text:
    Julius L. Bressler et al., Plaintiffs; Begina Kesslee et al., Respondents, and Greenman, Appellant v. Board of Higher Education of the City of New York, Respondent and Appellant. Harry Balsam et al., Plaintiffs, v. Board of Higher Education of the City of New York, Defendant.
    Argued April 20, 1948;
    decided July 16, 1948.

      Osmond K. Fraenkel for plaintiff-appellant and plaintiffs-. respondents.
    I. The judgment in favor of plaintiff Greenman should not have been reversed. (Hoefling v. Board of Education, 120 App. Div. 545; Stetson v. Board of Education, 165 App. Div. 476, 218 N. Y. 301; Matter of Kearns v. Board of Education, 279 N. Y. 61.) II. The board had no power to make so-called full time temporary appointments to positions not specified in the schedules. (Dexter v. Board of Higher Education, 293 N. Y. 39.) III. The Kearns case (279 N. Y. 61) is inapplicable. (Matter of Fornara v. Schroeder, 261N. Y. 363; Matter of Sandford v. Finegan, 276 N. Y. 70; Matter of Cook v. Kern, 278 N. Y. 195; Matter of Kern, 280 N. Y. 659; Matter of Bohr v. Kenn-gott, 288 N. Y. 97; Matter of Bicker v. Hempstead, 290 N. Y. 1; Morrall v. County of Monroe, 271 N. Y. 48; Matter of New York, L. & W. B. B. Co., 98 N. Y. 447; Matter of Malloy, 278 N. Y. 429 ; Banbury v. Bubinstein, 297 N. Y. 510.)

      John P. McGrath, Corporation Counsel (Michael A. Castaldi, Seymour B. Quel and Morris Weissberg of counsel), for defendant, respondent and appellant.
    I. Plaintiffs Kessler and Man-tell were appointed to positions otlier than that of clerical assistant and were not entitled to the salary provided for clerical assistants in the filed salary schedules. The board had the power to create new positions, appoint the plaintiffs thereto, and fix salaries therefor without regard to its filed schedules, since such new positions were not enumerated in the filed salary schedules. (Matter of Putnam v. Marshall, 286 N. Y. 485; Matter of Lederman v. Tead, 39 N. Y. S. 2d 420; Matter of Carr v. Kern, 279 N. Y. 42; Story v. Craig, 231 N. Y. 33; Matter of Kearns v. Board of Education, 279 N. 7. 61; Stetson v. Board of Education, 165 App. Div. 476; 218 N. Y. 301; People ex rel. Schau v. McWilliams, 185 N. Y. 92; People ex rel. Perrine v. Connolly, 217 N. Y. 570.) II. In any event, after the reclassification of the plaintiffs into the competitive class, effective January 1⅜ 1940, they could lawfully receive only the salary of the positions into which they were reclassified or were promoted after competitive examination. (Matter of Kearns v. Board of Education, 279 N. Y. 61; Matter of Becher v. Eisner, 277 Y. 143; People ex rel. McClelland v. Roberts, 148 N. Y. 360; Matter of Kay v. Board of Higher Education, 173 Mise. 943; Dodge v. Board of Education, 302 IT. S. 74; People ex rel. Perrine v. Connolly, 217 N. Y. 570; O’Malley v. Board of Education, 160 App. Div. 261; Matter of Flanagan v. McGoldriclc, 272 App. Div. 1008.) III. The Appellate Division properly decided upon uncontro-verted documentary evidence that the Board of Higher Education never appointed the plaintiff Greenman as a clerical assistant. Miss G-reenman is hot entitled to the classification and salary of a clerical assistant merely because she performed clerical work while holding appointments as tutor and fellow. (Matter of McArdle v. Board of Higher Education, 181 Mise. 766; New City Employees’ Retirement System v. Eliot, 267 N. Y. 193; Matter of Trilling v. Board of Higher Education, 190 Mise. 52; Matter of McManus, 64 N. Y. St. Dept. Rep. 99; Hoefling v. Board of Education, 120 App. Div. 545.)
   We all agree that plaintiffs Regina Kessler and Ruth Mantell were clerical assistants at the College of the City . of New York and entitled to the status and pay benefits of that position, and a majority of us are of the opinion that there is no basis for differentiating the case of appellant Dorothy Greenman from that of her two colleagues.

As narrowed and simplified by the stipulation, the precise . question upon which the court divides is whether Miss Green-man, who, for several years, undeniably did the work of a clerical assistant, was “ employed hy the defendant * * * in such capacity ” as to be entitled to the benefits of the salary schedules ” relating to that position. Upon the whole record, we think that she was. It stands undisputed that Miss Greenman was hired solely to perform the clerical work of stenography, typing, stenciling and the like. From the very beginning of her employment, and throughout it, she did only that .sort of work — only the tasks of a “ clerical assistant ”. Although it is a fact that she was carried on the rolls of the Board of Higher Education as a “ tutor ” and later as a fellow ’ — both positions on the instructional staff — she never performed any of the duties of those positions, was not considered a member of the instructional staff, and was never included in its program. In brief, except for the circumstance that, nominally, she held a different title, her situation and her employment were identical with those of respondents Kessler and Mantell.

Much, however, is made of the variance in the formal labels under whieh these plaintiffs performed their identical work. A decisive distinction is said to flow from the fact that Miss Greenman’s designations as “ tutor ” and “ fellow ” were official titles, enumerated in the board’s 1927 schedules, while the titles given to Kessler and Mantell — such as ‘ ‘ temporary clerical assistant” and — were not similarly enumerated and recognized. It is argued that, since Miss Green-man at all times worked in a position covered by an official title, she cannot claim the salary of a “ clerical assistant ”, a differently officially recognized and formally entitled position.

Heavy reliance for this conclusion is placed upon cur decision in Matter of Kearns v. Board of Education (279 N. Y. 61). We do not regard Matter of Kearns as controlling. That case simply holds that no appointment may be made to a position in the competitive civil service unless it be from lists of eligible persons promulgated as a result of competitive examinations. The good sense of that rule is palpable: when the civil service authorities have found that competitive examinations are necessary and feasible methods of testing qualifications for vacancies, and, as a result of such examinations, have prepared lists of eligible persons, it would nullify their efforts

and frustrate their plans if appointments or promotions could be made in disregard of examination results and eligibility lists. To grant a title in the competitive service to a person who had not taken a competitive examination merely for the reason that he had performed the work of the particular position would sanction evasion of the Civil Service Law. (See, e.g., Matter of Kearns v. Board of Education, supra; Wood v. City of New York, 274 N. Y. 155.) That such considerations underlay decision in the Kearns case is clear. As the court there pointedly observed, the civil service statutes provided that appointments in the competitive class are to he made from among those graded highest in open competitive examinations, and that the appointment shall be from the first three persons on the appropriate eligible list ” (p. 66), To make de facto appointments or promotions in the competitive classes without regard to examination grades or eligible lists would obviously flout and circumvent these statutes'.

Quite different are the considerations here. “ Clerical assistants ” were, until 1940, in the unclassified service ” and wholly outside the competitive class of positions. At the time of plaintiffs’ appointments, there was no examination of any kind as a prerequisite to appointment, promotion or assignment in the unclassified service. Appointing officers were free to pass upon the qualifications and fitness of applicants without formal examination, having in mind only the ability of the applicant to meet the requirements of the position to be filled. (See Matter of Carow v. Board of Education, 272 N. Y. 341, 344.) There is no doubt that, at the time of the appointment, Miss G-reenman was qualified for the position of clerical assistant, that she was hired to do the work of that position, and that she performed it, and capably, for the entire period involved.

Both the Board of Higher Education and Miss Greenman’s superiors openly recognized that they regarded her status as that of clerical assistant. For example, in May, 1939, as the expiration date of her nominal appointment as fellow ” neared, the Acting President of the College transmitted a letter to department heads summarizing the action taken by the board on promotions and salaries, and in that communication he indicated that budgetary provision had been authorized for a “ promotion ” and “ change in title ” for Miss Greenman from Fellow to Clerical Assistant Some weeks later, her superior wrote that ‘ ‘ Inasmuch as the duties of Miss Greenman are those of a clerical assistant in the Department and as the Board of Higher Education has taken action to give tenure to the non-instructional staff and to require new appointments to come through the Municipal Civil Service, it seems to be no more than just that she be placed in the category of the non-instructional staff at this time.” Here was clear acknowledgment that, whatever her nominal title, Miss actual position and duties were those of a clerical assistant. Failure of the board to correct her status cannot bar her from seeking and gaining redress in the courts. Moreover, when, in January, 1940, the Municipal Civil Service Commission reclassified the position of clerical assistant ” and made it competitive, no distinction was made between Miss Greenman and the other plaintiffs originally designated clerical assistants. They were all covered into the competitive classification in accordance with law. (See, e.g., Matter of Rohr v. Kenngott, 288 N. Y. 97, 102-103; Matter of Cook v. Kern, 278 N. Y. 195; Matter of Fornara v. Schroeder, 261 N. Y. 363.)

Since no competitive examinations were evaded, since no eligible lists and priorities were by-passed by Miss Greenman’s employment as a clerical assistant, and since she clearly satisfied the qualifications required for that position, we hold that she was validly employed in that capacity and was entitled to the benefits of salary schedules which went with it. She performed the same tasks as Kessler and Mantell, who were appointed under nonofficial titles; no more than they, should she be penalized and deprived of the benefits of the position — which she unquestionably filled — because of a misnomer.

The judgment of the Appellate Division should be modified in accordance with the opinion herein, and as so modified affirmed, with costs to appellant Dorothy Greenman in this court and in the Appellate Division, and, with costs in this court to respondents Kessler and Mantell.

LoughbaN, Ch. J., Lewis and Desmond, JJ., concur with Fuld, J.; Conway, Teacher and Dye, JJ., dissent.

Judgment accordingly.


source: Caselaw Access Project

author: Lewis, J. DesaioNd, J.

license: Public Domain

text:
    Armand Gregoire, Respondent, v. G. P. Putnam’s Sons et al., Appellants, et al., Defendants.
    Argued April 19, 1948;
    decided July 16, 1948.

