author:
Lewis, J.
      Conway, J.

text:
    Sadie Smolen et al., Appellants, v. Grandview Dairy, Inc., Respondent, et al., Defendants.
    Argued May 24, 1950;
    decided July 11, 1950.

      Bernard Meyerson and Irving D. Josefsberg for appellants.
    The judgment of Trial Term was in accord with the law and evidence and the Appellate Division erred when it reversed the judgment and dismissed the complaint. (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Saglimbeni v. West End Brewing

      Co., 274 App. Div. 201, 298 N. Y. 875; Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Textile Overseas Corp. v. Riveredge Warehouse Corp., 275 App. Div. 236; Cullem v. Renken Dairy Co., 247 App. Div. 742; Licari v. Markotos, 110 Misc. 334; Smith v. Peerless Glass Co., 259 N. Y. 292.)

      Herbert L. Maltinsky and Harry L. Marcus for respondent.
    I. Negligence of defendant-respondent was neither proven nor established, consequently, the reversal of the judgment by the Appellate Division was proper. (MacPherson v. Buick Motor Co., 217 N. Y. 382; Cullem v. Renken Dairy Co., 247 App. Div. 742; Garthe v. Ruppert, 264 N. Y. 290; Levine v. Blaine Co., 273 N. Y. 386.) II. The order of the Appellate Division dismissing the complaint was in accordance with law. (Bourcheix v. Willow Brook Dairy, Inc., 268 N. Y. 1; Smith v. Peerless Glass Co., 259 N. Y. 292; Saglimbeni v. West End Brewing Co., 274 App. Div. 201, 298 N. Y. 875; Bruckel v. Milhau’s Son, 116 App. Div. 832; Dressler v. Merkel, Inc., 247 App. Div. 300.)
   Lewis, J.

The plaintiff, Sadie Smolen, with her husband as coplaintiff, instituted this action against the defendants Grand-view Dairy, Inc., and Owens Illinois Glass Company to recover for injuries sustained when a milk bottle, bearing the imprint of “ Grandview ”, broke in her hand while she was performing household duties. At the close of plaintiffs’ evidence the cause of action alleged against the defendant Owens Illinois Glass Company was dismissed.

At Trial Term a jury awarded the plaintiffs a verdict. At the Appellate Division, where three Justices voted to reverse the judgment on the law and facts and to dismiss the amended complaint on the law, the Presiding Justice agreed with a majority of the court that the judgment should be reversed but favored a new trial, while one Justice voted for affirmance.

Direction for our inquiry upon the present appeal by the plaintiffs is given by the following provision in the order of the Appellate Division: “* * * it is Further Ordered that the findings of fact implicit in the jury’s verdict, that the bottle was cracked while in the possession of the appellant dairy company, and that the dairy company, in its handling of the milk bottles, omitted to make any inspections or tests that were customarily made or used by bottlers of milk, are hereby reversed.”

For the purposes of this opinion it will simplify our statement to refer hereafter only to the cause of action pleaded in behalf of the plaintiff wife who comes before us as an appellant.

The plaintiff’s injury occurred while she was in the act of pouring for her niece a glass of milk from one of the defendant’s partially filled bottles. We take from the plaintiff’s own testimony a description of that occurrence: 11 I got hold of my bottle with the neck. I was going to pour a glass of milk for the child, and as I was about to pour, the bottle fell apart in my hand, and the top of the bottle was left in my hand, holding it. I was left holding the top in my hand, and then I saw the blood started to spurt out from my hand, so I dropped the neck of the bottle on the table, and I ran to the sink. ’ ’

It is not disputed by the defendant that it owned and had filled with milk the bottle which broke in the plaintiff’s hand. Nor is it disputed that the bottle which then broke was one of twelve placed that morning in a wooden case which was delivered at the store door of a grocer who, when he opened his store, placed it in a refrigerator. Later in the morning that bottle of milk was sold by the grocer to the plaintiff who carried it to her apartment with other purchases and placed it on a table where she opened it and poured out at least one glass of milk before the accident occurred.

The plaintiff’s case against the defendant has as its basis testimony by a witness called as an expert who, on direct examination, testified in part as follows: Q. And in your opinion, Professor O’Connell, what, caused this fracture? A. The hypothetical question of counsel stated that the bottle was delivered, sold and used by the plaintiff, that while using it it broke and the bottom part fell to the table. The upper part of the bottle, the head, was thrown down. An examination of the bottle shows that it was properly manufactured. There was no excessive internal strain in the bottle. An examination of the fracture shows that it is a typical thermal shock fracture. That is, the break was produced by a crack being induced in the bottle, that the crack in turn being caused by the bottle being subjected to excessive temperature differential; some place somewhere along the line this bottle had hot liquid hit it, causing a Grach to form on the top. Unfortunately the crack wasn’t sufficient to break the top off completely. The crack was incomplete. However, those things happen quite often, and then subsequent normal handling becomes the straw that breaks the camel’s back, and the bottle then fractures completely. The original necessary and competent producing cause of the fracture is thermal shock.” (Emphasis added.)

At a later point in his direct testimony the same witness stated that “ The thermal shock caused by somebody or something produced the fracture.” The record contains no testimony by that witness, nor by any other witness, as to who was the <£ somebody ” or what was the something ” which caused the incomplete crack; nor was there testimony as to when it occurred. When the same expert was asked by plaintiff’s counsel whether the crack could have been discovered by ££ reasonable inspection ” — his answer was ££ Prior to filling the bottle and the crack being in the bottle at the time — assuming that — reasonable inspection would most definitely reveal the presence of that crack in it.” (Emphasis added.) We find in this record no evidentiary basis upon which such an assumption can be made.

Considering a milk bottle to be a simple article in common household use — neither inherently dangerous, nor involving the potency of danger — we conclude, as did the Appellate Division, that neither the plaintiff’s expert nor any other witness gave testimony — requisite to a cause of action (Bourcheix v. Willow Brook Dairy, 268 N. Y. 1, 7) —that while the bottle which broke in plaintiff’s hand was in the defendant’s possession, it was in any way defective or that the defendant had knowledge or notice of a defect therein.

Nor do we find evidence that in preparing for market the bottle and its contents which were ultimately purchased by the plaintiff the defendant failed to make those inspections which customarily are made by milk bottlers generally. On the contrary the procedure for the inspection, washing and filling of milk bottles, which undisputed evidence shows is followed in milk bottling plants generally, was the procedure followed in the defendant’s plant which produced the bottle of milk that plaintiff purchased. (Garthe v. Ruppert, 264 N. Y. 290, 296; Levine v. Blaine Co., 273 N. Y. 386, 389; Smith v. Peerless Glass Co., 259 N. Y. 292, 296.) That procedure is as follows: When empty milk bottles come into the plant they are. placed on a conveyor which is illuminated from below by a series of lights and moves the bottles past an inspector who examines-them for foreign substances, chips, strays ”, or broken bottles. The bottles then pass into a bottle washer which contains six compartments where different cleansing and rinsing solutions are successively applied to each bottle.-- The' cleansing and rinsing solutions in those six compartments- are maintained at the following temperatures: (1) 65 degrees Fahrenheit, (2) 105-110 degrees, (3) 135-140 degrees, (4) 105-110 degrees, (5) 85-90 degrees, (6) 60 degrees. At the discharge table, which receives the bottles from the washer, they are examined under a canopy light by a bottle inspector.- The bottles-^- then at a temperature of 60 degrees — are-passed'on. to the filling machine which by a vacuum process fills them with milk that has a temperature of 48-50 degrees. At this point we.-note an item of evidence of special importance which also stands uncontradicted— that, by the use of the vacuum .filling process employed by the defendant, if there existed a crack in the body or lip of any bottle the bottle would not fill. After each bottle is filled it is capped, hooded and inspected-by two -inspectors and placed in milk bottle cases.'

