text:
    Vivian Kirkbride, Respondent, v. Gilbert H. Van Note, as Administrator of the Estate of James D. Kirkbride, Deceased, Appellant.

      Argued June 8, 1937;
    decided July 13, 1937.

      Harry R. Cooper for appellant.
    Section 1159 of the Civil Practice Act is mandatory, and, upon a proper application, the court must annul the provision of the judgment for payment of alimony subsequent to the remarriage of the plaintiff. (Linton v. Hall, 86 Misc. Rep. 560; Skidmore v. Skidmore, 160 App. Div. 594; Schley v. Andrews, 225 N. Y. 110; Sleicher v. Sleicher, 251 N. Y. 366; Dumproff v. Dumproff, 138 Misc. Rep. 298; Severance v. Severance, 260 N. Y. 432; Cohen v. Cohen, 150 Cal. 99.) The motion to modify the judgment was not personal to the husband, but could'be made after his death by his administrator. (Hunter v. Hunter, 197 App. Div. 678; Pond v. Pond’s Estate, 79 Vt. 352; Litzell v. Hart, 96 Wash. 471; Fishback v. Forkner Fig Gardens, 23 Pac. Rep. [2d] 293; Morrison v. Hass, 229 Mass. 514; Gove v. Gove, 64 N. H. 503; Thorburn v. Gates, 184 App. Div. 443; Nickerson v. Nickerson, 34 Ore. 1; Thomas v. Thomas, 57 Md. 504; Danforth v. Danforth, 111 Ill. 236; Wood v. Wood, 136 Iowa, 128.) The Special Term should not have granted the order vacating the order of substitution. (Kidder v. Hesselman, 119 Misc. Rep. 410; Feiber Realty Corp. v. Abel, 242 App. Div. 786; Gunther v. American Label Co., 243 App, Div. 528.)

      William E. Bardusch for respondent.
    The right to a modification of a judgment of divorce is personal and does not vest in the legal representatives of a deceased party. (Wilson v. Hinman, 182 N. Y. 408; Harris v. Harris, 259 N. Y. 334; Rice v. Andrews, 127 Misc. Rep. 826; Matter of Altmann, 149 Misc. Rep. 115.) Modification of the provisions of the judgment in respect to alimony upon the ground of remarriage cannot be made retroactive or nunc pro tune as of the date of remarriage, but becomes effective only from the date of application. (Cary v. Cary, 217 N. Y. 670; Mowbray v. Mowbray, 136 App. Div. 513; Krauss v. Krauss, 127 App. Div. 740; Harris v. Harris, 259 N. Y. 334.) Substitution of parties cannot be made in a divorce action; the right to obtain a modification of the alimony provisions of a judgment of divorce is personal and abates upon the death of the defendant husband. (Groh v. Groh, 35 Misc. Rep. 354; Watson v. Watson, 1 Hun, 267; Hunt v. Hunt, 154 App. Div. 833; Matter of Crandall, 196 N. Y. 127; Bryon v. Bryon, 134 App. Div. 320; Wilson v. Hinman, 182 N. Y. 408; Harris v. Harris, 259 N. Y. 334; Rice v. Andrews, 127 Misc. Rep. 826; Matter of Altmann, 149 Misc. Rep. 115; Cary v. Cary, 217 N. Y. 670.) A foreign administrator is without legal capacity to sue or be sued or to initiate proceedings in the courts of this State. (Wikoff v. Hirschel, 258 N. Y. 28; Helme v. Buckelew, 229 N. Y. 363.)
   Finch, J.