      Vincent J. Malone and John A. Bross for appellants.
    I. Sales of individual copies of a book containing libelous material are not republications within the meaning of the Statute of Limitations. (Hartmann v. Time, Inc., 64 F. Supp. 671.) II. The “ single publication ” rule is clearly accepted law in New York. (Fried, Mendelson & Go. v. Halstead, Ltd., 203 App. Div. 113; Wolf son v. Syracuse Newspapers, Inc., 254 App. Div. 211, 279 N. Y. 716; Winrod v. MacFadden Publications, Inc., 62 Supp. 249; Campbell-Johnston v. Liberty Magazine, Inc., 64 N. Y. S. 2d 659; Means v. MacFadden Publications, Inc., 25 P. Supp. 993; Forman v. Mississippi Publishers Gorp., 14 So. 2d 344; McGlue v. WeeJcly Publications, Inc., 63 P. Supp. 744.) III. The “ single publication ” rule applies to .books as well as to newspapers and magazines. (Wolfson v. Syracuse Newspapers, Inc., 254 App. Div. 211, 279 N. Y. 716; People v. Ryan, 274 N. Y. 149; Lewisohn v. Dial Press, Inc., 264 App. Div. 370; Winrod v. MacFadden Publications, Inc., 62 P. Supp. 249.) IY. The “ single publication ” rule is an equitable rule. (Hartmann v. Time, Inc., 64 P. Supp. 671.)

      Arthur E. Farmer and Benjamin H. Stern for American Book Publishers Council, Inc., amicus curice in support of appellant’s position.
    I. A libel is “ reiterated ” only when an independent act equivalent to a new “ publication ” in the trade sense, is committed. The mere continued dissemination of copies of the defamatory matter originally published is not a “ reiteration ” of the libel. (Cooh v. Conners, 215 N. Y. 175; Mach, Miller Candle Co. v. Macmillan Co., 239 App. Div. 738, 266 N. Y. 489;'
      Woodhouse v. New York Evening Post, Inc., 201 App. Div. 9; Wolf son v. Syracuse Newspapers, Inc., 254 App. Div. 211, 279 N. Y. 716; Fried, Mendels on & Go. v. Halstead, Ltd., 20B App. Div. 113; Campbell-Johnston v. Liberty Magazine, Inc., 64 N. Y. S. 2d 659, 270 App. Div. 894; Hartmann v. Time, Inc., 60 N. Y. S. 2d 209; Hartmann v. Time, Inc., 64 F. Supp. 671, v. Dial Press, Inc., 264 App. Div. 370; Galligan v. Sun Printing & Pub. Assn., 25 Mise. 355; Means v. MacFadden Publications, Inc., 25 F. Supp. 993; Frazier v. McGloskey, 60 N. Y. 337.)

      Gunther Jacobson and Merril Charlton for respondent.
    I. At common law each communication of libelous matter to a third person gave rise to a new cause of action. (King v. Carlisle, 1 Obit. 451 [K. B. 1819]; Duke of Brunswick v. Harmer, 14 Q. B. 185 [1849].) II. Tbe common-law rule bas been modified with respect to newspapers and periodicals. (Hartmann v. Time, Inc., 64 F. Supp. 671.) III. Tbe “ newspaper rule ” is not applicable to libel committed through (Mack, Miller Candle Co. v. Macmillan Co., 239 App. Div. 438, 266 N. Y. 489; Keystone Oil-Burner Co. v. Dun & Bradstreet, Inc., 175 Mise. 277; Lewis ohn v. Dial Press, Inc., 264 App. Div. 370.) IV. Upon tbe facts of this case it would be inequitable to deny tbe plaintiff bis right of action. (Winrod v. MacFadden Publications, Inc., 62 F. Supp. 249.)
   Lewis, J.

This is a libel action based upon alleged defamatory statements contained in “ Total Espionage ”, a book of which tbe defendant Curt Bless is tbe author and tbe defendants-appellants G. P. Putnam’s Sons and Books, Inc., are tbe publishers.

Tbe appeal is from an order of tbe Appellate Division which reversed a judgment of Special Term dismissing tbe complaint upon the ground that tbe cause of action alleged is barred by tbe one-year Statute of Limitations. (Civ. Prac. Act, § 51, subd. 3.)

In November, 1941, tbe appellants, G. P. Putnam’s Sons and Books, Inc., — to which it will be convenient to refer as Putnam’s — commenced distribution of tbe initial printing of “ Total Espionage ”. Thereafter there were seven additional printings of which the last was printed on December 27, 1943, and was distributed by Putnam’s during a period beginning in March, 1944. Although 6,000 copies of the book were sold in 1941, and 6,300 in 1942, the sales thereafter declined until only 60 copies were sold from stock during the year immediately preceding July 2, 1946.

On the date last mentioned the present action was.commenced in which the plaintiff claims he was subjected to actionable libel when, in June, 1946, Putnam’s sold in the city of New York a single copy of “ Total Espionage ” and between July 2, 1945 and July 2, 1946, at least 20 copies were sold by Putnam’s to various retail book stores in the United States.

Upon this appeal, taken by permission of the Appellate Division (Civ. Prac. Act, § 589, subd. 3, [b]), our inquiry is limited by the following certified question of law: Do sales from stock by a book publisher of copies of a book containing libelous material constitute republications'of the libelous matter, so as to give rise to new causes of action within the meaning of Section 51, subdivision 3, of- the Civil Practice Act, where the copies sold are from an impression made and released for wholesale distribution more than one year prior to the dates of such ”

The question invites examination of the trend of decisions which have dealt with the legal consequences in libel actions of proof of belated publications of the defamatory matter in suit. An early case, often cited, of liability carried to extreme is Duke of Brunswick v. Harmer (14 Q. B. 185 [1849]; 117 Eng. Rep. 75). There the plaintiff brought an action based upon a defamatory statement which appeared in an issue of a newspaper published by the defendant seventeen years before the action was brought. Ruling that the defensive plea of a then existing six-year Statute of Limitations was not effective, the court held that the plaintiff’s evidence of a sale and delivery by the defendant to plaintiff’s agent- of a single copy of the newspaper containing the libel — seventeen years after the date of its issue but within the statutory period of six years before the action was commenced — was in law a new publication against which the Statute of Limitations had not run..

The rule of Duke of Brunswick v. Harmer (supra) — that each delivery to a third person of a defamatory article constituted a new publication of the libel, wbicli in turn gave rise to a new cause of action — bad its origin in an era which long antedated the modern process of mass publication and nationwide distribution of printed information. That rule also gave scant heed to the public policy which underlies statutes of limitation, long regarded as “ statutes of repose ” designed to outlaw stale claims. (Guaranty Trust Co. v. United States, 304 U. S. 126, 136; Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314; Conklin v. Furman, 48 N. Y. 527, 529; Schmidt v. Merchants Despatch Transp. Co., 270 N. Y. 287, 302; and see 1 Wood on Limitations [4th ed.], § 4, pp. 7-11.)

There have been occasions in the past when this court has noted that what “ seems vain and capricious to one generation may' become the wisdom of the nest.” (People v. Beakes Dairy Co., 222 N. Y. 416, 428; Klein v. Maravelas, 219 N. Y. 383, 386.) Eecognizing that radical changes have been brought about by modern methods of disseminating printed matter for which there is a widespread demand, and desiring to avoid multiplicity of suits' and to give effect to statutes of limitation, adjudicated cases disclose that within recent years courts of this State and other jurisdictions have ruled that the publication of a defamatory statement in a single issue of a newspaper, or a single issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and that the applicable Statute of Limitation runs from the date of that publication. (Wolfson v. Syracuse Newspapers, Inc., 254 App. Div. 211, affd. 279 N. Y. 716; Hartmann v. Time, Inc., 60 N. Y. S. 2d 209, 210-211, affd. 271 App. Div. 781; Campbell-Johnston v. Liberty Magazine, Inc., 64 N. Y. S. 2d 659, 660, affd. 270 App. Div. 894; Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 43; Forman v. Mississippi Publishers Corp., 195 Miss. 90; Julian v. Kansas City Star Co., 209 Mo. 35, 71, 72; Winrod v. Time, Inc., 78 N. E. 2d 708 [Ill.]; Hartmann v. Time, Inc., 64 F. Supp. 671, 678-680; and see 166 F. 2d 127, 133-134 ; McGlue v. Weekly Publications, Inc., 63 F. Supp. 744; Cannon v. Time, Inc., 39 F. Supp. 660; Backus v. Look, Inc., 39 F. Supp. 662; Means v. MacFadden Publications, Inc., 25 F. Supp. 993.)

The eases last cited make clear the principle of law, now firmly established, that where, by modern methods of mass publication, a single issue of a newspaper or magazine containing libelous matter is released to thousands of readers, the one libeled may bring only one action. Upon the trial of that action evidence of the number of copies sold and the field within which distribution occurred becomes competent as proof of the extent of the injury suffered.

Upon its consideration of the present case the Appellate Division expressed the view (272 App. Div. 591, 592) that although there is case law which points to the adoption in this State of the “ one publication ” rule, that rule does not extend to books, as distinguished from newspapers or magazines. In reaching that conclusion the Appellate Division cited three decisions which, on the facts involved, are distinguishable from the case before us: In Cook v. Conners (215 N. Y. 175), the defendant owned two newspapers — the Buffalo Courier, which published afternoon issues, and the Buffalo which published morning issues. The alleged libel, co'uched in slightly different language, was published by the defendant in each newspaper on different days. In those circumstances the ruling quite properly was that each of the two publications gave rise to a separate cause of action. In Mack, Miller Candle Co. v. Macmillan Co. (239 App. Div. 738, affd. 266 N. Y. 489), the plaintiff’s grievance was a libel appearing in a book which had been “ reissued or republished ” within a period of two years before the action was commenced — that period being then the statutory limitation applicable to a libel action. (See 239 App. Div. 738 at p. 742.) Likewise in Woodhouse v. New York Evening Post, Inc. (201 App. Div. 9), the six libelous articles — not identical in content — were published on six different dates during a period covering two months. It is thus made clear that the facts upon which rested the three decisions last mentioned above, and cited by the Appellate Division, make those decisions inapposite to the problem presented by the question of law certified to us.

If, as the complaint alleges, the book “ Total Espionage ” contained statements by which the plaintiff was defamed, a right of action for libel accrued to him. That right, however, was burdened with the statutory limitation that unless he commenced an action to recover damages for the alleged libel within one year after such an action accrued bis right thereafter to recover would be completely and forever barred for lapse of time. (L. 1936, ch. 327, §§ 1, 2, amdg. Civ. Prac. Act, § 51.)

