source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Charles C. Clark, Appellant.
    Crimes — taking unlawful fees — public officers — trial — evidence — erroneous exclusion and reception of evidence • — ■ crime not committed unless money is received with wrongful intent — statute broad enough to cover any case where public office is wrongfully used for private gain —■ offense committed under innocent mistake not included — rule that ignorance of law does not excuse may not be stretched into conclusive presumption of knowledge of law so as to supply element of criminal intent.
    1. Where, upon the trial of an indictment charging defendant with taking an unlawful fee as a public officer, in violation of section 1826 of the Penal Law, the jury might upon all of the evidence have drawn an inference of fact that the payment was made and received by defendant as compensation for work done in his official capacity and could also have drawn the opposite inference that it was a payment made for services previously rendered in connection with a proceeding for which it was understood defendant was to receive compensation in addition to his regular salary, it was error to exclude testimony to show that the mayor had agreed upon a larger payment than that fixed by the council. Assuming that the mayor had no power to increase the compensation, if both he and defendant assumed that the power existed, payment made thereafter of the amount allowed by the mayor would, so far as concerns the charge contained in the indictment and the question of fact submitted to the jury, have the same effect as if the mayor had legal right to increase the compensation previously fixed by the council.
    2. It was also error to receive testimony tending to show that defendant four years before receiving the alleged unlawful payment, as part of his alleged services to the village, since incorporated as a city, drew up a contract which may have been illegal or dishonest. It tended to introduce into the case the question of defendant’s general character and evidence on that question was not then admissible.
    3. In any event a charge which makes payment and receipt of compensation in addition to salary the sole test of guilt is erroneous. Intent to ask or receive payment of compensation that is not lawful must be proved. Such intent is shown only when it appears that a public officer has received something which the law does not permit him to accept.
    4. A contention that when the statute is read in the light of its history it becomes evident that it was intended to apply only to bribery cannot be upheld, as such construction would unduly Emit its language. The statute was enacted to carry out the purpose of section 2 of article 13 of the Constitution of this State and must be read in connection with that section. Its language is broad enough to cover any case where an incumbent of office wrongfully uses it for private gain and should not be restricted beyond its plain intent. On the other hand, the title of the constitutional provision showing that the prohibited offense is at least analogous to bribery may not be entirely disregarded and courts should not by construction enlarge the language of a statute intended to cover corruption and impure conduct in office so that it will also include offenses committed under innocent mistake, even of law. Nor should the rule that ignorance of the law does not excuse be stretched into a conclusive presumption of knowledge of the law in order to supply the element of criminal intent to do the prohibited act.

      People v. Clark, 215 App. Div. 721, reversed.
    (Argued March 3, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 13, 1925, which affirmed a judgment rendered at a Trial Term for the county of Nassau, upon a verdict convicting the defendant of the crime of taking an unlawful fee as a public officer.

      Abel E. Blackmar and Peter P. Smith for appellant.
    The trial court erred in charging the jury that defendant could not lawfully receive from the city anything except his salary, and that it made no difference whether he received the $1,000 from the city or from Cass. (People
      v. Fitzgerald, 180 N. Y. 275.) The court erred in charging on the question of intent and in refusing defendant’s requests therefor. (Queen v. Tolson, 23 Q. B. 168, 177; 2 Bishop on Criminal Law [9th ed.], § 391; State v. Pritchard, 107 N. C. 921; Cutter v. State, 36 N. J. L. 125; People v. Kolloch, 60 Cal. 116; Triplett v. Munster, 50 Cal. 644; Commonwealth v. Shed, 1 Mass. 228; People v. Kibler, 106 N. Y. 321; People v. Werner, 174 N. Y. 132; People ex rel. Hegeman v. Corrigan, 195 N. Y. 12.) There is no evidence in the case that Clark knew or believed that the $1,000. was paid him for services for the city on the condemnation and two other proceedings. (Supervisors v. Briggs, 2 Den. 33; Bank Staten Island v. City of N. Y., 68 App. Div. 233; People ex rel. McCabe v. Matthies, 179 N. Y. 251.) The court erred in permitting, over the objection and exception of the defendant, evidence that Clark was concerned in malting what was alleged to be an illegal contract between Reynolds and the city. (People v. Fitzgerald, 156 N. Y. 253; People v. Harvey, 235 N. Y. 282; Chamberlayne on Evidence, § 3275; Adams v. People, 9 Hun, 89; People v. White, 14 Wend. 111.)

      Albert Ottinger, Attorney-General {Kenneth M. Spence and Robert S. Johnstone of counsel), for respondent.
    Corrupt motive is not an element of the offense defined by section 2 of article 13 of the Constitution and section 1826 of the Penal Law. The trial court properly instructed the jury upon the question of criminal intent. (People ex rel. Hegeman v. Corrigan, 195 N. Y. 1; People v. Werner, 147 N. Y. 132; People v. Kibler, 106 N. Y. 321; People v. D’Antonio, 150 App. Div. 109, 111; Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57; People v. Abeel, 182 N. Y. 415; People v. Luhrs, 127 App. Div. 434; 195 N. Y. 377; People v. Perce, 204 N. Y. 397; People v. Atwater, 229 N. Y. 303; People v. Foster, 236 N. Y. 610; People v. Harrison, 238 N. Y. 348; People v. O’Brien, 96 Cal. 171; R. v. Asplin, 12 Cox C. C. 391.) The proof established that the payment to the defendant was for his services rendered as corporation counsel and that he knew that this was the purpose of the payment. (People v. Sutherland, 207 N. Y. 22; Board of Supervisors Richmond Co. v. Ellis, 59 N. Y. 620; People ex rel. Coughlin v. Gleason, 121 N. Y. 631; Smith v. Hedges, 223 N. Y. 176.) The trial court properly charged the jury that the defendant could not lawfully receive any compensation for services rendered by him as corporation counsel in addition to bis salary. (Board of Supervisors Erie Co. v. Jones, 119 N. Y. 339; People ex rel. Conine v. Steuben Co., 183 N. Y. 114; City of Poughkeepsie v. Wiltsie, 36 Hun, 270; Matter of McCabe v. Aulls, 123 Misc. Rep. 471; Cowan v. Mayor, 3 Hun, 632; Throop on Public Officers, § 478.) The court properly excluded evidence concerning an alleged conversation between Cass and the village president. (Blake v. People, 73 N. Y. 586; People v. Wright, 133 App. Div. 133; Neil v. Thorn, 88 N. Y. 270.)
   Lehman, J.

