted in gross inequalities. If it is argued that the drafters of this deed carefully chose the language importing a per stirpes distribution in the other contingencies, in purposeful contrast to the contingency involved herein, why were they not equally precise in directing a per capita distribution in this instance? Is it to be presumed that they would have left a per capita distribution to hang on such a slender thread as the construction which they contend for of the word “ issue,” if the drafters were indeed conscious of any difference between the modes of distribution in the several contingencies? In such event, it would have been easy to grant the remainder to “ issue in whatsoever degree ” or easier still to grant it to “ issue per capita.” From their very failure to do so, is not the inference irresistible that they intended no difference whatever in the several contingencies? When they granted the remainder to issue in equal parts, did they not mean the same kind of equality that was manifest throughout the deed, namely, an equality among stocks? Harmony and consistency should not be disregarded in the name of equality and thereby work a gross inequality. In Matter of Durant (231 N. Y. 41, 50) it was said: Consistency will, indeed, be sacrificed where intention, as revealed in context or surroundings, will thereby be promoted. The sacrifice will not be made to uphold a rule of distribution which yields to a ‘ faint glimpse ’ of a contrary desire. (Ferrer v. Pyne, 81 N. Y. 281, 284; Matter of Farmers’ Loan & Trust Co., supra; Petry v. Petry, 186 App. Div. 738; 227 N. Y. 621.) ”

The result which we have reached is in accord with several other decisions of this court in cases involving like circumstances. (Matter of Farmers’ Loan & Trust Co., supra; Matter of Durant, supra; Matter of Union Trust Co. [Detmold], 170 App. Div. 176; affd., 219 N. Y. 537.) (Cf. Matter of Lawrence, 238 N. Y. 116.)

It follows that the judgment of the Appellate Division and that of the Special Term in so far as appealed from should be reversed and judgment rendered directing distribution of the undistributed balance of the remainder to the appellants in equal parts in accordance with this opinion, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs and Lough-ran, JJ., concur; Crouch, J., not sitting.

Judgment accordingly.


text:
    Jones Beach Boulevard Estate, Inc., Respondent, v. Robert Moses et al., Appellants.

      (Argued June 11, 1935;
    decided July 11, 1935.)

      JohnS. Russell and Raymond P. for appellants.
    The easements reserved gave to the respondent only the right to an entrance to the paved portion of the causeway, but gave it no right to cross the paved roadway by making left turns after the adoption by the Commission of the regulation. of Palisades Interstate Park v. 240 N. Y. 2; Ryan v. Preston, 59 App. Div. 97; Palmer v. Larchmont Electric Co., 158 N. Y. 231; Black-

      man v. Striker, 142 N. Y. 555; Lincoln S. D. Co. v. City of New York, 210 N. Y. 34; Wabash R. R. Co. v. Defiance, 167 TJ. S. 88; People ex rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593; Brick Presbyterian Church v. City of New York, 5 Cow. 538; Northern Pacific Ry. Co. v. Duluth, 208 U. S. 583; N. 0. Public Service y. New Orleans, 281 U. S. 682; Sauer v. City of New York, 180 JST. Y. 27; Miller v. State, 229 App. Div. 423.) The Commission’s regulation was reasonable. (Town of I slip v. Summers, 257 N. Y. 167; Stephenson v. Binford, 287 U. S. 251; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Ganly v. Steel Storage & Trucking Corp., 259 N. Y. 396; Carolina Ry. Co. v. Lincolnton, 33 Fed. Rep. [2d] 719; Commissioners of Palisades Interstate Park v. Lent, 240 N. Y. 1; Commonwealth v. Nolan, 189 Ky. 34; Cavanaugh v. Cerk, 280 S. W. Rep. 51; Cincinnati v. Baumgartner, 25 Ohio N. P. 20; Safee v. City of Buffalo, 204 App. Div. 561.) Respondent has failed to show any injury. (Delaware Hudson S. S. Co. v. Commissioners of Palisades Park, 222 App. Div. 535; Miller v. State, 229 App. Div. 423; Sauer v. City of New York, 180 N. Y. 27; Tenement House Department v. Moeschen, 179 N. Y. 325; Matter of McIntosh v. Johnson, 211 N. Y. 265; N. F. & N. E. R. R. Co. v. Bristol, 151 U. S. 556.)

