text:
    Alex Buyer et al., Copartners Doing Business under the Name of Buyer Silk Manufacturing Co., Respondents, v. Mercury Technical Cloth and Felt Corporation, Appellant.
    Argued February 21, 1950;
    decided May 25, 1950.

      Max Shlivek and Saul S. Brin for appellant.
    I. The verdict should have been set aside since plaintiffs failed to prove their damages by establishing (a) that there was an available market, and (b) the market price of the goods at the time they should have been delivered. (Parsons v. Sutton, 66 N. Y. 92; Goldstein v. Arkell & Douglas, Inc., 164 N. Y. S. 580; Beardsley v. Nieblo Mfg. Co., 231 App. Div. 152; Levant Amer. Commercial Co. v. Wells & Co., 186 App. Div. 497; Rau v. Seidenberg, 53 Misc. 386; Carey Lithograph Co. v. Magazine & Book Co., 70 Misc. 541; Parrott v. Allison, 145 F. 2d 415; Thames Bldg. & Contr. Co. v. Iaccio, 128 Misc. 845; Orester v. Dayton Rubber Mfg. Co., 228 N. Y. 134.) II. Prejudicial error was committed when the trial court erroneously charged the jury as to what constituted an available market and market price. (Orester v. Dayton Rubber Mfg. Co., 228 N. Y. 134.) HI. Sufficient evidence was adduced by plaintiffs to present a question of fact for the jury as to whether the contract of purchase and sale had been cancelled. The trial court erroneously refused to submit this question to the jury. (Goldfeld v. Glickstein & Terner, Inc., 14 N. Y. S. 2d 735; Union Nat. Bank v. Dean, 154 App. Div. 869.)

      Samuel Rubin and Seymour J. Ugelow for respondents.
    I. Plaintiffs proved the existence of an available market and their damages in conformity with section 148 of the Personal Property Law. (Saxe v. Penokee Lbr. Co., 159 N. Y. 371; Smith v. New York, O. & W. R. R. Co., 119 Misc. 506; McAnarney v. Newark Fire Ins. Co., 247 N. Y. 176; Wehle v. Haviland, 69 N. Y. 448; O’Gara v. Ellsworth, 85 App. Div. 216; Harrison v. Argyle Co., 128 App. Div. 81, 198 N. Y. 628.) II. The trial court correctly refused to submit to the jury the question as to whether the contract of purchase and sale had been cancelled. (Gillet v. Bank of America, 160 N. Y. 549; Moran v. Standard Oil Co., 211 N. Y. 187; Atterbury v. Bank of Washington Heights, 241 N. Y. 231; Fadex Foreign Trading Corp. v. Crown Steel Corp., 272 App. Div. 273, 297 N. Y. 903.)
   Froessel, J.

In an action founded on a contract for the sale of a quantity of bleached white lawn, plaintiffs-buyers allege defendant-seller’s breach in failing to deliver in accordance with the terms of the contract. Defendant concedes nondelivery, but urges that the trial court erred in charging the jury that the contract sued on was not rescinded or cancelled, and only the time for delivery was extended. We hold that the court’s charge in this respect was correct, for defendant’s letter to plaintiff dated August 16, 1946, stating: “ Delivery of the goods is extended to the end of September 1946 ”, definitely fixes the nature of the subsequent agreement between the parties as a mere extension of the time of delivery.

The only remaining question urged upon us relates to the damages awarded. In this connection, defendant contends (1) that plaintiffs have failed to prove their damages in that they omitted to establish that there was an available market and the market price of the goods at the time they should have been delivered, and (2) that the trial court’s charge to the jury as to what constituted an available market and market price was erroneous in law and prejudicial.

The measure of damages on default of the seller is controlled by section 148 of the Personal Property Law. Plaintiffs made no attempt to show special damages but merely relied on the general rule as expressed in subdivisions 2 and 3 of the statute, and proceeded on the theory that subdivision 3 was applicable here, which subdivision reads as follows: " Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.”

The only evidence adduced by them on the question of damages was that of plaintiff Alex Buyer and was directed toward showing market price. Nowhere in his testimony is there any evidence that there was an available market; the sum and substance of it is merely that there was an Office of Price Administration price. The trial court seemed to think that this was sufficient, for it ruled in effect that, though there is no evidence that the merchandise could be obtained, respondents had the " right to put in the price. ’ ’ On the motion to set aside the verdict, the court said: “ The only inference from the testimony as to a market price is that there was an available market.” If, indeed, one were permitted to draw such an inference, in view of the testimony expressly to the contrary adduced on behalf of defendant that there was no available market, this question became one of fact which was never properly submitted to the jury.

In order to show market price, a plaintiff who relies on that theory for his measure of damages must prove more than a mere price quotation; he must show that the goods in question were actually available for purchase by him in the market at that price; the law does not require that he actually make the purchase (Saxe v. Penokee Lbr. Co., 159 N. Y. 371; Orester v. Dayton Rubber Mfg. Co., 228 N. Y. 134; Murphy v. Lifschitz, 183 Misc. 575, affd. 268 App. Div. 1027, affd. 294 N. Y. 892). The principle upon which the statutory rule rests is the same as at common law, namely, “ that of an indemnification of the injured party for the injury which he has bustained * * *. If the article is bought and sold in the market, the market price shows what pecuniary sum it would take to put the plaintiff in as good a position as if the contract had been performed.” (Emphasis supplied.) (Todd v. Gamble, 148 N. Y. 382, 384-385; Saxe v. Penokee Lbr. Co., supra, pp. 377-378.) If, however, the merchandise is not bought or sold — in other words, if there is no available market where plaintiff can procure equivalent merchandise — his “ damages must be estimated from other means of valuation.’ ” (Todd v. Gamble, supra, p. 385.) As we said in Orester v. Dayton Rubber Mfg. Co. (supra, p. 137): This rule [fixing the measure of damages by the market price] assumes, however, the possibility of such a purchase in the market. Then the injured party may obtain the articles but at a greater price. If this is made good, he is compensated. But it may be none can be bought. Then the rule is inapplicable. Some other method by which his loss may be fixed must be used.” (Emphasis supplied.)

The witness here testified only as to the O.P.A. price of the goods in question. Under these circumstances, “ The so-called market price was purely fictitious ” (Murphy v. Lifschitz, supra, p. 578), in the absence of a showing that there were goods obtainable at that price. Since this is so, and respondents herein failed to prove their damage by any other method, they have failed, as a matter of law, to sustain the burden of proof as to damages, and are not entitled to judgment.

Moreover, the court committed error in misinterpreting to the jury section 148 of the Personal Property Law. After properly charging the statute, he said: The statute doesn’t say that there must be goods available. It says where there is an available market. Now the Court construes that to mean where there would have been a market for these goods if they had been obtained by this plaintiff. And certainly if the defendant couldn’t obtain the goods from the mills, there must have been a market in the City of New York. ’ ’ (Emphasis supplied.)

The court further charged that if the jury found that there was an available market “ for the sale of this merchandise ”, they must award the plaintiffs the sum requested in the complaint or a lesser sum. Here, as elsewhere, the court confused an available market where plaintiffs could freely purchase, for the purpose of fixing their damage, with an opportunity for resale, created by the very scarcity of the merchandise in question. The court’s construction of an “ available market ” was clearly erroneous and completely misleading to the jury, and the result was tantamount to the direction of a verdict for the amount of plaintiffs’ demand.

The charge of the trial court contained additional seeds of error in that he may have led the jury to believe damages might be awarded on the basis of profits lost. Suffice it to say that no such, theory was advanced by plaintiffs nor was any proof submitted in that respect.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Conway, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Continental Casualty Company, Surety, Respondent. Raymond Knapp, Principal.
    Argued April 13, 1950;
    decided May 25, 1950.

      Frank S. Hogan, District Attorney (Whitman Knapp and Jack M. Cotton of counsel), for appellant.
    The order below rests upon no sound and substantial basis, and should be reversed. (People v. Rigby, 293 N. Y. 912; People v. Cohen, 229 App. Div. 515, 255 N. Y. 530; People v. Parkin, 263 N. Y. 428.)

      Conn Cohalan and Abbie Goldstein for respondent.
    The application for remission was properly granted below and the order should be affirmed. Application for release from forfeiture is addressed to the discretion of the court, and the affirmance by the Appellate Division leaves no arguable question for the Court of Appeals. (People v. Phelan, 219 App. Div. 80; People v. Parkin, 263 N. Y. 428; Matter of Attorney-General [Olyphant], 155 N. Y. 441; Middleton v. Boardman, 240 N. Y. 552; Matter of People [Second Russian Ins. Co.], 244 N. Y. 606; Sherlock v. Manwaren, 208 App. Div. 538.)
   Conway, J.

There is presented to us by this appeal the question whether the facts submitted to Special Term on the motion made to it for the remission of the forfeiture of bail of one Knapp permitted the exercise of any discretion in favor of the corporate surety.

Knapp and two others, Carroll and Smith, had been indicted for the crimes of extortion, grand larceny in the first degree, attempted extortion, attempted grand larceny in the second degree and personating public officer. Thereafter Knapp was admitted to bail on a recognizance conditioned in the sum of $3,500. The case was set for trial for April 19, 1948. On that day, the assistant district attorney asked that the bail of all three defendants be increased. He said:

“ It appears that two of the defendants have very long criminal records; one has been convicted four times in matters arising out of his posing as an officer and he may be a second or third felony offender. Another defendant is a second felony offender and has a number of arrests and minor convictions; and the third defendant has just one conviction for the possession of a gun, in 1934 — that is Carroll.
“ In view of the immediacy of the situation, the possibility that the matter will be reached shortly and the fact that there has been a good deal of investigation and additional evidence turned up which was not known at the time of the original bail fixing, it is my recommendation .that bail be raised to $10,000. ’ ’

The Trial Judge then presiding, after hearing argument, denied the motion and, after questioning each of the defendants and warning them as to the consequences of a failure to appear, adjourned the case for trial to April 21st, two days later. The adjournment was due to the inability of counsel for Knapp to be present in court that day as he was on his way back from Mexico.