The defendant Charles C. Clark was appointed corporation counsel of the city of Long Beach on June 1, 1922. Section 23 of the charter of that city provides that the corporation counsel “ shall when directed by the council prosecute and defend all actions and proceedings by and against the city and every department thereof, and perform such other professional duties relating to said city as the mayor or council may direct,” and the same section provides that the corporation counsel shall receive such compensation for services actually rendered as may be approved by the Council.” In another section of the charter (Section 13) it is also provided that the corporation counsel shall receive such compensation as shall be agreed upon from time to time by the council.” The city council fixed the salary of the corporation counsel at the sum of $6,000 per annum and thereafter increased the salary to the sum of $7,500-

In May, 1923, the city council decided that the city should acquire by condemnation proceedings a certain standpipe owned by the Long Beach Water Company and which was needed by the city to complete its water system. On May nineteenth it passed a resolution directing that the Council, the Mayor and Corporation Counsel * * * take proper proceedings for the purchase through condemnation of said property.” The resolution further provided that Mr. Alvin C. Cass of Long Beach be employed as special counsel to act with the Corporation Counsel Charles C. Clark, in the matter of the condemnation of said standpipe and the lots upon which it is erected, and in any other, further or different litigation that may ensue between the Long Beach Water Company or its successors or assigns and the City with relation to the property, plant or rights of the Long Beach Water Company.” Mr. Cass and this defendant thereafter initiated the condemnation proceedings as directed and represented the city in these proceedings, and other litigation that ensued until July 2, 1923. On July 2, 1923, Mr. Cass put in a voucher: "For legal services. To Alvin C. Cass account legal services for acquisition and establishment of .Water Plant, $2,000.” Mr. Cass was paid the sum of $2,000 upon this voucher and then gave the defendant a check for $1,000.

These facts are established by documentary evidence and are undisputed. Because the defendant received this check for $1,000 the defendant has been indicted by the grand jury and convicted of the felony of taking unlawful fees as a public officer. Both the People and the defendant agree that section 1826 of the Penal Law (Cons. Laws, ch. 40) applies to the offense charged in the indictment. It provides in part that a public officer who acts or receives or consents or agrees to receive, any emolument, gratuity or reward * * * except such as may be authorized by law for doing or omitting to do any official act * * * or for having performed or omitted to perform any act whatsoever directly or indirectly related to any matter in respect to which any duty or discretion is by or in pursuance of law imposed or vested in him or may be exercised by him by virtue of his office or appointment or his actual relation to the matter, shall be guilty of a felony punishable by imprisonment for not more than ten years or by a fine of not more than four thousand dollars or both.” The defendant’s work in connection with the condemnation proceedings of the standpipe was performed by virtue of his appointment as corporation counsel, under resolution of the council passed pursuant to law, imposing upon him duties in the matter. His salary was fixed at $7,500. No statute or even ordinance authorized him to receive additional compensation. Consequently, under a literal interpretation of the statute he has done the forbidden act if the check for $1,000 from Mr. Cass was received by the defendant as additional compensation for these services. The trial justice so interpreted the statute and left to the jury only the question whether Mr. Cass paid and the defendant received the money as compensation solely for services rendered in connection with the condemnation of the standpipe and certain other matters growing out of the same proceeding.

Before we consider whether this interpretation placed upon the Penal Law was correct and whether the issues may be so restricted, it may be well to state briefly the evidence presented and to consider whether even under the issue so restricted, there have been errors in the admission and exclusion of testimony. The evidence of the People is entirely documentary except for the testimony of Mr. Cass. The defendant upon the cross-examination of plaintiff’s witnesses who produced and identified documentary evidence, also introduced documentary evidence produced by these witnesses. His counsel also cross-examined Mr. Cass and upon such cross-examination elicited some testimony in his favor. The defendant rested after the close of the plaintiff’s case without producing any witnesses or taking the stand himself. He does not ask court or jury to disregard as false any testimony produced against him. No point is made that under our rules of law failure to deny by the accused leads to no inference that denial could not be made. The defendant’s attitude is in effect that though the competent testimony against him be accepted as substantially true, the surrounding circumstances show that the check for $1,000 was paid for services previously rendered to the village of Long Beach and was received by him under honest belief that he was legally entitled to ask and accept it.

The defendant was corporation counsel of the village of Long Beach from 1916 until its incorporation as a city and until he was appointed as corporation counsel of the city. While acting for the village he did considerable, work in connection with procuring a water supply. During part of this period he received a fixed salary of $1,500, but it was evidently understood that this salary was not adequate compensation for the work required and that he was to be paid additional compensation. In October, 1919, a resolution was adopted by the council under which compensation to this defendant and Mr. Cass, who acted with this defendant in these matters for the village of Long Beach, just as he subsequently acted with defendant for the city of Long Beach, was fixed at four thousand dollars. Even after the city of Long Beach was incorporated, the defendant was paid by the city for services rendered to the village in connection with these water supply matters and these payments together with those made to Mr. Cass aggregate more than the sum fixed by the resolution. The last of these payments to the defendant was made on April- 25, 1923, upon a.voucher presented by him which reads: “On account of compensation in re acquisition establishment and development of water plant at Long Beach, $1,500.” At that time, it must be remembered, the proceedings for the condemnation of the standpipe had not been authorized or initiated. These proceedings apparently were made necessary because other efforts to purchase through arbitration were unsuccessful. The defendant was indicted upon a charge of receiving compensation in addition to his annual salary for work done as corporation counsel in connection with these condemnation proceedings and under resolution of May, 1923, to which we have referred above. If the payment of $1,000 was received for services previously rendered in connection with the acquisition of a water supply, then the defendant was not guilty of this offense with which he is charged; if paid and received for services rendered in connection with the condemnation proceedings of the standpipe, then under the charge of the trial justice, the jury was bound to find the defendant guilty.

That issue is extremely narrow. The last previous payment, as stated above, was made to the defendant on April 25, 1923, upon a voucher “ on account of compensation in re acquisition, establishment and development of water plant at Long Beach.” The payment to Mr, Cass was obtained upon a voucher made July 2, 1923, “ account legal services for acquisition and establishment of water plant.” If both payments were made foi services in the one matter or defendant so believed, then concededly the People cannot succeed. To prove guilt the People must at least show that on April 25, 1923, the defendant understood that he had been paid in full for services rendered to the village in the matter of the acquisition of the water supply and that he received subsequent payment with knowledge that it was intended as compensation for subsequent services beyond the salary which in law fixed the compensation. Mr. Cass testified that he told the defendant that he intended to put in a voucher for $1,500 for his services. The defendant told him in effect that he would claim the same amount as his compensation. Thereafter Mr. Cass talked to the mayor and asked whether it would be “ all right ” if each put in a voucher for $1,500, and the mayor replied: the water fund is low, put in a voucher for $2,000.” Thereupon Mr. Cass told the defendant he would put in such a voucher to cover both claims. He did so but the voucher failed to show on its face that it covered anything more than his own claim. According to his testimony this omission was due to mistake either on his part or on the part of his stenographer. There is no evidence to show that the defendant saw the voucher or knew of its form and Mr. Cass testified that he did not.