Although we may not concern ourselves with the wisdom of the Statute of Limitation last cited above (People v. Nebbia, 262 N. Y. 259, 271; Johnson v. City of New York, 274 N. Y. 411, 430), our duty is to give to that statute its intended effect as a statute of repose — designed “to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, have died or disappeared, and evidence has been lost.” (Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314, supra.) The statute (Civ. Prac. Act, § 51, subd. 3) which is controlling here is a declaration of public policy governing the right to litigate; it came into our law .by way of the Legislature, not through the judicial process. “ At times, it may bar the assertion of a just claim. Then its application causes hardship. The Legislature has found that such occasional hardship is outweighed by the advantage of outlawing stale claims.” (Schmidt v. Merchants Despatch Transp. Co., 270 N. Y. 287, 302, supra.)

Limiting our inquiry to the scope fixed by the question of law certified to us (Bowlby v. McQuail, 240 N. Y. 684, 687) we conclude that the reasons mentioned above, which underly the purpose of Statutes of Limitations, are as compelling when applied to eases involving the modern dissemination of printings or impressions of a book as when applied to cases involving the dissemination of issues of a newspaper or magazine. Otherwise, although a book containing libelous material may have been the product of but one edition or printing fifty years ago, if, by sale from stock or by display, the publisher continues to make unsold copies of the single publication available to the public today, such conduct would amount to a republication of any libel the book contains and thereby would become actionable. Under such a rule the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the Legislature, clearly expressed in section 2 of chapter 327 of the Laws of 1936 — to bar “ completely and forever ” all actions which, as to the time of tlieir commencement, overpass the limitation there prescribed upon litigation.

Although it may not he said that the*publication and dissemination of books has reached that degree of mass production and widespread distribution now prevalent in fields invaded by newspapers and periodicals, it is our view that the publication of a libelous book, involving styling, printing;, binding and those other acts which enable a publisher on a given date to release to the public thousands of copies of a single printing or impression, affords the one libeled a legal basis for only one cause of action which arises when the finished product is released by the publisher for sale in accord with trade practice.

In the circumstances set forth in the question of law certified to us we conclude that the bar of the Statute of Limitation (Civ. Prac. Act, § 51, subd. 3) cannot be lifted. To do so would disregard the clear purpose which the Legislature has conceived to be outlaw stale claims. “ ‘ The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed ’ ” (Van Beeck v. Sabine Towing Co., 300 U. S. 342, 351).

The order of the Appellate Division should be reversed and the judgment of Special Term affirmed, with costs in this court and in the Appellate Division. The certified question is answered in the negative.

DesaioNd, J.

(dissenting). There can be no doubt that at common law the rule was as it is stated in comment c 578 of volume 3 of the of the Law of Torts: each time a libelous book or paper or magazine is sold, a new publication has taken place ”. (See Odgers on Libel and Slander [6th ed.], p. 132 et seq., and p. 483; Seelman on Law of Libel and Slander [1945 Supp.], pp. 13-15.) There is certainly no case in this court, up to now, qualifying or limiting that rule so far as books are concerned. The rule itself had existed from time immemorial, and was well known to all those interested in the subject, so when the Legislature in 1936, shortened the -period of limitations (Civ. Prac. Act, § 51, subd. 3) in libel actions from two years to one year, the Legislature necessarily meant one year from the time of any sale of a book or periodical. Now that old rule is being changed so that a libel suit must be brought within one year, not from a sale, but one year from the original publication of the libelous book — a most drastic and wholly unnecessary alteration in the settled law of libel.

In Wolfson v. Syracuse Newspapers, Inc. (254 App. Div. 211, affd. 279 N. Y. 716), under most exceptional circumstances, the rule (as to each sale or exhibition being a new publication) was given something less than total effect as to a daily newspaper where the publisher kept old copies of his paper in its office and, long after the date of issue, allowed a person to inspect the copy containing the defamatory matter, it being held that such an accidental or incidental showing of a long obsolete periodical was not such a new publication as started the Statute of Limitations running anew. That decision clearly applied to its special facts only.- However, in the course of time the Wolf son ruling has been used as the supposed basis of a new, so-called “ single publication rule ” to the effect that, as to newspapers and other dated and ephemeral periodicals, the only publication of which the law takes account is that which occurs when the particular issue leaves the periodical’s office. There may be reason and logic in such a holding as to periodicals, since any sale or distribution thereof at a date long after the date of issue is incidental and inconsequential. But to apply this so-called single publication rule ” to books will be to let the exception as to periodicals swallow the whole rule and become itself the rule.

By reversing here, we are saying no less than this: that, once a book has been put on sale, no matter how few or many copies are sold the first year, the right of a defamed person to sue therefor expires absolutely and forever one year after the sale of the first copy. The book (same edition and same printing) may be on the market for years; it may descend the scale into the “ remainder ” or “ bargain ” class. It may sell only a few copies at first, then, more than a year later, leap into the best-seller class. Unlike a newspaper, the book may grow in popularity and effectiveness with the passage of time, with each new sale a fresh and damaging assault on the reputation of the victim. Yet under this new rule, the one defamed by these repeated deliberate and intentional wrongs has no remedy, solely because he did not sue within a year from the time the first copy left the press and the publisher’s office.

The date on a daily newspaper or weekly or monthly magazine marks the time of its use and importance. Since nothing is so dead as last week’s, newspapers, it is not unreasonable to hold that nothing that afterwards is done with them can be deemed a “ publication ” in law. But a book’s existence is not intended to be, and is not, for any such brief time. The book publisher keeps his stock on his shelves and sends out books as called for. When, a year or two or years after first printing, he deliberately puts out new copies of the defamatory writing, how can it be said that he is not, in fact and in law, republishing the libel? And, since the common law is plain and just, and the statute certainly has not changed it, why should we extend to the whole -field of books an exception appropriate to periodicals only?

In Mach, Miller Candle Co. v. Macmillan (266 N. Y. 489), there had been a new printing (not a revised edition but a printing of more copies of the same book) within the statutory period. But that decision does not say that, had there been no such second printing, the action would have been barred. A rule that publication is once and for all complete as soon as the first book is sold is bad enough, but to go further and say that there is a new publication whenever a new batch of the same unchanged book is printed, is to state a distinction without a difference and to leave a plaintiff’s rights dependent on the size of the printings. Much simpler and more reasonable is the good old common-law rule that every sale of a book is a new publication. As to books, no reason has been suggested for changing that rule, and in any case, such a suggestion should be directed to the Legislature instead of the courts. There can not be the slightest basis for suggesting that the Legislature, when it fixed a one-year period within which libel suits must be brought, had any possible idea that this would be interpreted as meaning one year from the date when the first copy of the book was sent out into the world by the publisher. If the Legislature wants that to be the law in New York, the Legislature should be permitted to say so.

Of course, under the common-law rule, the period for bringing suit may run for a long time, but only if and because the tort-feasor insists on repeating his wrong. The producer of libelous matter can start the statute running in his favor at any time by refraining from sending out any more libeling books. The Statute of Limitations is intended as a statute of repose but it is not intended to furnish a license for continued wrongdoing.

The order appealed from should be affirmed, with costs, and the certified question answered in the affirmative.

CoNWAY, Thacher and Fuld, JJ., concur with Lewis, J.; DesmoNd, J., dissents in opinion in which Loughrak, Ch. J., and Dye, J., concur.

Ordered accordingly. [See 298 N. Y. 753.]


author: Fuld, J. Lewis, J.

text:
    In the Matter of Teresa V. Farrell, as Committee of the Person and Estate of Farrell, an Incompetent Person. Lucy C. Farrell, Appellant; Thomas F. Cohalan, as Special Guardian for Anna Farrell, an Incompetent Person, et al., Respondents.
    Argued April 21, 1948;
    decided July 16, 1948.

      Emmet L. Holbrook for appellant.
    I. There was no gift of the money involved. (Matter of Van Alstyne, 207 N. Y. 298; Matter of Green, 247 App. Div. 540; Bidden v. Thrall, 125 N. Y. 572.) II. Appellant’s title to the East Eiver Savings Bank account became complete and absolute by delivery to her by her mother of the passbook. (Matter of Totten, 179 N. Y. 112; Matter of Rosso, 146 Mise. 746; Davlin v. Title Qua/r. & Trust Co., 229 App. Div. 269.) III. In any event, her mother’s delivery of all three bankbooks to appellant was sufficient to constitute “ gifts ” to appellant. (Mutual Life Ins. Co. v. Holley, 280 N. Y. 330; Baxter v. Gillen, 179 App. Div. 902; Bidden v. Thrall, 125 N. Y. 572; Donahue v. New York Life Ins. Co., 234 App. Div. 241.) IV. Appellant is entitled to the ■ proceeds of the savings bank accounts in payment or restitution of the moneys held in trust for her. (Independent Coal Co. v. United States, 274 IT. S. 640; Lucia Mining Co. v. Evans, 146 App. Div. 416; Newton v. Porter, 69 N. Y. 133.)

      Teresa V. Farrell, in person, as committee, respondent.

      Thomas F. Cohalan, in person, as special guardian, respondent.
    The order appealed from should be affirmed in all respects.
   Fuld, J.

In April of 1945, Mrs. Anna Farrell was declared ah incompetent. At that time, she had money in three bank accounts: two were in her own name, one in the Public National Bank and Trust Company (amounting to about $990), the other in the Greenwich Savings Bank (amounting to $9); the third, in the East Eiver Savings Bank (amounting to about $1,679), Ayas in her name “ in trust for daughter Lucy Farrell.” The latter, one of several children of the incompetent, claimed that the money in those bank accounts belonged to her by reason of the fact that she had, over the years, turned those funds, as well as additional money, over to her mother for safekeeping.

The committee for the incompetent, acknowledging that the ;claim “.is justly due to the claimant ”, petitioned the Supreme Court for an order authorizing * * * directing ” her, as committee, ‘ ‘ forthwith to pay and turn over ’ ’ all the moneys on the hanks. The court-appointed special guardian asserts in this court that, while it is his belief that “ morally she [claimant] is entitled to receive the deposits in the name of the incompetent,” he considers the evidence not sufficiently strong to support her claim “ in view of the fact that the incompetent is unable to answer it.”