On April 21st, the People and the codefendants of Knapp were ready for trial, but he did not appear. His counsel, who had returned, told the court that he had talked to Knapp on the day before and that Knapp had said that he would be in court at ten o’clock. After the “ second call ” of the calendar, Knapp still being absent, the court forfeited his bail, ordered the issuance of a bench warrant and adjourned the case to the following day, April 22d. On such adjourned day, Knapp still absenting himself, the trial was adjourned until the following Monday, April 26th. The minutes of Part III of the Court of General Sessions for the 21st and 22d days of April, to which our attention has been called in the brief of the District Attorney and of which we take judicial notice, disclose that no other case was ready for trial and that the court adjourned after disposing of one plea of guilt and one sentence.

On April 26th, the court directed the entry of judgment of forfeiture. In truth Knapp had departed for Cuba under an assumed name on April 21st, without collecting his wages, and nothing further was heard from him until May 23d when he surrendered. On May 24th Knapp pleaded guilty to three of the five counts in the indictment referred to above. He was thereafter indicted for jumping bail (Penal Law, § 1694-a). On his plea of guilt to that crime he was sentenced to a term of not less than one year nor more than two years to be served after he had first served a term in State prison of not less than five nor more than six years upon his plea of guilty to the count of attempted extortion in the indictment. Prior to the imposition of those sentences, the defendant had admitted, after information filed, that he had been previously convicted of a felony.

After Knapp had been sentenced the surety submitted to the District Attorney affidavits of Knapp, which is hereinafter referred to, and of its attorney in fact, both sworn to in September of 1948, “ for the purpose of securing a certificate to the effect that the People have lost no rights.” Such a certificate was refused. The certificate referred to was provided for in sections 1482 and 1483 of the New York City Consolidation Act (L. 1882, ch. 410). As we pointed out in People v. Parkin (263 N. Y. 428, 432-433), those, sections required a certificate of the District Attorney that the People of the State of New York had lost no rights by reason of the failure of a surety to produce a principal in compliance with the terms of a recognizance given by it and that, by reason of the principal being later produced, the People of the State of New York were in as good a position to prosecute the principal as when such failure occurred. Thereafter the surety moved at Special Term, Hew York County, for an order remitting the forfeiture of the recognizance executed by it and the return of the $3,500 theretofore paid by it to the comptroller of the city of Hew York in satisfaction of the judgment.

Special Term, in granting the motion, did so upon the ground that the District Attorney had failed to show “ that the People have lost any rights as the result of the nonappearance of the principal * *

The present effectiveness of sections 1482 and 1483 of the Hew York City Consolidation Act has apparently never been questioned in this or any other court. We are constrained to hold, however, that those sections were specifically repealed by section 2a of chapter 929 of the Laws of 1937, which reads as follows : “ Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed.” There follows: “ SCHEDULE OF LAWS REPEALED ”. In the last column opposite the Laws of 1882, chapter 410 (Hew York City Consolidation Act) there appear the words, “ All, except * * *.” The sections excepted do not include sections 1482 and 1483. However despite the repeal, it is still necessary to reverse here since the court was incorrect in holding that the burden was on the District Attorney to show that the People have lost any rights as the result of the nonappearance of the principal * * *." The burden has always been upon the surety to show affirmatively that the People, in fact, lost nothing by the surety’s failure to produce his principal (People v. Levy, 169 App. Div. 571; People v. Handel, 238 App. Div. 596).

We treat the application here as made under sections 597 and 598 of the Code of Criminal Procedure, which have State-wide application.

Section 597 reads as follows: “ Remission of forfeiture. After the forfeiture of the undertaking or deposit, as provided in this article, the court directing the forfeiture, the county court of the county, or in the city of Hew York, the supreme court may remit the forfeiture or any part thereof, upon such terms as are just.”

In determining whether there was any room here for the exercise of discretion in favor of the surety, we search the record to see whether there is any evidence to show that Knapp’s failure to appear was other than deliberate and willful. If there be none, then the rights of the People of the State of New York were harmed and prejudiced. There is no evidence in this record which would satisfy a reasonable man that the flight of Knapp to Cuba, under an assumed name, was other than willful. This is made abundantly clear by the affidavit of the lawyer who shared an office with the one who wrote, on behalf of the surety, the recognizance for Knapp. This affidavit was submitted on behalf of the surety and it discloses that the affiant “ caused investigations to be made as to Knapp’s whereabouts to no avail ” until May 23d, more than a month after the forfeiture. On the day of his return he was questioned by the District Attorney and stated that while he had told his lawyer on April 20th that he would be in court the following day, he was visited about midnight at the dock where he worked by an undisclosed friend and was told by him that his trial was to be adjourned indefinitely; that without communicating with his attorney or family, he left for Poughkeepsie to see about the purchase of some land there; that he remained in the vicinity of Poughkeepsie until his return to New York City on May 22, 1948; that while there he never communicated with his wife, his family, his attorney or any one else. It was discovered that those statements were false and that on the contrary Knapp, using a name other than his own, had boarded a plane of the Pan American Airways, at Miami, Florida, at 3:20 p.m. of the afternoon of April 21st bound for Havana, Cuba and that he returned from Miami to New York on May 22, 1948. Approximately four months after his surrender, in September, 1948, he made an affidavit, which is printed in the record, in which he stated that on the 19th of April, his codefendant Carroll told him he would be further advised of the date of his trial since Carroll was planning to change his counsel and that counsel said the case would be adjourned for one month; that thereupon he left for Cuba on business and did not know that his bail had been forfeited until his return on May 22d. No affidavit of Carroll nor of any counsel for either Knapp or Carroll was submitted to support this new story.

We now consider one of the rights the District Attorney and thus the People have with respect to a criminal prosecution by indictment in New York County. In that county, the District Attorney has control of his calendar. He selects the term of the court and the day on which an indictment is to be tried. That is his right and by long experience has been found to be an important one for the protection of the community. (See New York City Consolidation Act, § 1537; L. 1922, ch. 489, repealed by L. 1939, ch. 661.)

The case of Knapp and his two codefendants during the month of April had been on the trial calendar of one of the judges of the Court of General Sessions. The flight of Knapp put the case over the April term so that he surrendered and was sentenced before a different judge. His codefendants were tried at a later term before a judge other than the one presiding in April and before jurors drawn for a term other than the one at which their trial had been originally set by the District Attorney. We were told on the argument that one of those codefendants had been acquitted.

The fact that Knapp voluntarily returned and pleaded guilty to three of the five counts of the indictment and in addition pleaded guilty to jumping bail does not in and of itself establish that the People lost no rights or that the cause of justice would be served by the remission of the forfeiture. We think that the rights of the People were impaired and delayed by Knapp’s deliberate failure to appear on April 21st, on April 22d and again on April 26th for trial before the judge then presiding in Part HI to be tried before the panel of jurors drawn in accordance with the statutory requirements for the Court of General Sessions for the month of April. The People have a vital interest in having indictments disposed of promptly and the right to have cases tried on the date set by their elected representatives. A person charged with crime may not be permitted to absent himself deliberately at the time set for trial for any reason which seems desirable to him, then plead guilty at a later self-selected time and assert that the People have lost no rights since he pleaded guilty and was sentenced to a State prison. His surety occupies no better position. Knapp’s conduct embarrassed and obstructed the court in the administration of justice and tended to bring the administration of the law into disrespect if not into disrepute (People v. Glass, 275 App. Div. 851). Our criminal courts are managed and justice is administered as to indictments for felony filed therein by duly elected public officials and by citizens drawn for jury duty as provided by statute and not by those accused of the commission of crime. To say here that the District Attorney lost no right or that justice would be served by the remission of the forfeiture, regardless of the delay in the administration of justice caused by Knapp, would be to invite the rejection by a defendant of a particular panel of jurors. It might also invite flight in order that a defendant could secure more time to have a complainant or a witness intimidated or corrupted.

The surety here insured for profit against a calculated peril and suffered a loss. It has paid according to its recognizance and there are no “ exceptional circumstances ” here within the rule of People v. Parkin (263 N. Y. 428, 431-432, supra). There we said: " An application for the remission of the forfeiture was made under sections 597 and 598 of the Code of Criminal Procedure. An application for the granting of such relief is addressed to the discretion of the court and should be exercised only under exceptional circumstances and to promote the ends of justice.” (See, also, People v. Rigby, 293 N. Y. 912.)

The orders of the courts below should be reversed and the motion denied, with costs in all courts.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Orders reversed, etc.


author: Desmond, J. Dye, J.

text:
    In the Matter of Susan H. Clark et al., Appellants, against Board of Zoning Appeals of the Town of Hempstead et al., Respondents, and Richard W. Barnes, Intervener, Respondent.
    Argued April 6, 1950;
    decided May 25, 1950.