Claiming that the breaking of the bottle in plaintiff’.s hand resulted from “ thermal shock caused by somebody or something ” (emphasis added), the plaintiff’s expert defined “ thermal shock ” as follows:

“ * * * If I have a set of bottles and I -want to know whether they are all right as far as normal industrial use is concerned and I wish to subject them to a thermal shock test, I take those bottles, subject them tofrom a-sudden, hot to. a sudden cold or vice versa, with a temperature differential of seventy-five degrees. If they don’t break them, I am happy.
“ Q. In other words, it is a differential of- seventy-five degrees in temperature? A. That’s what I wanted -to.tell you about before.” =-

The testimony by that witness revealed) however-, .that-bn the one occasion when he had inspected a milk bottling plant and had observed there the various processes by which-milk bottles are cleansed and filled, he did not see bottles subjected to a temperature differential of 75 degrees. Indeed it is clear from his testimony that in the plant he visited the cleansing' of milk bottles was accomplished by a process similar to that in use in the defendant’s plant and that the successive temperatures he there observed of cleansing solutions and rinsing waters applied to milk bottles showed differentials which compared closely to the differentials noted supra, maintained by the defendant’s cleansing and filling process. Likewise, although the same witness had testified that the use of a “ polariscope ’ ’ will expose to view a crack caused by thermal shock, he admitted that on the occasion when he inspected a milk bottling plant he did not see milk bottles subjected to examination by a polariscope.

In support of the present appeal the plaintiff relies upon Saglimbeni v. West End Brewing Co. (274 App. Div. 201, affd. 298 N. Y. 875). Aside from procedural factors peculiar to that ease, there are other features which differentiate it from the case at bar. There, according to the record, the bottled product was beer — a liquid which after being bottled under pressure exerts upon the container, under certain conditions, an added internal pressure of 50 pounds per square inch. Moreover, in that case brushes which had an abrasive effect were employed in cleansing the bottles for use. From this evidence, the jury could find that the defendant negligently bottled its 'product. In the present case the liquid was milk, which is not bottled under pressure and which exerts no internal pressure after bottling. Furthermore, the cleansing process used by the defendant involved no abrasive action. In the Saglimbeni case (supra), there was evidence from which a jury could find lack of care by the defendant commensurate with the riskfin the case nowbefore us proof of defendant’s negligence is lacking.

Concluding, as we do,"that the record contains no substantial evidence of a causal relation between some act or omission by the defendant in the preparation of the bottle of milk purchased by the plaintiff and the injury by its use which befell her, we affirm the judgment entered upon the order of the Appellate Division, "without costs.

" The judgment should be affirmed, without costs.

Conway, J.

(dissenting). We are unable to concur in the decision here made. The ultimate and dispositive question in the case is peculiarly one of fact, viz., whether under all the circumstances the defendant dairy company used reasonable care in its inspection and handling of reused milk bottles. We believe that the Appellate Division infringed upon the constitutional province of the jury in deciding that question as a matter of law, in favor of the defendant. Moreover, we feel that the court acted at least in part, upon the mistaken, and potentially dangerous, assumption that defendant had satisfied its duty of reasonable care by taking only those precautions which are said to be customary in the milk bottling industry. If the defendant bottler was negligent in that the precautions taken by it were not adequate to eliminate hazards reasonably to be anticipated, it is no answer, we think, that other bottlers were likewise negligent and took similarly inadequate precautions. Since the decision herein will intimately affect the daily lives and the safety of millions of people in this State, we must express our disagreement.

Plaintiff suffered a deep and jagged laceration in her right palm when a milk bottle from which she was pouring “ fell apart ” in her hand. The bottle of milk had been purchased from a local grocer and bore the imprint of the defendant dairy company. Pieces of the broken bottle were preserved by plaintiff and examined by a glass expert. From his microscopic and polariscopic study of the broken pieces, he was able to testify with certainty that the sudden fracture of the bottle in plaintiff’s hand had not been caused by an external blow, but had been caused by what he termed a “ thermal shock ”. In his own words, “ An examination of the bottle shows that it was properly manufactured. There was no excessive internal strain in the bottle. An examination of the fracture shows that it is a typical thermal shock fracture. That is, the break was produced by a crack being induced in the bottle, that the crack in turn being caused by the bottle being subjected to excessive temperature differential; some place somewhere along the line this bottle had hot liquid hit it, causing a crack to form on the top. Unfortunately the crack wasn’t sufficient to break the top off completely. The crack was incomplete. However, those things happen quite often, and then subsequent normal handling becomes the straw that breaks the camel’s back, and the bottle then fractures completely. The original necessary and competent producing cause of the fracture is thermal shock.”

The qualifications of the expert were not disputed, nor was there any contradiction of his testimony as to the cause of the sudden fracture. Further evidence on behalf of plaintiff was sufficient to establish to the satisfaction of a jury that the thermal crack had not occurred after the milk bottle left the control of the defendant dairy company. The bottles were delivered to plaintiff’s grocer in wooden cases, twelve bottles to a case with a separate compartment for each bottle. The cases were placed in a refrigerator in the store where they remained until the individual milk bottles were sold to the public. Plaintiff purchased the bottle of milk about 11:30 a.m. She put it in her shopping bag and went directly home where she placed the bottle on a table. At lunch time, she was pouring a glass of milk from the bottle when it cracked in her hand. As noted, the jury could find that the thermal crack was present in the bottle when it was delivered to the retailer. That, of course, leads to one of two inferences: Either defendant reused a defective bottle or the thermal crack occurred at some point along the defendant’s bottling line. In either event, the determinative question is whether defendant exercised reasonable care under the circumstances in its inspection and handling of the bottles which, according to its practice, were used over and over again.

In that state of the proof, the burden was shifted to defendant to go forward with evidence that it did all that a reasonable and prudent person might be expected to do under the circumstances to detect the presence in the bottles of dangerous defects of the kind here involved. Defendant attempted to meet this burden by offering the testimony of one person, the man who was in charge of its pasteurization and bottling operations. He testified that when the bottles come into the plant they are in cases, twelve bottles to a case. Those cases are put on a conveyor under which there are a series of lights. An employee looks at the bottles in the cases as they move by him. The cases are then placed in stacks until nightfall when they are put back on the conveyor. Another employee then looks to see if there are any “ foreign substance — chips, strays or broken bottles ” in the case before it goes to the washer. At the washer, a man places eight bottles at a time on a work table and they are tipped over into the prerinse' compartment in water with a temperature of about 63 degrees. Then follows a series of washings and rinsings in chemically treated water with temperatures ranging from 63 degrees to 105-110 degrees to 135-140 degrees and then down again to a final rinse at about 61 degrees. The bottles, then come out of the washer — still eight at a time — onto a discharge table where another employee watches to.see if there are .any “ dirty bottles, cracked bottles, chipped bottles.” The bottles are filled by extracting air from them,, so that the 'milk.is drawn in by the vacuum created. If there is a crack in the bottle, sufficiently wide enough to let air in, he said the bottle would not fill. -The bottles are then capped by the úse of a pneumatic lift. A man stands between the filler and the hooding machine and inspects the bottles with the milk in to see whether £ £ the bottles are dirty, cracked or the bottle didn’t fill up * * There were twenty-eight men in all working in the department and on an average night the company bottles 30,000 to 40,000 bottles of milk. There was no testimony that the defendant’s employees were performing their assigned tasks at the time in question. '

The witness admitted that men in the department did not see all the cracks that might be in the bottles as they moved by, and in particular that the man watching the bottles after, they were capped could not see a crack in the neck óf the bottle (which apparently was where the bottle in the instant case broke), because at that time a second cap or hood covers the neck of the bottle. He testified that, the men watch each and every bottle even though the bottles pass at the rate of one per second. He further admitted that no magnifying glass .nor special lights were employed, and that there were no scientific tests at all. He had never heard of a-polariscope until he heard plaintiff’s expert testify. He had-heard of a hydrostatic pressure test but had never seen a hydrostatic machine. Likewise, he had heard of thermal shock tests, but he admitted that, “ I wouldn’t know one if I.saw one ”.