      Samuel R. Wachtell and Harold J. Manheim for respondent.
    The easements reserved gave respondent an effective right of way across the causeway from one side to the other. {Burke v. Metropolitan District Commrs., 159 N. E. Rep. 739; Pittsburg & S. R. Co. v. Central Trust Co., 156 App. Div. 182; Vickers v. Electrozone Co., 67 N. J. L. 665; Harper v. Hochstim, 278 Fed. Rep. 102; Williams v. Hathway, 6 Ch. Div. 544; American S. S. Co. v. Wickwire Spencer Steel Co., 42 Fed. Rep. [2d] 886; Employers Liability Assur. Corp. v. Morrow, 143 Fed. Rep. 750.) The ordinance deprived respondent of its property without due process and without just compensation, and impaired the obligation of the contracts between respondent and the park commission. (,Saratoga State Waters Carp. v. Pratt, 227 N. Y. 429; United States v. Lynch, 188 U. S. 445: Story v. N. Y. Elevated By. Co., 90 N. Y. 122; Waldorf-Astoria Hotel v. City of New York, 212 N. Y. 97; Detroit City By. Co. v. Mills, 85 Mich. 634; Nichols v. Ann Arbor, 87 Mich. 361; Bandall v. Jacksonville St. B. B. Co., 19 Fla. 409; Williams v. City Electric Street By. Co., 41 Fed. Rep. 556; Limburger v. San Antonio Bapid Transit, 30 S. W. Rep. 533; Beining v. N. Y., L. & W. B. Co., 128 N. Y. 157; Gallway v. Metropolitan Elevated B. B. Co., 128 N. Y. 132; Donovan v. Pennsylvania Co., 199 U. S. 279; Sturges v. Crowinshield, 4 Wheat. 122; Planters Bank v. Sharp, 6 How. 301; Brownlow v. O’Donoghue Bros., 276 Fed. Rep. 636.) The application of the ordinance to respondent’s land is unreasonable and causes continuing damage. v. City of New York, 188 N. Y. 58; People ex rel. City of Olean v. Western New York Traction Co., 214 N. Y. 526.)
   Finch, J.

In 1926 the Commissioners of the Long Island State Park Commission, a State body organized to acquire lands in Nassau and Suffolk counties for use as State parks and parkways, acquired certain portions of the common lands of the town of Hempstead and commenced the erection thereon of the present Jones Beach State Park. The park is connected with the mainland and the city of New York by an elaborate system of highways, under the exclusive jurisdiction of the Commission. As part of the plan a causeway had to be constructed over Great South bay to the mainland and thence to Merrick road. This necessitated the acquisition of land along the north shore of Great South bay. Jacob Marinoff, the predecessor in title of the plaintiff, urged the Commission to locate the parkway on his land, and on September 24, 1926, made a written agreement with the Commission, whereby he “ in order to induce the party of the second part [the Commission] to give extra consideration to the land of the party of the first part [Jacob Marinoff] as a place to locate said parkway,” offered to convey to the People of the State of New York a strip of land 160 feet wide, running through his property and connecting Jones beach with Merrick road. The Commission thereupon duly accepted Marin-off’s offer and the latter conveyed to the People of the State, in fee simple, a strip of land for parkway purposes running through his property for a distance of about two miles from the Merrick road to Great South bay, upon the condition that the strip of land be improved as the approach to Merrick road from Jones beach. The deed contained the following provision: “ Said ' owner ’ [Mar-inoff] hereby reserves eighteen rights of way over and across the lands hereby conveyed to be used only as private driveways or roadways connecting the lands of the ' owner ’ adjacent to the lands hereby conveyed, with the proposed driveway or roadway to be located oh the lands hereby conveyed. The general location of such private driveways shall be as follows: One on each side of said land hereby conveyed at distances of approximately one thousand feet and so located that they will not be opposite each other; the exact location and the manner of the construction, maintenance and use of said private driveways shall be according to plans, specifications, rules and regulations to be submitted to and approved by the Long Island State Park Commission.”

In 1928 Marinoff conveyed the remainder of his lands to the plaintiff. The latter in 1930, for a consideration of upwards of $80,000, conveyed to the county of Nassau two additional strips of land forty feet wide, on each side of the causeway. This was pursuant to an arrangement between the plaintiff, the county of Nassau and the defendants, whereby the was to acquire the property for the Commission, to be used for landscaping on the sides of the highway. In this deed there was contained the following provision: “ As a further consideration it is agreed that the easements or rights of way reserved to the Jones Beach Boulevard Estate, Inc., by the Long Island State Park Commission over the said Jones Beach Causeway shall be extended to the lands of the Jones Beach Boulevard Estate, Inc., across the lands hereby conveyed.”

Subsequently, for a consideration of $50,000, the plaintiff conveyed to the Commission approximately sixteen acres of land and in addition released thirteen of the original eighteen rights of way which had been reserved in the original deed. At that time the plaintiff and the defendants executed an agreement in writing, whereby each of the five remaining rights of way was definitely located.

Thereafter the Commission adopted the following ordinance: complete turn or U-turns shall be made on a parkway except around a plaza. No left turn may be made except where specifically allowed by an officer or by a traffic direction sign.”