      Irving H. Schafer for appellants.
    I. The owner failed to show practical difficulties and unnecessary hardships as a matter of law. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Y. W. H. A. v. Board of Standards & Appeals, 266 N. Y. 270; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Matter of Pounds v. Board of Standards & Appeals, 129 Misc. 676, 223 App. Div. 861, 248 N. Y. 591;
      Matter of Von Elm v. Zoning Board of Appeals, 258 App. Div. 989; O’Brien v. Town of Greenburgh, 239 App. Div. 555, 266 N. Y. 582; Brocoris Realty Corp. v. Village of Scarsdale, 241 App. Div. 735; People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280; Brous v. Town of Hempstead, 272 App. Div. 31; Matter of Ostrove v. Cohen, 269 App. Div. 1054; Matter of Aberdeen Garage v. Murdock, 257 App. Div. 645, 283 N. Y. 650. II. The granting of applicant’s appeal fails to do substantial justice to surrounding property owners and was arbitrary, unjust and oppressive. (Holy Sepulchre Cemetery v. Board of Appeals of Town of Greece, 271 App. Div. 33; Matter of Y. W. H. A. v. Board of Standards & Appeals, 266 N. Y. 270.)

      George R. Brennan for respondents.
    Intervener-respondent has sustained the burden of proof by showing that the land in question cannot yield a reasonable return if used for the purposes limited by the district uses and that the plight of the owner is due to unique circumstances and not general conditions. (Matter of Otto v. Steinhilber, 282 N. Y. 71; People ex rel. Hudson-Harlem Valley Tit. & Mtge. Co. v. Walker, 282 N. Y. 400; Matter of Rubel Corp. v. Murdock, 255 App. Div. 224, 280 N. Y. 839; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519; Matter of Foy Productions v. Graves, 253 App. Div. 475, 278 N. Y. 498; Nectow v. City of Cambridge, 277 U. S. 183; Matter of Hickox v. Griffin, 274 App. Div. 792; People ex rel. Werner v. Walsh, 212 App. Div. 635, 240 N. Y. 689; Matter of Chizner v. Walsh, 236 App. Div. 731, 261 N. Y. 707.)

      Nathaniel A. Kahn for intervener, respondent.
    I. Intervener-respondent met the tests set up by the law in proving practical difficulties and unnecessary hardships entitling him to a variance. (Matter of Otto v. Steinhilber, 282 N. Y. 71; People ex rel. Arseekay Syndicate v. Murdock, 265 N. Y. 158; Proc Bldg. Corp. v. Connell, 264 N. Y. 513; People ex rel. Hudson-Harlem Valley Tit. & Mtge. Co. v. Walker, 282 N. Y. 400; Matter of Rubel Corp. v. Murdock, 255 App. Div. 224, 280 N. Y. 839; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519; Matter of Foy Productions v. Graves, 253 App. Div. 475, 278 N. Y. 498; Nectow v. City of Cambridge, 277 U. S. 183; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73.) II. The granting of the variance did not create any injustice to surrounding property owners, and appellants have failed to show that the action of the board was arbitrary, unjust and oppressive.
   Desmond, J.

This proceeding was brought, under article 78 of the Civil Practice Act, to review a determination by respondent board of zoning appeals of the town of Hempstead, Nassau County, by which determination the board had granted to intervener-respondent Barnes, a variance of the town zoning ordinance, so as to permit Barnes to erect, on a lot owned by him in a “ B Residence District,” a building to be used as a combined residence and funeral home. Petitioners-appellants ' are a few of the more than two hundred nearby residents who objected, before the board, to the application for this variance. Petitioners were defeated in the courts below, but we granted them leave to come here.

We hold that the board’s action in authorizing this variance was without legal basis. The premises of intervener-respondent, as to which the variance was granted, is a vacant lot, 100 feet wide, on the west side of Westminster Road, in a section of the town of Hempstead known as Cathedral Gardens. When intervener-respondent bought that lot, in 1945, it was, and for some years had been, in a ‘ ‘ B Residence District ‘ ‘ under the town building zone ordinance. In such B residence zones, the permitted uses, under the ordinance, are: single residences, clubhouses, schools, churches, professional offices in dwellings, and some others. A funeral home, or undertaker’s establishment, is not such a lawful use. Nevertheless, intervener Barnes purchased the lot, then applied for a variance. We could end this opinion at this point by saying that one who thus knowingly acquires land for a prohibited use, cannot thereafter have a variance on the ground of “ special hardship ” (Matter of Henry Steers, Inc., v. Rembaugh, 259 App. Div. 908, 909, affd. 284 N. Y. 621). But beyond that, we hold that the proof here made out, under applicable rules of law, no case for a variance.

At the hearing before the zoning board of appeals, intervener called witnesses to show that, about 260 feet south of his property, Westminster Road, on which his lot fronts, intersects the wide, much-traveled Hempstead Turnpike, that the lands along the turnpike are zoned for business, that on the corner lots at that Westminster-Hempstead intersection there are two gas stations, that the parcels nearest to intervener’s, on the west side of Westminster Road, are both used for physicians’ homes and offices, and that, just opposite to Barnes’ lot on Westminster Road, the frontage, for 600 feet north from the gas stations, is owned by a church corporation, on it being a church, a rectory, and (erected after the hearing) a parish school. All of these are, of course, specifically permitted uses, under the zoning ordinance, and there are no unauthorized uses anywhere in the vicinity. A real estate broker called by intervener testified, before the board, that intervener’s parcel could not yield a reasonable profit if used only for purposes allowed under the ordinance. However, it is clear that the only basis for that conclusion was the witness’ opinion that no one would be likely to buy that lot as the site for a fine residence, and it was not claimed that any effort had been made to sell the premises for any of the authorized uses. There was dispute, in the testimony heard by the board, as to whether the presence of a funeral parlor would depreciate values in the neighborhood. It was brought out, also, at the hearing, that intervener was then conducting his funeral establishment in a store around the corner on Hempstead. Turnpike, but wished to move his business onto Westminster Road.

The proof just above summarized was insufficient for a variance. Section 267 of the Town Law empowers boards of appeals to vary the application of town zoning ordinances (subd. 5) Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinances ’ ’. But, as was recently held in Matter of Hickox v. Griffin (298 N. Y. 365, 370-371): There must at least be proof that a particular property suffers a singular disadvantage through the operation of a zoning regulation before a variance thereof can be allowed on the ground of ‘ unnecessary hardship ’ ”. Most frequently cited for that proposition is Matter of Otto v. Steinhilber (282 N. Y. 71, 76) where it is written that, before the board may vote a variance, there must be shown, among other things, that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself ”. The board, being an administrative and not a legislative body, may not review or amend the legislatively enacted rules as to uses, or amend the ordinance under the guise of a variance (Dowsey v. Village of Kensington, 257 N. Y. 221, 227), or determine that the ordinance itself is arbitrary or unreasonable (Matter of Otto v. Steinhilber, supra). If there be a hardship, which, like the alleged hardship here, is common to the whole neighborhood, the remedy is to seek a change in the zoning ordinance itself (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 233; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347). Nothing less than a showing of hardship special and peculiar to the applicant’s property will empower the board to allow a variance (People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280; People ex rel. Arseekay Syndicate v. Murdock, 265 N. Y. 158; Matter of Y. W. H. A. v. Board of Standards & Appeals, 266 N. Y. 270, appeal dismissed 296 U. S. 537; Matter of Levy v. Board of Standards & Appeals, supra; People ex rel. Arverne Bay Constr. Co. v. Murdock, 247 App. Div. 889, affd. 271 N. Y. 631; Matter of Halpert v. Murdock, 249 App. Div. 777, affd. 274 N. Y. 523; Matter of Otto v. Steinhilber, supra; Matter of Hickox v. Griffin, supra). The substance of all these holdings is that no administrative body may destroy the general scheme of a zoning law by granting special exemption from hardships common to all.

The orders below should be reversed and the determination of the zoning board of appeals annulled, with costs in all courts.

Dye, J.

(dissenting). I vote for affirmance. To reverse the action of the board of zoning appeals and annul its determination is to say that the granting of the variance was arbitrary and capricious and constituted an abuse of discretion. This we may not do on the record before us. It is axiomatic and no longer open to doubt that where there is evidence to constitute a reasonable basis for the determination the court has no right to interfere and substitute its judgment for that of the administrative board charged with the duty of making a determination (People ex rel. Hudson-Harlem Valley Tit. & Mtge. Co. v. Walker, 282 N. Y. 400; Matter of Rubel Corp. v. Murdock, 255 App. Div. 224, affd. 280 N. Y. 839; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519; Nectow v. City of Cambridge, 277 U. S. 183; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73). With this I take it there is no quarrel. We should note also that no question is raised here as to the validity of the ordinance or that the board has the power to vary or modify its application under appropriate circumstances. Our differences arise in testing the proof adduced in light of certain elemental prerequisites deemed essential, such as proof that the land in question cannot yield a reasonable return if used only for the allowable purpose and that the required variance will not alter the essential character of the locality: here it is conceded that there is such proof. It is in consideration of the sufficiency of proof as to the third element that our difference develops which calls for a showing that the plight of the owner is due to unique circumstances and not to a general condition in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself (Matter of Otto v. Steinhilber, 282 N. Y. 71), a majority being of the view that the proof was insufficient to warrant granting a variance in the proper exercise of discretionary authority (Town Law, § 267) as the hardship, if any, was a common burden which would not be deemed unique as to this property (see Matter of Hickox v. Griffin, 298 N. Y. 365; Matter of Ernst v. Board of Appeals, 298 N. Y. 831). For convenience of discussion, I refer to certain undisputed facts:

The property upon which Mr. Barnes desires to erect and conduct a funeral parlor is situated in a residential B ” zone (the variances sought in both the Otto and Hickox cases, supra, were for nonconforming uses in an “ A ” zone). This parlor would be located within 300 feet of the 6-lane, highly trafficked, Hempstead Turnpike and within 150 feet of a business zone. The lot to the west of the Barnes property is vacant and its owner is not objecting. Dr. McKenna immediately to the north does not .object. Dr. Cherwin across Regent Place to the south is the only adjacent owner objecting. The object-ants Liebl who represent the property to the north of Dr. McKenna and on the corner of College Place have since sold the property to the church; the appeal should be dismissed as to them as moot. The church, rectory and parochial school directly across the street — concededly the school has been built since this variance was granted at which time that land was devoted to a public parking lot, a nonconforming use — are not averse to the Barnes proposal through its spokesman, Father Smith. In summary then, this is the physical situation of this particular piece of property: it is flanked on both sides by physicians’ offices and virtually surrounded — at least to the east and north — by institutional buildings. To the south is a congested business community with two gas stations, one on each corner nearest the subject property, uses which probably do more than any other to depress residential realty values. Under the existing zoning ordinance (Building Zone Ordinance of Town of Hempstead, art. 5) there is no practical conforming use to which Mr. Barnes could devote this property.