The referee, designated to hear and report, denied the claim and that determination, confirmed by the court at Special Term, was affirmed by the Appellate Division, although two justices dissented, voting to reverse and grant claimant’s application in full.

Little purpose is to be served by extended discussion of the facts or lengthy consideration of the law. The case is an unusual one, and decision herein will be limited to its peculiar facts. Suffice it to note that in 1941 Mrs. Farrell opened the account in the East Biver Savings Bank “ in trust for daughter Lucy Farrell ”, and that two years later, in September, 1943, she delivered that passbook to Lucy.

Under the circumstances of this case — peculiar as we have characterized them — delivery of that passbook transformed the tentative trust created by the deposit into an irrevocable trust. (See, e.g., Imperatrice v. Imperatrice, 298 N. Y. 549; Matter of Totten, 179 N. Y. 112, 125-126.) Accordingly, there must be a reversal of the determination below insofar as it affects the moneys on deposit in the East Biver Savings Bank.

The order of the Appellate Division should be modified by directing entry of an order granting application of the committee to the extent of deciding that the deposit in the East Biver Savings Bank, bearing account No. 177328 and entitled “ Mrs. Anna Farrell in trust for daughter Lucy Farrell ”, constitutes an irrevocable trust in favor of Lucy Farrell terminating upon the death of Anna Farrell, and, as so modified, affirmed, without costs.

The order should be modified in accordance with the foregoing opinion, and, as so modified, affirmed, without costs.

Lewis, J.

(dissenting). I am unable to concur with the decision about to be made that, as a matter of law, certain money deposited by Anna Farrell in the East River Savings Bank in trust for her daughter Lucy Farrell was by delivery of the passbook evidencing that account transformed from a tentative trust into an irrevocable trust.

The “ delivery ” of the passbook to Lucy Farrell is a decisive factor in this case. Accordingly, I review briefly the evidence bearing upon that delivery: Prior to Anna Farrell’s admission to Bellevue Hospital, she delivered to her daughter Lucy a sealed envelope which later was discovered to contain insurance policies, bills, receipts and several bankbooks of which one covered the East River Savings Bank deposit here involved. As to that delivery another daughter, Teresa Farrell — testifying for the claimant Lucy Farrell on direct examination — stated: “ my mother handed my sister Lucy an envelope that had been sealed and she told her to hold it for her.” Upon this evidence — which is the only testimony descriptive of the delivery — Special Term confirmed the finding of a referee that merely turning over the envelope to.Lucy for safekeeping was not sufficient delivery. Affirmance at the Appellate Division followed.

It is my opinion that — in view of the testimony that the sealed envelope was turned over to Lucy to be held by her for her mother, Anna Farrell — we cannot say, as a matter of law, that an irrevocable trust was created.

The following statement, per ANdrews, J. (the elder), of a fundamental principle of law has guided my thinking — “ To constitute a trust there must be either an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created. It would introduce a dangerous instability of titles, if anything less was required, or if a voluntary trust inter vivos could be established in the absence of express words, by circumstances capable of another construction, or consistent with a different intention.” (Beaver v. Beaver, 117 N. Y. 421, 428.)

Rules regarding the effect to be given to savings bank trusts — commonly known as Totten trusts ” — were enunciated by this court in Matter of Totten (179 N. Y. 112, 125-126): deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. ’

Relying on this language, a majority of the court holds that a delivery, sufficient in law to transform a tentative trust into an irrevocable trust, occurs when a bankbook is merely placed in the hands of the beneficiary for the purpose of safekeeping with an intent, clearly expressed, that the papers are to be held for the depositor. Such is not my understanding of the delivery intended by the rule of Matter of Totten (supra). Throughout that case and cases subsequently decided by this court, it is repeatedly pointed out that the decisive factor in determining whether a savings bank trust is irrevocable is the intention of the depositor. An unqualified, unconditional delivery may well indicate such an intention but a delivery for the purpose of safekeeping — a mere custodianship — not only fails to indicate an intention to make the trust irrevocable but in reality indicates a contrary intention. I think it is carrying the language of the Totten case too far to say that delivery such as the record at hand discloses, unaccompanied by an expressed intention to make a gift of the bank account — in fact, accompanied by an expressed intention that the delivery is for the limited purpose of safekeeping the passbook — is sufficient to constitute an irrevocable trust of the funds involved. I am influenced by the statement in the case last above cited that a savings bank trust “ is a tentative trust merely, revocable at will, until the depositor ⅜ * # completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book ”, It should be noted that the court speaks of completing the gift by delivery of the passbook. This recognizes and assumes, it seems to me, that the other factors essential to the completion of a gift — including, intention to make a gift — are necessary and already effective — the delivery merely being the final step in the process.

However, it is unnecessary to pursue further this analysis of the language of the Totten case (supra) inasmuch as an interpretation of that ruling was made and applied by this court in Matthews v. Brooklyn Sav. Bank (208 N. Y. 508) on facts similar, to those here involved. In that case Mary Kelly deposited a sum of money in the Brooklyn Savings Bank, the account bearing the title ‘ in account with Mary Kelly in trust for Margaret Matthews On that day Mary Kelly delivered the passbook to Margaret Matthews — the beneficiary — “ for safekeeping ”. Margaret Matthews claimed an irrevocable trust was created by such delivery. This court, however, stated (pp. 510-511): “ The deposit was in form a tentative and revocable trust. The acts of the depositor which are or can be invoked by the respondent [the beneficiary] as making it irrevocable or a completed gift, as a matter of law, are, stated generally and yet accurately, permitting the respondent to know of the deposit and its nature, and delivering the pass hook to her for safekeeping. Those acts considered separately or jointly do not conclusively establish either the one or the other. (Hemmerich v. Union Dime Savings Inst., 205 N. Y. 366; Matter of Totten, 179 N. Y. 112.) The intention of the depositor and whether or not it was effectuated were questions determinable by the Special Term, from those acts and the other facts found.” (Emphasis supplied.)

Nor do I find in Imperatrice v. Imperatrice (298 N. Y. 549, decided herewith) cited by the majority herein — anything which varies the rule of the Matthews case (supra). In the Impera-trice case the complaint alleged that delivery of the passbook by the depositor to his daughter as beneficiary was accompanied by the statement that the funds were hers. It also alleged that “ the defendant, Antonio Imperatrice, without any reservation to himself, made a present and gift to the plaintiff of said savings account by giving and delivering physical possession to the plaintiff of the deposit book for said savings account and expressly stating that the funds * * * pass to her upon the death of the defendant, Antonio Imperatrice.”

I am thus lead to conclude in the case at bar that delivery by the depositor to the appellant of a sealed envelope with express directions that the envelope was to be held by the appellant for the depositor, is sufficient evidence to support the finding by Special Term — affirmed, at the Appellate Division — that an irrevocable trust was not intended or created by the depositor of the funds represented by the bankbook. • '

Accordingly, I dissent and vote for affirmance.

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

Ordered accordingly.


author: CoNway, J.

text:
    Jane C. Richardson, Respondent, v. David L. Richardson et al., as Trustees under an Agreement Made by Jane C. Richardson, Appellants.
    Argued May 17, 1948;
    decided July 16, 1948.

      Leonard A. Blue, Albert B. Maginnes and Hancock Griffin, Jr., for appellants.
    The persons entitled to the intestate property of plaintiff are beneficially interested in the trust. (Whitte-more v. The Equitable Trust Co., 250 N. Y. 298; Schoellkopf v. Marine Trust Co., 267 N. Y. 358; Engel v. Guaranty Trust Co., 280 N. Y. 43; Matter of Scholtz v. Central Hanover Bank & Trust Co., 295 N. Y. 488; Doctor v. Hughes, 225 N. Y. 305; Julier v. Central Hanover Bank & Trust Co., 272 App. Div. 598.)

      William F. Bleakley, Arthur C. Patterson and Collier Platt for respondent.
    The grantor has reserved to herself a reversion and the trust is revocable on her direction and consent alone. (Personal Property Law, § 23; Doctor v. Hughes, 225 N. Y. 305; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134; Fish v. Chemical Bank & Trust Co., 270 App. Div. 251; Matter of Gordon v. Chemical Bank & Trust Co., 272 App. Div.

   CoNway, J.

There has been submitted to the Appellate Division a controversy upon an agreed statement of facts involving an inter vivos trust which the settlor now seeks to revoke. We must now determine whether a reversion or a remainder was created by the trust instrument.

On September 30, 1924, plaintiff-settlor executed a trust agreement in which she placed securities of substantial value in trust. She was then unmarried and had she died on that date her mother, Irene P. Currier, would have been her sole next of kin. Pour days later, on October 4, 1924, she married David L. Richardson. By the terms of the trust instrument the trustees were directed to pay the income to plaintiff for life and “ Upon the death of the party of the first part [plaintiff], the trust herein provided for, shall cease and determine, and the trustees shall thereupon pay over and deliver the corpus of said trust together with any undistributed income thereon, to such person or persons as the party of the first part may designate by her will, or by instrument executed in accordance with the requirements of the State of New York for a last will and testament, and failing-such designation, the trustees shall, upon the death of the party of the first part, turn over the principal of said trust estate, together with any undistributed income thereon to Irene P. Currier, the mother of the party of the first part, if she be then living, and if the said Irene P. Currier be not then living, then said principal shall go to such persons as would be entitled to the same under the intestacy laws of the State of New York.”

Plaintiff’s mother died in 1943, leaving plaintiff as her sole next of kin.

On April 3, 1947, plaintiff executed and served a notice of revocation of the trust upon defendants. At that time her husband and three children (aged 21, 18 and 15) were entitled by law to take her property had she then died intestate.

Section 23 of the Personal Property Law provides: “ Upon the written consent of all the persons beneficially interested in a trust in personal property or any part thereof heretofore or hereafter created, the creator of such trust may revoke the same as to the whole or such part thereof, and thereupon the estate of the trustee shall cease in the whole or such part thereof.”

Defendant trustees urge that plaintiff is- not the sole person “ beneficially interested ” in the trust property within the meaning of the statute because she created a remainder to the persons who will be entitled to take her property in the event of intestacy. Plaintiff on the other hand claims that she created only a reversion to herself.

