text:
    Emigrant Industrial Savings Bank, Respondent, v. Willow Builders, Inc., Appellant, et al., Defendants.
    Argued. January 7, 1943;
    decided March 11, 1943.

      Meyer Levy and Solomon Ginsberg for appellant.

      John E. McAniff, Lester T. O’Connor and Joseph H. Praetz, for respondent.
   Lehman, Ch. J.

On May 2, 1941, the defendant Willow Builders, Inc., entered into a contract to purchase from the plaintiff an eleven-story apartment house. The stipulated purchase price was $275,000, payable as follows: four thousand dollars upon the execution of the contract, sixteen thousand dollars upon the closing of title and two hundred and fifty-five thousand dollars by delivery of a Purchase Money Bond and Mortgage. In the contract of sale the defendant agreed that it would “ make extensive alterations to the premises.” The total cost of the alterations was estimated in the contract of sale at $228,300, and the plaintiff agreed to make a building loan of $167,500 in eight installments. Each installment was to be paid upon the completion of specified items of the alteration work. On May 19th title was closed. The purchase money bond and mortgage and the building loan agreement and mortgage were executed and delivered in accordance with the contract of purchase' and sale.

Work on the alterations which the defendant agreed to make was started between May 20th and May 28th and, in accordance with the terms of the agreement between the plaintiff and the defendant, the progress of the work was observed and noted by representatives of the plaintiff’s architects who visited the premises several times each week. On July 10th with the approval of the architects the plaintiff advanced to the defendant the sum of $27,500, as the first installment of the building loan, and on August 13th advanced the sum of $28,000 as the second installment. On September 13, 1941, the plaintiff took possession of the building, claiming that it had a right to do so because the defendant had failed to proceed with the alterations as stipulated in the contract of sale and the building loan agreement. On September 15th it began this action to foreclose the purchase money mortgage and. the building loan mortgage.

The contract of sale provided among other things: “If work on the said alterations shall not be promptly started, or shall for any period of fifteen (15) days cease, or not be prosecuted with reasonable diligence, or not be fully completed and paid for on or before October 1, 1941, (strikes, lockouts, acts of God or the public enemy or circumstances beyond the control of the purchaser excepted), or if the purchaser fails to comply with any agreements on its part contained herein, or in said building loan agreement, purchase money mortgage or building loan mortgage, the whole of the principal sum due on said existing purchase money mortgage, with interest if any, thereon, held by the seller, and on the building loan mortgage of $167,500.00 herein referred to, to the extent of the advances, if any, then made thereon, with interest, if any, thereon, shall become immediately due and payable at the option of the •seller.”

The building loan agreement provided among other things:

7th: Whenever and as often as any of the following events occur before the amount of said loan is fully advanced, all obligations on the part of the lender or the holder of said mortgage to make or procure any further advances shall cease, if the lender so elect, and the said mortgage debt sba.11 become due and payable at the option of the lender or of the holder of the mortgage, anything therein or in said bond contained to the contrary notwithstanding: ^ ^ ^
“ (i) If the borrower should not proceed continuously with the alterations to the building (stoppage by reason of actual strikes, lockouts, acts of God or the public enemy or circumstances beyond the control of the borrower excepted). ^ ^ 3v-
" (n) If the borrower should assign this contract or any interest therein, or any right to receive any payment or portion of a payment herein provided for, or give or issue an order on the lender or holder of the mortgage for the payment of any money payable under this agreement.”

The amended complaint in the foreclosure action alleges that the defendant Willow Builders, Inc. has failed to comply with the provision of the contract of purchase and sale quoted above “ in that the said defendant did not prosecute with reasonable diligence the work on said alterations.” It alleges also that the defendant violated the provisions of the contract of purchase and sale “ in that the defendant has failed to comply with the terms of the covenants contained in the Building Loan Agreement ” as set forth above by assigning on August 7, 1941 to Haviland Construction Corporation the sum of $5762.84 out of the moneys to be paid to Willow Builders, Inc. as a third payment pursuant to the terms of said building loan agreement and by assigning on August 27th to World Steel Products Company the sum of $1,985. out of the moneys to become due under the Building Loan Agreement. Upon these grounds the plaintiff seeks to foreclose the purchase money mortgage. It seeks to foreclose the building loan mortgage on the same grounds and also on the ground that the defendant did not proceed continuously with the alterations to the building. Upon the trial of the foreclosure action the trial judge found that the defendant had been remiss in many respects and that the plaintiff had established each default set forth in the complaint as a ground of foreclosure. The judgment of foreclosure entered upon that decision was approved in the Appellate Division by a divided court, ■ two justices dissenting and voting to dismiss the complaint.

The defendant does not challenge upon this appeal the right of the plaintiff to foreclose the purchase money mortgage for a default which under the contract of sale would constitute ground for foreclosure even though the purchase money' mortgage contains no similar provisions. (See Metropolitan Life Ins. Co. v. Hall, 56 Hun, 647.) We assume without further consideration that the plaintiff is entitled to foreclose both mortgages upon proof of any default alleged in the complaint unless the defendant shows that the plaintiff has ‘ ‘ waived such default as a ground for foreclosure. Since the trial judge has made findings in favor of the plaintiff upon every issue we must upon this appeal reject the evidence produced by the defendant except in so far as the truth of "the defendant’s evidence is not challenged.

The defendant employed subcontractors in making the alterations. While the work was in progress a strike which lasted from July 29th to August 11th, 1941, occurred in the “ electrical industry ” in the city of Hew York. Concededly nothing done or omitted by the defendant or any subcontractor caused this strike but, as the trial judge found, this strike did not prevent the subcontractors . . . other than Radiant Electric Construction Company from continuing their work ’ ’ and the strike did not cause any substantial delay. A second strike which was called on August 14,1941, and lasted until September 11th or 12th, 1941, was a strike, as the trial judge found, “ in substantially all the trades employed in the alteration work.” It was settled by an agreement by Willow Builders, Inc., to use only union labor upon the alterations. During the second strike work on the alterations was almost halted. The entry of the plaintiff upon the premises on September 13, 1941, immediately after the strike was terminated, made resumption of work by the defendant impossible. Undoubtedly the defendant would not have completed the work till long after October 1st even if the work had proceeded with all possible speed after the strike was terminated. Under the terms of the agreements between the plaintiff and the defendant, the plaintiff had the right to enter upon the premises if the delay was due to negligence or wrong of the defendant. The plaintiff had no right to enter if the delay was due solely to the strike.

There is no evidence in the record that until the second strike the plaintiff or representatives of the architects who were supervising the work for the plaintiff made any complaint that the work was not proceeding continuously and with sufficient diligence or that unskilled or insufficient labor was employed upon it. On the contrary the evidence produced by the plaintiff indicates that until the strike began the architects were satisfied with the progress of the work. It is true that the plaintiff produced evidence that when the strike caused a stoppage in the work, only 40% of the work had been done, and that even if there had been no strike, the work would not have been finished by October first, but the plaintiff made no attempt to show that the defendant could by greater diligence have proceeded with more speed. Accepting, as we must, the finding that only 40% of the alteration work had been done when more than half the time allowed for the performance of the entire work had passed, no inference that failure to proceed with the work more rapidly was due to fault of the defendant could be drawn from that fact alone. The delay and stoppage of the work- after the strike was called would, however, constitute a breach of the contract of sale and of the building loan agreement, unless it appears that no fault of the defendant caused the strike or produced the delay. That is the primary problem presented upon this appeal.

We must start consideration of that problem with the undisputed fact that so long as the strike continued, substantial progress in the work was impossible. There was dispute as to the cause of that strike. The defendant produced evidence to show that the Building Trades Council called the strike arbitrarily. The trial court has found, however, that the second strike “ was caused by defendant, Willow Builders, Inc., and its sub-contractors, particularly F. Pannerelli, in employing non-union labor.” The defendant knew that some of its subcontractors would not employ union labor. Indeed, it told one of them, in effect, that it had no objection, and from the evidence presented at the trial, an inference may fairly be drawn that the defendant’s failure to insist upon employment of union labor may have been due to a desire to keep down the cost of the work. The strike was, as we have said, ultimately settled by an agreement that only union labor should be used, and we may assume that the strike could have been avoided, or could have been terminated promptly, if the defendant had made such an agreement earlier. The plaintiff urges that the defendant’s choice of subcontractors who used nonunion labor was negligent and reasonably calculated to cause a strike, and was the primary cause of the delay in the work.

Closed shop agreements made in manner authorized by the Labor Law are lawful in this State, and this court has in many cases sustained the right of labor unions to strike and picket in order to constrain employers to make such closed shop agreements. To avoid the possibility of a strike caused by non-union labor, the plaintiff could have demanded if it had chosen to do so, that the defendant should stipulate in its contract that only union labor should be employed. It did not choose to do so, but upon this appeal it asks in effect that the court-should read into the contract an implied stipulation that the defendant was bound to employ union labor, at least if a strike could be avoided only by such means.