Fully aware of the elemental requirements laid down in the Otto case (supra), counsel for the applicant was very careful to adduce proof through a real estate expert to meet those tests. Material and pertinent to the sound or ‘ unique ’ ’ requirement is the following: “ Q. In your opinion, is this situation with respect to Mr. Barnes’ property unique or is it a general condition in the neighborhood? A. No, I would say it would be unique. First it is hard to classify it in a Class A when you are only 150 feet from the Business Zone, a parking field and a contemplated school and a church, and put it in the same category as you would when you get to the first block north where you are going in a high class residential property.

“ Q. In other words, in all of this Cathedral Gardens section is there any other parcel that you know of that shows the same situation, being opposite a church, a parking field, a proposed parochial school, the professional offices on both sides, and the close proximity within 150 feet of gas stations and a business area? A. No, I don’t know of anything. In fact, I would say that this is almost a perfect set up for this. One of the most important elements, I would think, would enter into this, would be the fact that being used as an undertaking establishment where the majority of cases are taken to the church, and where, if he operated elsewhere, he would have to be the same distance to the church, he would eliminate a lot of congestion, which, I believe, is one of the hazardous things.”

In addition to this testimony the record indicates that the board personally viewed the premises and surrounding neighborhood. Taken as a whole then the record contains proof substantial in character and quality, which by the standards usually applied in administrative proceedings is more than sufficient to sustain the board’s implicit finding that the plight of the owner is due to unique circumstances and not to a general condition in the neighborhood and this view is not contrary to the cited authorities denying relief. . In those cases — Otto, Ernst and Hickox (supra) we had no evidence of any sort and no such compelling physical circumstances as the proof here demonstrates. In the Otto case it was emphasized that a variance was not warranted upon that record. There the applicant sought a variance to erect a roller skating rink — a commercial use — upon property extending 500 to 600 feet into a residential “ A ” zone. There it was held that the record “ does not set forth any proof of the three elements constituting unnecessary hardship within the meaning of the zoning laws.” (P. 79, emphasis supplied.) I take this as a clear indication that the three tests while separately numbered are part of the same whole, the pronouncement of a standard by which the permissible but nevertheless existing discretion of the zoning board is to be guided. In the Long Island University case (Matter of Hickox v. Griffin, supra, p. 371) “ Not an item of proof * * * appears in this record ’ ’ in support of the variance there sought under the singular disadvantage test of the Otto case. Here there is no claim that the ordinance is unreasonable but where such is shown due to the imposition of restrictions which .would limit the property to a use for which it is not adapted, we have ruled that “ In such case the owner of the property cannot be required to ask as a special privilege for a variation j of the restriction ” (Dowsey v. Village of Kensington, 257 N. Y. 221, 231). The converse should be equally true. This is not a case where a claim is made that the ordinance is in general invalid and unreasonable. (Rockdale Constr. Corp. v. Incorporated Vil. of Cedarhurst, 300 N. Y. 642.) A property-owner should not be required to find his relief by a change in the statute. The framers of the zoning ordinance undoubtedly recognized that a general ordinance could not always be successfully applied according to the strict letter of its terms. To meet the unanticipated exceptional situation, the board of zoning appeals is given authority in a .reasonable exercise of discretion to afford relief (Village Law, § 179, subd. b; Town Law, § 267; General City Law, § 81). In Matter of Ernst v. Board of Appeals (supra) we declined to substitute our discretion for that of the board. I therefore feel, as did Judge (then Justice) Froessel at Special Term, that notwithstanding the fact that a different result might well have been arrived at, this Court has no right to interfere, and to substitute its judgment for that of the administrative officers ”, especially when their determination finds support in the record.

The judgment appealed from should he affirmed.

Loughran, Ch. J., Lewis and Fuld, JJ., concur with Desmond, J.; Dye, J., dissents in opinion in which Conway, J., concurs; Froessel, J., taking no part.

Orders reversed, etc. [See 301 N. Y. 681.]


author:
Froessel, J.
      Dye, J.

text:
    In the Matter of Federal Telephone & Radio Corp., Appellant. Edward Corsi, as Industrial Commissioner, Respondent.
    Argued March 3, 1950;
    decided May 25, 1950.

      D. Nelson Adams, Rufus D. McDonald and Richard C. Woods for appellant.
    I. The transfer of the contribution rate credit under the Unemployment Insurance Law [Labor Law, art. 18] in effect in 1945 was subject only to the commissioner’s power to prescribe the necessary procedural requirements. The requirements of paragraph (d) of subdivision 1 of section 577 cannot be construed as limiting the transfer of earned credits under subdivision 4. (Matter of Newspaper P. M. [Corsi], 274 App. Div. 569, 299 N. Y. 702.) II. Subdivision 4 of section 577 cannot be construed as empowering the commissioner to determine the right of employers to transfer earned credits in view of the serious constitutional questions which any such construction would invoke. (People v. Klinck Packing Co., 214 N. Y. 121; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Schechter Poultry Corp. v. United States, 295 U. S. 495; United States v. Grimaud, 220 U. S. 506.) III. In promulgating rule 3, the commissioner exceeded the powers conferred upon him by section 577 of the Unemployment Insurance Law, and the determination of the Unemployment Insurance Appeal Board that the rule is invalid should be confirmed. (Bielke v. American Crystal Sugar Co., 206 Minn. 308; Schumer v. Caplin, 241 N. Y. 346; Gerber v. Seaich Realty Co., 259 App. Div. 667; Acorn Employment Service v. Moss, 292 N. Y. 147; Matter of Cherry v. Board of Regents, 289 N. Y. 148; Brown v. University of State of N. Y., 266 N. Y. 598; Addison v. Holly Hill Fruit Products, 322 U. S. 607.) IV. The amendment of section 577 in 1947 (ch. 780), imposing substantive requirements upon the right of employers to transfer earned credits, necessarily constituted a change in the previously existing law. (People ex rel. Sheldon v. Board of Appeals of City of N. Y., 234 N. Y. 484; Mabie v. Fuller, 255 N. Y. 194.)

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Wendell P. Brown of counsel), for respondent.
    I. The Industrial Commissioner properly denied the application for the transfer of the contribution rate credit issued for the year 1945. (People v. Fishbough, 134 N. Y. 393; Karst v. Gane, 136 N. Y. 316; Matter of Brooklyn Edison Co. v. Davidson, 269 N. Y. 48; Matter of Newspaper P. M. [Corsi], 274 App. Div. 569, 299 N. Y. 702; Matter of Hinzmann & Waldmann, Inc. [Corsi], 274 App. Div. 1009; Matter of Wolin & Ross, Inc. [Corsi], 276 App. Div. 236.) II. The promulgation of rule 3 by the Industrial Commissioner was a valid exercise of his power. (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1; Madison Trust Co. v. Carnegie Trust Co., 215 N. Y. 475; People v. Long Island R. R. Co., 194 N. Y. 130.)
   Froessel, J.

The question here presented concerns the right of the appellant, Federal Telephone & Radio Corp., to transfer to Federal Telecommunication Laboratories, Inc. (hereinafter called “ Laboratories ”) a contribution rate credit for the year 1945, granted to appellant under section 577 of the Unemployment Insurance Law (Labor Law, art. 18). The Appellate Division has reversed on the law the decision of the Unemployment Insurance Appeal Board which permitted such transfer, and has confirmed the Industrial Commissioner’s denial of appellant’s application.

The undisputed facts show that appellant, a manufacturer of radio and telephone parts, had departmentalized its business into a laboratory division,, a patent division, and a service division. Pursuant to a decentralization plan, effective July 1, 1945, appellant transferred to its wholly owned subsidiary, Laboratories, the plant and equipment which had formerly been the laboratory division. The assets transferred amounted to a gross value of almost $2,500,000; only office furniture and a few other items, valued at less than $10,000, were retained by appellant.

All the employees of the laboratory division, aggregating over one thousand, were transferred to Laboratories, with no change in the location or nature of their work or working conditions, and appellant retained about twenty-five employees in the patent and service divisions. After the transfer, appellant ceased laboratory operations but operated the former patent and service divisions, and paid contributions on the wages of its few remaining employees.

Shortly before this transfer, the Industrial Commissioner had issued to appellant a contribution rate credit of approximately $23,000. This credit had been earned by appellant on the basis of its previous employment record and was applicable against contributions due during the year beginning July 1, 1945. Since appellant had retained only a few employees, it could not use the credit and sought to transfer it.