It is now settled that the solution of the problem presented is dependent upon the intention of the settlor as expressed in the trust agreement. (Doctor v. Hughes, 225 N. Y. 305, 311-312; Whittemore v. Equitable Trust Co., 250 N. Y. 298, 301-303; Hussey v. City Bank Farmers Trust Co., 236 App. Div. 117, affd. 261 N. Y. 533; City Bank Farmers Trust Co. v. Miller, 278 N. Y. 134, 143; Engel v. Guaranty Trust Co., 280 N. Y. 43; Matter of Scholtz v. Central Hanover Bank & Trust Co., 295 N. Y. 488.)

We are here concerned with what is sometimes called the doctrine of “ worthier title ” as applied to inter vivos transfers. (See 3 Restatement, Property, § 314; 125 A. L. R. 548; 48 Yale L. J. 874; 39 Col. L. Rev. 628, 656, 665.) At common law the direction to transfer an interest in land to the heirs of the grantor — and as the rule was later extended by the courts, an interest to the next of not create a remainder in the heirs or next of kin. The direction was disregarded, and it was held that the grantor had expressed merely a reversion to himself. The doctrine arose from the common-law preference to have real property pass by descent rather than purchase. (See 3 Restatement, Property, § 314, pp. 1777-1778; 125 A. L. R. 548-553, 558.) Although the feudal purposes of the rule have long since disappeared, we stated in Doctor v. Hughes (225 N. Y. 305, 311, supra, Cardozo, J.) that the rule persisted 11 at least as a rule of construction, if not as one of property.” We said that the rule survived at least to the extent “ that to transform into a remainder what would ordinarily be a reversion, the intention to work the transformation must be clearly expressed.” In that case we found “ no clear expression of such a purpose.” (P. 312.) (Emphasis supplied.) .

Later in Engel v. Guaranty Trust Co. (280 N. Y. 43, 47, supra) we said (LoughsAN, J.): “ But this rule (as the Doctor and WMttemore eases show) is with us no more than a prima facie precept of construction which may serve to point the intent of the author, when the interpretation of a writing like this trust agreement is not otherwise plain. Inasmuch as for us that rule has now no other effect, it must give place to a sufficient expression by a grantor of his purpose to make a gift of a remainder to those who will be his distributees.” (Emphasis supplied.)

“We apply here the rule which was decisive in Doctor v. Hughes (supra, p. 312): ‘ * * * that to transform into a remainder what would ordinarily be a reversion, the intention to work the transformation must be clearly expressed. Here there is no clear expression of such a purpose.’

“Our decision in the present case is not inconsistent with the rulings in Whittemore v. Equitable Trust Co. (250 N. Y. 298) and Engel v. Guaranty Trust Co. (280 N. Y. 43) where the language of the trusts involved led this court in each instance to conclude that it was the intention of the grantor to create a remainder rather than to reserve a reversion.” (P. 492-493.)

Thus direction to transfer trust property to one’s next of kin is insufficient in and of itself to create a remainder. There must be additional factors, i.e., other indications of intention in order that there may be found “ sufficient ” or “ clear expression ” of intention on the part of the settlor to create a remainder to his next of kin.

In our decisions we have attached considerable importance to at least three factors which are present in the instant case, viz.: (1) that the settlor has made a full and formal disposition of the corpus of the estate, i.e., disposed of the principal on several contingencies other than having it revert to himself, (2) that the settlor has made no reservation of a power to grant or assign an interest in the property in his lifetime, and (3) that he has reserved only a testamentary power of appointment.

In Whittemore v. Equitable Trust Co. (250 N. Y. 298, supra) three settlors placed property in trust for two named beneficiaries for life, and on their death the trust estate was to he returned to the settlors in equal shares, hut if any of the settlors was then dead his or her share was to be paid to his or her appointee by will, or in default of appointment, to such persons as would take in the event such deceased settlor died intestate. Judge Crane writing for the' court (and referring to the settlors and life beneficiaries in the singular) pointed out (pp. 301-303):

Taking this agreement in its simplest form, we have a trust created in personal property for the life of the beneficiary. At the death of the life beneficiary, the trustee is directed to do one of three things: pay the principal of the estate to the settlor, if he be alive; or, if he be dead, to pay it as directed in the settlor’s last will and testament; or, if the settlor leave no will, to pay it to the persons who would then take under the Statute of Distributions. No provision is made to pay the principal of the trust to the grantee or assignee of the settlor. * * *

Reading the instrument as a whole, it is apparent that the settlor intended to make a complete disposition of all the estate at the time of the making of the instrument, and did so in the way indicated. The children or next of kin were given a vested remainder, which might be divested by the last will and testament of the settlor; it could not he divested by the deed or assignment of the settlor. In other words, if the settlor, believing he had not conveyed away all of his interests in the property, had attempted to assign or transfer in his lifetime that which he thought he still possessed, and which in law we call a reversion, the deed or transfer would be ineffectual as against his children. Their interest as next o.f kin could only be divested or cut off by a last luill and testament. * * *

“ To determine, therefore, whether the settlor of the trust in this case simply created a life interest and nothing more, reserving to himself the balance of the interest in the property, we looked to his intention, as expressed in the instrument. If the trust deed had said that upon the death of the life beneficiary the net principal of the trust estate was to be paid over and delivered to the settlor or his next of kin in equal shares, the addition in this place of the words next of kin, ’ would not have been sufficient in all probability to create a remainder. Rather it would indicate that the settlor intended all above a life interest to remain with him as a reversion to be disposed of in any way he pleased. The words • would indicate a limitation, not a gift. (Whittemore v. Equitable Trust Co., 162 App. Div. 607; Doctor v. Hughes, 225 N. Y. 305.) But that is not this case. Here we have something more. The settlor, as above stated, makes rather full and formal disposition of the principal of the trust estate in case he dies before the life beneficiary. The words used, as already explained, indicate an intention to give a remainder to the spouse and children, as the case may be, subject to change by the settlor’s will. The creator of the trust reserves power of disposition only by will; he does something more than merely set up a trust for a life beneficiary; of the property at the termination of the life interests in case of his previous death. * * * ” (Emphasis supplied.)

Later in Hussey v. City Bank Farmers Trust Co. (236 App. Div. 117, 261 N. Y. 533, supra) we followed the Whittemore case (supra) in holding that a remainder had been created, and again gave much weight to the fact that there was a complete disposition of the trust estate with a vested remainder to the next of kin of the settlor which might be divested by the will of the life beneficiary but could not be divested by grant or assignment. There the testamentary power was reserved to the life beneficiary, rather than the settlor, but we considered that fact unimportant. The trust was set up by the settlor immediately prior to his marriage and provided for the income to be paid to the settlor’s wife during her life. Upon her death the principal was to be distributed to (a) such persons as she might direct by mil, and failing such disposition (b) to the settlor if living, and if not living (c) to those persons who at the time would be the next of kin of the settlor according to the laws of the State in which the settlor might be a resident at the time of his death.

In Engel v. Guaranty Trust Co. (280 N. Y. 43, supra) the trustee was directed to pay the income to the settlor for life and upon his death to pay the corpus to the settlor’s wife if she survived him, and if not to the persons he might designate in his will, and in the event of a failure of valid appointment, to the persons entitled to his intestate property. The trustee was also authorized to make payments out of principal to the settlor during his life not to exceed an aggregate of $15,000. In reversing the Appellate Division which had held that a reversion was created, we said (Loughean, J., p. 46): “ We think the reasoning of our opinion in Whittemore v. Equitable Trust Co. (250 N. Y. 298) commits us to just the opposite conclusion. There the question was whether a trust agreement reserved a reversion to the settlors or created remainders in their distributees. We held the latter alternative was the one intended. The chief reason for that view was the circumstance that the only provision which the settlors made for control by them of the trust principal gave them no power save that of testamentary disposition thereof. (Id. (Emphasis supplied.)

Concerning that particular instrument we said (p. 47): “ The instrument now before us likewise fails to provide for an assignment of the trust principal by the grantor. Its terms, moreover, admit of exercise of the reserved power of testamentary appointment only in the event of the grantor’s survivorship of the remainderman, Margaret V. Engel. Significant, too, is the omission of any provision for return of the trust principal to this grantor beyond the $15,000 which he expressly retained the right to draw down. In this last aspect (though the total value of the corpus does not appear), the purpose of the grantor fully to divest himself of any other reversionary interest in this trust is clearer to a degree than was the like intent of the settlors which the court found in the WMttemore case — for there the settlors were to have the principal again on their survival of both life beneficiaries.”

Then after referring to the rule of Doctor v. Hughes (225 N. Y. 305, supra), and stating that it must give way to a sufficient expression by the grantor of his intention to make a gift of a remainder to his distributees (quoted supra at p. 139), we said (p. 47): “We find in the present instance an adequate disclosure by the trust agreement of a purpose in the mind of this grantor to vest Ms presumptive heirs with rights which it would be beyond his power to defeat, except by testamentary provision.” (Emphasis supplied.)

As in the above cases, the settlor here made a full and formal disposition of the principal of the trust fund. She reserved no power to grant or assign any part of the trust property in her lifetime. Except for the right to name a substitute trustee, the settlor retained no control over the trust property other than by the testamentary power of appointment. The instrument provided that the income be paid to the grantor for life, and upon her death that the corpus be paid to such person or persons as she might designate by will, and failing such designation, to her mother if living, and if not, to the distributees of her intestate property. There is a marked similarity between this disposition and that made in the Engel case {supra). There, after the life estate to the settlor, the instrument provided for a remainder to the settlor’s wife, and then if she died prior to the settlor, he had. a power of appointment. The only difference is that here the settlor had an immediate power of appointment, i.e., settlor for life, power of appointment by settlor and then failing its exercise, a remainder to the mother. In the Engel case there was an immediate remainder to the wife after the life estate of the settlor, and the settlor had a power of appointment only if he survived Ms wife. Thus although the pow.er of appointment here is more immediate than in the Engel case, with the result that the mother’s remainder here was more contingent than the wife’s remainder in that case, we do not believe that any different intention is indicated on the part of the settlor as to her interest or the interest which she intended to give her next of Mn. She provided for a testamentary power of appointment only, and, since we have presented to us the question of her intention, if we are to follow the reasoning in the Whittemore and Engel cases (p. 301), we must assume that she believed she had created a remainder in her mother or in case of her mother’s death in her next of kin and had reserved the power of appointment to defeat both those alternative remainders. Had she intended to create a reversion the power would have been superfluous. (See 39 Col. L. Rev. 628, 665.) She had a complete plan of disposition wMch would operate as life income to herself with alternative remainders. She had power to change it, but only by affirmative act and then only by testamentary change.