The plaintiff and James D. Kirkbride were married in 1914. In 1926 a decree of divorce was obtained by the plaintiff, which provided for the payment of alimony in the sum of eighty dollars per month. In 1926, several months after the divorce, the plaintiff remarried, and at that time the husband ceased making alimony payments. Apparently the plaintiff made no claim while the husband was alive. The husband died in August of 1936, and shortly thereafter the plaintiff filed a claim with the defendant, his administrator in New Jersey, for $9,520 for alimony alleged to be due to her from October, 1926, to September, 1936, a period of nine years and eleven months. The administrator disputed the claim, and the plaintiff instituted suit against him in New Jersey. That suit has been stayed pending this application in the New York courts for a modification of the judgment herein by annulling the provision directing the payment of alimony for the period subsequent to the remarriage of the plaintiff. The administrator obtained an ex parte order substituting him as the defendant in this action. He then made a motion for an order modifying the judgment by annulling the provision for alimony nunc pro tune as of the date of the remarriage. The plaintiff thereupon procured an order to show cause why the order of substitution should not be vacated. Both motions were argued together, and the order of substitution was vacated, and the motion to modify the divorce judgment was denied, on the grounds that the right to modify the judgment with respect to alimony was personal to the husband, and, even if made by him, the modification could be granted only as to alimony coming due after the date of the application. The Appellate Division has affirmed both orders and has certified various questions to this court.

Section 1159 of the Civil Practice Act governs the procedure for modification of a divorce judgment under such -circumstances as are involved in the case at bar. At the time of the divorce and the remarriage of the plaintiff that section read as follows: Where an action for divorce is brought by a wife, and a final judgment of divorce has been rendered in her favor, the court, by order upon the application of the defendant on notice, and on proof of the marriage of the plaintiff after such final judgment, must modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders, or of both, directing payments of money for the support of the plaintiff.”

In 1934 the section was amended by substituting the word “ husband ” for the word “ defendant.” (L. 1934, ch. 220.)

The provision of the Civil Practice Act is mandatory. Where a former wife has remarried and an application is made for modification of the judgment with respect to the direction of payment of money for the support of the former wife, the court “ must modify,” and cannot in its discretion refuse to do so. Alimony is awarded for present maintenance, and “as a matter of public policy a wife who has a husband with whom she is living should be supported by him and not by one from whom she has been divorced.” (Schley v. Andrews, 225 N. Y. 110, 114.) The law recognizes the unfairness of requiring a husband to pay alimony for a period during which his former wife is married to another. In view of the mandatory character of this provision and the public policy behind it, there can be no doubt that the right to apply for modification is not personal to the husband, and, if the husband should die before making such application, his representative, upon whom, under section 83 of the Civil Practice Act, the liability devolves, may apply for such modification. The modification is not limited to the time subsequent to the application. It applies nunc pro tune as of the time of the remarriage to all unpaid alimony. To hold otherwise would enable a woman to conceal her remarriage and thereby obtain alimony from her former husband while she is living with a new spouse.

The case of Cary v. Cary (217 N. Y. 670) is cited to us as supporting the contention of the plaintiff that the modification can apply only to alimony accruing subsequent to the application. That case was affirmed by a divided court. To the extent that the affirmance of the determination of the lower courts in that case may conflict with the conclusions we have reached herein, that case must be deemed overruled.

The section of the Decedent Estate Law (Cons. Laws, ch. 13), section 160, which provided that a foreign administrator could sue or be sued in the courts of this State, has been repealed, and now foreign administrators have no better standing in our courts than they had at common law. At common law, a foreign administrator had no standing in the courts of this State unless he first had himself appointed as an ancillary administrator. (Helme v. Buckelew, 229 N. Y. 363.) The defendant in the case at bar, however, apparently is not entitled to be appointed an ancillary administrator, since it seems that there are no assets of the estate to be found in this State. (Surr. Ct. Act, § 45, subds. 3, 4; Matter of Rogers, 225 App. Div. 286; affd., 254 N. Y. 592; Ziemer v. Crucible Steel Co., 99 App. Div. 169; 3 Beale on Conflict of Laws, § 467.2.) An exception to the prevailing rule that foreign administrators have no standing in our courts is sometimes made as a matter of comity in the interests of justice. (See Helme v. Buckelew, swpra, at p. 366; Thorburn v. Gates, 184 App. Div. 443. See, also, Petersen v. Chemical Bank, 32 N. Y. 21, 43.) Thus, in exceptional cases, suits against foreign administrators have been entertained where it is essential to the' administration of justice. (Holmes v. Camp, 219 N. Y. 359, 372; De Coppet v. Cone, 199 N. Y. 56, 61.)