The clause in the contract between the plaintiff and the defendant exonerating the defendant contractor from responsibility for the result of " stoppage by reason of actual strikes ” must be given reasonable construction. It should not be read as intended to exonerate the contractor from responsibility for the result of its own wrong. If a contractor willfully causes a strike, or if a strike is due to failure of the contractor to carry on the work in manner stipulated by the contract, the stoppage is properly chargeable to the fault of the contractor, and the contractor may be held responsible for Ms fault. We find no basis, however, in this record for any inference that the employment of non-union labor violated any obligation which the defendant assumed either expressly or impliedly. The law of this State accords to an employer the same right to resist pressure to agree to employ only union labor as it accords to a union or to a group of employees to exert such pressure. The defendant has apparently conceded in its brief and oral argument that where a trade -or industry is so completely organized by unions that any attempt to employ nonunion labor must result in immediate stoppage of the work by a strike, any attempt to employ non-union labor would be in itself an invitation to strike, and the consequent delay should be chargeable to the contractor. It challenges the plaintiff to show that employment of non-union labor in alteration ioor!t would in itself constitute a call or invitation to building trades unions to strike.

Upon this appeal we need not consider whether the defendant’s concession is sound in law. It seems clear to us that even with that concession, the record is barren of any evidence which shows that by permitting the employment of non-union labor the defendant violated his obligation to proceed with the work continuously and with diligence. Undoubtedly there are building contractors in the city of New York who do alteration work without employing union labor. We have no reason to suppose that the plaintiff’s arcMteets were ignorant of conditions in the building trades, yet the contract was made, as we have pointed out, without a stipulation prohibiting the employment of non-union labor. The alteration work proceeded for more than two months during wMch it appears that neither the arcMtects nor the unions protested against the employment of nonunion labor. Even after the strike was called, it does not appear that the architects made any claim that the contractor was at fault in failing to accept the demand of the union. Under the law of this State the courts may not ascribe wrong to the members of the unions for attempting to obtain agreements for the employment of union labor, nor may they ascribe wrong to an employer for employing workmen who are not members of the union, at least where an employer has not entered into an agreement binding himself to draw his employees from a particular group.

The plaintiff maintains that though we assume that the defendant is not chargeable with any fault causing stoppage of the work by a strike, yet it appears by the defendant’s own admission that even without such stoppage it could not have completed the work on or before October first, and that the primary cause of the delay was its lack of money sufficient to carry on the work with diligence. That alleged admission is contained in a letter which the defendant wrote to the plaintiff on August 18th, four days after the strike was called. In that letter the defendant stated, among other things: " The conditions that have taken place in the building industry recently have caused the subcontractors to raise their contracts on us, claiming conditions beyond their control, such as the strike in the electrical line; strike on gypsum blocks; neet; high prices of material; scarcity of labor, etc. This condition has placed us in a very embarrassing position. It is now impossible for us to complete the building for October first occupancy. The renting after October is slow and uncertain.” For that reason the defendant asked the plaintiff to increase its building loan by $20,000’ and to make some additional concessions.

The letter, far from conceding that any delays have occurred which were due to lack of diligence on the part of the defendant, asserts that such delays as have occurred have been due to causes beyond its control. At most it contains an admission that delays beyond its control will render a completion of the work by October first impossible; that the cost of completion will be greater than it anticipated, and that it must have more money than it originally thought necessary to complete the work. There is nothing in the letter or in the record to show that lack of money contributed to the delay up to that time, although, as we have pointed out, a desire to save expense may have been the motivating cause for the employment of non-union labor. We need not upon this appeal consider whether under the contract, the date set for completion was of the essence, and whether failure to complete on the stipulated date would, if not excused by the terms of the contract, constitute sufficient ground for foreclosure of the mortgages. That time had not arrived when the plaintiff entered upon the premises and commenced this foreclosure action. Neither by the letter nor by any other word or act did the defendant repudiate its obligation to complete the alteration work, unless the plaintiff agreed to waive delays and make an additional loan. Even if we assume that failure to complete the alteration work by October first would constitute a breach of the contract justifying foreclosure, and even if the mortgagee could avail itself of an anticipatory breach of that obligation, yet in this case no anticipatory breach has been pleaded or adequately proven. The plaintiff claims a right to foreclose on the ground that the defendant did not diligently and continuously carry on the work, and also breached the contract by assignment of moneys. It is entitled to judgment only if it proves at least one of these grounds for foreclosure.

We have shown that the findings that the defendant has failed to carry on the work diligently and continuously, and that delays were due to its fault, are not sustained by the evidence. The question remains whether judgment of foreclosure may be sustained on the ground that the defendant assigned moneys to become due under the contract or issued orders for the payment of such moneys. The defendant does not deny that it made and delivered assignments and orders for moneys payable under the building loan agreement. The parties have agreed that if the plaintiff “ so elect ” it may foreclose the mortgage for such cause. The plaintiff had notice of the first assignment not later than August 21st, and had notice of the second assignment about the time it was executed and delivered on August 27th. There is conflict of testimony as to whether the plaintiff expressly consented to the assignments. There is no dispute that the plaintiff failed to inform the defendant or the assignees that it objected to the assignments or, prior to the service of the complaint herein, that it elected to foreclose its mortgage for that reason. The defendant maintains that the plaintiff had lost the right of election to foreclose when the foreclosure action was begun.

*The trial judge stated in Ms opinion that even assuming for the purpose of argument that officials of the plaintiff “ agreed to obviate the restriction concerning orders on payment, the manner in which that agreement was made and the lack of consideration therefor inhibits conferring any legal force thereto.” He found accordingly that “plaintiff did not waive the terms of the building loan agreement providing that if defendant, Willow Builders Inc., made any order on payment, the mortgage debts should become due and payable.” Upon this appeal no question arises whether an agreement made by the plaintiff without consideration to “ waive the terms of the building loan agreement ” could be given legal effect. The term waiver as “ commonly used in connection with contracts ” has “ different meanings.” (3 Williston on The Law of Contracts, [Bev. ed.] § 679.) Upon this appeal the problem is not whether the plaintiff has by silence or express words attempted to alter the terms of the building- loan agreement, but rather whether it has precluded itself from electing to foreclose the mortgage for the defendant’s conceded failure to carry out the terms of the contract.

“ Where a contract is broken in the course of performance, the injured party has a choice presented to him of continuing the contract or of refusing to go on.” (3 Williston on The Law of Contracts, [Bev. ed.] § 683.) If the injured party chooses to go on, he loses his right to terminate the contract because of the default. (See Bestatement of the Law of Contracts, § 309.) There can be, then, no question of consideration. In this case the failure of the plaintiff to object to the assignments or orders for payment of moneys to become due, coupled with the continuation of discussions by the plaintiff and defendant of possible increase of the building loan, and other acts of the plaintiff showing that the plaintiff considered the contract still in existence, is compelling evidence of choice by the plaintiff to continue the contract. Without explanation or contradiction of this evidence the plaintiff cannot thereafter elect to foreclose its mortgage for a default which apparently it chose to disregard as a ground for termination of the contract.

For these reasons the judgments should be reversed and a new trial granted with costs to abide the event.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur. i

Judgments reversed, etc.


source: Caselaw Access Project

author: Finch, J. Rippey, J.

license: Public Domain

text:
    Bernard Schwartz, an Infant, by David Schwartz, His Guardian ad Litem, et al., Respondents, v. Merola Bros. Construction Corporation, Appellant; Bank for Savings in the City of New York et al., Defendants, Appellants and Respondents, and New Deal Terrazzo Company, Inc., Defendant-Respondent.
    Argued January 6, 1943;
    decided March 11, 1943.

      George J. Stacy and John A. Gleason for Merola Bros. Construction Corporation, appellant.

      Olin S. Nye, Brendan C. Kelly and Reginald V. Spell for Cerussi Marble & Tile Company, Inc., appellant and respondent.

      Ralph H. Terhune and E. C. Sherwood for Bank for Savings in the City of New York, appellant and respondent.

      Adolph S. Ziegler, Harry H. Lipsig and Albert Lee Singer for plaintiffs, respondents.
   Finch, J.

The infant plaintiff was injured when bags of terrazzo pebbles, piled on the sidewalk in connection with the work of renovating a building, shifted and fell upon him. This action to recover for personal injuries and for loss of services was brought against four defendants, The Bank for Savings in the City of New York, as owner of the building, hereinafter referred to as the Bank; Merola Bros. Construction Corp., the general contractor, hereinafter referred to as Merola; Cerussi Marble & Tile Co., Inc., Merola’s subcontractor, hereinafter referred to as Cerussi; and New Deal Terrazzo Company, Inc., Cerussi’s subcontractor for the terrazzo work, hereinafter referred to as New Deal.

The defendant Bank cross-claimed for indemnity against the other defendants Merola, Cerussi and New Deal, and Cerussi cross-claimed over against New Deal.

Two questions are raised upon this appeal, first, whether there is any evidence in the record sufficient to justify the verdict in plaintiffs’ favor against the four defendants, and secondly, whether recovery should be allowed on the aforementioned cross-claims.

Briefly stated, the facts show that the Bank entered into a contract with Merola as general contractor to renovate a building owned by the Bank and located on East 83rd street in New York City. Merola subcontracted Cerussi to do certain tiling, terrazzo and other work. Cerussi subcontracted the terrazzo work on the floors to New Deal, a specialist in that field.