The defendant now claims that the testimony briefly outlined above is insufficient to show that the payment thereafter made on this voucher was intended to cover only services rendered in connection with the condemnation of the standpipe after May 19, 1923, and that the voucher itself finally and conclusively establishes that the payment of July, 1923, like the payment of April, 1923, was made for services in connection with the acquisition and establishment of water plant ” and not merely a single part of the plant. Examination of the testimony convinces us that the form of the voucher submitted by Mr. Cass does not, under the circumstances here presented, show conclusively the purpose for which the city made the payment; it certainly cannot show the defendant’s understanding of that purpose. Upon the whole record the jury might have drawn an inference of fact that the payment was made and received by defendant as compensation for work done in connection with the condemnation proceedings only. It could also have drawn the opposite inference that it was a payment made as compensation in general for services rendered in connection with the acquisition of the water supply system for both the village and city of Long Beach and subject perhaps to future adjustment.

This was the question submitted to the jury. Intention and understanding of the parties is an important if not indeed the determinative factor in arriving at its answer. The People say the money received could not have been payment for services rendered" previously because the compensation authorized by resolution of the village council for such purpose has already been overpaid. The defendant attempted to show that the mayor had agreed upon larger payment. Testimony to shew this was excluded. It is now argued that the exclusion was justified because the mayor had no power to increase compensation fixed by the council. We may assume, without deciding, that the mayor had no such power. If both the defendant and the mayor assumed that the power existed, payment made thereafter of amount allowed by the mayor would, so far as concerns the charge contained in this indictment and the question of fact submitted to the jury, have the same effect as if the mayor had legal right to increase the compensation previously fixed by the council. If wrong may be charged against the defendant because of receipt of such payment, it is not the wrong charged against him in this indictment on which the jury has found him guilty. The only charge which he was required to meet and which was tried out was whether he h'ad received compensation “ not authorized by law ” for services rendered in connection with the condemnation proceedings. Testimony which tended to show that the payment made was intended for other purposes was relevant and should have been admitted. The same considerations should have dictated the exclusion of testimony which tended to show that the defendant in the year 1919, as part of his alleged services to the village, drew up a contract which may have been illégal or dishonest. It is not claimed that right to compensation for services in connection with that contract was ever disputed or that the defendant’s conduct in connection with that contract has ever been attacked except in this action where it was not subject to attack. It tended to introduce into the case the question of the defendant’s general character and concededly evidence on that question was not then admissible. It was not relevant or material upon the one issue presented.

We need not now decide whether these errors in regard to the admission or exclusion of evidence would in themselves require a reversal of the judgment for ip our opinion the conviction rests upon a fundamental error in the interpretation of the Penal Law. We have referred to these errors in regard to the evidence presented, before we have placed our own construction on the section of the statute under which the indictment has been laid, because they emphasize the narrowness of the issue submitted to the jury. The defendant has acted as a public officer in the village and city where he «resided for seven years. He has been convicted of a felony with all the consequences which follow from such conviction. The jury has decided that he asked for and received compensation for services beyond the amount fixed by the common council. There is no claim or evidence that in the performance of his official duties he was influenced by this payment or that he made payment of this compensation a condition of such performance. It is not claimed and there is no evidence that he used his official position to extort this payment. It was not shown and the jury has not found that the defendant obtained this payment by fraud or deceit or that he knew that the voucher submitted did not show that he claimed compensation for services rendered by Mm. The trial judge charged repeatedly that the only question wMch the jury should pass upon is whether the payment was made and received for services rendered in the condemnation proceeding and the other litigation arising out of or connected with that litigation. He refused to charge that “ the defendant cannot be convicted unless it is established beyond a reasonable doubt that the amount of compensation fixed by the common council of Long Beach to be paid to the corporation counsel was intended to cover the defendant’s services in the condemnation proceedings between the city of Long Beach and the Long Beach Water Company,” and he also refused to charge that “ if the defendant received the sum of $1,000 from Mr. Cass and the defendant believed that he had a right to receive the same and did receive it without wrongful and corrupt intent, the defendant cannot be convicted.” The sole test of guilt under this charge is whether payment of compensation, in addition to the salary allowed to the defendant, was received for services rendered as.part of the duties of his office. Even though the council had power to fix the defendant’s compensation, even though it intended and the defendant understood that additional compensation should be made for services connected with this proceeding; even though the defendant may have believed that he had a right to receive this payment and did receive it without wrongful and corrupt intent, the jury were bound to find the defendant guilty of a felony if he received a payment which was not authorized by law. The case presents squarely the question whether under the statute, the stigma of the felon may be placed upon one who has been guilty only of error of judgment or mistake of law.

We may concede that the Legislature may prohibit an act which was otherwise innocent in the eyes of the law and that merely from intent to do the forbidden act, criminal intent must at times be inferred regardless of the motives of the accused and regardless even of whether he knew that the act was forbidden. We have held that a conviction of forgery in the third degree under subdivision 3 of section 514 of the Penal Code, now section 889 of the Penal Law," may be sustained where proof was made that the defendant uttered a letter purporting to have been written by a third person and misrepresenting the sentiments of that person, even though it did not appear that the defendant intended to injure him. (People v. Abeel, 182 N. Y. 415.) We have held that a conviction under section 889 of the Penal Law may be sustained upon proof of intentional falsification or unlawful alteration of books without actual intention to defraud. (People v. Anderson, 239 N. Y. 534.) In these and similar cases the prohibited acts were vicious in their nature and we refused to read into the plain language of the penal statute an unexpressed intention on the part of the Legislature to punish such acts only if they were done with intent to defraud or injure a third party. Criminal and corrupt intent could be inferred reasonably from the doing of the act itself and we could not impute to the Legislature intention to require additional wrongful intent.