Another factor which points to a remainder and which was relied upon to some extent in the Engel case (supra) is the failure of the settlor to provide for the return of the principal or any part thereof to herself upon any contingency. In this respect the case is stronger than the Whittemore and Hussey cases (supra) where in each ca,se, despite a provision that the corpus be paid to the settlor in a particular event, we construed the instrument as creating a remainder.

To summarize, therefore, we believe the settlor evidenced her intention to give a remainder to her next of kin because she (1) made a full and formal disposition of the principal of the trust property, (2) made no reservation of a power to grant or assign an interest in the property during her lifetime, (3) surrendered all control over the trust property except the power to make testamentary disposition thereof and the right to appoint a substitute trustee, and (4) made no provision for the return of any part of the principal to herself during her lifetime.

The following cases are in accord with the foregoing and were decided for the reasons indicated:

In City Farmers Trust Co. v. Miller (278 N. Y. 134, supra, Finch, J.) there was involved a trust set up by an actress who feared her own extravagance. It provided for the return of the principal to her if she lived long enough. We considered that the alternative disposition of the balance of any remaining principal in the event of her earlier death was merely the creation of a reversion. (P. 143.) In that case we cited Berlenbach v. Chemical Bank & Trust Co. (235 App. Div. 170, 260 N. Y. 539). There another performer (a professional boxer) was involved who had set up a trust primarily for his own benefit, he being the only named beneficiary, with provision for the return of the principal to him at the expiration of a twenty-year period. In addition, the trustee was not to be permitted to sell or exchange the securities or invest or reinvest the proceeds of a sale thereof without the settlor’s consent. The Appellate Division found that the instrument evidenced no intent on the part of the settlor to divest himself of his property but that he erected the trust for his own benefit. (P. 173.)

In Guaranty Trust Co. v. Armstrong (268 App. Div. 763, affd. 294 N. Y. 666) there was no present interest created in third persons. The settlors, husband and wife, had power to terminate the trust at any time during their joint lives and there was no relinquishment of complete control of the corpus by the settlors or the survivor of them. Thus the surviving wife had a reversion in that portion of the corpus of the trust contributed by her. (See Culver v. Title Guar. & Trust Co., 296 N. Y. 74, at p. 78, CONWAY, J.)

The Schoellkopf case (supra) in point of time followed the Whittemore (250 N. Y. 298, supra) and the Hussey (216 N. Y. 533, supra) cases and preceded the Engel (280 N. Y. 43, supra) case. Those four cases demonstrate the growth of the doctrine that it is the intention of the grantor to create a remainder rather than a reversion which is to control and they indicate clearly the factors which, when present, evidence the fact that a remainder was intended as a legal conclusion.

The .judgment of the Appellate Division should be reversed and judgment directed in favor of the defendants denying plaintiff the right to cancel the trust agreement, without costs.

LougheaN, Ch. J., Lewis, DesmoND, Dye and Fuld, JJ., concur.

Judgment reversed, etc.


text:
    Miriam Caldwell, Respondent, v. John P. Caldwell, Appellant.
    Argued May 19, 1948;
    decided July 16, 1948.

      Btim and Michael J. Mahoney, Jr., for appellant.
    I. Tbe Mexican mail order divorce is a nullity and defendant is not estopped from questioning its validity. (Fischer v. Fischer, 254 N. T. 463; Maloney v. Maloney, 288 Y. 532; Btohes v. Btohes, 198 N. Y. 301; McGullen v. McGullen, 162 App. Div. 599; Earle v. Earle, 141 App. Div. 611; Matter of Burdah, 173 Mise. 839; Krause v. Krause, 282 N. Y. 355; Vose v. Vose, 280 N. Y. 779; Wynn v. Wynn, 188 Mise. 425; Querze v. Querze, 290 N. Y. 13; Fleischer v. Fleischer, 188 Mise. 402; Oldham v. Oldham, 174 Mise. 22.) II. Plaintiff is not entitled to tbe relief granted, even under tbe bolding of Krause v. Krause (282 N. Y. 355). (Amerling v. Amerling, 180 Mise. 701.)

      Samuel Weinreb for respondent.
    Defendant is estopped from questioning in tbis action tbe prior divorce obtained by bimself. (Querze v. Querze, 290 N. Y. 13; Vose v. Vose, 280 N. Y. 779; Krause v. Krause, 282 N. Y. 355.)
   CoNway, J.

We have presented to us tbe question of wbetber any effect may be given by our courts to a divorce obtained by mail from a court of a foreign nation at tbe instance of one domiciled in tbis State.

In 1939 plaintiff and defendant desired to marry. Before so doing it was necessary for defendant to divorce bis then wife. At first it was planned that be procure tbe divorce in Nevada. Due to monetary considerations, that scheme was abandoned and defendant’s wife was ashed to assist by going through a divorce proceeding in a Mexican court since that would be less costly and tbe divorce could be obtained more quickly. While stating that she believed such a proceeding to be valueless, she consented to co-operate. A New York attorney (who may have breached the canons of ethics adopted by tbe New York State Bar Association, dependent upon tbe content of bis advice [see Matter of Anonymous, 274 App. Div. 89]) was visited and retained. Thereupon defendant and his wife executed powers of attorney to counsel resident in Mexico so that they might there he represented before the court. Those powers of attorney were mailed and in due course, a decree of divorce was granted hy the Court of First Instance of Huamantla, Judicial District of Juarez, State of Tlaxcala, Eepuhlic of Mexico. The decree was received by mail and was offered in evidence on the trial herein by plaintiff. Neither the defendant nor his wife visited Mexico. The decree contains no recital that either party to the action was ever physically present or domiciled in Mexico.

Upon receiving notification of the granting of the divorce, plaintiff and defendant, who were domiciled in New York, went to Virginia and were there married before a Justice of the Peace at Manassas. They returned to New York City immediately and parted at the railroad station, the defendant taking a train for California.

In 1940, plaintiff brought a proceeding in the Domestic Relations Court, Family Division, for the support of herself as defendant’s wife and for the support and maintenance of their child. The record in that proceeding, containing the testimony of plaintiff and defendant, was received in evidence and is before us hy stipulation of the parties. After the trial the Justice determined that the Mexican decree was a nullity and that he had then no power under the Domestic Relations Court Act to provide for the support of the child. (But see N. Y. City Dom. Rel. Ct. Act, § 101, suhd. 6, added by L. 1942, ch. 761, § 7, as amd. hy L. 1944, ch. 738, § 7.)

Then in 1946, the plaintiff commenced the present action for separation and support alleging that she was duly married to defendant and that he had abandoned her. She further sought custody of and support and maintenance for the child of the alleged marriage.

The defendant pleaded a defense of res judicata hy reason of the Family Court decision. That defense is not properly interposed. (Loomis v. Loomis, 288 N. Y. 222.)

The trial court gave judgment for plaintiff, finding that she had proved the allegations of her complaint' and awarded her. custody of and maintenance for the child. The Appellate Division affirmed upon the ground that the defendant might not be heard to impeach the judgment of divorce previously obtained by him in the courts of a foreign jurisdiction. Both courts relied upon our decision in Krause v. Krause (282 N. Y. 355).

We think that the rule of quasi-estoppel in the Krause case {supra) is not applicable here. In that case, the defendant husband, while retaining his residence in this State, went to Nevada and obtained a decree of divorce there from his first wife, who neither entered an appearance nor was personally served and who at all times remained a resident of this State. He then married the plaintiff wife. After six years of married life she brought an action against him for separation and support upon the ground of abandonment. We held that the Nevada decree would not be recognized by this . State and that the subsequent marriage to plaintiff by defendant was void because of his incapacity to enter into a valid marriage but that having himself procured the Nevada decree he would not be permitted to assert its invalidity so as to avoid an obligation to support the plaintiff wife whom he had married on the strength of his Nevada decree.

collateral attack the judgment establishes a finding of actual residence of the successful party plaintiff for the requisite statutory period and also of the added mental ingredient necessary for the jurisdictional finding of domicile. Consequently, for the procurer of such de.cree to attack it collaterally, he must contradict under oath his own declarations as to domicile also made under oath in the sister State. In effect the procurer of the sister State divorce in order to attack it, must attempt to establish affirmatively in our courts that he succeeded in perpetrating a fraud upon the court of that sister State. To refuse to permit that is not unreasonable but is consonant with justice.

The reason for that rule vanishes when we have presented to us a situation where two persons attempt to confer jurisdiction upon a court of a foreign nation by means of the execution of powers of attorney to counsel residing there and then forwarding such instruments mail without ever visiting that nation or establishing their domicile there. This is the device which results in what we have come to denominate a mail-order divorce ’ ’. There is not even the slightest semblance or color of jurisdiction justifying action by a court. The spouses here never submitted themselves to nor invoked the jurisdiction of a court of the foreign nation as we understand those terms. They violated our statute embodying our public policy (Domestic Relations Law, § 51). Their collusive agreement and conduct may not be the foundation for the creation of any rights. This differs from the situation in the Krause case (282 N. Y. 355, supra). Here, the defendant, assuming that he was the sole procurer of the divorce in Mexico, engaged in no deception of the court there and perpetrated no fraud upon it. He never alleged or claimed domicile in Mexico. He was never there. Moreover, in the Krause case we approved in the following language (p. 359) Vose v. Vose (280 N. Y. 779) which involved a decree of a court in Mexico: “ In Vose v. Vose (280 Y. 779) the plaintiff in a prior action was allowed to repudiate the judgment of divorce which he had obtained. In that case neither of the parties ever left this State and the judgment which was repudiated was that of a divorce by a Mexican court which had not even the slightest semblance of jurisdiction to act in the premises. The husband and the wife in that case had merely entered into a collusive agreement to obtain from a court of a foreign country in which correspondence through, the mails constituted the only nexus between either of the interested parties and the court which entered the judgment of divorce. In this case it may be observed also that section 51 of the Domestic Relations Law (Cons. Laws, ch. 14) interdicts any agreement between a husband and wife ‘ to alter or dissolve a marriage or to relieve the husband from his liability to support his wife.’ * * * ”

We restated our position three years after the decision in the Krause case (supra) in Querze v. Querze (290 N. Y. 13). There the wife, in an action for divorce against her husband, was permitted to assert the invalidity of a prior decree of a court of Mexico, obtained by mail, despite the fact that she herself had procured the decree and that the defendant husband had remarried in reliance upon it. (See, also, Senor v. Senor, 272 App. Div. 306, 312, 313, Peck, J., affd. 297 N. Y. 800.)