The terrazzo work on the floors was started about the beginning of August, 1936; the accident to the infant plaintiff occurred on August 18th. For about a week prior to the accident, bags of terrazzo pebbles had been piled on the sidewalk in front of the building. There is evidence that these bags were piled negligently so that they would be likely to shift and fall upon passersby. Moreover, Merola had obtained permits from the city of New York to pile materials on the sidewalk and there is evidence that these bags were piled in a manner which violated the permits. There is no direct evidence as to which of the defendants piled the bags of terrazzo pebbles upon the sidewalk. These bags were ordered by New Deal and prima facie were to be used by New Deal. The Bank and Merola, of course, had nothing to do with terrazzo work except as Merola was the general contractor. Cerussi used terrazzo chips to make stair treads for installation in the building, but an officer of the corporation testified that these stair treads were fabricated at Cerussi’s own shop. New Deal was charged with the work of laying terrazzo floors, and it was admitted that this work was done on the premises. It would appear, therefore, that bags of terrazzo pebbles were ordered by New Deal for its own use and, presumably, these were the bags that were negligently piled upon the sidewalk for a week before the accident. Thus New Deal at least was primarily responsible for the injury to the infant plaintiff.

The other three defendants, in addition to New Deal, were properly held liable to plaintiffs because there is evidence sufficient to show notice to them of the existence of the dangerous condition on the sidewalk. Under the contract between the Bank and Merola, the permits obtained by Merola from the city of New York had to be filed with the Bank’s architect, so that the Bank had the opportunity of discovering that materials were being piled upon the sidewalk in violation of the permits. Merola, as the general contractor, had, as such, a duty of general superintendence of the work (Rosenberg v. Schwartz, 260 N. Y. 162, 166; Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461), and Cerussi, on his part as general contractor as against New Deal, had subcontracted the terrazzo work to the latter. (Phoenix Bridge Co. v. Creem, 102 App. Div. 354, affd. 185 N. Y. 580; Rosenberg v. Schwartz, supra.)

The above state of facts is sufficient to establish the liability both of the owner of the building and of the contractors doing the work. It is true that an owner is not liable for the negligence of an independent general contractor unless the duty of care in performing the work is non-delegable. In other words, where the danger arises merely because of the negligence of the independent contractor or' his employees, which negligence is collateral to the work and which is not reasonably to be expected, the owner cannot be held liable to a third party. But where from the nature of the work the duty of care in its performance is non-delegable and the owner is put on notice of the existence of such a dangerous condition, he may properly be held liable to a third party injured by the negligent act of a subcontractor or his employees. (Wright v. Tudor City Twelfth Unit, Inc., 276 N. Y. 303, 307.) In the case at bar, under the instructions of the trial judge, the jury found that a dangerous condition was created upon the sidewalk in the course of the work and that the owner of the building had notice thereof. Thus the owner was properly held liable for the injuries caused to the infant plaintiff. Likewise, Merola and Cerussi have been properly held liable. In Rosenberg v. Schwartz (260 N. Y. 162, 166) it was said that “An independent general contractor, who is present and sees and realizes that a subcontractor is doing his work in an unlawful and dangerous manner, may be liable for an injury resulting directly to a third person from such unlawful and negligent conduct.” In Delaney v. Philhern Realty Holding Corp. (280 N. Y. 461, 467) a general contractor was held liable for the act of his subcontractor in creating a dangerous condition on the public sidewalk, of which fact the general contractor had notice. Consequently, under well established principles, all the defendants were properly held liable on the evidence in the record. Various errors in the trial are urged by the defendants as requiring a new trial in their favor against the plaintiffs. These errors, however, were all discussed at length in the opinions of the Appellate Division and were there properly disposed of.

This brings us to the important question in the case, whether the Bank as owner of the building may recover over on its cross-claims against the other defendants.

The Bank’s cross-claim against Merola is based upon a written contract of indemnity, whereas its right to recover over against the other defendants rests solely upon common law principles. With respect to its rights over against Merola, there are two questions to be determined, first, whether Merola is liable under the indemnity agreement for the negligent acts of a subcontractor, and second, whether the Bank itself is free from any active participation in causing the injury to plaintiff, which would defeat its rights under the indemnity agreement. The Bank’s right to recover over against the other two defendants, namely Cerussi and New Deal, depends upon proof that they were the primary wrongdoers, and the Bank guilty only of passive negligence.

The contract of indemnity between the Bank and Merola is contained in paragraph 13 of the agreement between them and provides that “ 13. Indemnification: (1) The Contractor [Merola] agrees to indemnify and save harmless the Owner against loss * * * by reason of the liability imposed by law upon the Owner for damages because of bodily injuries * * * accidentally sustained by any person or persons and/or on account of damage to property, due to any act or omission of the Contractor, his employees or agents, arising out of the work of the Contractor as contemplated under this Agreement * ■ *

The determination of whether or not the negligent acts of New Deal are covered by the above quoted indemnity agreement, depends primarily on discovering the intention of the Bank and Merola in formulating their agreement. The indemnity agreement is sufficiently broad, so that the Bank would be entitled to be indemnified by the general contractor Merola unless the Bank was guilty of active negligence. The same form of words, namely liability imposed by law ” have been held by this court to be “ words of very broad significance and as used in their ordinary sense, would include the total liability imposed by law upon the plaintiff.” (Green Bus Lines, Inc., v. Ocean Accident & Guaranty Corp., 287 N. Y. 309, 315.) In addition, the use of the word “ agents ” along with the use of the words “ employees of the general contractor ” under the circumstances in the case at bar may give ground for holding that the word “ agents ” includes subcontractors. If the defendant Bank is liable to the plaintiffs in this case, such liability must be predicated upon the fact that the general contractor exceeded the authority granted to it in the permit which the general contractor was required to obtain under the contract for the use of the sidewalk in order to allow the subcontractor of the general contractor to pile material outside the barricades, thereby obstructing the sidewalk. Under such circumstances the general contractor is liable for the acts of his subcontractors. (Rosenberg v. Schwartz, 260 N. Y. 162, 166; Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461, 467.) The case at bar is not that of an indemnity agreement between a general contractor and a subcontractor, which is the situation in the two cases just cited, but the case of an owner obtaining an indemnity agreement from a general contractor. It would seem that such an indemnity agreement would be meaningless unless the parties intended that there should be some negligence on the part of the owner which, although passive, might render it liable to an injured person. The very word indemnity presupposes that the Bank has paid out money because of some fault on its part. In addition, the Appellate Division has found, upon evidence adequate to sustain such finding, that the language used in this clause 13 entitled the Bank to indemnification by Merola. Assuming, then, that the indemnity agreement reasonably protects the Bank against liability arising as in the case at bar, we come to the question whether the Bank has been guilty of active negligence'so as to defeat its right of recovery. While the parties are free to contract as between themselves for the ultimate burden of liability due to negligence, yet in the absence of explicit language to the contrary, courts will not interpret an indemnity agreement as a promise by the indemnitor to save harmless the indemnitee on account of the active negligence of the latter. In the leading case of Thompson-Starrett Co. v. Otis Elevator Co. (271 N. Y. 36), in which this principle was enunciated, it is interesting to note that the injury occurred solely through the active negligence of the indemnitee. Clearly the wording of the indemnity agreement in the case at bar is not sufficiently broad to require indemnification if the injury to the plaintiff can be charged to active negligence on the part of the Bank. In consequence the Bank cannot recover unless it is guilty of no more than passive negligence. (Dudar v. Milef Realty Co., 258 N. Y. 415.) As showing the presence of an intention to indemnify the owner* under the circumstances in the case at bar stands the fact that, even in the absence of an indemnity agreement, the passive negligence of which the owner here stands charged would not defeat its right to indemnity. (Scott v. Curtis, 195 N. Y. 424; Phœnix Bridge Co. v. Creem, 102 App. Div. 354, affd. 185 N. Y. 580.) While it is true that the owner of a building has an affirmative non-delegable duty to protect members of the public traveling on the sidewalk (Rohlfs v. Weil, 271 N. Y. 444, Appel v. Muller, 262 N. Y. 278, 280), a long line of cases in this court, of which the two following are good examples, give indemnity against the principal wrongdoers to one less culpable although both are equally liable to a person injured. In Scott v. Curtis (supra), where a passerby was injured through the negligence of the employee of an independent contractor in leaving open the cover of a coal hole in the sidewalk, we held the independent contractor liable to indemnify the owner for the damage which the latter had paid to the person injured. So in the case of Phœnix Bridge Co. v. Creem, supra, where a pedestrian was injured through subcontractors leaving a pile of dirt and stones, unguarded and unlighted, upon the sidewalk in the night time, we held the general contractor entitled to indemnity over against the subcontractors, since the latter were the primary wrongdoers and the general contractor had been guilty of no more than passive negligence.

It is urged that because of the decisions in Walters v. Rao Electrical Equipment Co. (289 N. Y. 57) and Employers’ Liability Assur. Corp. v. Post & McCord, Inc. (286 N. Y. 254), the defendant bank must be held guilty of active negligence. The facts in these cases are different and we do not read them as applicable to the case at bar. In a long line of cases of which Scott v. Curtis (supra) and Phœnix Bridge Co. v. Creem (supra) are examples, where the facts are entirely analagous to those in the case at bar, we held applicable the principle of indemnity. There was no attempt in Walters v. Rao Electrical Equipment Co. and Employers Liability Assur. Corp. v. Post & McCord, Inc., (supra) to overrule this long line of cases and hence the last cited cases cannot be held as controlling in the case at bar.

It is urged that the verdict of the jury, finding all defendants equally guilty of negligence, eliminates the right to an indemnity. We agree, however, with the finding of the Appellate Division that, as bearing on the cross-claims, this is entitled to no weight. While the jury were instructed at great length as to the principles of law by which they were to determine liability as between plaintiffs and the four defendants, they were given no instructions on how to determine any issues concerning the degrees of culpability as between the defendants themselves. Since they received from the court no rule of law by which to determine these latter issues, the finding of the jury, that all the defendants were equally guilty of negligence, must have been intended by the jury and be confined to the issue of liability as between the plaintiffs and these defendants. In addition there is no evidence to sustain a finding that the Bank was guilty of anything more than passive negligence.