In several cases a foreign administrator has been permitted without question to be a party to certain proceedings. In Matter of Davis (182 N. Y. 468) a foreign administrator was permitted to oppose probate in New York. Similarly foreign administrators have been allowed to seek remission of removables from the foreign State (Matter of Hughes, 95 N. Y. 55), and to move to revoke letters of administration in New York (Matter of McCabe, 84 App. Div. 145; affd., 177 N. Y. 584). In none of these cited cases was the question discussed, but they are illustrative of the situations where a foreign administrator is permitted to appear in the courts of this State without first obtaining an appointment as ancillary administrator. The usual reason for refusing such a foreign administrator a standing in our courts does not exist, since he has not attempted to institute an action, nor is suit being brought against him. Similarly in the case at bar the defendant did not seek to institute an action or recover assets in this State; nor is he being made a defendant in a newly instituted action in this State. To deny him permission to appear and apply for modification of the judgment of divorce in so far as it directs the payment of alimony after the remarriage of the plaintiff, would work a gross injustice, and the courts, as a matter of comity, should permit him to make such application.

The orders should be reversed, without costs. The certified questions should be answered as follows:

In the main case, questions 1, 2 and 3 (a) should be answered in the affirmative. Question 3 (b) is not answered.

In the appeal from the vacation of the order of substitution, the certified question also should be answered in the affirmative.

Crane, Ch. J., Hubbs, Loughran and Rippey, JJ., concur; Lehman, J., dissents; O’Brien, J., taking no part.

Orders reversed, etc.


source: Caselaw Access Project

author: Crane, Ch. J.

license: Public Domain

text:
    In the Matter of Mary O’S. Grout et al., Respondents, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.

      Argued June 8, 1937;
    decided July 13, 1937.

      Paul Windels, Corporation Counsel (Jeremiah M. Evarts, Paxton Blair and Robert H. Schaffer of counsel), for appellants.
    The action of the Commission in prescribing equivalent sets of preliminary requirements for admission to the examination was a proper exercise of its administrative power and in accordance with the provisions of the statute (L. 1931, ch. 798, as amd.). (People ex rel. Schau v. McWilliams, 185 N. Y. 92; People ex rel. Moriarity v. Creelman, 206 N. Y. 570.)

      Roy P. Monahan and Francis L. Field for respondents.
   Crane, Ch. J.

In 1931 the Legislature of this State undertook to provide a means of support for the unemployed and those in want. It passed an act, chapter 798 of the Laws of 1931, entitled, An act to relieve the people of the state from the hardships and suffering caused by unemployment, * * creating a temporary emergency relief administration. It was passed solely for an emergency in unemployment which was defined as the period between the 1st day of November, 1931, and the 1st day of June, 1932. Section 28 of the act read: The administration shall be dissolved and cease to function at the time fixed by the act. * * *.” The fact is, it did not cease, and is still continuing to function, with thousands of employees who have never taken any civil service examination.

This administration has been popularized, as is the modern fashion, by the name “ TEBA.” Local bureaus were defined as temporary emergency relief work bureaus created in cities and counties. The administration agency consisted of three persons appointed by the Governor to serve during his pleasure. Each city of the State was constituted a separate public welfare district. The mayor of the city was to establish the public welfare district in the city. These local bureaus are to be responsible for the administration of work relief, and may employ necessary clerks and assistants whose compensation shall be fixed by the officer or governing board by which such bureau is created. All these local bureaus are subject to the supervision and direction of the State administration. The legislative body of the municipal corporations shall raise the money for the work of relief and for the expenses. The act also provides for the investigation of home relief. “ In a city public welfare district the city commissioner shall investigate all cases of home relief.” (§ 13.)