To hold that one is estopped or precluded from showing the invalidity of a “ mail order divorce ” is to allow such a void decree to affect, in some measure, the marital status of residents of this State. Mexico is one of our neighboring nations but no different rule may be applied to it than to a European, African or Asiatic nation. The legal profession and, indeed, the general public now recognize the valueless character of mail order divorces. To grant such a decree even the limited operative effect in this State urged by plaintiff would be to abandon the legal position taken in the Vose and Querze cases (supra).

Since the decree of the Mexican court is a nullity from which no rights of any kind may spring, the question then arises as to what judgment, if any, may be entered affecting the custody, support and maintenance of the child of plaintiff and defendant. In the proceeding in the Family Court in 1940, the Justice (Sicheh, J.), in his opinion, reported in 174 Miscellaneous 906, 915-916, attempted to advise plaintiff as to her rights. At that time it was the law of this State, in accordance with the rule as stated by us in Davis v. Davis (75 N. Y. 221) that in an action for divorce or separation where the relief sought was denied, the trial court was without power to retain jurisdiction of the action so as to enter a decree affecting the custody and maintenance of a child, except in one instance not material here. To settle such question of custody and maintenance it was necessary, following the denial of relief in the divorce or separation action, to proceed under section 70 of the Domestic Relations Law or to bring a separate action in equity.

In Davis v. Davis (supra, p. 227), we said: “ * * * It would be an anomaly in legal proceedings to allow a complainant, who had failed to establish a claim to the principal relief sought, to have a decree against the defendant for-the mere incidents to that relief. In this case, the plaintiff, by her suit, invoked the jurisdiction of the court to grant her a separation under the statute. She has failed to make a case for a divorce, and the defendant was, we think, entitled to a judgment of dismissal. The court was not authorized, in this action, after having denied judgment of separation, to award to the plaintiff the custody of the children, or make a decree for their support. The general jurisdiction which appertains to the Supreme Court, as a court of equity to interfere for the protection of infants — and by virtue of which, in a proper case, where the interests, of infants require it, they may be taken even from the custody of the father and placed under the care of strangers — cannot be invoked to sustain the judgment in this case. In this statutory action, the power of the court is to be sought in the statute itself, and only such judgment can be rendered as is authorized thereby.” (See, also, Finlay v. Finlay, 240 N. Y. 429, 431, 432; Fein v. Fein, 261 N. Y. 441, 443, 444.)

In matrimonial actions, the courts of this State have only such powers as are conferred upon them by statute. The English law relating to such actions constituted a part of the ecclesiastical and not of the common law of that country and has never been adopted by this State. (Erkenbrach v. Erkenbrach, 96 N. Y. 456, 462-464; Walker v. Walker, 155 N. Y. 77, 80.) Hence, the power of the Supreme Court to grant a judgment' of separation and of support for the wife and support and maintenance for the child is derived solely from the statutory law of this State.

In 1941, however, following a study made by the Judicial Council of the State of New York and pursuant to their recommendation, there was added to the Civil Practice Act a new section (L. 1941, ch. 249) reading as follows: “ § 1170-a. Custody and maintenance of children ivhere divorce, separation or annulment denied. Where an action for divorce, separation or annulment, or for a declaration of nullity of a void mairiage, has been tried and the court for any reason whatsoever, other than lack of jurisdiction, refuses to grant a judgment of divorce, separation or annulment or a judgment declaring the marriage a nullity, as the case may he, the court may, nevertheless, render judgment in the' same action making such directions as justice requires, between the parties, for the custody, care, education and maintenance of any child of the marriage. The court, by order, at any time thereafter, upon the application of either party to the action, or of any other person or party having the care, custody and control of such child pursuant to such judgment, after due notice to the other, to be given in such manner as the court shall prescribe, may annul, vary or modify such directions.” (See Seventh Annual Report of N. Y. Judicial Council, 1941, pp. 39, 40, 269-276.)

Under the provisions of that section, had the trial court refused to grant a judgment of separation for the reasons indicated in this opinion, the court might nevertheless have made the provision which it did for the custody, care and maintenance of the child of plaintiff and defendant.

The judgment of the Appellate Division should be modified by reversing so much thereof as affirms the judgment of the Special Term (1) decreeing plaintiff to be the lawful wife of defendant and (2) directing that she be separated from said defendant, and, except as so modified, affirmed, without costs.

Ch. J., Lewis, DesmoND, Thachee, Dye and JJ., concur.

Judgment accordingly.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Leo J. Mleczko, Appellant.
    Argued March 16, 1948;
    decided July 16, 1948.

      William B. Mahoney and John B. Corcoran for appellant.
    I. The preliminary proof was clearly insufficient to warrant the admission of the dying declaration in evidence. (People v. Mikulec, 207 App. Div. 505, 240 N. Y. 573; People v. Sarzano, 212 N. Y. 231; People v. Falletto, 202 N. Y. 494; People v. Bichen, 242 App. Div. 106.) II. The trial court erroneously submitted the question of the “ statement’s ” admissibility to the jury as a question of fact. (People v. Ludkowitz, 266 N. Y. 233; People
      v. Bartelini, 285 N. Y. 433; People v. Falletto, 202 N. Y. 494; People v. Smith, 104 N. Y. 491; People v. Kraft, 148 N. Y. 631; People Y. Infantino, 224 App. Div. 193; People v. Corey, 157 N. Y. 332.) III. trial court committed additional error in permitting the last sentence of the alleged dying declaration of decedent to be read into evidence. (People v. Smith, 172 N. Y. 210; People v. Becker, 215 N. Y. 126.) IY. The trial court committed reversible error in allowing in evidence the testimony of eight witnesses relating to an alleged identification of the defendant by the victim of the homicide. (People v. Pignataro, 263 N. Y. 229; People v. Dolce, 261 N. Y. 108; People v. Butigliano, 261 N. Y. 103; P'eople v. Marendi, 213 N. Y. 600; People v. Smith, 172 N. Y. 210; Greener v. General Elec. Co., 209 N. Y. 135; People v. Sprague, 217 N. Y. 373; People v. Cascone, 185 N. Y. 317; People v. Infantino, 224 App. Div. 193; People v. Malkin, 218 App. Div. 635.) V. The trial court erred in refusing the defendant’s request to charge which related to the weight to be given to dying declarations and the request to charge that the defendant was under no duty to speak when taken to the bedside of the deceased where he was allegedly identified as her assailant. (People v. Bartelini, 285 N. Y. 433; People v. Ludkowits, 266 N. Y. 233; People v. Falletto, 202 N. Y. 494; People v. Kraft, 148 N. Y. 631; People v. Pig-nataro, 263 N. Y. 229; People v. Dolce, 261 N. Y. 108; People v. Butigliano, 261 N. Y. 103; People v. Marendi, 213 N. Y. 600; People v. Smith, 172 N. Y. 210.) VI. The manner in which the alleged confessions were extorted from the defendant and their receipt in evidence upon the trial constituted a violation of the defendant’s rights, guaranteed by the Fourteenth Amendment to the United States Constitution. (People v. Malinski, 292 N. Y. 36Ó; People v. Mummiani, 258 N. Y. 394; Malinski v. New York, 324 U. S. 401; Ashcraft v. Tennessee, 322 U. S. 143; Chambers v. Florida, 309 U. S. 227; Lyons v. Oklahoma, 322 U. S. 506; Lisenba v. California, 314 U. S. 219.)

      Edwin G. O’Connor, District Attorney, for respondent.
    I. The written and oral confessions of defendant were properly admitted in evidence. (People v. Elmore, 277 N. Y. 397; People v. Doran, 246 N. Y. 409; People v. Malinski, 292 N. Y. 360.) II. The dying declaration was properly admitted in evidence.
      (People v. Bartelini, 285 N. Y. 433; Johnson v. State, 102 Ala. 1; Sims v. State, 139 Ala. 74; People v. Greivs, 102 Cal. 174; MacJcabee v. Commonwealth, 78 Ky. 380; State v. Garth, 164 Mo. 533; People v. Marendi, 213 N. Y. 600.) III. It was not error to admit in evidence the testimony relative to the identification of defendant by deceased. IV. There was no error in the charge relative to the weight to be given to dying, declarations and the trial court’s refusal to charge that defendant was undér no obligation to speak when taken to bedside of deceased where she identified him. (People v. Rutigliano, 261 N. Y. 103.)
   Fuld, J.

An atrocious crime committed upon Lydia C. Warner, a married woman in her forties, resulted in her death. Her condition following the attack upon her was so desperate that her treatment consisted solely of emergency measures to prolong her life. She remained alive for four days, in a condition of shock, and died on March 14, 1946. Charged with killing her, defendant was convicted of felony murder in the first degree and sentenced — upon the jury’s recommendation — to life imprisonment, and no one may deny that the record contains evidence sufficiently convincing to warrant a verdict of guilt. However, errors fundamental and grievous, errors which went to the very heart of the issue, compel reversal and a new trial.

No purpose is to be served by detailed treatment of the evidence, and we need but observe at this point that, shortly before her death, Mrs. Warner made a dying declaration naming defendant as her assailant, confirming an earlier identification, and that defendant orally and in writing acknowledged his guilt. Objection to the admissibility of the confessions and to the receipt in evidence of the dying declaration need not detain us. Whether or no the confessions were free and voluntary was properly left to the jury (see People v. Doran, 246 N. Y. 409; People v. Jones, 297 N. Y. 459; People v. Lonergan, 294 N. Y. 942, certiorari denied 326 U. S. 772; cf. People v. Pignataro, 263 N. Y. 229, 240-241), and ample and clear was the proof that the declaration was made under a sense of impending death without hope of recovery. (See People v. Bartelini, 285 N. Y. 433, 440-441; People v. Ludkowitz, 266 N. Y. 233, 238; People v. Sarzano, 212 N. Y. 231, 235; People v. Falletto, 202 N. Y. 494, 499.)

To see in proper focus the errors deemed serious, we turn to the dying declaration and its contents, to the earlier identification made by the deceased and the manner in which it was proved.