While there is no contract of indemnity between the Bank and New Deal, the Bank is clearly entitled to indemnity against the latter upon common law principles, because the evidence shows that New Deal was one at least of the primary wrongdoers. (Phœnix Bridge Co. v. Creem, sufra.)

The Bank’s cross-claim against Cerussi can best be discussed in connection with Cerussi’s cross-claim for indemnity against New Deal. Upon this record as it stands, the Appellate Division was correct in dismissing both cross-claims. In order to justify a recovery, the Bank was obligated to prove that Cerussi was a primary wrongdoer in conjunction with New Deal, and Cerussi, in order to recover on its cross-claim, was obligated to prove that it was no more than passively negligent while New Deal was the sole primary wrongdoer. Both the Bank and Cerussi failed to fulfill their respective burdens of proof, since upon this record it is not clear whether Cerussi was in fact actively negligent along with New Deal, or was merely passively negligent like the Bank and Merola. Under its contract Cerussi was in active supervision of the work. Consequently it may have had actual, rather than merely constructive, knowledge of the existence of a dangerous condition. Moreover, Cerussi actually worked with terrazzo pebbles in the fabrication of stair treads. There is some evidence that these stair treads were not fabricated on the job. But this evidence is not sufficient to be altogether conclusive. Since it cannot be said on this evidence just what degree of negligence Cerussi was guilty of, the Appellate Division was correct in dismissing both the Bank’s cross-claim against Cerussi and Cerussi’s cross-claim against New Deal.

The judgment should be affirmed with costs to the plaintiffs-respondents Bernard Schwartz and David Schwartz.

Rippey, J.

(dissenting). On May 13, 1936, defendant, Merola Bros. Construction Corp., entered into a written contract with the defendant, the Bank for Savings in the City of New York, for the renovation of a building owned by the defendant Bank on East 83rd street in the city of New York. The general contractor sublet the tile, marble and terrazzo floor work to the defendant, Cerussi Marble & Tile Company, Inc., and the latter sublet the terrazzo floor work to the defendant, New Deal Terrazzo Company, Inc. In .connection with the performance of the contract, New Deal Terrazzo Company, Inc., procured the delivery of bags of terrazzo pebbles and other building materials and piled them on the public sidewalk in front of the Bank’s building without any authority for the use of the sidewalk for that purpose.

The plaintiff, Bernard Schwartz, who was rightfully on the street, received injuries from one of the bags falling from the top of the pile and striking him and he and his father have' brought this action against all the defendants to recover damages for the injuries which he thereby received. The jury found a verdict generally for plaintiffs against all of the defendants and specifically found all four defendants equally guilty of negligence.” Judgment for plaintiffs entered upon the verdict has been affirmed by the Appellate Division as to all of the defendants. Since there was ample evidence to sustain the verdict, the judgment in favor of the plaintiffs and against all of the defendants as joint tort-feasors must be affirmed.

The defendant Bank filed a cross complaint against the contractor and the subcontractors, demanding that the ultimate rights of the Bank and the co-defendants as between themselves be determined in this action pursuant to section 264 of the Civil Practice Act and that the defendant Bank have judgment over against all of the co-defendants for the amount of any verdict or judgment which might be obtained by the plaintiffs against the defendant Bank. Upon the special finding of the jury that all of the defendants were equally guilty of negligence, the trial term dismissed the cross complaint of the defendant Bank. Upon appeal the Appellate Division reversed the judgment of the trial court in so far as it dismissed the cross complaint of the Bank against the defendants Merola Bros. Construction Corp. and New Deal Terrazzo Company, Inc., upon the law and the facts and directed judgment in favor of the Bank against those two co-defendants but affirmed the judgment of the trial court in dismissing the cross complaint of the Bank against the defendant Cerussi Marble & Tile Company, Inc.

The Bank claims that if it is liable to plaintiffs for damages it may recover over against the general contractor by virtue of an indemnity clause in its contract which reads as follows:‘ The Contractor- agrees to indemnify and save harmless the- Owner against loss and/or expense by reason of the liability imposed by law upon the Owner for damages because of bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons and/or on account of damage to property, due to any act or omission of the Contractor, his employees or agents, arising out of the work of the contractor as contemplated under this Agreement, * * That clause contains no statement that the general contractor will indemnify the Bank against the Bank’s own negligence and is consequently not effective for that purpose (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36).

It is urged that the Bank may recover over against the subcontractors on the ground that the accident was caused through the “ active ” negligence of one or both of such subcontractors and that the Bank’s liability arose only by virtue of passive ” negligence. At the outset it may be said that the relative responsibility of the Bank and the subcontractors was properly determined by the jury as a question of fact when they found all four defendants equally guilty of negligence.” Whether, upon evidence, a duty owing by one person to another is so violated that the former must respond to the latter in damages for negligence is a question of fact for the jury (Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534; Employers’ Liability Assur. Corp. v. Post & McCord, Inc., 286 N. Y. 254, 264). One may negligently canse or permit a missile to fall on a man’s head and injure him or he may sit by and negligently omit to provide some required statutory safeguard against the missile falling through the negligence of another. Where the negligence of each is a competent, concurring, producing cause of the injury without which the injury could not have happened, liability may be imposed upon both equally (Walters v. Rao Electrical Equipment Co., 289 N. Y. 57).

The Bank’s liability is predicated upon the fact, as found by the jury, that the material was stored and piled on the public street in front of its building in connection with the performance of the contract for the renovation of its building for a substantial period of time before the accident after due notice to the Bank of that fact and knowledge on its part that the street was being used for that purpose without authorization either from the city or by statute or other legislative act. Any unauthorized obstruction of the sidewalk of a public street constitutes a nuisance (Callanan v. Gilman, 107 N. Y. 360, 365; O’Neill v. City of Port Jervis, 253 N. Y 423, 428). The Bank was liable in the first instance since it permitted the creation and maintenance of the public nuisance (Rosenberg v. Schwartz, 260 N. Y. 162, 166; Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461). No higher degree of care could be imposed on any person than that imposed on the defendant Bank. With full knowledge and notice of the dangerous obstruction of the public street, the Bank not only did nothing to remove it but knowingly permitted it to remain. Whether the Bank originally created the nuisance is immaterial to its responsibility and does not affect the degree of care imposed upon it. The duty of the Bank not to create a dangerous nuisance on the public street and the duty not knowingly to permit one created by a person with whom it had contracted to repair its premises to be maintained in front of its premises are the same. In either case its duty is primary, active and non-delegable.

The. Appellate Division erroneously reversed the judgment of the trial term dismissing the cross complaint of the defendant, Bank against defendants Merola Bros. Construction Corp. and the New Deal Terrazzo Company, Inc., and directed judgment in favor of‘the said Bank against both these' defendants. Since the reversal as between those defendants was upon the law and the facts, the judgment of the Appellate Division, in so far as it reversed the judgment of the trial term in dismissing the cross complaint of the defendant Bank and directed judgment in its favor, should be reversed and a new trial granted on the cross complaint against those defendants, with costs to abide the event. The judgment appealed from should otherwise be affirmed, with costs.

Lehman, Ch. J., Loughran and Desmond, JJ., concur with Finch, J.; Rippey, J., dissents in opinion in which Lewis and Conway, JJ., concur.

Judgment affirmed, etc.


author: Rippey, J. Desmond, J. Finch, J.

text:
    The People of the State of New York, Respondent, v. Jacob Weiss, Jacob Simmons and Harry Epstein, Appellants.
    Argued December 10, 1942;
    decided March 11, 1943.

      Harry G. Anderson, Samuel Bader and Arthur Weiss for Jacob Weiss, appellant.

      Rudolph Stand, Joseph D. Edelson, Vincent N. Donatone and Thomas H. Allen for Jacob Simmons, appellant.

      George Z. Medalie, Louis B. Boudin, Louis Haimoff, Paul O’Dwyer and Sidney Elliott Cohn for Harry Epstein, appellant.

      Frank S. Hogan, District Attorney (Stanley H. Fuld, Richard G. Denzer and David Riesman of counsel), for respondent.
   Rippey, J.

Between nine and ten o’clock on the morning of May 8, 1929, one Hyman Leder, when about to enter the building in which his place of business was located on West 21st street in the city of New York, was struck with some instrument three times on the head by someone coming from behind with such force that there resulted a comminuted fracture of the skull contracoup and direct laceration of the brain, concussion and hemorrhage, as a consequence of which he died. The defendants were first indicted for the commission of the crime of murder in the first degree on January 22,1942. Upon a superseding indictment filed April 28, 1942, they were tried in July, 1942, convicted and sentenced to death.