In the light of this testimony, we return to the testimony of plaintiff’s expert. ■ He flatly stated that a reasonable inspection prior to filling the bottle,'would “ most definitely reveal the presence of that crack in it.” He continued: “ A reasonable, careful ocular examination in the front: — using a large magnifying glass and a large light would have revealed this crack since the crack must have been-large'in order to break due to normal handling, or the bottler could have used a polariscope and subjected the bottle to polariscopic examination, and the crack of course would have shown up very well then.” He stated that this polariscopic test was acceptable in industry and provided for by the standard testing agency of the country, the American Society of Testing Materials, whose standards are the “ bible ” of the testing industry.

Defendant’s counsel cross-examined plaintiff’s expert primarily with reference to a tour taken by the expert through another milk bottling plant some years before. He elicited testi.monv that in that plant there had been no examination of all of the reused bottles, that men were merely placed at strategic points while the bottles went through the washing and-filling process to eliminate the occurrence of jams ”, No polar- . iscopic examination of the bottles was there made. He admitted that this was “ the normal routine method This testimony as to the lack of examination in the other milk bottling company obviously weighed heavily in the judgment of the majority in the Appellate Division who, in reversing the jury verdict in plaintiff’s favor and in dismissing the complaint, relied upon the fact that the defendant in all respects followed the customary practice and procedure of bottlers of milk in its handling of the milk bottles.” (276 App. Div. 854.)

On redirect, plaintiff’s expert vehemently denied that the failure of the other 'milk bottling company to use a polariscopic examination meant that it was safe to put untested bottles in the hands, of the general public. He added that bottles come into the plant after being subjected to use and abuse outside in the hands of customers and that the bottler is ignorant of the condition of the returned bottle unless he tests it. To the suggestion . that methods were safe to the public simply because they were . common accepted ordinary methods, the expert said that Custom is oftentimes vicious, even though it is custom ”, and that custom could not “ substantiate the use or-practice of putting out a bottle without testing. ”

The evidence, in our judgment, raised a clear question of fact as to whether defendant exercised reasonable care in inspecting the reused bottles for cracks and defects. The jury could find that mere observation by men, without special training and equipment, of tens of thousands of bottles constantly passing by on. a conveyor belt at the rate of one per second, at times when the bottles were either stacked in cases or the tops were capped with hoods, did not constitute reasonable care under the circumstances. The jury could further find that defendant was negligent in failing to subject the reused bottles to tests of any kind, polariscopic or otherwise. We are unable to understand why reasonable minds might not draw these inferences. Nor can we understand the process of reasoning by which a defendant is permitted to exonerate itself by showing that it was no more negligent than others in its business. As was said in another case involving a broken bottle (Saglimbeni v. West End Brewing Co., 274 App. Div. 201, 204, affd. 298 N. Y. 875): " If the hazard remained after standard tests were made the jury was not bound to find that such tests were conclusive proof of due care. It would be a strange doctrine indeed, to admit the hazard, created for economic reasons, and then say as a matter of law that the public must bear the risk.” And as was aptly observed by Justice Johnston below, " The customary way of doing a thing may he a negligent way. Standard practice is not conclusive on the issue of negligence. It was for the jury to say, even though usage and custom were shown, whether the standard practice was negligent. If that were not the rule, defendants could, by a general custom or habit of acting, create a rule of law for their own exemption.” (276 App. Div. 854.) (See, also, Shannahan v. Empire Eng. Corp., 204 N. Y. 543, 550.)

The case of Smith v. Peerless Glass Co. (259 N. Y. 292), does not require a different result. That case, decided in 1932, was not intended to fix, for all time, the minimum standard of care necessary on the part of all bottlers to avoid liability for injuries caused by the use of defective bottles. Bach case must stand on its own particular facts. In the Smith case (supra), we held simply that the bottler’s tests were adequate to guard against the risk of putting into the hands of the public a bottle which could not withstand internal pressure from carbonated soda water. The tests there used, in addition to visual examination, were the subjection of each bottle to a 35-pound per square inch pressure upon filling it with the carbonated beverage, and a further pressure of between 700 and 800 pounds on each bottle upon capping with the crowning mechanism. In addition, there was there no evidence that any other and different tests were available for use by bottlers. These tests, we felt, were sufficient at that time to guard against the hazard of an explosion due to internal pressure. In the instant case, however, we are concerned with a different hazard — that of fracture due to thermal shock without any significant internal pressure. To say that the Smith case controls here is to say that this court in 1932 laid down a standard of industrial testing for all kinds of bottlers of all types of liquids for all time as to what conduct would be sufficient in law to absolve them of liability. The statement of the proposition contains its own refutation. While we feel that the Smith case is distinguishable from the situation here presented, we prefer to take the view that the standards of care which were judicially determined to be adequate eighteen years ago are not necessarily- so today.

In short, we think that it was for the jury to find, under all the circumstances of the case, whether the methods used by the defendant herein were reasonably adequate to detect the anticipated hazard, and that this is so even though defendant may have used methods which are now, or were twenty years ago, customary in the bottling industry.

The judgment of the Appellate Division should be reversed and a new trial ordered, with costs to appellants to abide the event.

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

Judgment affirmed.


source: Caselaw Access Project

author: Dye, J. Fuld, J.

license: Public Domain

text:
    Joseph W. Roberts et al., Appellants, v. Murnie Fulmer et al., Respondents.
    Argued April 10, 1950;
    decided July 11, 1950.

      George Kohn for appellants.
    I. The trial court’s finding of the existence of an oral contract of sale between the parties- and that the agreement had been wrongfully breached by defendants is fully sustained by the credible evidence. II. The acts of part performance by plaintiffs are unequivocal in character and are solely referable to the oral contract, and specific performance was properly decreed "by the Official Referee. (Selzer v. Baker, 295 N. Y. 145; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285; Wendell v. Van Rensselaer, 1 Johns. Ch. 343; Levinson v. Myers, 100 Misc. 379; Walter v. Hoffman, 267 N. Y. 365;
      Neverman v. Neverman, 254 N. Y. 496; Burns v. McCormick, 233 N. Y. 230; Woolley v. Stewart, 222 N. Y. 347; McKinley v. Hessen, 202 N. Y. 24; Canda v. Totton, 157 N. Y. 281; Young v. Overbaugh, 145 N. Y. 158; Wheeler v. Reynolds, 66 N. Y. 227.) III. The agreement is definite and certain, and specific performance was properly decreed. (Dunckel v. Dunckel, 141 N. Y. 427; Outlet Embroidery Co. v. Derwent Mills, Ltd., 254 N. Y. 179; Stern v. Premier Shirt Corp., 260 N. Y. 201; Cohen & Sons v. Lurie Woolen Co., 232 N. Y. 112.)

      Joe Schapiro for respondents.
    I. The oral agreement sought to be proved by plaintiffs was entire and since part thereof was vague and unenforcible, the entire agreement is unenforcible. (George v. Dobson, 261 App. Div. 447; De Beerski v. Paige, 36 N. Y. 537; Dunckel v. Dunckel, 141 N. Y. 427; Crouse v. Frothingham, 97 N. Y. 105; Warrin v. Charm Fashions, Inc., 193 Misc. 229; Watts v. Carter & Sons, 207 App. Div. 656; Varney v. Ditmars, 217 N. Y. 223; United Press v. New York Press Co., 164 N. Y. 406; Eisenberg v. Spachmann, 117 Misc. 109.) II. Plaintiffs failed to establish that any agreement for the sale of the premises had been made. III. The Statute of Frauds bars the action, for the part performance testified to by plaintiffs is not " unequivocally ” referable to an alleged agreement. (Burns v. McCormick, 233 N. Y. 230; Neverman v. Neverman, 254 N. Y. 496; Rosen v. 250 W. 50 St. Corp., 296 N. Y. 567.)
   Dye, J.