In the present case the Legislature has seen fit to prohibit a public officer from asking or receiving or consenting or agreeing to receive any emolument, gratuity or reward for doing or omitting to do any act in connection with his official position “ except such as may be authorized bylaw.” At common law such act might be bribery or extortion but both bribery and extortion implied evil and corrupt intent. The statute is remarkable in that under literal interpretation even to ask for compensation not authorized by law or to consent to receive such compensation or reward when freely offered for extraordinary exertions, becomes a felony. An honest official who receives a salary fixed by statute which was unconstitutional or who brings suit to test the validity of a statute would under such construction come under the statutory ban; an honest officer who is honored by his ■fellow citizens by valuable testimonial for services honorably performed might find himself a felon. It may be said that no prosecuting officer would bring criminal proceedings for such technical offense; no court would permit them and no jury would convict. It may be said with equal right that no court should impute to the Legislature the intent, even if it has the power, to make such innocent act a felony, and construction of a criminal statute to include such acts is unreasonable if other construction is possible.

The defendant urges that when the statute is read in the light of its history it becomes evident that it was intended to apply only to bribery. Such construction would in our opinion unduly limit its language. Both sides agree that the statute was enacted to carry out the purpose of section 2 of article XIII of the Constitution of this State and must be read in connection with that section. The constitutional section was originally adopted by the People in 1874 as an amendment to the existing Constitution. It was formulated by the “ Committee on Official Corruption ” which reported that “ the simple purpose of the proposed amendments is purity in office.” Though the title of the section in our Constitution is “Acceptance of bribe by public officer a felony,” its purpose was to secure more effective protection against misuse of public office for private purpose and its language and the language of section 1826 of the Penal Law should not be construed as limited to the common-law offense of bribery. It is hardly to be supposed that a constitutional amendment would have been proposed merely to insure that bribery should always be regarded as a felony. The language of section 1826 of the Penal Law is broad enough to cover any case where an incumbent of office wrongfully uses his office for private gain and we should not restrict that language beyond its plain intent. On the other hand, we may not disregard entirely the title of the constitutional provision showing that the prohibited offense is at least analogous to bribery and we should not by construction enlarge the language of a statute intended to cover corruption and impure conduct in office so that it will also include offenses committed under innocent mistake, even of law.

It is said that in statutory crime, the only criminal intent which need be shown is the specific intent to do the prohibited act. That may often be true yet in each case it depends upon the construction which the court places upon the statute. (Halsted v. State, 41 N. J. L. 552.) Statutes in similar language have been construed,as not precluding inquiry into intent. (Cutter v. State, 36 N. J. L. 125; State v. Pritchard, 107 N. C. 921.) A public officer may, of course, rightfully ask or receive his lawful compensation; the statute prohibits him from asking or receiving compensation or reward “not authorized by law.” There can be no intent to do the prohibited act unless the officer knows that he is asking or receiving something “ not authorized by law.” In other connection these words might be construed as referring to statutory provisions only (Brinckerhoff v. Bostwick, 99 N. Y. 185), i. e., that only where a statute expressly fixes salary or compensation, other reward may not be received. In this case the words must receive a broader .construction if the purpose of the statute is to be effectuated. It applies alike to all officers regardless of whether their compensation is fixed by statute or ordinance or contract legally made. It does not attempt to fix what compensation or reward may lawfully be obtained; but it prohibits and makes criminal the asking or receiving of more than is lawful. Ordinarily ignorance of law can constitute no excuse or defense to criminal prosecution but here there can be no intent to do the prohibited act unless there is knowledge that the compensation or reward is more than is permitted in law. May we reasonably hold that the Legislature intended that knowledge of what reward or compensation is in fact authorized by law must in all cases be conclusively presumed though what constitutes lawful compensation may depend upon consideration of doubtful factors and of imperfectly formulated' principles and rules?

Cases in which the courts have passed upon the proper ■ construction of statutes where though the form is criminal the matter is civil (Bishop on Criminal Law [9th edition], vol. 1, section 291) or where for the protection of one class an act which might be innocent has been made a misdemeanor, can furnish us no help in construing the present statute. Such cases are governed by different considerations. We do not pass here upon the meaning of section 855 of the Penal Law which makes extortion a misdemeanor. The statute under which this defendant was convicted is aimed against wrongdoing and corruption in office. It makes such wrongdoing a felony punishable with ten years’ imprisonment. It deals with offense so • serious that by constitutional provision that offense must be treated as a felony. The gist of the offense is the asking or receiving of money by an officer as compensation not authorized by law. From intent to commit the offense inference of corrupt and criminal intent follows sufficient to justify punishment. Faithlessness to a trust in itself is corrupt but honest mistake is not corrupt. There can be no intent to do the prohibited act unless the defendant knows that he is asking or receiving reward which is illegal. Legality or illegality is not written large upon the statute but may depend on varying circumstances and unwritten rules of common law. The jury has been instructed to convict if payment was made as compensation for services in legal effect covered by salary though it was the understanding that the salary should not include such compensation. It has been instructed that they may convict even though the defendant received the money believing that he had a right to receive the same. In construing this statute the rule that ignorance of the law does not excuse should not be stretched into a conclusive presumption of knowledge of the law in order to supply the element of criminal intent to do the prohibited act. In other cases, such as larceny or extortion, where specific intent is an element of the crime, ignorance of the law may be proven to show there was no such intent. (See Cutter v. State, supra; Bishop on Criminal Law, sections 291, 291a, 299.) It is plain that the Legislature must have intended that either a general criminal intent or a specific intent to do the prohibited act must be shown before a public officer can be convicted as a felon. When the Legislature supplies only the test of whether an act is authorized by law ” and that test .may be applied only by knowledge not only of relevant statutes but of relevant rules of common law, it would be unreasonable to hold that the Legislature intended that criminal intent must be found though the defendant made a mistake of law.

Ordinarily the Legislature may not be presumed to have passed a penal statute making an act a felony unless it believed that the prohibited act was vicious. Penal statutes should be construed accordingly to give effect to the legislative intent. The crime of receiving money “ not authorized by law ” is not committed unless the money is received with wrongful intent. That intent is shown when it appears that the public officer has received something which he knows that the law does not permit him to accept. The law is too often complicated and doubtful to permit us to hold that knowledge of the law must in such case be conclusively presumed so that the jury may convict where in fact there has been no corrupt or criminal intent and no intention to injure others or to do the prohibited act and no understanding that the defendant was receiving more than he legally might.

The judgments should be reversed and a new trial ordered.

Hiscock, Ch. J., Pound, McLaughlin, Crane and Andrews, JJ., concur; Cardozo, J., absent.