The theory of the People was that there was a criminal conspiracy or understanding among the defendants to attack Leder with a dangerous weapon in such a manner that his death might reasonably be expected to ensue and that the circumstances under which the attack was made indicated deliberation and premeditation and a design to effect his death. The People produced evidence, to which reference will be made later, designed to show that the conspiracy was hatched and nurtured to maturity during the two weeks previous to the homicide and that Simmons struck the fatal blows with an iron pipe some seventeen inches long and one and one-half inches in diameter, wrapped in paper and weighing about three pounds, while in the immediate presence of Weiss after Epstein had pointed out to them the intended victim. A bludgeon alleged to have been used in the killing was produced by the prosecution and received in evidence. Whether it was the instrument with which the killing was done, and, if so, whether it was a dangerous instrument were questions of fact submitted to the jury. The court correctly charged, in the event of an affirmative finding on those issues, that the jury might draw the inference that the killing was done with deliberated intent to kill on the part of the one who struck the blows from the character of the weapon used and of the wound inflicted, coupled with his conduct before and after the blows were struck (Foster v. People, 50 N. Y. 598; People v. Schmidt, 168 N. Y. 568; People v. Brengard, 265, N. Y. 100). In the event, said the court, that Simmons wielded the weapon and Epstein and Weiss were co-conspirators and knew that he had the weapon, then they shared in his criminal intent. The court charged the jury that, if they should accept 'the theory of conspiracy as advanced by the People, they could find all three defendants guilty of murder in the first degree but, if they rejected that theory, they could not find Epstein or Weiss guilty of any crime and must acquit them.

Clearly the conviction of Epstein and Weiss on the record here must rest on a conspiracy among all of the defendants to kill Leder and upon knowledge on their part that Simmons had a dangerous weapon to be used to kill, or it rests upon no legal foundation at all. The prosecution relied upon circumstantial evidence to establish both those facts. In such circumstances, the facts from which the inferences are to be drawn must be established by direct proof: the inferences may not be based upon conjecture, supposition, suggestion, speculation or upon other inferences: the conclusion sought must flow naturally from the proven facts and be consistent with them all: the proven facts must exclude to a moral certainty every hypothesis except that of guilt or of the offense charged and not alone must all the proven facts be consistent with and point to guilt, but they must be inconsistent with innocence (People v. Fitzgerald, 156 N. Y. 253; People v. Razezicz, 206 N. Y. 249; People v. Woltering, 275 N. Y. 51). They are “ of no value if consistent with either the hypothesis of innocence or the hypothesis of guilt. ■ It is not enough if the hypothesis of guilt will account for all the facts proven ” (People v. Suffern, 267 N. Y. 115, 127). Briefly as possible, we review the testimony produced and incidents in chronological order relied on to establish the ultimate facts.

1. In 1929 Hyman Leder and his son were manufacturers of pocketbooks and ladies’ handbags with a place of business on the tenth floor of the building at 12 West 21st street in the city of New York. On the ground floor was an entrance to a hallway leading from the street to the elevators. They were members of an association of pocketbook manufacturers, one of whose purposes was to deal collectively with The International Pocketbook Workers ’ Union concerning employees. They maintained a union shop and dealt directly and through the association with the union and operated under a contract between the union and the association which was about to expire on May 1, 1929. In 1929 they resigned from the association, the resignation being effective as of April 30, and decided to open a factory at Poughkeepsie, N. Y., where they would be outside the jurisdiction of the union. ■ They moved their machinery from New York to the new factory location during the last part of April, 1929. It is the claim of the prosecution that therein lies the motive for the murder and furnishes one of the circumstances upon which the guilt of the defendants may be predicated.

The defendant Epstein was, at the time of the homicide, and had been for many years previously, a member of the union. In 1927 he was appointed and later elected an organizer for the union and continued as such to the end of 1929, and off and on thereafter. Previously he had been a member of the executive board. During that period from 1927 to 1929, one Charles Gfoldman was secretary and treasurer of the union and Abraham Shiplacoff was its general manager. Weiss had a restaurant business. Neither he nor Simmons was a member of the union or in any way connected with it. There is no evidence in the record that any one of the defendants was previously engaged in the business of assault or murder or that any one of them had a previous criminal record. ,

It is competent to prove motive in a prosecution for any criminal offense where reliance for conviction is placed upon circumstantial evidence. It is, however, a circumstance, like other circumstances, which must lead and tempt the mind to. perform the criminal act. The circumstance must be proved in the same manner and lead to the conclusion sought in the same way as any other circumstance upon which reliance is placed. The motive inferred must have some legal or logical relation to the criminal act according to known rules and principles of human conduct. If it has not such relation, or if it points in one direction as well as in the other, it cannot be considered a legitimate part of the proof ” (People v. Fitzgerald, supra, pp. 258, 259). In the instant case, the motive must have been to kill; otherwise * ‘ it cannot be considered a legitimate part of the proof.” No such motive may be inferred from the evidence in this case on which the prosecution relies to establish motive in the case of either Weiss or Simmons. Neither had any union or other labor affiliation; of no interest to either, so far as appears, were Leder’s union or nonunion affiliations or activities. As to Epstein, perhaps some ingenious or imaginative mind ” might “ infer by some process of reasoning the existence of the main fact in issue ” (People v. Fitzgerald, supra, p. 257), but the facts upon which the desired inference is based have no logical or legal relation to the murder according to ordinary rules and principles of human conduct. It is wholly remote and speculative that they necessarily led to a motive to kill Leder to the exclusion of every other hypothesis. More reasonable and logical is it to suppose that Epstein’s motive was to bring Leder to terms or to teach him and others a lesson by available means not involving personal injury or death. Yet the trial judge submitted those facts relating to motive to the jury for consideration as against all the defendants on the ultimate fact of conspiracy to kill. There was no specific or separate charge on the subject of motive, if any, as affecting any one of the defendants separately and alone.

2. Epstein’s job as organizer was a full time job. Among his duties were the organization of union shops and the investigation of the moving and changing of locations of shops. On the afternoon of April 27, 1929, as he was leaving union headquarters on West 21st street he noticed a truck loaded with pocketbook machinery. Returning to the union offices to procure the use of an automobile with which to follow the truck, since he did not know to what location the factory was being moved, he met Adam Rauch, known as “ Kid Adams ” and referred to by that name throughout the record, and told him a factory was moving and that he wanted to see where the machinery was going. He asked Adams if he wanted a ride. Adams claimed that he was an odd job investigator for the union to check up on nonunion activities. Having procured a car, Epstein, Adams and the chauffeur followed the truck to Poughkeepsie where Epstein learned the location of the new Leder factory. One of the truck drivers noticed the auto following- the truck and complained to a policeman who questioned Epstein. The latter explained his errand, gave his card with name, address and business connection on it to the officer, one of the truck drivers entered Epstein’s car, and they were allowed to proceed. Epstein rode on the front seat "with the chauffeur; Adams and Whalen, the truck driver, on the back seat. The truck driver testified that Epstein told him that he was an organizer for the union, that Leder was going up to the 918 (meaning $9.18 per week) town to scab,” that “ it would be nice in this town if a few more of the lousy bastards would go out like that. He said, Don’t worry,’ they will fix them for it * * * that the manufacturers were moving out of town to beat the unions * * * if those manufacturers keep going out of town and beat the unions, there would be something done about it * * * They are a bunch of lousy bastards * * *. He said he would fix the lousy bastard for it. ’ ’ Adams remembered no such remarks by Epstein and Epstein denied that he made them. The chauffeur was not called to the stand. The chauffeur and truck driver were strangers to Epstein. It is quite improbable and hardly consistent with human experience that Epstein should immediately after his contact with the policeman voluntarily and without invitation or apparent reason express in the presence of Adams and two strangers any intent to kill (People v. Becker, 210 N. Y. 274, 319; People v. Lewis, 275 N. Y. 33, 39). No reason is assigned or suggests itself why Epstein, the alleged brilliant master mind of the conspiracy, should deliberately place in the hands of anyone, at the outset of the alleged conspiracy, evidence upon which he might later be convicted of murder in the first degree.

3. Harry Leder, son of deceased," testified that at about noon of May 7, 1929, he heard someone talking to the electrician at the front end of the new factory, that he was expecting trouble, that he picked up a hammer on the table near him and started to go up to the front end of the factory when the fellow turned around and ran down the steps. He went over to the window and locked out and in front of the building this man was standing with Epstein, who pointed across the street, and the two separated and went in different directions. He had a glimpse of the man twice, each time for about forty seconds. He said he then called and complained to police headquarters. His identification at the trial of Simmons, whom he did not know, as looking like the man with Epstein on the occasion thirteen years previous was dubious and unsatisfactory (People v. Davino, 288 N. Y. 423), and police headquarters at Poughkeepsie, which usually kept a record of complaints, had no record of any call from Leder.

4. Adams testified that on May 7, Epstein was in the offices of the secretary of the union which openly adjoined the offices of the manager; that he (Adams) was standing outside the door of the executive office with ten or twelve other men; there was talking outside and inside the offices; that Simmons and Weiss-got off the elevator; that Goldman, the secretary, opened the door of his office and let them in and while they were walking in he heard a remark from someone whose voice sounded like that of Goldman that We have got to get Leder,” and that then the door was closed; that it was not Epstein who made the statement; that there were ten or fifteen men talking together in the offices and he heard some of the fellows say, All right,” but none of the defendants said that and he did not know who said it. Sometime after that, Epstein opened the door and let Simmons and Weiss out and they went down on the elevator. Adams did not hear any of the defendants say anything. Neither Goldman nor the manager of the union nor any one of the twenty to twenty-seven men who were inside and outside of the union offieés and who, from Adams’ testimony, it may reasonably be presumed were in an equally favorable position to hear and to know what was said and done, was called as a witness.