This action was brought to enforce specific performance of an oral contract for the purchase and sale of a farm and dairy upon the theory that part performance had removed the transaction from the Statute of Frauds (Real Property Law, §§ 259, 270), the plaintiffs alleging that, in reliance upon the oral agreement, they had gone into possession of the farm premises and thereafter had made extensive and costly improvements and repairs to the house, barns and fencing of substantial benefit to the real estate. The defendants, on the other hand, sharply controverted the existence of any agreement, oral or otherwise, for the purchase or sale of the premises; or, if such there was, claimed the alleged part performance was not unequivocally referable thereto and therefore the bar of the statute attached; and, finally, contended that the relationship, if any, was that of landlord and tenant rather than purchaser and seller.

The matter was referred to the late William F. Dowling as Official Referee to hear and determine. He found, in the conflicting testimony, satisfactory proof that an oral contract had been substantially performed. Judgment followed in favor of the plaintiffs. The Appellate Division has reversed the Referee’s findings of fact and conclusions of law upon the' view that the record disclosed a landlord-tenant relation rather than that of seller and purchaser; that the part performance was susceptible to explanation without reference to the alleged oral agreement under the authority of Woolley v. Stewart (222 N. Y. 347), Burns v. McCormick (233 N. Y. 230), and Neverman v. Neverman (254 N. Y. 496). These cases enunciate the general rule applicable in this State — note section 270 of the Real Property Law — to the doctrine of part performance as an exception to the Statute of Frauds. Neither the parties nor the courts below differ in their respective statements of this rule: the controversy here is limited to its application to the facts of this case. The Appellate Division having reversed upon the facts as well as the law and made new findings, we are obliged to determine which set of findings are supported by the weight of the credible evidence (Civ. Prac. Act, § 605; Chamberlain v. Feldman, 300 N. Y. 135; Pocket Books, Inc., v. Meyers, 292 N. Y. 58).

Joseph Roberts and Murnie Fulmer — the principal parties to this litigation — had been closely associated since Roberts, at the age of seventeen, went to work in 1934 for defendant Fulmer, a well-established farmer and land trader. He worked steadily as a farm hand until 1935 and thereafter intermittently until 1937. From then until 1941 he drove a truck for the defendant. In 1937, he married the coplaintiff, a neighborhood girl well known to the Fulmers and whom they regarded as a “ good milker.” For four years following their marriage, the plaintiffs worked the Yerdon farm ” for the defendant until it. was sold. Roberts then secured employment with the General Cable Company in nearby Rome, N. Y., where Fulmer was also employed at the time and the two made the daily trip to and from work in Fulmer’s automobile. Throughout their relationship was friendly and unrestrained and, although perhaps not confidential in the legal sense, was one which would normally be expected to result in trust and confidence and would, as is generally the case, lead an inexperienced youth to rely naturally upon the statements of the older man who. had been his friend and employer for upwards of twelve years.

There came a time early in the spring of 1946, according to Roberts, when Fulmer told him about the ‘ ‘ Charney farm ” which he owned, consisting of about 250 acres situated in Steubenville, Oneida County. He described it as a,goo.d place, to bring up a family that he himself' no longer wanted but if Roberts would take it he would “ give, me the biggest break I ever had ”. Briefly stated, he offered to sell Roberts the farm for $2,500 payable in installments on one third of the milk checks, the deed to follow when the purchase price was fully paid. Roberts was interested. After talking it over with, his wife and in the latter part of March, he, together with his wife and Fulmer, visited the farm and inspected the land:and buildings.On this occasion Fulmer made a more definite proposition stating, according to Roberts, that he would put. a dairy of cows there of twenty-five cows and a bull, and that I could, have the place for $2,500.00, and he would take a third of the checks until the place and the cows were paid for.” Roberts and his wife — who fully corroborated her husband as to the details — accepted the offer-and shortly thereafter, on. or about the first of April, Roberts, as the Referee found, in reliance upon the terms of the oral contract and in performance ¡of the same ” gave up his $80 per week war job in Rome and moved with his wife and five small children to the farm. ,

, Fulmer flatly denied any conversation relating to purchase- and sale. His version of the deal was that Roberts did not like working at the Cable Company and-wanted to return to farming and-that he finally agreed to let him on the Charney farm under, an arrangement whereby Roberts would be. compensated out- of the milk checks on a one-third/two-thirds basis as a tenant, on a share-crop basis. If there was nothing more to this .record than the mere circumstance of occupancy .of the- premises, we could easily agree that the plaintiffs had. failed to prove the oral contract. Such is not the case, however, as there is much testimony relating many acts which, we feel, are unequivocally referable to a claim of. equitable ownership in the, Roberts.

The farm concededly was in a rundown and unproductive condition having been fallow for over two years. The fields were overgrown and the fences down. The buildings, including, a dwelling, barns and outbuildings, were dilapidated and in need of attention. To make the house habitable, the plaintiffs, largely with their own hands, repaired the roof and chimney, plastered the inside walls, installed electric wiring and some plumbing and put cupboards in the kitchen. A foundation wall under the dairy barn was renewed, the milkhouse renovated and the fences repaired. It was estimated that the final cost of the materials for these repairs and improvements came to about $1,500. It is not disputed that as the farm became productive, Fulmer received one third of the milk checks which amounted in all to $2,428.78 — within $72 of the alleged price — at the time the present cause arose.

Defendant Fulmer, while conceding that the buildings and fences needed repairs, denied that the plaintiffs had done- the work and furnished the materials as claimed. On the contrary, he asserted that he had paid for the materials as well as the wages of a man who helped Roberts with the work and had supplied some tools and equipment and, on occasion, had furnished fodder for the cattle over and above the one-third/two-thirds division of costs as agreed. In addition — a point undenied by Roberts — he had taken care of the taxes and insurance. Fulmer also showed that there had been a continual turnover in the dairy: cows died, or were sold or exchanged and new ones added until, at one time, there were as many as thirty-five head in the herd. In the latter part of December, 1947, he was informed that the cows were being neglected and he therefore — but without notice to the plaintiffs and during Roberts’ absence — moved all the cattle to another farm which he owned and then served notice on the plaintiffs to vacate. Summary proceedings; to repossess the farm followed on February 27,1948, which were stayed when Roberts brought this suit.

It was brought out that Fulmer had owned the Charney farm since 1914; .that he first sold it to one Wickman from whom he shortly repossessed it; that he again sold it to Charney in 1943 for $3,500 who., after paying about $1,400 on the price, defaulted and, for a consideration and in avoidance of foreclosure, reconveyed to Fulmer. On cross-examination, Fulmer proved difficult. He was often evasive and hedging in his attitude and his memory was. vague in respect to many details. Likewise, the weight and credibility of the corroborative testimony given by his wife — who, allegedly, kept the Fulmer accounts — was considerably shaken by her inability to produce adequate records relating to many of the transactions concerning the exchange and replacement of the cattle, her explanation being that she only kept such records as were necessary. Those she produced were incomplete and unsatisfactory to support her claims. She too was vague, uncertain and indefinite.