Judgments reversed, etc.


text:
    In the Matter of the Application of Larkin Co., Inc., Respondent, for a Peremptory Order of Mandamus against Frank X. Schwab, as Mayor of the City of Buffalo, et al., Appellants.
    Buffalo (city of) — municipal corporations — license — mandamus —• council of city of Buffalo has power to prohibit or regulate storage within city of gasoline in dangerous quantities — ordinance providing that no consent should be granted for installation of tanks beyond certain capacity except upon vote of four-fifths of council valid — power to issue order of mandamus for license — courts may not formulate standards to be used in exercise of discretion — that consents were granted to others similarly situated does not of itself show that refusal of consent to petitioner was arbitrary — courts may not interfere with refusal of permit, in exercise of discretion.
    1. Under the provisions of the charter of the city of Buffalo the council has unquestioned power to prohibit or regulate the storage within the city of gasoline in dangerous quantities and an ordinance adopted by said council which regulates the transportation and storage of gasoline, entirely prohibits its storage under certain conditions without the consent of the council and provides that “ no consent for the burying of a tank in excess of five hundred and fifty gallons capacity shall be granted except by a vote in favor thereof of at least four-fifths of the members,” is valid.
    2. In considering the power to issue a mandamus order for license, permit or consent, the courts must take into consideration the limits of the discretion which under the statute or ordinance is vested in the administrative body. The courts may not interfere with discretion as to when exception shall be made, nor formulate standards to be used in the exercise of that discretion; they may interfere only when it is clearly shown that refusal is based solely upon grounds which as matter of law may not control the discretion of the administrative body.
    3. That consent was arbitrarily refused to an application of petitioner for permission to install tanks of large capacity upon its premises for the storage of gasoline is not shown by the mere fact that consents were granted to owners of premises somewhat similarly situated. The question is not whether some one else has been favored. It is whether the petitioner has been illegally oppressed. Exercise of discretion in favor of one confers no right upon another to demand the same decision.
    4. Where, in the exercise of its discretion, the council of the city of Buffalo, refused the application of the petitioner, not alone because user of the consent would involve interference with traffic, but because in view of such interference the public benefit to be derived from. consent does not outweigh the disadvantages that are connected with the storage, the courts may not interfere with the discretion so exercised. (Matter of Picone v. Comr. of Licenses, 241 N. Y. 157; People ex rel. E. C. T. Club v. State Racing Comm., 190 N. Y. 31, distinguished.)

      Matter of Larkin Co. v. Schwab, 215 App. Div. 751, reversed.
    (Argued March 4, 1926;
    decided March 30, 1926.)
    ! Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 11, 1925, which affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel the defendants to issue a permit to the petitioner for the installation of gasoline storage tanks upon certain premises in the city of Buffalo.

      P Frederic C. Rupp, Corporation Counsel (Andrew P. Ronan of counsel), for appellants.
    The ordinance regulating the storage of oil and gasoline is a valid exercise of the police power of the city of Buffalo. (Fischer v. City of St. Louis, 194 U. S. 361; Davis v. Massachusetts, 167 U. S. 43; Wilson v. Eureka City, 173 U. S. 32; 2 Dillon on Mun. Corp. § 598.) The council has the right to determine the location of gasoline stations. (City of Buffalo v. Hill, 79 App. Div. 402; People ex rel. Doyle v. Atwell, 232 N. Y. 96.) The action of the council in refusing this permit was not arbitrary or capricious. (Standard Oil Co. v. City of Minneapolis, 204 N. W. Rep. 165.) The granting or withholding of the consent of the council in this matter was absolutely discretionary. (People ex rel. Durham R. Corp. v. LaFetra, 230 N. Y. 429;
      Lincoln Trust Co. v. Williams Building Corp., 229 N. Y. 313.)

      John Lord O’Brian and Ralph Ulsh for respondent.
    The Larkin Company, as an abutting owner on Bailey avenue, has an easement of unrestricted access to its property for business purposes. This is property of which it cannot be deprived except by due process of law and upon payment of compensation. (McMillan v. Klaw & Erlanger Const. Co., 107 App. Div. 407; Kane v. N. Y. E. R. R. Co., 125 N. Y. 164; Lahr v. Met. El. R. R. Co., 104 N. Y. 266; Peace v. M’Adoo, 46 Misc. Rep. 295; 110 App. Div. 13; People ex rel. Winthrop v. Delaney, 120 App. Div. 801; Waldorf-Astoria Hotel Co. v. New York, 212 N. Y. 97; Forster v. Scott, 136 N. Y. 577.) The city cannot under an ordinance requiring permits for the storage of inflammables deprive the respondent of the right of access to its property from Bailey avenue or regulate traffic. (Matter of Picone v. Comr. of Licenses, 241 N. Y. 157; People ex rel. C. H. Realty Co. v. Stroebel, 209 N. Y. 434; People v. Green, 85 App. Div. 400; City of Buffalo v. Kellner, 90 Misc. Rep. 407; City of Buffalo v. Collins Baking Co., 39 App. Div. 432.) The action of the city council in refusing a permit was unreasonable, arbitrary and discriminatory and not in the exercise of any lawful discretion. (Lees v. Cohoes Motor Car Co., Inc., 122 Misc. Rep. 373; People ex rel. Empire City Trotting Club v. State Racing Commission, 190 N. Y. 31; People ex rel. Lodes v. Department of Health, 189 N. Y. 187; People ex rel. Cosby v. Robinson, 141 App. Div. 656.)
   Lehman, J.

In May, 1924, the petitioner Larkin Co., Inc., made application to the council of the city of Buffalo for permission to install upon certain premises it occupied two submerged tanks for the storage of gasoline of the capacity of 10,000 gallons each. The city council denied this application, but a peremptory mandamus order has been granted at Special Term and affirmed by the Appellate Division commanding the council to issue a permit authorizing the Larkin Co., Inc., to install upon its premises two submerged tanks for gasoline of the capacity of 10,000 gallons each, and to construct and operate upon said premises a gasoline filling station and accessory house.”

Under the provisions of the charter of the city, of Buffalo the council has unquestioned power to prohibit or regulate the storage within the city of gasoline in dangerous quantities. Pursuant to these powers the council adopted an ordinance which regulated the transportation and storage of gasoline, and entirely prohibited its storage under certain conditions without the consent of the council. The ordinance states that “ no consent for the burying of a tank in excess of five hundred and fifty gallons capacity shall be granted except by a vote in favor thereof of at least four-fifths of the members.” It provides further that such consents may not be given under certain conditions, but it does not attempt to set forth conditions under which it shall be granted. The application of the petitioner shows that none of the conditions are present which, under the terms of the ordinance, would place granting of consent by the council beyond its powers. The council has concededly the power to act; it chooses not to do so. The mandamus order has been granted because. the courts have held that refusal to act is unreasonable, and that as a matter of law upon conceded facts the petitioner is entitled to a permit, and no room is left for the exercise of the discretion of the council in granting or refusing its consent.