The commissioner denied the transfer on the authority of his rule 3, which permitted credits to be transferred only (subd. b) if

“ (1) the acquiring employer has acquired all or substantially all of the assets of the transferring employer, and

“(2) the transferring employer discontinues operations not later than the date of such acquisition and has submitted all reports on the wages paid by him to the date of acquisition ”. (N. Y. Official Compilation of Codes, Rules & Regulations [1948 Supp.], p. 988; Div. of Placement & Unemployment Ins.)

Since it is clear that appellant did not discontinue operations, it did not meet the requirements of rule 3.

It is our view, however, that rule 3 is invalid. Respondent contends that the rule properly interprets section 577 of the Unemployment Insurance Law, which provided:

Contribution rate credits. 1. Meaning of terms. * * *
“ (d) ‘ Qualified employer ’ means any employer who in each of the thirteen consecutive calendar quarters immediately preceding the computation date was required to file and filed all contribution reports prescribed by the commissioner and has paid contributions due thereon before the cut-off date. If an employer has acquired all or substantially all the assets of another employer and such other employer has discontinued operations upon such acquisition, the period of liability of both employers during such period shall be jointly considered for all purposes of this section. * * *
“ 4. * * * No credit shall be transferable by any employer to his successor or anyone else except in accordance with such rules as the commissioner may prescribed’ (Emphasis supplied.)

It will be noted that the commissioner has imported into his rule 3, formulated to interpret subdivision 4 of section 577, the restrictions which are found in paragraph (d) of subdivision 1 of that section. However, paragraph (d) of subdivision 1 is in nowise concerned with the transfer of credits already earned; it relates 'to the earning of credits in the first instance. The statutory scheme is clear — paragraph (d) of subdivision 1 relates to the earning of credits by a qualified employer and subdivision 4 to their transfer by “ any employer to his successor or anyone else ” — and the commissioner had no authority to transpose standards appropriate to the former and apply them to the latter situation. In so doing, he was setting up substantive standards for the transfer of credits which are found neither expressly nor by necessary implication in the statute.

In effect, the commissioner, in contravention of the authority given him in section 530 of the statute to administer ” the law and “ for such [administrative] purposes ” only to make rules and regulations, has assumed legislative authority. His action is therefore, on familiar principles, invalid (Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Matter of Levine v. O’Connell, 275 App. Div. 217, affd. 300 N. Y. 658). Matter of Newspaper P. M. (Corsi) (274 App. Div. 569, affd. 299 N. Y. 702) relied on by respondent, has no application here, since it dealt with the earning of credits, rather than their transfer.

The order of the Appellate Division should be reversed, and the decision of the Unemployment Insurance Appeal Board confirmed, with costs in this court and in the Appellate Division.

Dye, J.

(dissenting). I dissent and vote for affirmance. By the decision about to be made herein, a majority of the court recognizes that the appellant has the unrestricted power to transfer its contribution rate credits to a person or party not meeting the statutory definition of a “qualified” employer and this in face of the clear consequence that such a transfer will not only be detrimental to the administration of the fund as a whole but will deprive other ‘ ‘ qualified ’ ’ employers of their inherent right to have the protection of as great a total amount of credits as possible. I am sure the Legislature never intended to place such a “windfall ” asset at the unrestricted disposal of a transferring employer or, to put it another way, to empower a “ qualified ” employer to confer a benefit upon other than a “ qualified ” successor.

The appeal challenges an administrative determination. This, by a well-recognized rule of review, we are to accept if there be “ warrant in the record ” and a “ reasonable basis in law ” for the action taken (Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1, 9; Rochester Tel. Corp. v. United States, 307 U. S. 125). We are all in agreement with the courts below that, if the commissioner’s rule 3 is valid, this dual test has been satisfied as there is proof in the record that Federal did not transfer all or substantially all of its assets to Laboratories and did not discontinue operations following such transfer. In the majority view, however, rule 3 — particularly in paragraphs (1) and (2) of subdivision b thereof — expresses substantive rather than procedural standards and, as such, represents therefore an unauthorized assumption of legislative prerogatives by the commissioner as he has, quite apparently, predicated his rule on that subdivision of the statute (Labor Law [Unemployment Insurance Law], § 577, subd. 1, par. [d]) which defined an employer qualified in the first instance to receive contribution rate credits: Subdivision 4, relating to credit transfers, is silent as to qualifications beyond authorizing “ such rules as the commissioner may prescribe ” (Labor Law,, § 577, subd. 4).

Absent a showing to the contrary, we should presume that,, prior to promulgating rule 3, the commissioner satisfied himself as to the legislative scheme by a reading of the entire statute and that he designed the rules setting forth the administrative procedures called for by the statute to reflect reasonably its intent and purpose. In prescribing rule 3 to govern credit transfers therefore, he merely reiterated the statutory definition for a “qualified employer”, stating that (1) the acquiring employer must have acquired all or substantially all of the assets of the transferring employer and that (2) the transferring employer must discontinue operations. In short, he saw a necessary relation between the original earning of credits and the ability to take such credits from one who had earned them. Yet a majority is about to say that such a rule has no reasonable basis in law and is improper.

I am unable to agree that this is such an innovation or departure from the statute as to amount to the creation of unauthorized substantive standards. The statute, when read as a whole, offers a comprehensive scheme for the earning — and the incidental transfer — of contribution rate credits. By looking to the earning requirements as indicative of the status of an employer to receive these credits, the rule adopted by the commissioner introduces no new element, nor does it in any way impinge upon the overall legislative program. I find it strange, indeed, to interpret the statute as prohibiting the application of standards set up for a qualified employer to a successor employer, particularly when the statute, in defining a qualified employer, declared that both qualified and successor employers “ shall be jointly considered for all purposes of this section.” (Emphasis supplied.) (§ 577, subd. 1, par. [d].) Furthermore we may note that, by a recent amendment, the Legislature has given an unconditional indorsement to the view of the commissioner by adopting in the statute precisely those standards previously incorporated in rule 3 (L. 1947, ch. 780). This situation has, thus, been corrected for the future.

As I regard it then, the construction placed upon the law, as it then existed, was entirely reasonable and well within the administrative discretion conveyed by the grant of rule-making powers. While recognizing that problems of statutory construction are primarily for the courts, I nevertheless believe it well established that this function of the court is somewhat limited when the question involved turns upon the application of a broad statutory phrase by an administrative agency (see National Labor Relations Bd. v. Hearst Publications, 322 U. S. 111, 131). We have said on another occasion: “ it is not always necessary that license legislation prescribe a specific rule of action. Where it is difficult or impractical for the Legislature to lay down a definite, comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials. (New York ex rel. Lieberman v. Van De Carr, 199 U. S. 552, affg. 175 N. Y. 440.) Where the administrative agency has adopted a standard as an interpretation of the broad powers granted to it by the statute, we may declare such a standard invalid only in the event that it is so lacking in reason for its promulgation that it is essentially arbitrary.” (Matter of Marburg v. Cole, 286 N. Y. 202, 211-212.)

Nor can I see any necessary or compelling similarity to the statute examined in Packer Collegiate Inst. v. University of State of N. Y. (298 N. Y. 184, 189) where “ Only the wildest guessing could give us any idea of what the Legislature had in mind.” The statute in Matter of Levine v. O’Connell (300 N. Y. 658) was similarly so unlike that here considered as to make it inapplicable to this case. Here we have a precise statutory definition of an employer “ qualified ” to earn credits and an overall scheme for the transfer of such credits as are earned.

On at least one prior occasion we have refused to review and thus perhaps impliedly upheld the commissioner’s right to set up the standards of paragraph (d) of subdivision 1 to govern the transfer of credits under subdivision 4 (Matter of Hinzmann & Waldmann [Corsi], 274 App. Div. 1009, motion for leave to appeal denied 300 N. Y. 761). While that case turned on a definition of gross as opposed to net assets — a somewhat different proposition than here but resulting in a disallowance of the credit — the decision was implicit with the same reasoning.

Rule 3, then, should not be condemned simply because it incorporates as a part thereof what may be characterized as “ substantive standards ” when such standards are drawn verbatim from the express statutory language and, when construed as a whole, are found to be in complete harmony with the legislative scheme. It is only where no “ reasonable basis in law ” can be discovered — where, in other words, the statute provides no criteria to guide the administrator in the exercise of rule-making powers — that a regulation promulgated thereunder is to be stricken (Matter of Levine v. O’Connell, supra; Packer Collegiate Inst. v. University of State of N. Y., supra; cf. Schechter Poultry Corp. v. United States, 295 U. S. 495). When rule 3 is so viewed there is ample basis in the law for its acceptance.

The order appealed from should be affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond and Fuld, JJ., concur with Froessel, J.; Dye, J., dissents in opinion.

Order reversed, etc.


author: Loughran, Ch. J. Fuld, J.

text:
    Robert J. Latourelle, as Administrator of the Estate of Margaret C. Latourelle, Deceased, Appellant, v. New York Central Railroad Company, Respondent.
    Argued February 24, 1950;
    decided May 26, 1950.