Again, however, if the issues here were limited to the sharply disputed factual details just mentioned, it could acceptably be argued that the acts and conduct of the plaintiffs upon the premises were as referable to a relationship of landlord and tenant or employer and employee as to that of seller and purchaser. Such acts, however, do not stand alone but appear in a new and clarifying light when we add the undisputed fact that Roberts, long after he had taken possession, entered into a written contract with the Northern Improvement Company for the residing of the farmhouse with a composition shingle at a cost to him alone of $800 payable in thirty-six monthly installments. It is likewise undisputed that this work was undertaken and that Roberts duly made the first five payments. This, on the face of it, was a substantial commitment for one in the plaintiffs’ circumstances, involving, as it did, an obligation approximating one third of the purchase price of the farm and of unquestioned benefit to the fee. This placed Fulmer in a position to reap a considerable advantage if he was, in fact, still the owner. When inquiry as to Roberts ’ status was made of him by the company discounting the contract, Fulmer made a somewhat equivocal reply as to ownership, saying that he would never pay for any shingles. Later when he saw the work in progress, he merely expressed a disinterested view that it was a nice job without either protest or objection to Roberts. This episode — under the circumstances of these parties — appears consistent only with Roberts’ ultimate ownership under an expectation of legal title when the purchase price was paid. The incident thus goes far to lend substance and meaning to the other acts of the parties. When viewed against the whole record, then, we hold that the acts and conduct of the plaintiff constituted part performance solely and unequivocally referable ” to the contract within our established rule (Woolley v. Stewart, supra; Burns v. McCormick, supra, p. 234; Neverman v. Neverman, supra; Real Property Law, § 270). The Referee’s determination, therefore, is supported by the weight of the credible evidence and should prevail. Throughout there were sharp issues of credibility which were, of course, primarily for the trial court (Boyd v. Boyd, 252 N. Y. 422; Smith v. Smith, 273 N. Y. 380) whose findings are entitled to great weight (Amend v. Hurley, 293 N. Y. 587).

Incidentally, there is no claim that the contract price of $2,500 covered anything more than the land and appurtenances. This, the Referee found, was separate from the cost of the dairy which was to be computed when a herd acceptable to Roberts was finally assembled, added to the total figure and paid for by a continuing division of the milk checks. The Referee appropriately put the parties to an election as to this latter item which, without further comment, we regard as a reasonable and equitable disposition.

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

Fuld, J.

(dissenting.) I start with the premise — for we are all agreed on the proposition — that not every act of part performance is sufficient to take an oral contract for the sale of real property out of the statute of frauds (Real Property Law, § 259). If equity is to enforce such an oral agreement, it requires assurance, positive and unequivocal, from the acts performed, that “ The peril of perjury, and error * * * latent in the spoken promise ” is avoided. (Burns v. McCormick, 233 N. Y. 230, 234.) Accordingly, the principle is firmly established that part performance “ must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done. ’ ’ (Burns v. McCormick, supra, 233 N. Y., at p. 232.) In other words, part performance, alone and without relation to the oral promise, must be “ solely and unequivocally referable ” to an agreement of purchase and sale, “ unintelligible or at least extraordinary unless as an incident of ownership ”; if it is not, the promise may not be enforced. (See Neverman v. Neverman, 254 N. Y. 496, 500; Burns v. McCormick, supra, 233 N. Y. 230, 232, 234-235; Woolley v. Stewart, 222 N. Y. 347, 351.)

I fail to find in the record before us evidence of such part, performance. The plaintiff Roberts gave up a factory job paying $80 a week and, with his wife and children, moved to the farm; he .then proceeded to make extensive repairs, to cultivate the land, to attend.to and milk the cows, and to pay Mr. Fulmer, one third of the proceeds realized from the milk sales. While it may be argued that those were the acts of an owner or a vendee in possession, it may not be said that only an owner or a vendee would perform them. In no sense may it be asserted that such performance was “ solely and unequivocally referable ” to a contract of sale. It did not in and of itself supply the key to what was promised; it was just as reasonably referable to an agreement to, rent as to one to sell.

Further appraisal of the proof relied upon but confirms that conclusion. Manifestly, the fact that Roberts gave up an $80 a week job and took possession of the farm cannot establish, without the aid of the words of promise asserted, that he occupied it as a purchaser rather than as a tenant — particularly since it appeared that Roberts had not been able to make ends meet in the city, detested factory work and preferred life on a farm. Nor does the fact that Fulmer and Roberts arranged that the proceeds from the sale of the milk should be divided on the basis of one-third to the former and two-thirds to the latter - establish, without reference to the oral agreement alleged, a contract of sale. Fulmer’s receipt of one third of the- milk checks may conceivably have been on account of a-purchase price, but, on the other hand, it may just as reasonably have constituted compensation to defendants as landlords for the use of their land and their stock — particularly since the entire herd of about twenty cows, which produced the milk, belonged to Fulmer, having been purchased by him and placed upon the farm for plaintiffs’ use. Nor does the fact that plaintiffs made repairs and improvements point unerringly and without question to an agreement of sale. An owner or a vendee in possession would, of course, have done what Roberts did, but so would a tenant farmer — particularly when his sustenance and the amount of his earnings depended upon the state and condition of the farm and its buildings. In point of fact, in evaluating the significance of plaintiffs’ acts, we cannot dismiss from mind or overlook that Fulmer not only had one of his own employees assist plaintiffs in the work of repair and improvement ; not only reimbursed plaintiffs for many of their outlays; not only shared the cost of feed and hay; but also actually paid the taxes on the property as well as the insurance and — in addition to supplying all of the cows — purchased equipment, such as a tractor and a milk cooler, for plaintiffs’ exclusive use.

Whether or not the record convincingly stamps defendants as owners and landlords, whether or not the evidence persuasively marks plaintiffs as tenants, we need not decide. It is sufficient to say that the acts of part performance failed to point “ solely and unequivocally ” to a contract for the sale of the farm or to a vendor-vendee relationship; they were equally and as reasonably explainable as the acts of a tenant farmer receiving the major share of the milk checks for labors performed and expenses incurred.

I would affirm the judgment of the Appellate Division.

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

Judgment accordingly. [See 301 N. Y. 778.]


author: Dye, J. Conway, J.

text:
    The People of the State of New York, Respondent, v. Grant R. Allen, Appellant.
    Argued May 15, 1950;
    decided July 11, 1950.

      Edward E. Edstrom and Robert M. Blakeman for appellant.
    Defendant was tried, convicted and sentenced by a court which was illegally constituted and all proceedings had therein are a nullity. (People v. Fancher, 50 N. Y. 288; Matter of Malloy, 278 N. Y. 429; Matter of Munger, 10 App. Div. 347; People v. Rockower, 51 N. Y. S. 2d 185; Reed v. Bradford, 141 Ark. 210; Fay v. District Court of Appeals, 200 Cal. 522.)

      Frank A. Gulotta, District Attorney (Philip Huntington of counsel), for respondent.
    The court in which defendant was tried, convicted and sentenced was legally constituted and the proceedings had therein are valid. (N. Y. Const., art. VI, § 11; Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Matter of Pardee, 259 App. Div. 101; Sylvia Lake Co. v. Northern Ore Co., 242 N. Y. 144; Ostrander v. People, 29 Hun 513; Pike v. City of Chicago, 155 Ill. 565.)
   Dye, J.

Having been indicted by the Nassau County Grand Jury for the crime of perjury, second degree (Penal Law, §1620-b), the defendant-appellant was tried in Nassau County Court before Honorable James W, Diddle and a. jury. The judgment of Ms conviction has been unanimously affirmed in the Appellate Division (Second Department) and is now before us by permission of the Chief Judge of this court on the question of whether such conviction was had in a duly constituted court.

Judge Diddle, County Judge of Schenectady County, was serving in Nassau County Court, Part III, at the request of Honorable Henry J. A. Collins, County Judge of- Nassau County, who at the time was holding Part I. Judge Donahue, County Judge of Putnam County, was holding Part II but we are not concerned with his authority which has not been challenged. The record shows that the trial calendar was overcrowded at the time and many persons charged with crime were in jail awaiting trial.

The Constitution of the State of New York, section 11 of article VI, provides that: “ A county judge of any county outside the city of New York may hold the county court in any other county when requested by the county judge of such other county ”. By section 76 of the Civil Practice Act, a county judge when acting in another county by request may exercise all the powers and perform all the duties of the county judge of such other county ”. (Italics supplied.) Such constitutional and statutory provisions impose no condition or limitation on the making of a “ request ” or the performance of the judicial functions incident thereto. Nor may any be implied from the further constitutional provision that: in case of the death, absence, or incapacity of a county judge * * * the governor may designate a county judge of another county to hold the county court during such vacancy, absence, or inability to act.” This clearly contemplates a situation where the county judge is not in a position to make the request which, obviously, is not this case.