Before we consider the circumstances surrounding the council’s denial of petitioner’s application in this particular case, we should determine the extent of the powers and duty of the council under the ordinance. The ordinance fixes no standards which must govern the determination of the council as to when its consent should be granted or withheld. The ordinance is not invalid for this reason. The council, acting in its legislative capacity, had power to prohibit entirely the storage of gasoline in large tanks within the city limits, if in its opinion the danger and disadvantage arising therefrom outweighed the benefits which might be derived from permitting such storage. It decided to prohibit storage in tanks of over five hundred gallons capacity, except where consent was thereafter given in special cases. It might in the ordinance have provided that the dispensing power should be exercised in accordance with formulated standards; it preferred to make determination of whether consent should be granted in any special case, dependent upon the facts of that case. The council, acting in its legislative capacity, enacted that the dispensing power should be vested in the same body that enacted the statute. Such statute is valid. (Fischer v. St. Louis, 194 U. S. 361.) It makes a general rule, but maintains the right to create exceptions. It does not deny to any person the equal protection of the laws nor deprive him of liberty or property without due process of law. It places upon all alike the prohibition against the use of large tanks within the city, except where four of the five members of the council shall grant consent. It assumes that the council will exercise its discretion honestly, without unreasonable discrimination against particular persons or classes, and solely as the result of decision that special circumstances dictate exception to general rule. The purpose of the statute is to authorize discrimination on reasonable grounds, for the purpose of granting consent. An applicant is deprived of his rights only when unreasonable discrimination is shown to dictate the refusal. The courts may not interfere with discretion as to when exception shall be made, nor formulate standards to be used in the exercise of that discretion; they may interfere only when it is clearly shown that refusal is based solely upon grounds which as matter of law may not control the discretion of the council.

In considering the power to issue a mandamus order for license, permit or consent, the courts must take into consideration the limits of the discretion which under the statute or ordinance is vested in the administrative body. Refusal to grant a permit must be considered arbitrary where based solely upon grounds which under the statute the administrative body may not consider. Under some statutes license to conduct a lawful business must be granted to any applicant of good character who complies with definitely formulated conditions. Refusal to grant a permit to a qualified applicant who complies with these conditions but fails to comply with other conditions which the administrative body seeks to impose, is arbitrary as matter of law. (Matter of Picone v. Comr. of Licenses, 241 N. Y. 157.) The additional condition might prove of public benefit, but the licensing authority had no power to impose it. So in People ex rel. E. C. T. Club v. State R. Commission (190 N. Y. 31) the applicant was concededly entitled to a license, except for conditions which the licensing body had no power to impose. Here the body empowered to grant consent is the same body as enacted the ordinance. That consent may be granted only under exceptional circumstances. Preliminary conditions must be fulfilled before the consent may be granted, but no conditions are formulated, expressly or implied, under which it must be granted thereafter. That is left to untrammeled, but of course not capricious discretion of the council. As the field of discretion of the council in regard to circumstances which dictate granting of consent is enlarged, opportunity for the intervention of the courts becomes restricted. Into the field of legislative or administrative discretion the courts may not enter. Before mandamus order may issue, proof must be made that denial was based solely upon ground which may not affect even untrammeled discretion of the board.

The applicant in this case shows that it has complied with the preliminary conditions laid down in the ordinance .without which the council might not grant consent. It shows further that it desires to use the gasoline in connection with a drive-in ” filling station on its premises, and that similar licenses have been granted upon application of other parties whose premises were situated as near to a railroad as this applicant’s premises, and where danger from storage of gasoline was at least as great. It shows .other facts which would tend to prove that a grant of consent would have no injurious effect upon the health, welfare or convenience of the general public, or of the owners and occupants of neighboring premises.

The mere fact that consents were granted to owners of premises somewhat similarly situated does not in itself show that consent was arbitrarily refused to this applicant. The question is not whether someone else has been favored. The question is whether the petitioner has been illegally oppressed. Exercise of discretion in favor of one confers no right upon another to demand the same decision. Unlimited discretion vested in an administrative board by ordinance is not narrowed through its' exercise. Calculated failure to lay down general standards in the ordinance should not be nullified by interpretation that each case passed upon creates a standard that must be generally followed thereafter. The council ■ may refuse to duplicate previous error; it may change its views as to what is for the best interests of the city; it may give weight to slight differences which are not easily discernible. There are, of course, extreme cases where analogy is so complete, where grant of consent under similar circumstances has been so frequent, both before and after refusal in one instance, that inference arises that the refusal is the result of unfair discrimination and oppression. Especially is this true where strong reason is made out for granting the consent. In such case, perhaps, the courts may call upon the dispensing power to rebut such inference. We do not in this case decide whether or not the facts shown are sufficient for this purpose. The city council has explained its reasons; we proceed upon the assumption that they are the reasons why consent was not granted.

These reasons may be briefly summarized as follows: First, ingress to the “ drive-in ” station where the gasoline is.to be stored is on a curve of almost ninety degrees and on a down grade. Second, “ a gasoline station storing 20,000 gallons of gasoline would be a very dangerous proposition located between two railroads, on the north by the Pennsylvania Railroad and on the south by the Lehigh Valley Railroad.” It denies that the consent granted to other applicants which this petitioner relies upon to prove discrimination “ were made under circumstances substantially similar to those affecting the location of the -petitioner, and alleges that none of the applications to which reference has been called is in any way similar to the application of the petitioner herein, in that none of them is situated upon such a dangerous curve on a down grade.”