5. Kid Adams, William Shackman and Arthur H. O’Brien claimed to have been eyewitnesses to the murder.

Adams testified that on the morning of May 8, between nine and ten o’clock, he was walking along West 21st street and met Shackman, a member of the union, and saw Epstein, Simmons and Weiss standing on the north side of the street; that Epstein pointed his finger south across the street but he heard nothing said by any of them; that Simmons and Weiss then hurried across the street; that Simmons carried something under his arm, in his hands, and he pulled it out and struck a man across the street on the head, dropped the thing with which the blow was struck and ran away, with a man, whom he later identified as a letter carrier, following him; and that Weiss and Epstein disappeared in the crowd.

Shackman testified that he had known Epstein for twenty years; that he accidentally met Kid Adams and walked along 21st street with him; that he saw Epstein and two men standing by a parking place on the street; that he did not know the two men and could not identify them at the trial; that one of the fellows had a package wrapped up in a newspaper, but it was not Epstein; that the three were looking across the street and all of a sudden two of them made a fast walk, or they were running, he could not remember definitely, and one of them hit a fellow but he did not know who the fellow was he hit; that Epstein did not go across the street; and that the thing with which the man struck the other one was immediately dropped on the street after the blows were struck with a sound like an iron pipe.

O ’Brien, a letter carrier, said that he was about to leave the hallway of a building after having delivered a parcel when he heard a girl in the hall say, Here comes Mr. Leder,” and as Leder was about to enter the building a man behind him struck him over the head with a package wrapped in paper; that Leder turned around and as he did so the man struck him a second time as he (O’Brien) came running out; that the man struck Leder a third time as he was sinking to the pavement; that the package fell out of the man’s hand and hit the pavement with a sort of metallic sound and the man who struck the blows fled. At that time he observed blood and brain matter coming out of Leder’s head.

Immediately after the homicide in 1929, the police made an investigation and called to headquarters and examined many persons. Epstein voluntarily appeared and told his story and there is no evidence of flight of any of the defendants except as to defendant Simmons at the immediate time of the homicide. Adams, Leder and O’Brien were rounded up and examined by the police. Adams and Leder testified that they immediately identified a photograph then produced by the police which was produced on the trial and admitted in evidence as a photograph of Simmons. Thirteen years later, at the trial, Leder identified Simmons as looking like the man he saw with Epstein in Poughkeepsie and Adams, Shackman and O’Brien identified him as the killer. Immediately after the killing, O’Brien said he reported the transaction to his superior, who, in turn, reported it to the general post office, and they reported it to the police. About three days later detectives came around with pictures and he identified one of the pictures as that of the man he saw wield the weapon. In December, 1929, Simmons voluntarily appeared at the District Attorney’s office with his then counsel, Caesar B. F. Barra, and appeared in a line-up at which O’Brien and various other possible witnesses appeared who received detailed instructions in regard to identifying any one who participated in the murder. O’Brien failed to recognize Simmons at that time and none of the other witnesses at the line-up was called to testify at the trial. O’Brien claimed that his silence was due to fear of personal injury if he told the truth but admitted no threat was made or duress exerted by anyone to compel silence. Shackman was a confessed liar and so thoroughly discredited that his story was of little significance in tact. Preliminary to the trial, he repudiated the story he finally told on the witness stand. He told at least four persons that he had lied to the District Attorney and attempted through a reputable attorney to persuade the police that the story was a complete fabrication. His excuse for silence for twelve years was to save the union and Epstein, but he, at the same time, denounced the union officials as racketeers and gang’sters. Adams, without whose testimony, as the court charged the jury, there could be no conviction of Epstein or Weiss, said that he told the police in 1929 the same story he told on the witness stand except that he did not then tell that he witnessed the homicide, first, because he was not questioned on that point, and second, because he was afraid of a personal attack if he told the truth. He said there was no threat to injure him or duress exercised to keep him quiet. Although it was his duty to report to the union regularly, he said he made no report to the union of what he saw of the murder and made no statements to anyone else about it, not even to Shackman, until 1940, when, after a grilling, he finally told his story to the authorities. It was intimated by the defense that Adams was implicated in the crime which accounted for his certainty of details of the principal occurrences since ‘ ‘ a man who has been guilty of a crime himself will always be able to relate the facts of the case ” (People v. Feolo, 284 N. Y. 381, 388). It was only he who said he was present as a witness to the murder and not as a partidpant (Cf. People v. Nitzberg, 287 N. Y. 183, 187). It is said that his participation in the principal events and his character and business might readily direct suspicion to him and his motive for fabrication is plain. Adams ’ testimony is a story of a publicly planned conspiracy to kill which challenges credulity (People v. Lewis, 275 N. Y. 33, 39) and which we are not compelled to accept (People v. Becker, 210 N. Y. 274, 318).

Although the question of credibility of witnesses is usually one for a jury, in cases of murder in the first degree it is our duty to review all questions of fact and determine whether the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt ” (People v. Crum, 272 N. Y. 348, 350). In this case we must conclude that the evidence is not of that character and quality.

Aside from any question of the credibility of witnesses, we have attempted to point out that the criminal conspiracy was not proven since the inferences from the incidents upon which it was necessarily based did not meet the test required of circumstantial evidence, either singly or combined, by excluding to a moral certainty every hypothesis except that of guilt (See cases supra; and People v. Paige, 283 N. Y. 479). If Epstein made the statements attributed to him by Whalen, they are as consistent with the design and intent to discipline Leder by means not involving bodily injury as with a design to kill him. No inference could properly be drawn from the presence of Epstein or Simmons in Poughkeepsie, if either was there, that they or either one of them had a design to kill Leder. Had Epstein or Weiss been bound by the statements alleged to have been made at union headquarters, no inference was permissible from those statements that they indicated an intent to kill to the exclusion of all other inferences. Neither does the fact, if it be a fact, that Epstein pointed to Leder on the occasion of the killing exclude all inferences except that of an intent that Simmons should kill Leder. Nor does the mere fact that Epstein and Weiss were at the scene of the crime, if that be a fact, lead to any inference to the exclusion of all others that they were engaged in a criminal conspiracy to kill (People v. Ligouri, 284 N. Y. 309, 318). As concerns Epstein and Weiss, any intent or design to effect death must necessarily be inferred from other inferences on the record here. Accordingly, there was lack of proof by circumstantial evidence of the criminal conspiracy (People v. Galbo, 218 N. Y. 283; People v. Woltering, supra; People v. Razezicz, supra) and there is no claim that there was any direct evidence of such a conspiracy. There was no sufficient evidence, direct or circumstantial, on which a jury might find knowledge on the part of Epstein and Weiss that Simmons had such a weapon as would warrant an inference that death would be likely to ensue from its use.

Among the various alleged errors on the trial which counsel for defendants urge upon us as grounds for reversal, we select two which cannot properly be passed by without comment.

1. The court charged that if Epstein and Weiss knew that Simmons had a dangerous weapon and it was their understanding that Simmons was merely to assault Leder with it, they would be responsible for the normal and necessary consequences of his act and it would not lie in their mouths to say that they intended to have Leder assaulted and beaten with the weapon but that they did not intend to have him killed. That charge constituted a serious error of law (People v. Walker, 198 N. Y. 329; People v. Pignataro, 263 N. Y. 229). Such a charge withdrew from the jury the necessity of finding an intent to kill. The existence of that essential element of the crime of murder in the first degree, although inferable in some instances from the fact and manner of killing, can never rest upon a presumption of law (Stokes v. People, 53 N. Y. 164, 179; People v. Baker, 96 N. Y. 340; People v. Flack, 125 N. Y. 324). By the charge the jury was virtually required to convict defendants if they conspired to commit an assault (People v. Marendi, 213 N. Y. 600).

2. In connection with the episode at union headquarters on May 7th, the day before the murder, to which Adams alone testified, there was nothing to show that Epstein was near the door when it was opened by G-olchnan and the threat “ We have got to get Leder ’ ’ made or that he heard it or was in a position to hear it or that, if he heard it, he acquiesced in the purpose of the statement, whatever the purpose behind it may have been. Adams’ testimony that such a statement was made was inadmissible or, at least, not binding on Epstein (People v. Larulia, 140 N. Y. 87; People v. Koerner, 154 N. Y. 355, 374, 375, 379; People v. Smith, 172 N. Y. 210, 233), and, if not binding on Epstein, it was not binding on Simmons and Weiss as co-conspirators. Motion was made to strike out the testimony, the motion was denied and an exception' was noted. Since the testimony was one of the most important items of evidence relied on by the People to establish intent and deliberation and design to effect death and the most vital link in the chain of circumstantial evidence to establish the crucial fact of conspiracy to kill, the erroneous admission and retention of the testimony present serious error.