      Paul F. Donohue and William J. Sullivan for appellant.
    I. Plaintiff’s intestate was not guilty of contributory negligence as a matter of law. (Noseworthy v. City of New York, 298 N. Y. 76; Greany v. Long Island R. R. Co., 101 N. Y. 419; Mullen v. Schenectady Ry. Co., 214 N. Y. 300; Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484; Bond v. Schenectady Ry. Co., 251 N. Y. 315; Massoth v. Delaware & Hudson Canal Co., 64 N. Y. 524; Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; Flynn v. Long Island R. R. Co., 289 N. Y. 283; Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 233.) II. The only witnesses who testified concerning the actual happening of the accident and the movements of the automobile were interested witnesses employed directly by defendant and who were on duty at the time of this collision. They were the fireman on the striking train and the trainman on the rear of train No. 40. (Piwowarski v. Cornwell, 273 N. Y. 226; Anderson v. Baltimore & Ohio R. R. Co., 96 F. 2d 796; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; Miller v. Ocean S. S. Co., 118 N. Y. 199; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; Honegger v. Wettstein, 94 N. Y. 252; Texas & Pacific Ry. Co. v. Carlin, 189 U. S. 354; Greany v. Long Island R. R. Co., 101 N. Y. 419.) III. Driving across a dangerous two-track crossing slowly can never be stamped as negligent. Similarly, defendant must be guilty of negligence, if it requires a person to travel across and clear a two-track crossing in less than five seconds under the prevailing visibility of that day, without any warning of the approach of its locomotive by light or whistle or, in the alternative, to be struck and killed. (Fischer v. New York Central R. R. Co., 188 Misc. 72, 273 App. Div. 135; Horton v. New York Central R. R. Co., 237 N. Y. 38; Bond v. Schenectady Ry. Co., 251 N. Y. 315.) IV. Plaintiff’s proof of defendant’s negligence presented questions of fact to be decided by the jury. (Noseworthy v. City of New York, 298 N. Y. 76; Wadsworth v. Delaware, L. & W. R. R. Co., 296 N. Y. 206; Paley v. New York Central R. R. Co., 297 N. Y. 1017; Byrne v. New York Central & H. R. R. R. Co., 104 N. Y. 362.) V. The Appellate Division erred in determining that testimony of plaintiff that the whistle was not blown and that the headlight was not lighted, being negative in character, was of doubtful sufficiency. (Culhane v. New York Central & H. R. R. R. Co., 60 N. Y. 133; Foley v. New York Central & H. R. R. R. Co., 197 N. Y. 430; Baker v. Lehigh Valley R. R. Co., 248 N. Y. 131; Crough v. New York Central R. R. Co., 260 N. Y. 227; Stokes v. Delaware & Hudson R. R. Corp., 234 App. Div. 597, 260 N. Y. 644; Moore v. New York Central & H. R. R. R. Co., 75 Hun 381; O’Flaherty v. Nassau Elec. R. R. Co., 34 App. Div. 74, 165 N. Y. 624; Feist v. Peters, 120 N. Y. S. 805; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418.)

      Charles E. Nichols for respondent.
    I. Plaintiff’s intestate was guilty of contributory negligence as a matter of law. (Day v. Town of New Lots, 107 N. Y. 148; Dunham v. Townshend, 118 N. Y. 281; People ex rel. Warschauer v. Dalton, 159 N. Y. 235; Goetz v. Duffy, 171 App. Div. 680; Zaun v. Long Island R. R. Co., 139 App. Div. 719, 201 N. Y. 599; Daniels v. Staten Island R. T. Co., 125 N. Y. 407; Turck v. New York Central & H. R. R. R. Co., 108 App. Div. 142; Turnier v. New York Central R. R. Co., 124 Misc. 269; Stack v. New York Central & H. R. R. R. Co., 96 App. Div. 575; Purdy v. New York Central & H. R. R. R. Co., 87 Hun 97.) II. Even on the assumption that train No. 40 no longer interfered with the driver’s view, she was still guilty of contributory negligence as a matter of law. (Crough v. New York Central R. R. Co., 260 N. Y. 227; Barry v. Rutland R. R. Co., 203 App. Div. 287, 236 N. Y. 549; Cote v. Boston & Maine R. R., 278 N. Y. 78; Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148; Miller v. New York Central R. R. Co., 226 App. Div. 205, 252 N. Y. 546; Brown v. Delaware & Hudson Co., 231 App. Div. 570; Fitch v. New York Central R. R. Co., 233 N. Y. 356; Barnasky v. New York, O. & W. Ry. Co., 226 N. Y. 435; Bowden v. Lehigh Valley R. R. Co., 178 App. Div. 413, 226 N. Y. 648; Cassidy v. Fonda, J. & G. R. R. Co., 200 App. Div. 241, 234 N. Y. 599.) III. There was no substantial proof that defendant was negligent. (Culhane v. New York Central & H. R. R. R. Co., 60 N. Y. 133; Foley v. New York Central & H. R. R. R. Co., 197 N. Y. 430; Matutinovich v. New York Central R. R. Co., 182 App. Div. 451; Griffith v. Long Island R. R. Co., 147 App. Div. 693.)
   Loughran, Ch. J.

In this action for wrongfully causing the death of the plaintiff’s decedent, the Trial Judge, after all the proof was in, withdrew the case from the jury and dismissed the complaint because in his opinion (1) the decedent’s death was clearly the result of her failure to use ordinary care for her own safety and (2) there was in any event no evidence of negligence of the defendant railroad company on the occasion in question. This dismissal of the action stands affirmed by the Appellate Division and the judgment of that court is now before us for review on an appeal therefrom which the plaintiff prosecutes as of right (see Civ. Prac. Act, § 588, subd. 1, cl. [b]).

The decedent and her mother-in-law were killed when a motor vehicle in which they were riding was struck by an Albany-Boston railroad train at a point in a Rensselaer County locality where a country road running north and south crossed a double set of east-west railroad tracks of the defendant. Warning of the location of the tracks was given by a “ Railroad Crossing ” black and white cross-arms sign which stood north of the tracks and by a R.R.” disc sign located on the south side thereof. There were no stationary bells or lights. For 5,600 feet west of the crossing and for 1,900 feet east thereof the tracks were straight. An unobstructed view to the east could be had from any point- on the road within 8 feet from the south side of the crossing according to witnesses for the plaintiff, or at any point within 112 feet therefrom according to witnesses for the defendant.

On November 3,1945, at about 4:30 p.m., the decedent and her mother-in-law rode northerly toward the crossing. Apparently the decedent drove the automobile. The day was “gray”, “ dreary ”, “ dim ”, and “ hazy ”, as all the witnesses declared, but, as the same witnesses also said, visibility at that time and place was good for about a quarter of a mile. Twenty-five feet or so short of the southerly tracks, the decedent stopped the car to let an eastbound train (No. 40) go by. After it had passed and while she was driving over the crossing, a westbound train (No. 49) then and there came along on the north track and struck the car. Both women were dead when thereafter their bodies were found half a mile west of the crossing.

The negligence imputed to the defendant was an asserted failure of the engineer of the westbound train (No. 49) to blow the whistle as that train approached the crossing. Put into direct discourse the testimony of that engineer runs this way: I blew the whistle on No. 49 from the time I reached a whistling post 1,361 feet east of the crossing up to the moment of the crash. I did not see the automobile until I hit it. When my fireman hollered to me, I blew two long blasts, then a short one and then another long one. I do not know whether one, two, three or four seconds elapsed between any two of the blasts. I never saw the end of train No. 40 as it passed No. 49. I know a time came when there was an absence of sound from No. 40. At that time, as I believe, I was entering the crossing.

The fireman on No. 49 first saw the automobile when it was on the tracks in front of him and then yelled at the engineer. Both the fireman and the baggageman on No. 49 said they heard the whistle blow. But the fireman on No. 49 — though he was looking out the window of its cab at the time — was unable to estimate how near the rear end of No. 40 was to the crossing when he cried out to his engineer. Nor would he say how close No. 49 was to the crossing when he first saw the automobile. Nor would he say whether No. 40 was a short train or a long one. The baggageman on No. 49 did not see the collision.

On the other hand, a flagman on the eastbound train (No. 40) said he heard no whistle; the fireman on No. 40 said he did not “ know whether the whistle was blown on 49 and the engineer on No. 40, when he was asked whether No. 49 gave any whistle, said: “ No. I couldn’t hear it.” In respect of that testimony, the Appellate Division said: “ Negative testimony of this character is of doubtful sufficiency as against the direct, positive evidence * * * that the whistle was blown ” (275 App. Div. 123, 125). But the engineer and fireman of No. 40 were so situated that they would have heard the whistle on No. 49 if it had been sounded, or so a jury could find. Hence the testimony that they heard no whistle was strong evidence of negligence of the defendant. The relevant principle is stated by Mr. Wigmore in these words: ‘ ‘ Courts have often been asked to exclude testimony based on what may be called negative knowledge, i.e., testimony that a fact did not occur, founded on the witness’ failure to hear or see a fact which he would supposedly have heard or seen if it had occurred. Yet there is no inherent weakness in this kind of knowledge. * * * It may even sometimes be stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred. This sort of testimony is constantly received,— particularly in proof of the failure to give railroad signals ”. (2 Wigmore on Evidence [3d ed.], § 664, p. 778. The emphasis is firsthand. See, too, the cases brought together in 162 A. L. R. 13 et seq.) Thus the refusal of the Trial Judge to submit to the jury the issue respecting the defendant’s negligence was error in our unanimous opinion.

A majority of us think the jury should also have been permitted to decide the second question, viz.: Did the defendant discharge its duty of maintaining the affirmative of the issue as to contributory negligence on the part of the decedent. (See Decedent Estate Law, § 131.)

The engineer, the fireman and a flagman of No. 40 (the eastbound train) all said they looked back to the crossing after No. 40 had passed over it and then saw the automobile of the decedent move slowly northward toward the defendant’s tracks at about the time when No. 49 was approaching the crossing from the east. None of these witnesses saw the collision. Their testimony, it will be noticed, was pretty much a set of estimates in respect of time, speed and distance made from one place or another on a rapidly moving railroad train. No rule of law compels the acceptance of testimony so lacking in precision. The engineer and fireman of No. 40 say its engine passed the engine of No. 49 “in the vicinity of ” the whistling post that was 1,361 feet east of the crossing. If these witnesses underestimated by 539 feet the distance between No. 49 and the crossing at the moment when, as they said, the decedent’s car started toward the tracks, then No. 49 was at that moment beyond the range of the decedent’s vision, since the tracks curved sharply to the south at a point 1,900 feet east of the crossing. This and other possibilities should he canvassed by a jury. They cannot be dealt with as questions of law.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Fuld, J.