The Constitution envisages a county court in each of the sixty-two counties without condition or limitation as to* whether its business is conducted in one or more parts. In either event it must be deemed a county court and, in this respect, is no different than the functioning of the Supreme Court in parts (Matter of Malloy, 278 N. Y. 429). No contrary conclusion may be drawn from the circumstance that the Legislature has specifically authorized certain county courts to conduct their business in parts, for to that extent section 42 of the Code of Criminal Procedure is an act of sanction and, as such, is superfluous. It may not be read as an act of limitation or, if so read, it obviously must yield as an unauthorized encroachment on the powers of the county court authorized by the Constitution. It is axiomatic that the Legislature in performing its law-making function may not enlarge upon or abridge the Constitution. Judge Liddle’s act in holding Nassau County Court while the regularly elected county judge was neither absent nor incapacitated but, in fact, present in the county and holding Part I, had constitutional authority, and having such, Part III was, therefore, a duly constituted session of the Nassau County Court.

We wish to note also, that the conviction is supported by the overwhelming weight of the evidence and that no errors were committed at the trial warranting a reversal.

The judgment should be affirmed.

Conway, J.

(dissenting). Defendant was indicted by the Grand Jury of Nassau County for the crime of perjury in the second degree (Penal Law, § 1620-b). He was tried on June 7-8, and 14-15, 1948, in a so-called Part III ” of the Nassau County Court before the County Judge of Schenectady County, who was referred to in the record as Acting Nassau County Judge ”, although there was no such statutory title. Defendant was found guilty by the verdict of a jury and was sentenced to imprisonment for one year. It is undisputed that on the first day of the trial, June 7, 1948, there were three so-called parts ” of the Nassau County Court in operation — the County Judge of Nassau County and the County Judge of Putnam County, were presiding in two of the “ parts ”, while the County Judge of Schenectady County, as noted, was presiding in “ Part III ”.

Before any proceedings were had, defendant’s counsel asserted that the court was illegally constituted. A hearing was held at which the- Nassau County Judge appeared and stated that he was then actually engaged in the trial of another case, that the condition of the calendar was “ very crowded ” and that he had signed a certificate requesting services “ in Part III ” of the County Judge of Schenectady County. Defendant’s motion was then denied and the trial proceeded as indicated.

The primary question before us upon this appeal is whether the County Judge of Nassau County was authorized to bring in county judges of other counties to hold court, while he himself was actually presiding as County Judge over another trial in the Nassau County Court. Phrased in another way, the question is whether the Nassau County Judge possessed any constitutional or statutory authority to divide the Nassau County Court into parts ”, all functioning at the same time and presided over by county judges brought in from other counties.

After careful consideration of the history of the County Court in this State, the successive provisions of the New York State Constitution and the repeated acts of the Legislature with reference thereto, and similar constitutional and legislative provisions with reference to other courts in this State, we have concluded that the Nassau County Judge was without any authority, constitutional or statutory, to call in an additional county judge from another county to preside over a second or third part ” of the Nassau County Court, at a time when he was presiding as County Judge. We are unable to agree with the contention of the People that any such authority is conferred by the provision of section 11 of article VI of the New York Constitution, which, at the present time, reads in part as follows: “ * * * A county judge of any county outside the city of New York may hold the county court in any other county when requested by the county judge of such other county; * * We think this provision can have reference solely to a situation where, for instance, the county judge is on vacation, is absent from the county, is temporarily incapable of holding court or is disqualified from presiding over a particular case, in which event, he may call in the county judge of another county, not as an additional judge, but as a substitute in his place and stead. As we shall show, that provision was not intended to enlarge the size of the County Court in which a county judge from another county might be requested to preside, but was merely intended as a grant of power to county judges to exercise judicial functions, in certain instances, outside of the county in which they were elected.

The predecessor of the County Court was the Court of Common Pleas, established by colonial statute in 1691. (2 Lincoln’s Constitutional History of New York, p. 153.) The court was held by a Supreme Court justice and three justices appointed in each county, or by any three of them, and it possessed general common-law jurisdiction. Without specific mention, the court was continued by section 35 of the Constitution of 1777 which continued the colonial statutes in effect. No change was effected by the next Constitution of New York in 1821, which, in section 6 of article V merely provided for the tenure of Judges of the county courts ”. Such was the court when the Constitutional Convention of 1846 began its work. At that convention, the majority of the judiciary committee was in favor of the abolition of the County Courts, as then organized. Argument was made “ that the courts of common pleas had, in a great degree, been deserted by suitors ”, and that, in civil cases before a jury, a single judge was more efficient than three judges. (2 Lincoln’s Constitutional History of New York, p. 155.) Delegates referred to the existing county courts as a ‘ ‘ nuisance ” (1846 Debates, pp. 684, 706), and it was said that they had been “ reduced to such a feeble condition, that they no longer commanded public confidence ” (pp. 696, 724). A proposal was made that there should be one county judge for each county and that the Legislature should be denied the power to add county judges as there were 295 of these judges scattered throughout the state — so many, in short, that the very title became obnoxious.” (P. 803.) Many other suggestions were made, among which were the following: (1) that a number of county judges should be elected to hear cases in the part of the county where the cause of action arose (p. 691), (2) that one or more judges, but not to exceed three in any county, should be elected depending upon the business and the population in the county (p. 797), (3) that one judge should be elected in each county to exercise appellate jurisdiction over all justice of the peace causes, but having no original jurisdiction, although being required to perform the duties of a surrogate and to preside over such criminal cases as might be prescribed by the Legislature (p. 797), and (4) that a judge should be elected in each county, with such additional judges, not exceeding two, as might be authorized by the Legislature (p. 798). All these proposals were rejected in favor of a provision which established one county judge in each county, except the city and county of New York. (1846 Debates, p. 803.) As the result of this Convention, the Constitution of 1846 provided (art. VT, § 14): “ There shall be elected, in each of the counties of this State, except the city and county of New York, one county judge, who shall hold his office for four years. He shall hold the county court, and perform the duties of the office of surrogate. * * * ”

Except in “ special cases ” prescribed by the Legislature, the County Court was to have no original civil jurisdiction, acting only as an appellate court for cases arising in the justices’ courts (§ 14). In addition, the county judge, with two justices of the peace, was to hold courts of sessions ” for the trial of criminal cases (§ 14). In counties exceeding 40,000 in population, the Legislature could provide for the election of a separate officer to perform the duties of the office of surrogate (§ 14). Finally, in section 15 of article VI, the Constitution of 1846 provided that the Legislature might, on application of the county board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability or of a vacancy. No such substitute county judge was ever requested from the Legislature by the Board of Supervisors for Nassau County.

The next Constitutional Convention was held in 1867 and 1868, and resulted in the adoption of the Judiciary Article of 1869 in the Constitution. The new Judiciary Article (VT) provided, in section 15, that “ The existing county courts are continued * * The Convention was concerned primarily with proposals to enlarge the civil jurisdiction of the county courts. As a result, the new Judiciary Article of 1869 granted certain original civil jurisdiction to the county courts, and empowered the Legislature to enlarge it further. The “ courts of sessions ”, composed of the County Judge, with two “ side ” justices of the peace, were continued. It was at this time that the predecessor of the sentence, relied upon by the People in the instant case, and quoted above at page 291, first appeared in the Constitution. It then read as follows: “* * * The county judge of any county may preside at courts of sessions, or hold county courts, in any other county except New York and Kings, when requested by the judge of such other county.”