Special attention must be given to section 19 of the act, which is brought into prominence here by reason of the civil service question involved:

“ § 19. Employees of city and county commissioners. The administration may authorize city and county commissioners to employ such additional clerical and other assistants or volunteers, with qualifications satisfactory to the administration, who shall not be subject to the provisions of the civil service law, as may be necessary for the administration of home relief in accordance with the rules of the administration and shall determine the number of such additional clerks and assistants' and fix their salaries, which shall be paid from the money hereby appropriated. There shall be paid also from the moneys hereby appropriated fifty per centum of the salary of persons in the employment of the emergency work bureau in the administration of work relief approved by the administration whose work is concerned with the registration or investigation of applications for work or the clerical work of the bureau when such salaries have been approved and such work authorized by the administration.”

In 1933 the Legislature passed an amendatory act known as chapter 259 of the Laws of 1933, which created the emergency relief bureau of from three to five persons appointed by the Mayor in place of the local bureaus. Otherwise the law of 1931 continued substantially the same.

Chapter 822 of the Laws of 1936 amended section 19 of chapter 798 of the Laws of 1931, so as to read as follows: “ * * * No person employed pursuant to this act, during the emergency period, shall be subject to the provisions of the civil service law except that any local emergency relief bureau or other local relief authority may, with the approval of the administration or of the department succeeding to its functions, appoint its employees in accordance with the civil service law and rules from eligible lists established as a result of civil service examinations held subsequent to the time this section as hereby amended takes effect, in the grading of which due credit shall be given for experience with the local emergency relief bureaus or other local relief authorities.”

The petitioner and others similarly situated are employees of the Works Progress Administration, a Federal agency engaged on a Works Progress Administration project in the Department of Public Welfare in the city of New York. The Municipal Civil Service Commission of the city of New York published a notice for an open competitive examination for the position of social investigator to be held on December 30, 1936, pursuant to the provisions of section 19 of the Laws of 1936, chapter 822, as above quoted. The preliminary requirements for applicants included “ 1 — presently employed in the local Emergency Relief Bureau and performing the duties of Social Investigator therein.”

The petitioner for herself and others similarly situated claimed that she and they are entitled to take this examination because credit was required to be given not only to local emergency relief bureaus but other local relief authorities.

The provisions of the Laws of 1931 creating emergency relief administration and local relief bureaus and giving appointment to many persons without resort to civil service examinations had reference solely to State, city and county relief work conducted by city, county or State departments or bureaus. No portions of this act or of its amendments had any reference to Federal appointees. It was not the purpose of the act of 1936 any more than it is the purpose of chapter 358 of the Laws of 1937 creating or permitting the creation of permanent welfare bodies to take care of and provide for employees in this Works Progress Administration.— a Federal agency, paid from Federal funds. The State legislation for the creation of the first emergency relief measure of 1931, through the amendments up to and including this act of last May, has reference solely to the State, city and county relief bureaus, and those who have been at work within them. We cannot extend the words of these statutes to include employees without the purpose or intent of the enactments.

The Civil Service Commission believed that admission to the examination should be granted to all emergency relief bureau employees who were performing the duties of social investigator, irrespective of their age and educatian, because of the requirement of the Laws of 1936, that due credit shall be given for experience with the local emergency relief bureaus or other local relief authorities. Whether this interpretation be correct or not we are not called upon to determine at this time. Sufficient to say that such waiver of the requirements in behalf of past service does not apply to these petitioners. Emergency relief bureaus were the only agencies in the city of New York authorized to dispense home relief during the last four years. The charter of the city prohibits it from dispensing out-door relief, the technical term for relief administered under the emergency relief legislation. (Greater New York Charter [L. 1901, ch. 466], § 662.) The Civil Service Commission recognized experience with these bureaus for admission to the examination. Whatever else we may have to say about the practice of engaging employees under the Emergency Relief Administration of 1931 we at least know that all the employees, including those under the local bureaus and the emergency relief bureaus, have been carrying on this work and paid with money raised by the city and State, pursuant to these acts.

As above stated, we can find nothing in these acts which has reference to the employees of the Federal administration. A great play is made upon the words in section 19, or other relief authorities.” The whole phrase reads: in the grading of which due credit shall be given for experience with the local emergency relief bureaus or other local relief authorities,” meaning, as we interpret it, other local authorities throughout the State. Each city and county had its authority.

For the reasons here stated, the orders should be reversed, and the petition dismissed, with costs in all courts.

Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Orders reversed, etc.


author: Finch, J.

text:
    New York Rapid Transit Corporation, Respondent, v. City of New York, Appellant.

      Argued June 10, 1937;
    decided July 13, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair, Oscar S. Cox, Sol Charles Levine and Meyer Bernstein of counsel), for appellant.
    The local laws do not violate the obligation of contracts clause of the Federal Constitution. (Gaston v. New London Northern Ry. Co., 33 Fed. Rep. [2d] 183; Puget Sound Power & Light Co. v. Seattle, 291 U. S. 619; Southern Boulevard R. Co. v. City of New York, 86 Fed. Rep. [2d] 633.) The fact that the tax is specially burdensome upon the plaintiff because of certain incidental features of its business, does not make it violative of due process. (Fox v. Standard Oil Co., 294 U. S. 87; Southern Boulevard R. Co. v. City of New York, 86 Fed. Rep. [2d] 637; Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412; 57 Sup. Ct. 772; Powell v. Pennsylvania, 127 U. S. 678.) The failure to tax other transportation companies, or to make the tax State-wide in its operation, does not result in a violation of the equal protection clause. Nor is it unconstitutional .to earmark the proceeds of the tax to relieve a condition the plaintiff has not caused. (Puget Sound Power & Light Co. v. Seattle, 291 U. S. 619; Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389; Royster Guano Co. v. Virginia, 253 U. S. 412; New York Steam Corp. v. City of New York, 268 N. Y. 137; Tenement House Dept. v. Moeschen, 179 N. Y. 325 ; 203 U. S. 583; Brown Holding Co. v. Feldman, 256 U. S. 170; Matson Navigation Co. v. State Board of Equalization, 297 U. S. 441; Southern Pacific Co. v. Kentucky, 222 U. S. 63; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194.) That the class of commission-controlled utilities to which the three per cent tax rate applies, embraces both rapid transit lines and power companies — groups which may exhibit different ratios of gross to net income — does not violate the equal protection clause. For the Municipal Assembly could have created a subdivision to fit each and then severally taxed them at the same rate. (Metropolis Theatre Co. v. Chicago, 228 U. S. 61; New York Steam Corp. v. City of New York, 268 N. Y. 137; Stewart Dry Goods Co. v. Lewis, 294 U. S. 550; Fox v. Standard Oil Co., 294 U. S. 87; Southern Boulevard R. Co. v. City of New York, 86 Fed. Rep. [2d] 633; Dane v. Jackson, 256 U. S. 589.)