(dissenting). I am constrained to disagree with the court’s decision.

Although there was evidence from which a jury could have found that defendant railroad was negligent, I believe that plaintiff’s intestate was contributorily negligent as a matter of law and that the complaint was therefore properly dismissed in the courts below. Regardless of the testimony of distances and measurements given by the railroad employees, the nature of the terrain at the crossing — permitting one to see to the east and west for a considerable distance — was such that plaintiff’s intestate could not have failed to observe the westbound train which hit her if she had used her “ senses of hearing and sight and proceeded cautiously and carefully ”. (Crough v. New York Central R. R. Co., 260 N. Y. 227, 231.) Her negligence consisted either in crossing before the eastbound train had progressed far enough to give her an unobstructed view of the tracks to the east, whence the westbound train was coming (see Zaun v. Long Island R. R. Co., 201 N. Y. 599, affg. 139 App. Div. 719; Daniels v. Staten Island R. T. Co., 125 N. Y. 407, 410; Heaney v. Long Island R. R. Co., 112 N. Y. 122, 128), or, if the tracks in front of her were clear at the time, in failing to look toward the east before crossing. (See Wadsworth v. Delaware, L. & W. R. R. Co., 296 N. Y. 206, 213; Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148, 150-151; Miller v. New York Central R. R. Co., 252 N. Y. 546; Horton v. New York Central R. R. Co., 237 N. Y. 38, 47.)

The judgment of the Appellate Division should be affirmed, with costs.

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

Judgments reversed, etc, [See 301 N. Y. 677.]


author: Loughran, Ch. J.

text:
    F. W. Berk & Company, Inc., Respondent, v. Samuel Derecktor, Appellant.
    Argued April 6, 1950;
    decided May 26, 1950.

      Jacob Goldstein and Joseph H. Kraus for appellant.
    I. Plaintiff’s letter does not constitute an offer to purchase. (Watts v. Carter & Sons, Inc., 207 App. Div. 656; Machinery Utilities Co. v. Fry, 224 App. Div. 392; Blackwell v. Glidden Co., 208 App. Div. 317, 239 N. Y. 545; Nicholls v. Granger, 7 App. Div. 113.) II. There being no offer, there was not, and could not be, an acceptance. (Smith, Inc., v. Karsh, 123 Misc. 948; Mayer v. McCreery, 119 N. Y. 434; White v. Corlies, 46 N. Y. 467.) III. An acceptance, subject to other terms and conditions than those contained in the offer, is equivalent to an absolute rejection of the offer. (Hughes v. John Hancock Mut. Life Ins. Co., 163 Misc. 31; Mayer v. McCreery, 119 N. Y. 434; Cameron v. Wright, 21 App. Div. 395, 163 N. Y. 586; Englestein v. Mentz, 345 Ill. 48; Haber v. Jacobson Co., 185 App. Div. 650; Consolidated Coal Co. v. Peers, 166 Ill. 361; Schenectady Stove Co. v. Holbrook, 101 N. Y. 45; Stanley v. Gannon, 109 Misc. 611; Mahar v. Compton, 45 N. Y. S. 1126; Honeyman v. Massyat, 6 H. L. Cas. 112.)

      Michael Stramiello, Jr., and Eugene R. Pickrell for respondent.
    I. Plaintiff’s order of the merchandise in question was a firm and unqualified offer. (Pope v. Terre Haute Car & Mfg. Co., 107 N. Y. 61; O’Neill Supply Co. v. Petroleum Heat & Power Co., 280 N. Y. 50; Malloy v. Foster, 169 Misc. 964.) II. Defendant’s acceptance of plaintiff’s order was definite and binding.
   Loughran, Ch. J.

The action is one for breach of contract.

On January 11, 1949, the plaintiff sent to the defendant a letter in these words:

“ We hereby order from you 1045 Flasks of Prime Virgin Mercury, 99.5% Pure, 76 pounds net weight each, standard iron flask, at a price of $60.75 per flask, in bond, C. I. F. New York.
We will establish immediately, in your favor, an irrevocable letter of credit, providing for payment against on board Bill of Lading, presented in New York.
We will take care of any and all commission payments that may be due in this transaction to Wm. M. Stieh & Co., Inc. and agree to hold you harmless from any claims they may make in connection therewith.
“ It is requested that you arrange for inspection certificates so that full weights and analysis as called for herein be assured and that these certificates be available along with the invoices, bill of lading, etc.”

At the bottom of that letter, the defendant wrote and signed this sentence: We confirm that the above is our understanding of this agreement, and accept this order, subject to our arranging all the above phases of this transaction. ’ ’

A motion by the defendant for dismissal of the complaint was denied by the court at Special Term for reasons stated as follows: The letter is unequivocal and constitutes a definite and binding order. The assertion that defendant’s acceptance was qualified and hence not binding must also be overruled at this time. While the language of the acceptance is ambiguous the facts should be developed at the trial.” The Appellate Division affirmed by a vote of three to two and we now have the case on this further appeal by the defendant.

The following three questions have been certified to us by the Appellate Division:

1. Does the complaint of the Plaintiff-Respondent state facts sufficient to constitute a cause of action?
“2. Was the letter of the Plaintiff-Respondent a firm offer to purchase?
“3. Was the language used by the Defendant-Appellant * We confirm that the above is our understanding of this agreement, and accept this order subject to our arranging all of the above phases of this transaction ’, a qualified or conditional acceptance, and therefore a rejection of the original offer? ”

The Justices who dissented from the affirmance by the Appellate Division apparently thought that the “ subject to ” clause in the defendant’s acceptance had been directed to every part of the plaintiff’s order and not to the last paragraph thereof alone. Nothing turns on that issue, however; for if the acceptance was subject only to the defendant’s arranging for the inspection certificates required by the last paragraph of the order, there was still no such absolute and unqualified assent to the plaintiff’s proposal as was necessary to convert it into a promise. (See Schenectady Stove Co. v. Holbrook, 101 N. Y. 45; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310, 319; Wittwer v. Hurwitz, 216 N. Y. 259, 264; 1 Williston on Contracts [Rev. ed.], §§ 72-73.)

The dissenting opinion of the Appellate Division defines the phrase subject to ” as being the equivalent of “ conditional upon or depending on.” We agree.

The orders should be reversed and the complaint dismissed, with costs in all courts. The first question certified should be answered in the negative. The third question certified should be answered in the affirmative. The second question certified need not be answered.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Orders reversed, etc.


text:
    The People of the State of New York, Respondent, v. Louis Henry Leavitt, Appellant.
    Argued April 5, 1950;
    decided June 1, 1950.

      W. Roger Pratt for appellant.
    I. The information, which charged defendant with knowing possession of policy slips, should have been dismissed at the close of the People’s case as a matter of law for a complete failure of proof. (People v. Wolosky, 296 N. Y. 236; People v. Leon, 262 N. Y. 664.) II. The remarks made by the assistant district attorney on summation were improper and the motion for a mistrial should have been granted. (People v. Minkowitz, 220 N. Y. 399; People v. Forte, 277 N. Y. 440; People v. Fielding, 158 N. Y. 542.) III. The information was jurisdictionally defective as a matter of law, for lack of supporting legal evidence, and defendant’s motion for dismissal should have been granted. (People v. Glen, 173 N. Y. 395; People v. Nowak, 5 N. Y. S. 239; People v. Gade, 6 N. Y. S. 2d 1018.) IV. The trial court improperly commented on the evidence. (People v. Snyder, 297 N. Y. 81.)

      Everett L. Arthur, District Attorney (James F. Dowling of counsel), for respondent.
    I. The information was sufficient as a matter of law. (People v. Lee, 151 Misc. 431; People v. Gade, 6 N. Y. S. 2d 1018.) II. Defendant was clearly shown to have been in actual possession of the lottery slips or tickets. (People v. Crawford, 25 N. Y. S. 2d 259; People v. Johnson, 244 App. Div. 712; People v. Revolta, 162 Misc. 555.) III. The penciled memorandum was clearly admissible in evidence. (People v. Ryan, 263 N. Y. 298; People v. Davis, 56 N. Y. 95; Greenfield v. People, 85 N. Y. 75; Tilson v. Terwilliger, 56 N. Y. 273; Waldele v. New York Central & H. R. R. R. Co., 95 N. Y. 274.) IV. There were no errors committed on the trial which were prejudicial to defendant and the jury’s verdict should not be disturbed. (People v. Hoch, 150 N. Y. 291; People v. Watson, 216 N. Y. 565; People v. Priori, 164 N. Y. 459; People v. Smith, 114 App. Div. 513; People v. Trombino, 238 App. Div. 61, 262 N. Y. 689.) V. The verdict is clearly in accord with the evidence and the conviction should be affirmed.
   Conway, J.