It has been suggested that the conviction of all three defendants should be sustained since the jury might have found the defendants guilty of murder in the first degree solely on the testimony of eyewitnesses to the actual murder. Aside from any other objection that might be raised, that idea is necessarily based on the premise that the jury may have properly discarded the conspiracy theory on which the case is founded. Neither the District Attorney nor the trial judge subscribed to any such premise. The People do not rely upon any such premise and do not rest upon it on this appeal. In the opening of the brief of the learned District Attorney he says: The theory of the prosecution was that the killing was committed pursuant to a conspiracy entered into by the defendant Harry Epstein, * * * and the defendants Jacob Weiss and Jacob Simmons.” Finally the case was neither tried nor submitted on any such theory. The trial judge charged the jury, It is the theory of the People that the assault of Leder was the result of a criminal conspiracy, understanding or combination between these three defendants, and that that conspiracy was a conspiracy to attack Leder with a dangerous weapon in such a way that the attack might and probably would result in Ms death. * * * The defense also denies that the People have shown facts and circumstances from wMch any logical and reasonable conclusion could be drawn that the death of Leder was the result of or brought about pursuant to a criminal conspiracy, involving them or any of them. The theory of the People with reference to the criminal conspiracy is based upon what is known in the law as circumstantial evidence. * * * Did these defendants, at sometime prior to the morning of May 8,1929, conspire together to criminally assault Leder, or to kill Leder, or both? The theory of the People is that they proved beyond a reasonable doubt by direct evidence, and by facts and circumstances from which only one logical and reasonable inference can be drawn, that the defendants, arid all of them, sometime prior to the actual commission of the crime, had conspired together to assault and kill Leder, or to assault him. * * * So your inquiry at this point should be, was there such a conspiracy or understanding between these three defendants, a conspiracy to attack Leder, to attack him with a dangerous weapon, and to attack him in the manner in which he was attacked so that it brought about his death? * * * If you have a doubt as to the existence of any criminal conspiracy, any such criminal conspiracy having that purpose in mind, you must acquit the defendants Epstein and Weiss of the crime of murder in its first degree, and as to Simmons, I will come to him a little later. * * * And, of course, if you have a reasonable doubt as to the existence of such a conspiracy, you must acquit the defendants Epstein and Weiss of this charge. ’ ’ And during a recapitu- - lation of the charge, after reiterating his instructions concerning conviction or acquittal under the conspiracy theory, the learned court said, “ If, on the other hand, you reject the theory of conspiracy as advanced by the People, you cannot find the .defendant Epstein guilty of any crime, you cannot find the defendant Weiss guilty of any crime. You must acquit them both.” Accordingly, we cannot consider or pass upon the guilt or innocence of these defendants or any of them on some theory that is not in this case.

The court charged that only in the event that the jury rejected the theory of conspiracy among the defendants should the jury consider the case against Simmons alone. In that contingency, the court defined the various crimes of murder and manslaughter and charged the jury that they might find him guilty of murder in the first degree, murder in the second degree or manslaughter in the first or second degree, according as they found him responsible for the various elements, involved in such crimes, or they must acquit him. Under the charge, the two theories were essentially inconsistent and mutually exclusive. We do not pause to refer to the charge on the subject of the responsibility or lack of responsibility of Simmons for the homicide in the event the jury should discard the conspiracy theory. Nor need we consider the sufficiency of the evidence to establish the guilt of Simmons with the conspiracy theory out of the case. The jury necessarily adopted the conspiracy theory since, without it, under the charge, Epstein and Weiss could not have been convicted. It was impossible for the jury to convict Epstein and Weiss by adopting the conspiracy theory and at the same time and on the same evidence convict Simmons by discarding the conspiracy theory. We must assume that the jury followed the instructions of the court which required them to acquit Epstein and Weiss if they should discard the conspiracy theory before convicting Simmons on the other theory. We cannot surmise or speculate to the contrary and must assume that all three defendants were convicted on the conspiracy theory. Since the judgments of conviction against Epstein and Weiss must be reversed as they are unsupported by the evidence, it follows that the judgment of conviction against Simmons must also be reversed.

The judgments of conviction should be reversed and a new trial ordered.

Desmond, J.

(concurring). I concur for reversal and a new trial as to all defendants, on the sole ground that the conviction of all three defendants was on the theory of a conspiracy to kill, and that such a conspiracy was not proven beyond a reasonable doubt.

Finch, J.

(dissenting). The People’s case against all three defendants rests upon direct evidence by three eye witnesses, two of whom are good citizens of unimpeachable character. These three defendants, acting in concert, killed Hyman Leder by battering out his brains in broad daylight on a busy street in the center of New York City, as he was about to enter his factory.

The jury could have rejected all the circumstantial evidence and still there would have been ample evidence to sustain their verdict.

By reason of the verdict of the jury, we are entitled to view the evidence in the light most favorable to the People’s case and to draw reasonable inferences therefrom.

In brief, the evidence shows that Epstein, an organizer of the union, planned and directed the murder of the employer Hyman Leder in order to teach a lesson and act as a deterrent to all those employers who intended to move their factories outside of the jurisdiction of the local union. The jury chose to believe the direct evidence of the crime which was furnished by the three eye witnesses, which constitutes ample evidence to sustain the verdict of the jury, and, it is submitted, precludes the setting aside of this verdict as against the weight of the evidence.

The conviction of Simmons can rest solely upon the testimony of Arthur O’Brien, the letter carrier. Standing only a few feet away, he saw Simmons strike Leder three times over the head with an iron pipe about two feet long and weighing three pounds, with such force that Leder’s " blood and brains and everything started to come off.” That Simmons struck such blows with intent to kill is inferable from this testimony. Likewise, the testimony of Adam Bauch is sufficient to justify the verdict of the jury that Epstein and Weiss acted in concert with Simmons in the murder of Leder. Bauch personally knew all three defendants, having known Epstein for upwards of ten years. Standing a few feet from these three defendants, Bauch saw defendant Epstein point his finger across the street, marking Leder as he was about to enter his factory, and the other two defendants, namely Weiss and Simmons, immediately run across the street towards Leder, and Simmons strike the fatal blows while defendant Weiss stood by until the crime was completed. The fact that Epstein’s command set in motion the killers, who immediately thereafter caused Leder’s death with a murderous weapon, which Epstein must have seen in Simmons’ hand before the assault is sufficient to sustain the conviction of Epstein. The case against Weiss rests upon the fact that when Epstein gave the command, Weiss ran across the street in company with Simmons, and stood by while the latter committed the murder. There is no innocent explanation of the actions of Weiss. The only normal and reasonable inference is that which the jury drew, namely, that Weiss intended to assist Simmons in killing Leder.

But it is said that these witnesses are not to be believed because, through fear of receiving the same treatment accorded to Leder, they remained silent about their knowledge of the murder, and on a previous occasion shortly after the crime failed to point out the defendant Simmons to the police. Both witnesses explained their long-continued silence by testifying that they were afraid of gangster violence. This explanation is entirely feasible. The changes rung on this were properly addressed to the jury, and the evidence was ample to sustain their decision. If the testimony of such witnesses is to be declared unworthy of belief, crimes committed by organized criminals appear difficult of punishment. The testimony of Bauch is assailed because it is said that he had formerly been a successful prizefighter and, therefore, would not be afraid of gangsters. Even the most rugged physique is not protection against heavy iron pipes or bullets. The long-continued silence of these witnesses, induced as they testified through fear' of gangster violence, is a factor to be taken into consideration in weighing their credibility, but it is not so inconsistent with what the jury have found to be the truth as to cause the Court to interfere with the decision of this evidence made by the jury.

Finally, the credibility of Bauch is attacked by surmising that it may have been he who committed the murder or participated in it. In other words, we are asked to reject the finding of the jury, supported by the testimony of three eyewitnesses, who in broad daylight and standing only a few feet away saw these three defendants, acting in concert, kill Leder, and moreover, to cast out this testimony by indulging in the surmise that Bauch committed the crime merely because the latter was present at the scene. It is submitted that thus to overturn the verdict of the jury upon mere speculation, unsupported by any evidence whatsoever, is not to accord due weight to the verdict of the jury. But in addition to the above direct evidence by eyewitnesses, there is further direct evidence of'the participation of Epstein in the murder by the witness William Shackman. As shown above, the testimony of Shackman may be disregarded entirely by the jury and still, through the above testimony, there is sufficient to sustain the verdict of the jury. The testimony of Shackman is assailed heavily upon the ground that he had made prior inconsistent statements. But these prior inconsistent statements do not render the testimony of Shackman unworthy of belief by a jury, since Shackman offered a reasonable and plausible explanation of why he made these prior inconsistent statements. His explanation was his desire to avoid hurting the union and Epstein. Since Shackman had long been a member of the union and had known Epstein twenty years, his reluctance to testify was reasonable and normal. At any rate, his explanation is not so unlikely that it does not lie within the province of the jury to decide his credibility. Shackman’s credibility is strengthened because his testimony fits consistently into the testimony given by the other two eyewitnesses who are good citizens of unimpeachable character. His credibility is given added weight by the fact that he did not pretend to see all the details of the crime, as might be expected of a prevaricating witness, but rather he testifies to seeing only a few details of the occurrence, and which details are considerably less than either Rauch or 0 ’Brien testified they saw. The total effect of the testimony of Shackman, if accepted by the jury, was to strengthen the case of the People against Epstein, which even without this testimony would still be sufficient to sustain the verdict of the jury finding Epstein guilty.

It is urged that evidence of this crime is incredible in that the defendants would hardly have planned a murder in so public a manner. But there is moving evidence that Epstein intended and planned the murder as an object lesson to other manufacturers who might be tempted to follow the example of Leder and move away from the city of New York so as to escape the jurisdiction of the union and the closed shop contracts.

The accounts of the three eyewitnesses of the murder are strongly supported by the evidence that Epstein, upon being taken into custody on the day of the murder, had in his pocket, two receipts, one of which gave evidence of their nature by showing that it was given for the payment of money. One of these receipts was made out to Jack Weiss,” " Spunky,” and the other to “ Jackie Simmons.” This evidence bears strongly on the motive of Weiss and Simmons to participate in the crime. The evidence preponderates in supporting the finding of the jury that the motive of Epstein, as an organizer of the union who included among his duties the organization of union shops and the investigation of the moving and changing of location of shops, was to make what happened to Leder an example of what would happen to others endeavoring to move outside of the city to escape the jurisdiction of the local union.