The courts below have construed the answering affidavits as admitting that the sole ground for refusing consent is that the entrance to the proposed gasoline station is on a curve or down grade and is, therefore, dangerous to other traffic upon the busy highway where the premises are situated. That construction is somewhat too narrow. The defendant does not say that the storage of gasoline is not dangerous in proximity to railroads; it says it is dangerous, but that in other cases in the exercise of discretion it chose nevertheless to grant consent, while in this case it chooses not to grant that consent because to the danger from the gasoline itself would be added the danger to traffic from cars turning off. The ordinance does not impose upon the council expressly or impliedly the duty to grant consent for the storage of large quantities of gasoline wherever such gasoline is stored at a certain distance from a railroad or even whenever the council finds that the gasoline may be stored without unusual or unnecessary danger. If danger of fire or explosion were the only factor to be considered, then it would seem that regulation would be more effectively secured by general standards or by requiring approval of the fire department. The ordinance itself shows that consent was to be given only under unusual circumstances which satisfy four out of five members of the council that it should be given. It presupposes that storage of gasoline in quantities may be a source of danger and a disadvantage to the city. It imposes upon the council the duty of determining when this disadvantage is outweighed by the advantage to be derived from granting consent in special cases. The property owner has a right of access from the street to his premises for convenience, pleasure or business. We assume for the purposes of this case, without further consideration, that the city may not confer upon a board the right to prohibit appropriate use of particular premises when the board thinks such use would obstruct or endanger other traffic. Even though that be true, yet if consent for storage of gasoline would produce interference with or danger to traffic, that is a matter which may legitimately enter into consideration of the council when called upon to determine whether it shall in a particular case dispense with the general prohibition against such storage. Though that reason considered alone might not come within the scope of the discretion of the council, it “ need not be wholly disregarded and may even become decisive in a case otherwise doubtful.” (People ex rel. Sprenger v. Dept. of Health, 226 N. Y. 209.)

The proof shows that discretion of the council has been exercised under similar circumstances; it does not show that in those cases it was wisely exercised; certainly even in those cases the council might have refused consent if it had seen fit. In the exercise of its discretion it refuses the application of this petitioner, not alone because user of the consent would involve interference with traffic, but because it holds that in view of such interference the public benefit to be derived from consent does not outweigh the disadvantages that are connected with the storage. The courts may not interfere with discretion so exercised.

The orders should be reversed and the petition dismissed, with costs in all courts.

His cock, Ch. J., McLaughlin, Crane and Andrews, JJ., concur; Cardozo, J., absent; Pound, J., not voting.

Orders reversed, etc.


author: McLaughlin, J.

text:
    Hannah Rankin, Respondent, v. Ittner Realty Company, Inc., Appellant.
    Negligence — landlord and tenant — fall from slipping on steps — failure of evidence to show negligence on the part of landlord.
    Where, in an action, tenant against landlord, to recover for personal injuries, plaintiff testified that she left her apartment between two and three o’clock in the afternoon; that as she was going down the steps to the sidewalk she slipped and fell; that on the morning of the day the accident occurred it was raining and it looked to her as if the rain, as it foil on the steps, was freezing; that there had been ice upon the steps prior to the time she fell; that in her judgment that ice had been there four or five hours, but she had not been out of her apartment after eight o’clock in the morning until she fell, and there is no other evidence as to how long the ice had been on the steps or that defendant or its representative had any notice thereof, and defendant showed by testimony of an official from the Weather Bureau that on the day of the accident the temperature ranged from twenty-four to forty-three degrees above zero; that at the hour of the accident it registered thirty-seven; that it began to rain about noon and that there was no rain in the morning when the temperature was below freezing, the complaint should have been dismissed or a verdict directed in defendant’s favor, there being nothing to submit to the jury on the question of its negligence.

      Rankin v. Ittner Realty Co., 215 App. Div. 73, reversed.
    (Argued April 1, 1926;
    decided April 7, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 30, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

      Murray G. Jenkins, William B. Shelton and William Dike Reed for appellant.
    The denial of the motions to dismiss the complaint by the trial judge was erroneous, . inasmuch as the plaintiff failed to prove any negligence or notice of negligence on the part of the defendant. (Gianpoala v. Paoli, 129 N. Y. Supp. 180.)

      Herman Silverman for respondent.
    It was not error to deny the motions to dismiss the complaint, in that the plaintiff made out a cause of action by ample and competent testimony. (Weston v. N. Y. Elevated R. R. Co., 73 N. Y. 595.)
   McLaughlin, J.

Action to recover for personal injuries alleged to have been sustained by the plaintiff as the result of slipping on steps leading into an apartment where she lived. The defendant offered no evidence except the testimony of Mr. Scarr, who was Director of the United States Weather Bureau in New York city. - The judgment of the Appellate Division was not unanimous (two of the justices dissented).

There is absolutely no evidence, as I read this record, of any negligence on the part of the defendant. The plaintiff testified that she left her apartment between two and three o’clock in the afternoon of January 4, 1922; that as she was going down the steps to the sidewalk she slipped and fell; that on the morning of the day the accident occurred it was raining and it looked to her as if the rain, as it fell on the steps, was freezing; that there had been ice upon the steps prior to the time she fell; that in her judgment that ice had been there four or five hours, but she had not béen out of her apartment after eight o’clock in the morning until she fell.

There is no proof in the record from anybody as to how long the ice had been on the steps, or that the defendant or its representative had any notice whatever that there was ice on the steps. Mr. Scarr, who had charge of the weather bureau in the city of New York, testified that, according to his records, the lowest temperature on the day the accident occurred was twenty-four degrees above zero and that the highest temperature was forty-three degrees; that at three o’clock in the afternoon, the time when the plaintiff testified the accident occured, the thermometer registered thirty-seven degrees above zero. He further testified that it began to rain about noon; that there was no rain in the morning when the thermometer was below freezing.

There was nothing, as I read the record, to submit to the jury on the question of defendant’s negligence. The complaint ought to have been- dismissed, or the jury directed to render a verdict in defendant’s favor. The Appellate Division was, therefore, wrong in affirming the judgment in favor of the plaintiff, entered on verdict. The judgments of the Appellate Division and of the trial court should be reversed and the complaint dismissed, with costs in all courts.

Hiscock, Ch. J., Cardozo, Pound, Crane and Lehman, JJ., concur; Andrews, J., absent.

Judgments reversed, etc.


text:
    In the Matter of the Petition of Thomas W. Kinney, as Administrator de Bonis Non of the Estate of John Boyle, Deceased, Appellant. Mary Treacy, Respondent.
    Surrogate’s Court — trial — claim against decedent’s estate — claimant who upon rejection of claim does nothing more until cited upon judicial settlement, more than three months thereafter, is not entitled to jury trial as matter of right.
    A claimant against a decedent’s estate whose claim has been rejected by the administrator and who fails to commence an action thereon as provided in section 211“ of the Surrogate’s Court Act, but does nothing further until cited upon the judicial settlement of the administrator’s accounts, is not entitled as a matter of right to a trial by jury of her claim. (Matter of Beer, 188 App. Div. 894; Matter of Stein, 200 App. Div. 726, overruled; Matter of Beare, 122 Mise. Rep. 519; affd., 214 App. Div. 723; Matter of Woodward, 188 App. Div. 888, approved.)