The ordinance prevents an automobile from crossing the roadway except at a regular crossing or a plaza. There is no such crossing or plaza between the plaintiff’s property and the beach itself, a distance of about five miles. As a result, a person entering the parkway from one side of plaintiff’s property and desiring to return to the city must travel in the opposite direction he reaches Jones beach before he can turn to travel in the direction he wishes to go. The plaintiff instituted this action to enjoin perpetually the Commissioners from enforcing the ordinance, in so far as it applied to the five entrances into the causeway from its property, on the ground that the original deed reserved rights of way across the parkway from the land remaining in the grantor on one side of the road to the land remaining in the grantor on the other side. The action was tried at Special Term and judgment was rendered in favor of the defendants, dismissing the complaint. On appeal to the Appellate Division the judgment was reversed and the relief sought granted, two justices dissenting.

The plaintiff also contends that as an abutter it has an easement of access and the ordinance is an unreasonable restriction on this right. The rights of an abutter are subject to the right of the State to regulate and control the public highways for the benefit of the traveling public. (Sauer v. City of New York, 180 N. Y. 27; Ryan v. Preston, 59 App. Div. 97.) (See Perlmutter v. Greene, 259 N. Y. 327; Kane v. N. Y. Elevated R. R. Co., 125 N. Y. 164, 176. Cf. Miller v. State, 229 App. Div. 423; Farrell v. Rose, 253 N. Y. 73.) Although the abutting owner may be inconvenienced by a regulation, if it is reasonably adapted to benefit the traveling public he has no remedy unless given one by some express statute. The evidence shows that the Commission adopted the ordinance after careful investigation. The volume of traffic on this highway to Jones beach is heavy throughout, the year. This parkway was designed so as to eliminate grade crossings and the necessity for traffic lights. Where a road is freed of grade crossings and traffic lights and left turns are not permitted, more people may travel in less time. Moreover, left turns are recognized generally as dangerous. A regulation or ordinance adopted to speed up traffic and eliminate danger is reasonable. In Commissioners of Palisades Interstate Park v. Lent (240 N. Y. 1, at p. 8) this court, in sustaining á regulation limiting to certain specified routes cars operated for hire, said: “ What is reasonable is in large part tested by what is ordinary usage and common experience and in these days when, as we all know, very exact rules are adopted to govern motor traffic in congested centers, plaintiff’s regulations seem a quite moderate exercise of power. The ‘ one way street ’ and the no left turn ’ have prepared us to accept the restrictions of which defendant complains as quite reasonable and in accordance with common experience. (Robbins v. U. S., 284 Fed. Rep. 39.)” It is cbvious that it cannot be said that this ordinance passes the bounds of reason and assumes the character of a merely arbitrary fiat.” (Town of Islip v. Summers C. & L. Co., 257 N. Y. 167, 169.) It is uniform in its application. The plaintiff, once upon the highway, is treated no differently than is any other member of the traveling public.

Substantial injury to the plaintiff is not shown at present. If conditions change so as to make the ordinance unduly burdensome, the Commission may grant an exception, as provided in the ordinance.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate División»

Crane, Ch. J., Lehman, O’Brien, Hubbs and Lough-ran, JJ., concur; Crouch, J., not sitting.

Judgment accordingly.


author: Per Curiam.

text:
    (Argued June 10, 1935;
    decided July 11, 1935.)

      Robert T. Headley for appellant.
    No competent evidence was introduced by the executor to substantiate the alleged loan. (Leask v. Hoagland, 205 N. Y. 171; Phillips v. McCombs, 53 N. Y. 494; Lowery v. Erskine, 113 N. Y. 52; Griffin v. Train, 90 App. Div. 16; Marrow v. Moskowitz, 225 N. Y. 219; Gorton v. Lane, 208 App. Div. 833; Hutson v. Title Guarantee & Trust Co., 118 Mise. Rep. 795; Sumner v. Sumner, 128 Mise. Rep. 404; 221 App. Div. 760; Matter of Wendell, 121 Mise. Rep. 569; Flannery v. Van Tassel, 127 N. Y. 631; Truax v. Slater, 86 N. Y. 630; Slevin v. Wallace, 64 Hun, 288; 144 N. Y. 635; Linden v. Thieriot, 96 App. Div. 256; Gans v. Wormser, 83 App. Div. 505; Stickney v. Billings, 30 Hun, 304; Trim?ner v. Trimmer, 13 Hun, 182.) The court erred in allowing interest on said alleged loan and offset. {Matter of Socolow v. Murphy, 219 App. Div. 184.)

      Paul Folger for respondents.
    The testimony introduced substantiates the findings of the Surrogate and the Appellate Division. (Matter of James, 148 Mise. Rep. 124.)
   Per Curiam.

No error appears in this record, except the inclusion of interest. The evidence sustains an advancement or ademption but not the theory of a loan. Therefore, interest should not have been included. (Cole v. Andrews, 83 App. Div. 285; affd., 176 N. Y. 374.)

The order of the Appellate Division and the decree of the Surrogate’s Court should be modified in accordance with this memorandum and as so modified affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Ordered accordingly.