This provision was twice read to the delegates at the Convention and, on each occasion, there was no comment and no amendments were offered. (1867-1868 Debates, Vol. 4, pp. 2609, 2676,) This was unusual since there had been prolonged and vigorous discussion as to almost every other provision in the Judiciary Article. It would thus appear that all the delegates were aware of, and in agreement with, the purpose of the new provision. The reason for that unquestionably lay in the fact that, about fifteen years before, in 1852, the Legislature had unanimously passed a bill entitled An act authorizing county judges to exchange with each other in holding county courts ”, (emphasis supplied) which, however, had been vetoed by the Governor. The exact wording of the bill is no longer available, it having been destroyed by the fire in the Capitol in Albany, but its title just quoted and the message from the Governor accompanying his veto show clearly that its sole purpose was to permit county judges to exchange with each other ” in a particular case over which one of them was legally disabled from presiding. There is no indication whatever that the bill was intended to permit a county judge to divide his court into parts and to call in another county judge or judges to sit concurrently with him. The Governor’s veto was based upon the conclusion that the bill conflicted with section 14 of article VI of the Constitution of 1846 which provided, as we have seen, for the election of one county judge in each county, and which impliedly forbade such locally elected judge from exercising judicial functions outside the physical confines of the county in which he had been elected by his constituency. For convenience, we have quoted the Governor’s message in full in the margin. The volume, printed in 1909, containing the message of the Governor also includes this statement, “ The bill was not passed over the veto. The judiciary article of 1869, section 15, expressly conferred authority on the county judge to hold court in another county ” (Messages from the Governors, Vol. 4, p. 627) — a further indication that the constitutional provision of 1869 was the direct result of the unsuccessful legislative action in 1852.

The next Constitution, that of 1894, also continued the existing county courts. Certain changes in the civil jurisdiction of the county courts were made, but the major departure in that Constitution was the abolition of the old ‘ ‘ courts of sessions ’ ’, composed of the County Judge and two “ side ” justices of the peace. The new Constitution (art. VI, § 14) provided that all the jurisdiction of the old Court of Sessions in each county should be vested in the County Court thereof.

As noted, since 1846, there had been only one county judge permitted under the Constitution in each of the counties of the State. In 1885, an amendment to the Constitution was proposed in the Legislature to provide for an additional county judge for Kings County. (2 Lincoln’s Constitutional History of New York, pp. 590, 712, 725.) In 1893, the amendment was again proposed in the Legislature and was actually passed in two successive years and adopted by the People in 1894, but the purpose of the amendment was accomplished, and it was superseded by, the new Constitution of 1894, which in section 14 of article VI provided: In the county of Kings there shall be two county judges and the additional county judge shall be chosen at the next general election held after the adoption of this article.” (Emphasis supplied.)

There followed in the next twenty years numerous attempts on the part of several of the more populous counties in the State to amend the Constitution to secure additional county judges. In 1901, 1908 and 1910, it was proposed to give Kings County, which already had two county judges, two to four additional county judges. (3 Lincoln’s Constitutional History of New York, p. 687; New York State Constitutional Convention Committee Report, 1938, Vol. II, pp. 437-441.) Likewise, in 1910, it was proposed to authorize an additional county judge in the counties of Queens and Westchester. (Constitutional Convention Committee Report, 1938, Vol. II, pp. 441-447.) None of these proposals was submitted to the People. In 1911, another proposal to authorize two additional county judges in Kings County was submitted to the People, but rejected. (Op. cit., supra, pp. 447-478.)

Finally, in 1913, in response to this continued pressure by the more populous counties, an amendment to the section of the Constitution dealing with the County Court was drafted and adopted by the People. The new section 14 of article VI authorized two additional county judges for Kings County. Moreover, there was also included and adopted at that time a provision — repeatedly, but unsuccessfully, proposed at preceding constitutional conventions — that the Legislature, under certain circumstances, might increase the number of county judges in any county. The new constitutional provision reads as follows: “ * * * The number of county judges in any county may also be increased, from time to time, by the legislature, to such number that the total number of county judges in any one county shall not exceed one for every two hundred thousand, or major fraction thereof, of the population of such county. * * * ”

In 1925, the Constitution was further amended by the addition of the Judiciary Article of 1925, section 11 of which, dealing with the County Court, is presently in force in this State. The number of county judges in Kings County was raised to five and in Bronx County to two. The provision, above quoted, authorizing the Legislature to increase, from time to time, the number of county judges in any county in proportion to the population was continued without change. The phraseology of the sentence which empowers a county judge to hold court in another county when requested by the judge of such other county was amended so as to read in its present form, quoted supra, page 291. At the same time, new matter was added to that sentence, so that the complete sentence, at the present time, reads as follows: “ * * * A county judge of any county outside the city of New York may hold the county court in any other county when requested by the county judge of such other county; and, in case of the death, absence, or incapacity of a county judge, in a county having no special county judge then able to serve, the governor may designate a county judge of another county to hold the county court during such vacancy, absence, or inability to act.” The minutes of the Judiciary Convention of 1921, which recommended this new matter, make clear that the provision empowering the Governor to designate a county judge of another county to hold the County Court in cases where the county judge has died, is absent or is incapacitated, and where there is no special county judge, was intended to bridge over a temporary cessation of the functions of the County Court ” and to make sure that the court would not “ go down for the reason that no one was designated to hold it ”. (Constitutional Convention Committee Report, 1938, Yol. IX, pp. 567-569). The added new matter thus has application to a situation not presented here.

There was no discussion as to the reasons for the change in the phraseolgy of the provision granting power to the county judge to hold court in a county other than his own when requested by the county judge of such other county. The committee debates on an identical provision with reference to the Surrogate’s Court, however, sheds some light upon the county court provision. In the Executive Committee draft of what is now section 13 of article VI, there was included the following: A surrogate of any county may hold a surrogate’s court in any other county when requested by the surrogate of such other county.” One committeeman from New York City commented that, while the representatives of New York City were not particularly interested in the provision, I understood from some of the surrogates that this provision would be very helpful up-State to enable a surrogate who was for any reason unable to hold court, to call in a surrogate from cm adjoining county to hold court temporarily for him.” (Pp. 571-572. Italics supplied.) Objection was made that there was no pressing need for calling in a surrogate from another county, but the basic objection was “ that by reason of the peculiarly intimate business which the surrogate transacts, it seems to me a little unwise to call in an outside surrogate. I think the call in the absence of the surrogate does not go on the same platform with the calling in of an outside county judge, and I have in mind questions of allowance, simple money transactions where the outside surrogate is not quite as likely to feel the responsibility of what he is doing as a local surrogate. I think a great deal of danger lies in that section.” (Pp. 572-573. Italics supplied.) The provision was stricken out.

This history of the successive constitutional provisions with reference to the County Court in this State makes certain basic principles clear. Since 1846, the premise underlying all discussions of the County Court has been that there shall be but one county judge in each county. Despite repeated demands by the more populous counties, it was not until 1894 that Kings County alone was permitted to have an additional county judge (making two) and then only by constitutional amendment. Twenty years then passed before another constitutional amendment in 1913 permitted Kings County to have two additional county judges (making four) and Bronx County one (making two), and for the first time, the Constitution permitted the Legislature to increase the number of county judges but only within the limits of a population proportion formula.