On April 22,1949, shortly after 10:00 p.m., State troopers accompanied by a detective of the Utica police department drove to a residence in Westmoreland. One of the State troopers noticed a truck backed against the porch. He described it as a ‘ ‘ van-type affair with a canvas covering the back opening of the van.” He testified that he lifted the canvas and observed two men on the truck. One of them was the defendant. The other was one West. Defendant was standing and was not engaged in any activity. There were on the truck a great many closed cardboard boxes, a machine capable of folding envelopes or tickets and some electrical equipment. The boxes contained lottery tickets which bore the names Liberty ” Week No. 23, June 10, 1949, 25 cents; “ Lucky Strike ” Week No. 26, July 1, 1949, 50 cents; and “ Champ ” Week No. 27, July 8, 1949, 50 cents. The witness testified that when he asked defendant what he was doing on the truck the latter replied that he had sold the equipment and was there to help move it but that the boxes did not belong to him. That was all of the evidence offered by the People except for Exhibit No. 7 which was received over the objection of defendant. It was a written note which the witness asserted he found in one of the boxes while unloading the truck at the police barracks during the afternoon of the day following the arrest. It read: “ Don’t fold week 27 until you check with Hank. Mills closed there that week there will be blocks to take out.” The witness referred to defendant as Hank throughout his testimony.

Defendant rested his case after presenting the testimony of the two men, West and Johnson, arrested with him at the residence. They were to be separately tried later. Those witnesses gave testimony favorable to defendant and thus added nothing to the case for the prosecution.

At the close of the People’s case and also at the conclusion of the entire case defendant moved to dismiss the information contending that as a matter of law the People had failed to demonstrate that defendant had violated section 974 of the Penal Law.

That section, insofar as relevant, provides that one “ * * * who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, drawn or selected, or to be drawn or selected, or in what is commonly called ‘ policy ’, or in the nature of a bet, wager or insurance, upon the drawing or selection, or the drawn or selected numbers of any public or private lottery; or any paper, print, writing, number, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting or playing the game commonly called ‘ policy ’; * * * is a common gambler, and guilty of a misdemeanor.” (Emphasis supplied.)

Section 975 provides that mere possession is ‘ ‘ presumptive evidence of possession thereof knowingly and in violation of the provisions of section nine hundred and seventy-four.”

It is contended that there was no evidence that defendant had possession of, or was aware of the existence of the policy slips. It is not disputed that the papers in the boxes were policy slips. Since possession in itself is made a criminal offense it is essential that defendant’s possession be “ conclusively ” shown. (People v. Wolosky, 296 N. Y. 236, 238; People v. Rosen, 294 N. Y. 761; People v. Leon, 262 N. Y. 664.) To put it another way it must be conscious possession. In the case at bar the evidence fails to show that defendant had physical possession, custody or control of the policy slips. He was not the owner of, or in control of the truck on which the slips were found. There was no evidence to connect him with the house, as owner, lessee, or occupant. It is evident that whether or not there is a case against the defendant depends upon People’s Exhibit No. 7 which was received in evidence over his objection. The admission of that slip of paper without laying a proper foundation for its receipt was error. The handwriting was not identified and so the author is unknown. There was no suggestion as to the intended recipient. No evidence of identity of defendant and author of of defendant and intended recipient was offered. No evidence was offered to show the approximate time at which it was written.

By reason of the inconclusive and circumstantial nature of the evidence adduced, the People failed to establish defendant’s guilt beyond a reasonable doubt. (People v. Taddio, 292 N. Y. 488; People v. May, 290 N. Y. 369, 373; People v. Lewis, 275 N. Y. 33, 39; People v. Suffern, 267 N. Y. 115, 127.)

There were other errors in the conduct of the trial of- which notice should be taken. The charge to the jury failed to meet the requirements indicated in People v. Wallens (297 N. Y. 57). The defendant was entitled to have the jury instructed on the law. (See Code Crim. Pro., § 388, subd. 7; §§ 389, 420.) The court failed to charge the jury that a defendant is presumed to be innocent until the contrary is established beyond a reasonable doubt; that the People have the burden of proof of establishing guilt; that if there be a reasonable doubt as to the defendant’s guilt he is entitled to an acquittal. In addition the court usurped the function of the jury in commenting on the credibility of a witness for defendant saying, And I will say another thing — that I wasn’t quite satisfied with Mr. Johnson’s story.” (Emphasis supplied.) (People v. Ohanian, 245 N. Y. 227.) Johnson was a witness for defendant who had testified that he had purchased machinery from the defendant who was apprehensive about payment for it. Johnson had further testified he had told the defendant that if he came to the residence at which the arrest took place between 8:30 p.m. and 9:00 p.m. he would have a substantial sum of money for him; that the defendant had no connection with the lottery tickets which the witness had placed on the truck together with one machine. Thus it was the “ story ” of the chief witness for the defense with which the court announced his dissatisfaction.

Finally, the assistant district attorney in his summation to the jury commented on defendant’s failure to take the witness stand as follows: “ Mr. Leavitt, I didn’t hear him get on the stand — he is charged with the crime here. Mr. Pratt says that he had ducked on the truck to get out of the rain, but you or I wouldn’t sit back and have the state police or anyone else accuse us of doing any wrong if we were in fact innocent, would we, gentlemen. There is your proof sitting right there in that chair (indicating).”

Counsel for defendant moved' for a mistrial which the court denied in the following language: “ You mean you want to throw this trial up and have a new one? I don’t think so.” It is true that the assistant district attorney said subsequent to his improper comment that I do not wish to be misconstrued, we could not compel Mr. Leavitt to take the stand, and he didn’t have to take the stand * * *." The damage had been done. Even thereafter the jury was not advised that defendant’s failure to testify did not create any presumption against him. (Code Crim. Pro., § 393.) Improper comment by a District Attorney concerning the failure of a defendant to testify is reversible error. (People v. Minkowitz, 220 N. Y. 399; see, also, People v. Forte, 277 N. Y. 440; People v. Fielding, 158 N. Y. 542.)

The judgments should be reversed and the information dismissed.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgments reversed, etc.


author: Per Curiam.

text:
    Nicholas Di Menna & Sons, Inc., Appellant, v. City of New York, Respondent, et al., Defendants.
    Argued March 2, 1950;
    decided June 1, 1950.

      Emil V. Pilz for appellant.
    I. The city failed in its obligation to do nothing to modify the common-law liability of the railroad to shore and protect its duct line. (New York City Tunnel Authority v. Consolidated Edison Co., 295 N. Y. 467; Necaro Co. v. Eighth Ave. R. R. Co., 220 App. Div. 144; Mansfield v. New York Central & H. R. R. R. Co., 102 N. Y. 205; Wilson & English Constr. Co. v. New York Central R. R. Co., 240 App. Div. 479; Werfel v. Zivnostenska Banka, 287 N. Y. 91.) II. The city was guilty of misrepresentation and fraud. (Jackson v. State of New York, 210 App. Div. 115, 241 N. Y. 563.) III. The second cause of action is not a claim for delays and plaintiff did not waive its claim by its letter of October 16, 1947. Plaintiff is entitled to recover for repairing damage to its work, caused by leakage from the city’s sanitary sewer due to the city’s negligence. (Pilkington Co. v. City of New York, 211 App. Div. 558, 243 N. Y. 638.)

      John P. McGrath, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for respondent.
    I. The city’s motion for summary judgment as to the first cause of action was properly granted. No question of fact was presented. The agreement between plaintiff and the city expressly barred recovery against the city for the cost of supporting New York Central’s duct lines. (New York City Tunnel Authority v. Consolidated Edison Co., 295 N. Y. 467, 296 N. Y. 745; Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 App. Div. 98; Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345; Gas Light & Coke Co. v. Columbus, 50 Ohio St. 65.) II. Plaintiff may not recover for the alleged additional cost of performance caused by the condition of an adjoining sewer, because (1) it expressly assumed the risk of any subsurface condition, and (2) plaintiff specifically waived any such claim after completing the work. Accordingly, the city’s motion for summary judgment as to the second cause of action was properly granted. (United States v. Moorman, 338 U. S. 457; Weston v. State of New York, 262 N. Y. 46; Dunn v. City of New York, 205 N. Y. 342; Niewenhous Co. v. State of New York, 248 App. Div. 658, 272 N. Y. 484.)
   Per Curiam.

The judgment appealed from should be modified by reversing so much thereof as dismissed the second cause of action alleged in the complaint as against the defendant, City of New York, and as to such cause of action the motion for dismissal should be denied. The judgment appealed from is otherwise affirmed, with costs in this court to the plaintiff. We deem the allegations of the second cause sufficient. It is asserted that the city was negligent in failing to call the contractor’s attention to the defective and dilapidated condition of a sanitary sewer line located adjacent to but outside the project limits and which was indicated on the contract plans as “ Not to be Disturbed ”. Because of its defective condition leaks flooded the excavation work with sanitary flow causing the alleged damage. Under such circumstances, it may not be said that an allegation of lack of knowledge, by the city of its defective and dilapidated condition presents such a complete defense within the terms of the contract forbidding the making of any claim by the contractor for damages due to the' segment block sewer not being in condition as contemplated or for its breaking, as to render the second alleged cause of action insufficient in law. At a trial it might well be shown that the city knew or should have known of such defective condition and that because of it the work was made more difficult and expensive than it would have been under the original contract (Horgan v. Mayor of City of N. Y., 160 N. Y. 516; Gearty v. Mayor of City of N. Y., 171 N. Y. 61; Sundstrom v. State of New York, 213 N. Y. 68). In any event, the plaintiff at the very least should be afforded an opportunity to examine the city’s witnesses on the subject (Pilkington Co. v. City of New York, 211 App. Div. 558; 216 App. Div. 756, affd. 243 N. Y. 638). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Chelsea Exch. Bank v. Munoz, 202 App. Div. 702; Fredburn Constr. Corp. v. City of New York, 280 N. Y. 402).

The judgments should be modified in accordance with the opinion herein, and as so modified affirmed, with costs in this court to the plaintiff.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment accordingly.