Several hours before her death on March 14th, Mrs. Warner was advised by physicians that she was dying and that no hope existed for her recovery. A written statement, previously prepared by the chief of police, was read to her. She signed it with an “ X ”. Insofar as pertinent, it recited that “ ‘ Leo Mleczko a section hand came to Plate Tower at Dunkirk, N. Y., where I was working alone. I let him in because I knew him as one of the section hands. All of a sudden he attacked and beat me-. The Leo Mleczko I mean is the same man I identified here at the hospital last nite. ’ ” On the previous night, defendant, handcuffed and in the custody of the police, had been taken to Mrs. Warner’s hospital room. Eight people were gathered there, and each of them testified that, when asked whether she saw her assailant in the room, the dying woman looked slowly about the room until her eyes rested upon defendant, and that, then, she replied, “ 1 Yes, Leo ’ ”.

Such testimony could not have failed but make a strong impression upon the jury, and strenuous objection is now voiced not only to the declaration, but also to the inclusion of its last sentence to the effect that there had been a prior identification.

It has been said that a dying declaration “ may not properly include narrations of past occurrences ” and that only those statements contained therein are admissible which bear upon “ the circumstances ” of the declarant’s death (People v. Smith, 172 N. Y. 210, 242-243; see, also, People v. Becker, 215 N. Y. 126, 145). However, those observations must be read in their context, in the light of the contents of the declarations under consideration. We would hesitate long before excluding a statement in the declaration which would serve to identify the killer. Certainly, no rule of law required deletion of the sentence to the effect that the assailant was the man whom the declarant had identified the night before. And if doubt existed that defendant was the il Leo Mleczko a section hand ”, named in the declaration, that doubt could assuredly be dissipated, and properly, by evidence of the earlier identification.

While the People may thus have been enabled to show that Mrs. Warner had previously pointed out defendant as her assailant — in order to establish that he was the Leo Mleczko in question — the prosecution was not thereby privileged to go beyond that permissible limit. Entitled to call out evidence for one purpose, the district attorney was not permitted to use it — as quite obviously he did — for another. (Cf. People v. Zackowitz, 254 N. Y. 192, 199-200.)

That identification of last nite could have been quickly demonstrated by the testimony of any one of the witnesses who had been in the room. The district attorney, however, called all eight, and each of them testified, in identical fashion, as to the manner in which Mrs. Warner designated defendant as her assailant. The prosecutor did not stop there; he went further and, from seven of the eight witnesses, he elicited the additional and exceedingly damaging fact that, when the woman accused him of attacking her, he stood silently by, doing nothing, saying nothing.

This was damning evidence and — even had it not been seven times repeated — must have had a devastating effect, carrying with it, as it did, overpowering implications. And the prosecutor, undoubtedly realizing this, forcefully and persuasively reminded the jurors, in his summation, of defendant’s silence with these words: “ And Mleczko stood there at the side of the bed, ladies and gentlemen, as cold, as brutal, and as stoic as he is sitting there right now. And he did not say one single, solitary word when Lydia Warner identified him. Now, you know, ladies and gentlemen, that if any one of you, or anybody, was identified in that manner at that time by Mrs. Warner of having been the one that attacked her, if they did not do it, what would they do, ladies and gentlemen? Would they stand there as cold and stoic as that man is sitting there now and say nothing? You know very well they would not, ladies and gentlemen. You know they would say, ‘ Why, I didn’t do this.’ You know they would reiterate their innocence. But he didn’t say a word.”

In our discussion, we put aside defendant’s claim, made at the trial — and it stands uncontradicted on the record before us — that he “ didn’t say a word ” because the police chief had warned him that, when “ we get to the hospital, you better keep your mouth shut * * * you better not say anything.”

This court has repeatedly held that, when the accused was under arrest, “ he was not * * * called upon to speak or deny an accusation ’ ’ and that, under such circumstances, silence could not be construed as an admission ”. (See, e.g., People v. Rutigliano, 261 N. Y. 103, 106; People v. Pignataro, 263 N. Y. 229, 236, supra; People v. Marendi, 213 N. Y. 600, 613.) The reason for the rule, founded on good common sense, is self-evident. cautious person, when in custody, accused of crime would care to enter into a discussion of his guilt or innocence with his captors * * * when what he said might be used against him. * * * He is then under no duty to speak and his silence should not be counted as giving assent to what he hears. If he had counsel, he would doubtless be advised not to talk. If he had not, he should not be prejudiced thereby.” (People v. Rutigliano, supra, p. 107.)

The error and the prejudice engendered was brought to a head by the trial court’s refusal to advise the jurors that defendant was “ under no duty in police custody — to deny the victim’s accusation that he was her assailant and to instruct them that no inference could be drawn against defendant “ because of his silence or his failure to reply.” The proof that defendant, to employ the prosecutor’s words, “ stood there at the side of the bed * * * cold * * * brutal, and * * * stoic ”, uttering “ not * * * 0ne single, solitary word when Lydia Warner identified him ”, was, as already observed, powerful and devastating. If silence was, as urged, “ to be counted as giving assent to what he hears ”, defendant’s protestations of innocence, his claim that the confessions were extorted and coerced, were rendered futile — for here, the jurors must have reasoned, was an acknowledgment of guilt openly and freely made, without the slightest pressure, in the presence of many witnesses. ' In truth, such testimony went far toward removing the issue of voluntary or involuntary confession from the case and virtually deprived defendant of his defense.

In short, receipt of the evidence referred to, its emphatic reiteration by the prosecutor, and the court’s refusal to instruct as requested concerning defendant’s silence, constituted a series of errors capable of working incalculable harm upon defendant, errors so basic and substantial as to defy evaluation.

Similarly harmful and to a degree also impossible of admeas-urement was another error committed by the trial court in refusing a further request to charge concerning the weight to be accorded the declaration. After pointing out that a dying declaration is admissible “ to protect the innocent and punish the guilty ” and “ in order to prevent injustice ”, the judge went on to tell the jury that Judicial expression sometimes indicates that dying declarations should be scrutinized with great care. All testimony must be scrutinized with great care. And what is meant is to emphasize that dying declarations are an exception to the rule against so-called hearsay testimony.” Under such a charge, the jury was free to treat and evaluate the dying declaration as testimony given under oath. That was misleading, for the law is otherwise. (See People v. Bartelini, 285 N. Y. 433, 442, supra; People v. Ludkowitz, 266 N. Y. 233, 242, supra; People v. Falletto, 202 N. Y. 494, 500, supra.) Made without the test of cross-examination, “ with no fear of prosecution for perjury ” and with only the uncertain promptings of “ fear of punishment after death ” to assure truthfulness, and at a time ‘ ‘ when the body is in pain, the mind agitated and the memory shaken by the certainty of impending death ”, dying declarations have been characterized as “ dangerous ”. (People v. Falletto, supra, p. 499; see, also, People v. Bartelini, supra, p. 440; People v. Corey, Y. 332, 349.) As this court has observed, “ Experience shows that dying declarations are not always true ” and that dying persons have made self-serving declarations, such as false accusations, in order to destroy their enemies, and false excuses in order to save their friends.” (People v. Falletto, supra, pp. 499-500.)

It is evident, therefore, that defendant was entitled to have the jury instructed, as he requested, that the dying declaration is not to be regarded by the jurors as having the same value and weight ” as the sworn testimony of a witness in open court. The court’s refusal to so charge, we recently ruled, w-as “ erroneous and * * * so prejudiced the defendant’s rights, as to require a new trial in the interest of justice.” (People v. Bartelini, supra, p. 442.)

In addition, we note that there is much in the district attorney’s summation to which exception might be taken — particularly, Ms statement in my opinion the police used remarkable restraint in not giving Mm [the defendant] Ms jnst dues.”'

It is urged, nevertheless, that there should be an affirmance because there is evidence that defendant confessed. The answer — quite apart from other considerations — is simple. We do not know whether the jury would have returned a verdict of guilt with only the confessions before it. Indeed, we cannot even say whether the jury would have returned such a verdict upon the strength of both confession and dying declaration if only competent proof had been introduced and proper instructions given.

An appellate court is directed to disregard technical errors which do not affect * * * substantial rights ” (Code Crim. Pro., § 542). Manifestly, the Legislature could never have purposed that the court should regard errors as technical, no matter how grave or substantial they may be, upon the hypothesis that, in any event, the jury correctly decided the case. Such a course would tend to abolish “ all forms of law taught by experience to be necessary to the protection of the innocent ”. (People v. Marendi, 213 Y. 600, 619, supra.) What the Court wrote in that case some years ago is just as true today: where prejudicial matter is erroneously received in evidence on a disputed question of fact, its harmful character cannot he determined solely by the mere weight of competent evidence unless we are to resolve ourselves into a jury and, ignoring the finding upon incompetent evidence, substitute one upon the evidence which we may deem competent.” (People v. Marendi, supra, p. 619; see, also, People v. Pignataro, 263 N. Y. 229, 240, supra; People v. Sobieskoda, 235 N. Y. 411, 420.)

Though there may be no yardstick to measure error and differentiate between the technical and the substantial, an underlying and controlling principle is at hand. If study of the case on appeal persuades the court that the minds of the jurors were clearly directed to the true issue involved, that they were not misled or confused to defendant’s detriment, then the mandate of section 542 should be followed — even though the appellate judges may disagree with the verdict at which the jury arrived. On the other hand, if the court believes that the errors may have misled the jury, may have influenced the verdict, then the error may not be deemed technical, and a reversal will follow — even though the court may conclude that the jury properly decided the case on the evidence adduced. In the light of such a standard, it is our view that prejudicial evidence was erroneously received on a vital issue, that improper use was made of it and that the jury was permitted — through the court’s refusal to charge indisputably correct requests — to find defendant guilty upon the strength of it. Vicious though the crime was, convincing though the evidence of guilt may seem to be, we could affirm only if we were to announce a doctrine that the fundamentals of a fair trial need not be respected if there is proof in the record to persuade us of defendant’s guilt. We are not prepared to announce such a doctrine. (See People v. Marendi, supra, p. 620.) It is for jurors, not judges of an appellate court such as ours, to decide the issue of guilt.

The judgments should be reversed and a new trial ordered.

LougheaN, Ch. J., Lewis, Conway, Desmond, Thaoher and Dye, JJ., concur.

Judgments reversed, etc.