The circumstantial evidence fills out the background of the murder of Hyman Leder and is briefly summarized as follows. Harry Leder, the son of Hyman Leder, testified that Simmons came into the factory at Poughkeepsie (the reasonable inference being that he was looking for Hyman Leder) on the day before the murder, and that Simmons fled when Harry Leder approached. Looking out of the window, Leder saw Epstein and Simmons across the street from the factory. It is a fair inference that Epstein was here likewise directing Simmons. Harry Leder saw Simmons only on this one occasion, and at the trial, therefore, would not go beyond the statement that the defendant Simmons looked like the man who had been at the Poughkeepsie factory. For this reason his testimony is characterized as unsatisfactory. On the contrary, it would appear that Harry Leder is an honest witness who, having seen Simmons only fleetingly, would not testify to more than was within his power, even to avenge the death of his father. Contrasted with his identification of Simmons is his positive identification of Epstein whom he had known for a long time and consequently did not hesitate to identify positively.

The witness Bauch supplied also two other important items of circumstantial evidence. It was he who testified about the union conference, just prior to the consummation of the crime, when Simmons and Weiss visited the conference at union headquarters and entered the room of the secretary of the union where Epstein and some others were present, and where the secretary of the union was heard to say, “ We got to get Leder,” and received the response, “ All right.” Bauch also testified as to the command of Epstein to him to join Epstein in the automobile to follow the van moving Leder’s machinery to Poughkeepsie, in order to see where it was to be located. No reason is suggested why his testimony in these respects is incredible. Indeed, the testimony of Bauch, as to the trip to Poughkeepsie with Epstein to spy on the location of Leder’s new factory, is supported by the testimony of the truck driver Whalen, a witness of good repute who testified that Epstein told him that he was an organizer for the union, that Leder was going “ up to the 918 (meaning $9.18 per week) town to scab,” that ‘ ‘ it would be nice in this town if a few more of the lousy bastárds would go out like that.” And that then Epstein said, “ Don’t worry, they will fix them for it * * * that the manufacturers were moving out of town to beat the unions,” and if those manufacturers keep going out of town and beat the unions, there would be something done about it * * * They are a bunch of lousy bastards * * * He said he would fix the lousy bastard for it.”

There is thus ample evidence, both direct and circumstantial, to sustain the conviction of all three defendants.

It is submitted that neither of the alleged errors of law warrants the setting aside of the verdict of the jury.

It is claimed that the court erred in calling attention to the fact that Simmons armed himself with this iron pipe and then struck Leder three times on the head and inflicted the wounds which were testified to by the medical examiner, and then, charged, “ If he did, and if the other defendants knew he was armed with such a weapon, if it was their understanding to so assault Leder with it, they would be responsible for the normal and natural consequences of such an act, and it would not lie in the mouth of anyone to claim that they intended to have Leder so assaulted and beaten with such a weapon, but that they did not intend to kill him.” [italics not in original.] It is claimed that the court thereby withdrew from the jury the necessity of finding an intent to kill. A complete answer to this contention is that the experienced trial counsel of defendants did not take any exception or objection at the trial to this portion of the charge. Secondly, the court had just charged, not once but many times, that before you can convict anyone of the crime of murder in its first degree, you must find that there was an intent to kill Hyman Leder, and that that intent to kill was preceded by premeditation and deliberation.” Also, at the end of the charge, the court said, “Well, gentlemen, finally, to recapitulate, if * * * you believe, further, that Simmons’ act was done pursuant to a criminal conspiracy to kill the deceased, any person who was a participant in that conspiracy, and so found by you to be, should be found guilty of murder in its first degree.” Thus, since this excerpt to which objection is now made, is found in between instructions which were definite and clear, that there must be an intent to kill, a reading of the charge as a whole shows that the jury could not possibly have understood the instructions differently than that Epstein and Weiss could not be convicted of murder in the first degree unless they possessed an intent to kill and the requisite premeditation and deliberation. If there was any likelihood that the jurors understood the entire charge differently, certainly the experienced trial counsel of the defendants would not have allowed the excerpt in question to pass without objection and exception. The fact that counsel failed to object to this, or to remark upon it in any way, demonstrates cogently the insignificant and innocuous character of the alleged error, (cf. People v. Johnson, 185 N. Y. 219, 232; People v. Flanigan, 174 N. Y. 356, 372.) In fairness to the trial judge, he should be apprised by objection before an error of this character is relied upon to set aside the verdict of the jury.

The second error alleged is that it was improper to receive the testimony concerning the statement made in the office of the secretary of the union where the three defendants, Epstein, Simmons and Weiss were meeting with the secretary and apparently others two days before the killing. Bauch testified that when the door was opened he heard someone who sounded like Goldman say “We have got to get Leder,” and thereafter heard someone in the room whom he did not identify, say “ All right.” Thereafter Bauch testified he saw Epstein open the door for Simmons and Weiss as they left. This testimony was received without objection or exception. Indeed on the cross examination of Bauch, the defense itself went into the conversation in the office and had the witness repeat the account he had just given upon his direct examination. This evidence thus being in the record without objection or exception, it was not error to deny the motion to strike out. Furthermore, it is settled that statements by one conspirator in furtherance of the conspiracy, to which the defendants were parties, are properly received, (People v. Connolly, 253 N. Y. 330; People v. Becker, 215 N. Y. 126, 148, 149.) In order to render such statements admissible, it was only necessary to establish a conspiracy which contemplated the killing of Leder, in which the defendants shared. (People v. Becker, 215 N. Y. 126, 149.) Likewise, statements of co-conspirators are admissible, even though all the conspirators are not on trial. (People v. Connolly, 253 N. Y. 330; People v. Luciano, 277 N. Y. 348.) The evidence shows such a conspiracy, beginning with the trip to Poughkeepsie and ending with the murder. The concerted action of the three defendants subsequent to the meeting in the union office, shows the meaning of the decision to get ” Leder. We do not, however, have to rely on the foregoing to make the evidence admissible, for the court expressly charged the jury that it could not consider these statements unless they found that a conspiracy existed and that the defendants assented to these threats. Whether these defendants assented to these threats was a question of fact for the jury under all the circumstances presented by the evidence.

The judgments of conviction against the three defendants should be affirmed.

Lehman, Ch. J., and Loughran, J., concur with Rippey, J.; Desmond, J., concurs for reversal and a new trial as to all three defendants in a separate memorandum; Finch, J., dissents in opinion in which Lewis and Conway, JJ., concur.

Judgments reversed, etc.


author: Per Curiam.

text:
    Mary E. W. Field, as Executrix of Charles H. Wiltsie, Deceased, Appellant, v. Dominick Stalica, Individually and as General Guardian of Joseph Stalica et al., Infants, et al., Defendants; Union Properties, Inc., et al., Defendants-Appellants, and Village of Depew et al., Defendants-Respondents.
    Argued January 12, 1943;
    decided March 11, 1943.

      Philip Halpern, Emil L. Cohen and Morris Weinstein for defendants-appellants.

      Ralph A. Lehr, County Attorney (Maurice J. Rumizen of counsel), for County of Erie, respondent.

      Harold P. Kelly for Village of Depew, respondent.

      Frederick T. Sherwood for Village of Hamburg, amicus curiae, in support of position of respondents.

      Selwyn R. Mack, Village Attorney, for Village of East Aurora, amicus curice, in support of position of respondents.
   Per Curiam.

In County of Nassau v. Lincer (280 N. Y. 662) and Village of Garden City v. Roeder (280 N. Y. 663) this court considered and necessarily decided that under section 116 of the Village Law, in villages the lien of both village and county taxes had priority in chronological order. We find nothing in the provisions of law applicable in Erie county which varies the statutory rule applied in those cases. The Legislature, noting the objections to the rule of priority formulated in the Village Law, has changed that rule by chapters 303 and 770 of the Laws of 1940, but the amendment is not retroactive.

The judgments so far as appealed from should be reversed and the matter remitted to the County Court to enter judgment fixing the order of priority of tax liens in accordance with this opinion, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.


text:
    Toy T. Roberts et al., Respondents, v. Peter Larsen et al., Appellants.
    Argued January 12, 1943;
    decided March 11, 1943.

      Irving Ginsberg for appellants.

      Jerome O. Ellis for respondents.
   Per Curiam.

The motions for dismissal of the cause of action for breach of the covenant against encumbrances were properly denied in view of the undisputed proof of actual encroachments tending to establish that cause of action. Consequently the exceptions of the defendants to the denial of these motions are not sufficient to raise the question whether breach of such a covenant can be predicated on the necessity for repairs or alterations to conform a structure to building laws, and we express no opinion thereon.

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.


text:
    Max Loewinthan, Appellant, v. Beth David Hospital et al., Defendants, and Charles Loventhal et al., Defendants-Respondents.
    Submitted March 2, 1943;
    decided April 8, 1943.

      B. Leo Schwarz and Sidney M. Wittner for appellant.

      David J. Rosen for respondents.
   Per Curiam.

The complaint should not have been dismissed as against these defendants-respondents. Their communications were protected by a qualified privilege but plaintiff’s proof made out a prima facie case of malice. (Ashcroft v. Hammond, 197 N. Y. 488.) The question was for the jury.

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

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.