We turn now to the statutory provisions enacted by the Legislature pursuant to this new power granted by the Constitution. First, the Legislature in 1915 added a fifth County Judge in Kings County, according to the express permission of the Constitution in view of its population. (Old County Law, § 230-a, now Judiciary Law, § 189, subd. 1.) In addition to the two county judges provided for in the Constitution for Bronx County, the Legislature has added two more (one in 1933 and the other in 1948), making a present total of four county judges therein (Old County Law, § 230-d; now Judiciary Law, § 189, subd. 2). The Legislature has further provided for one additional county judge in the counties of Monroe (1925), Queens (1931), and Brie (1925). (Old County Law, §§ 230-b, 230-c, 230-e; now Judiciary Law, §§ 183, 189, subd. 3; § 184.) In the case of the county of Westchester, the Legislature acted somewhat differently. No additional, locally elected county judge was authorized, but it was provided in 1936 that “ the county judge of Westchester county, when in his opinion the business of the court requires it, may from time to time divide the county court into two or more parts which are to be held by the county judge of such county and/or by such county judge or judges from other counties as may be requested to act.” (Old County Law, § 230-g; now Judiciary Law, § 186.) The language there employed is similar to that used in section 42 of the Code of Criminal Procedure, which at the time of the trial here, read in part as follows“A county court must be held by the county judge * * * except * * * in the counties of Brie, Westchester and Onondaga, where the county court may be divided into two or more parts, which are to be held by the county judge of such county and by such county judge or judges from other counties Us may be requested to act, or by the said judge or judges of such other counties.”

Those statutory provisions as to Westchester, Erie and Onondaga Counties expressly granted, pursuant to constitutional authority, the right to do that which the County Judge of Nassau County attempted to do here by a scratch of his pen. After the defendant’s conviction in the instant case, but before the affirmance by the Appellate Division, the Legislature added the counties of Nassau and Suffolk to those listed in section 42 of the code. (L. 1949, ch. 176; L. 1949, ch. 276, eff. March 17 and March 25, 1949.) It is not contended that this belated action in any way affects the issues before us.

We thus find this situation: By constitutional mandate or by statute, as expressly permitted by the Constitution, there are additional, locally elected county judges in five counties (Kings, Bronx, Monroe, Queens and Erie). By statute, the Legislature, prior to the time of the trial herein, had authorized the county judges in Erie (1920), Westchester (1936), and Onondaga (1922), to divide the county courts in those counties into two or more parts. After the trial herein, the Legislature gave similar authorization to the county judges in the counties of Nassau and Suffolk.

In view of all this, we think it clear that, in the absence of a constitutional provision, or" a legislative act pursuant to the constitutional permission, only one judge was legally authorized to hold the Nassau County Court at the time of trial. The action of the Nassau County Judge, in attempting to divide his court into three parts and in calling in additional county judges from other counties to hold concurrent parts of the court while he himself was also presiding in the court, was unauthorized and illegal. A different conclusion would ignore the mandate of the Constitution, which, for over one hundred years, has required that there be only one county judge holding the county court in each county, with strictly limited exceptions granted only, after decades of pressure therefor. A different conclusion would ignore the repeated acts of the Legislature, pursuant to the constitutional grant of authority in 1913, providing for additional county judges, or additional parts ° of the county courts, in certain counties. These many Legislatures and the Governors by whom the bills were signed expressed the understanding of the people of the State and of the legal profession throughout the State, that but one county judge could hold court in a county except in those instances where the People by constitutional amendment made other provision. The presumption is that the people of the State and the Legislature do not engage in vain and useless acts. On the contrary, it is presumed that every constitutional amendment and statute is intended to serve some necessary and proper purpose. As opposed to that presumption, it is no answer to say, as the District Attorney does here, that the legislative acts referred to “ are actually superfluous ”. The legislative construction of the Constitution here accords with our own.

As noted above, we believe that the People are incorrect in asserting that any such authorization may be found in the constitutional provision empowering a county judge of any county outside the city of New York to hold the county court in another county when requested by the county judge of such county. That provision, as we have demonstrated, merely granted the power (where otherwise there would be none) to a county judge to exercise judicial functions in certain limited instances outside the physical confines of the county in which he was elected. It does not in terms, or by necessary implication, authorize the creation by a county judge, by his own action, of concurrent parts in his own County Court. The construction proposed, it should be noted, would confer upon the county judge an unfettered power to increase without limit the number of county judges presiding in the county — a power which the Legislature itself may only exercise by constitutional permission in proportion to the population of the county.

Reference in the majority opinion to the power of the Supreme Court to divide itself into parts serves only to fortify and confirm the conclusion we have reached with respect to the County Court. It was only in 1905 that a constitutional amendment was adopted which authorized the Legislature to increase the number of Supreme Court justices according to a population proportion formula. (N. Y. Const., art. VI, § 1.) This marked a departure from the previous practice of fixing the number of justices in the Constitution and requiring a constitutional amendment to obtain an increase. Moreover, the Legislature has specifically authorized the trial term of the Supreme Court in any county to “be held in two or more parts ”. (See Judiciary Law, § 148; see, also, §§ 86, 147.) As we have seen, no such general authorization has been granted to the county judges of the State to divide their courts into parts.

It follows, then, that the so-called “ Part III ” of the Nassau County Court, which was presided over by the Schenectady County Judge at the request of the Nassau County Judge, and in which defendant was convicted and sentenced, was unauthorized and illegal. The Nassau County Judge was present in the county on the day of trial and was presiding over the only part ” of the Nassau County Court which was authorized by the Constitution. Since defendant’s preliminary motion requesting that the Schenectady County Judge declare himself to be without legal authority under the Constitution to preside over the case should have been granted, the judgment of conviction may not stand.

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

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

Judgment affirmed.

       MESSAGES FROM THE GOVERNORS, Vol. IY, pp. 625-627 (Governor Washington Hunt, 1852)

        “ March 31. To the Senate:

        “Veto of a bill entitled ‘An act authorizing county judges to exchange with each other in holding county courts. ,

        ‘ The bill conflicts, as it seems to me, with the fourteenth section of article six of the Constitution. That section provides “ that there shall be elected in each of the counties of this State, except the city and county of New York, one county judge, who shall hold this office for four years.” These words clearly imply, that the county judge is to be elected in the county and for the county; it is not perceived how the Legislature can designate or appoint any other person than the one so elected, to perform the duties of the county judge, either permanently or temporarily; that the person designated is a judge of some other court or county, cannot affect the constitutional question. As the office of county judge in any one county is an elective office by the people of that county, it cannot be within the legislative competency to confer the powers of the office upon any other person. His jurisdiction is necessarily confined to his county, and he cannot by virtue of his election perform any official act out of its limits. It has been held by the supreme court (Warner v. People, 2 Denio’s Reports, 272) that a law authorizing the appointment of a person to perform the duties of an officer made elective, by the people, by the Constitution, was a violation of that instrument; and this judgment was affirmed by the court for the correction of errors with great unanimity. It is scarcely necessary to remark, that if the Legislature could not authorize such an appointment by others, it could not make it directly itself; but this bill in fact, gives to a county judge the power of appointing some other county judge to perform his duties.
      ‘The same fourteenth section, of the sixth article of the Constitution, after providing for the election of a county judge in each county, declares “he shall hold the county court.” Upon the well known principle that the conferring a public authority upon one officer, is necessarily an exclusion of all others, this provision becomes restrictive, and forbids the holding the county court by any other person or officer, except as provided by the Constitution. The fifteenth section of the same article has made such provision, that on the application of the board of supervisors of a county, the Legislature may provide for the election of local officers to discharge the duties of county judge and surrogate, in case of their inability, or a vacancy in office. In the absence of any other provision on the subject, this is sufficient to show that the convention could not have contemplated the designation of any person by the Legislature or under its authority, to perform the duties of a county judge who was not elected for that purpose. An easy and sufficient remedy being thus provided by the Constitution for avoiding the inconveniences anticipated by the bill before me, there can be no reason for trenching upon the very distinct enactments of that instrument. The judiciary act of 1847, (section 31, chapter 470) provides, that whenever a cause or matter shall be pending in any county court, in which the judge of such court shall have been attorney, solicitor, or counsel, or shall be interested, on his making and filing a certificate of the fact, jurisdiction of such cause or matter shall be vested in the supreme court. If the provision here referred to is not deemed sufficient, I would recommend further legislation to facilitate the removal of suits from the county court to the supreme court, in such eases.
      ‘ Entertaining the constitutional objections above expressed, I deem it my duty to return the bill to the Senate for re-consideration.’ ”