      Matter of Kinney, 216 App. Div. 726, reversed.
    (Argued April 6, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 11, 1926, which affirmed an order of the Kings County Surrogate’s Court granting as of right a jury trial to determine the validity of the claim of Mary Treacy against the estate of John Boyle, deceased.

      John J. Fitzgerald and Avery F. Cmhman for appellant.
    The respondent has no constitutional right to a jury trial of her claim in this proceeding. (Matter of Beare, 122 Misc. Rep. 519; 214 App. Div. 723; Matter of Woodward, 105 Misc. Rep. 446; 188 App. Div. 888; Matter of Harkness, 119 Misc. Rep. 361; Matter of Stark, 118 Misc. Rep. 240; Matter of Crook, 119 Misc. Rep. 643; Matter of Scovill, 218 N. Y. 707; Matter of White, 100 Misc. Rep. 56; Matter of Callahan, 95 Misc. Rep. 438.)

      Harry H. Schutte for respondent.
    The respondent has a constitutional right to a jury trial of her claim in this proceeding. (Wheelock v. Lee, 74 N. Y. 495; Matter of Iovinella, 166 App. Div. 460; Matter of Beer, 188 App. Div. 894; Matter of Stein, 200 App. Div. 726; Matter of Scovill, 218 N. Y. 707.)
   McLaughlin, J.

On February 15, 1917, one Mary Treacy presented a claim to the administrator de bonis non of the estate of John Boyle, deceased, for the sum of three thousand and twenty-two ($3,022) dollars for board, lodging, care and medical services alleged to have been furnished by her to the decedent. On February 20, 19Í7, the claim was by him rejected, coupled with a statement in writing that the validity of such claim would be submitted for trial and determination on the judicial settlement of his account. Nothing further was done until November 5, 1925, when the administrator de bonis non filed in the Surrogate’s Court his account and asked for a judicial settlement of the same. A citation was issued and among other persons cited Was the claimant. Upon the return of the citation she appeared by attorney, objected to the account, and asked that the validity! of her claim be submitted to a jury for trial and that, for that purpose, certain questions be settled and a jury trial ordered. The surrogate ordered that a jury trial be granted and that nine specific questions of fact be submitted to it. The administrator de bonis non then moved for a reargument of the motion. This motion Was granted, but the surrogate adhered to his former decision and again ordered a jury trial “as of right ” upon the issues involved in respect to the rejected claim.

An appeal was taken from this order to the Appellate Division, second department, where the same was unanimously affirmed. The Appellate Division, however, upon motion of the administrator de bonis non, granted leave to appeal to this court and certified the following question:

“ Is the respondent Mary Treacy, a claimant against the estate herein, entitled as a matter of right to a trial by a jury of her claim? ”

I am of the opinion that the Appellate Division was wrong in holding that the claimant “as of right ” was entitled to a jury trial. This seems to me to necessarily follow when the sections of the Surrogate’s Court Act bearing upon the subject are considered.

Section 68 provides: “ In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, * * * the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same * * *.”

Section 211 provides: “ If the executor or administrator doubts the justice or validity of any claim presented to" him, he shall serve a notice in writing upon the claimant that he rejects said claim, or some part of it, which he specifies. Unless the claimant shall commence an action for the recovery thereof against the executor or administrator within three months after the rejection, or, if no part of the debt is then due, within two months after a part thereof becomes due, said claimant, and all the persons claiming under him, are forever barred from maintaining such action, and in such case said claim shall be tried and determined upon the judicial settlement.”

It is true that the Appellate Divisions of the second and fourth departments have held that claimants under facts quite similar to those presented in the present case were entitled as a matter of right to a jury trial. (Matter of Beer, 188 App. Div. 894; Matter of Stein, 200 App. Div. 726.)

The Appellate Division of the first department, however, has taken a different view. . (Matter of Beare, 122 Misc. Rep. 519; affd., 214 App. Div. 723; Matter of Woodward, 188 App. Div. 888.) The rule laid down by the first department has been uniformly followed, so far as I have been able to discover, by the different surrogates of New York county. (See opinion of Foley, S., in Matter of Beare, supra, and authorities there cited.)

The surrogate may, as a matter of discretion, order a jury trial. This he may do not as a matter of right to the claimant but simply and solely in the exercise of the discretion reposed in him. (Matter of Scovill, 218 N. Y. 707.)

The settlement of an administrator’s account in some respects resembles an equity proceeding. It was not formerly recognizable at common law as to which there Was and is no constitutional right to a jury trial. The surrogate is given jurisdiction of such settlement.

The statute gives an absolute right to a jury trial in a probate proceeding, but there is no such right as to a rejected claim. The difference between the two cases was doubtless due to the fact that the Legislature in making the enactment took into consideration the fact that a probate involving title to real estate was conclusive. In view of the finality in such proceedings, it undoubtedly was considered necessary to provide for a jury trial.

It will be observed that provision is made in the statute that where a claim is rejected, an action may be brought in the ordinary way and a jury trial had, if the claimant shall within three months after rejection commence an action for the recovery of the amount of the claim against the executor or administrator, or if the debt is not due, then two months after the same becomes due. And, unless an action be brought within the time specified, then according to the plain wording of the statute the claimant and all persons claiming under him shall forever be barred from maintaining said action and “ in such case said claim shall be tried and determined upon the judicial settlement.”

In the present case, the claim was presented on February 15, 1917, and rejected by the administrator de bonis non on the 20th of February following. The claimant did not ask for a jury trial until more than seven years thereafter. She was never entitled to a jury trial, but if so she lost that right by her own delay. I do not believe the Legislature ever intended to confer the right upon a claimant against an estate to bring an action and if there defeated to demand and obtain another jury trial on the settlement of the administrator’s account. It is to be observed that the claimant herself does not consider that the jury trial which she has demanded is for the purpose of determining that a specific sum of money is due. No general verdict of a jury is asked; on the contrary, answers to some nine questions which if answered by the jury in the affirmative might entitle the claimant to a specific amount if the trial judge saw fit to affirm such findings. '

If the foregoing views be correct, then it follows that the order of the Appellate Division and decree of the Surrogate’s Court should be reversed, with costs in all courts.

The question certified is answered in the negative.

Hiscock, Ch. J., Cardozo, Pound, Crane, Andrews and Lehman, JJ., concur.

Ordered accordingly.