      Harold L. Warner, Henry Root Stern, Paul D. Miller and George D. Yeomans for respondent.
    A tax of three per cent of gross income applied to a class of corporations which includes street railroad companies along with gas, electric, telephone and other utility companies, results in gross inequalities in the distribution of the tax burden among the members of the taxed class and denies to the plaintiff and other street railroad corporations the equal protection of the law, in violation of the Fourteenth Amendment of the Federal Constitution. (Stebbins v. Riley, 268 U. S. 137; Stewart Dry Goods Co. v. Lewis, 294 U. S. 550; Royster Guano Co. v. Virginia, 253 U. S. 412; Hopkins v. So. Cal. Tel. Co., 275 U. S. 393; Raymond v. Chicago Traction Co., 207 U. S. 20; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; Valentine v. Great Atlantic & Pacific Tea Co., 299 U. S. 32; Atlantic Coast Line R. R. Co. v. Powe, 283 U. S. 401; United States v. Carver, 260 U. S. 482.) The classification by which street railroad corporations are taxed at a higher rate than ordinary business corporations for the special purpose of unemployment relief is arbitrary, unreasonable and in violation of the equal protection clause of the Federal Constitution, even if there be reasonable ground for taxing other utilities at a higher rate than ordinary business corporations for such special purpose. (City of New York v. Interborough R. T. Co., 257 N. Y. 20.) The taxing of any utility for the special purpose of unemployment relief at a rate more than 3,000 per cent higher than the rate at which other persons and corporations are taxed for the same special purpose does not rest upon any reasonable ground of difference having a fair and substantial relation to the object of the legislation but constitutes arbitrary and plainly hostile discrimination. (Ohio Oil Co. v. Conway, 281 U. S. 146; Stebbins v. Riley, 268 U. S. 137; Royster Guano Co. v. Virginia, 253 U. S. 412; Louisville Gas & E. Co. v. Coleman, 277 U. S. 32; Airway Electric Appliance Co. v. Day, 266 U. S. 71; Schlesinger v. Wisconsin, 270 U. S. 230; Beers v. Glynn, 211 U. S. 477; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; Merchants’ Bank v. Pennsylvania, 167 U. S. 461; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232; Colgate v. Harvey, 296 U. S. 404; Lowry v. City of Clarksdale, 154 Miss. 155; Continental Ins. Co. v. Smrha, 270 N. W. Rep. 122; Louisiana v. Merchants’ Ins. Co., 12 La. Ann. 802.) The money exactions levied upon plaintiff by the challenged enactments are not “ taxation,” but constitute the taking of its property without compensation in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution. ( United States v. La Franca, 282 U. S. 568; United States v. Butler, 297 U. S. 1; Rickert Rice Mills v. Fontenot, 297 U. S. 110; Edye v. Robertson, 112 U. S. 580; C., B. & Q. Railway v. Drainage Commrs., 200 U. S. 561; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393.) The local laws violate and impair the obligation of the contract in violation of section 10 of article I of the Federal Constitution. (Brooklyn Bus Corp. v. City of New York, 274 N. Y. 140; New York Steam Corp. v. City of New York, 268 N. Y. 137.) Where a tax is wholly void an involuntary payment thereof may be recovered back in an action for money had and received and it is not necessary to pursue the remedy provided for in the statute for the refund of taxes paid. (Southern Boulevard R. R. Co. v. City of New York, 86 Fed. Rep. [2d] 633; Buder v. First Nat. Bank, 16 Fed. Rep. [2d] 990; Newman v. Supervisors, 45 N. Y. 676; Ætna Ins. Co. v. Mayor, 153 N. Y. 331;
      Jex v. Mayor, 103 N. Y. 536; U. S. Trust Co. V. Mayor, 144 N. Y. 488; People ex rel. D. & H. C. Co. v. Parker, 117 N. Y. 86; Matter of Allen Square Co. v. Krieger, 217 App. Div. 123.)

      J. Osgood Nichols for Thomas E. Murray, Jr.,
    as receiver of Interborough Rapid Transit Company, amicus curiæ. The local laws deprive the respondent and other street railways in the city of New York of the equal protection of the laws. (American Press Co. v. Grosjean, 10 Fed. Supp. 161; 297 U. S. 233; Louisville Grass Co. v. Coleman, 277 U. S. 32; Stewart Dry Goods Co. v. Lewis, 294 U. S. 550; Valentine v. Great Atlantic & Pacific Tea Co., 12 Fed. Supp. 760; Shaffer v. Carter, 252 U. S. 37; Henderson v. Mayor, 92 U. S. 259; St. Louis S. Ry. Co. v. Arkansas, 235 U. S. 350; Crew Levick Co. v. Pennsylvania, 245 U. S. 292; U. S. Glue Co. v. Oak Creek, 247 U. S. 321; Pacific Express Co. v. Seibert, 142 U. S. 339; South Utah Mines & Smelters v. Beaver Co., 262 U. S. 325.)
   Finch, J.

The city of New York appeals from the denial of a motion to dismiss the complaint, affirmed without opinion by the Appellate Division, two justices dissenting, and here by reason of the Appellate Division certifying the question: Does the complaint herein state facts sufficient to constitute a cause of action?

This is an action for money had and received, brought by a transit company to recover taxes paid under protest, upon the ground that the taxing statutes are unconstitutional.

The city of New York, pursuant to enabling acts passed by the State Legislature, which empowered the city to impose any tax or taxes which the Legislature itself could impose, to raise money for unemployment relief, has enacted local laws placing a tax of three per cent on the gross income of all utilities subject to the supervision of either division of the Department of Public Service. (Local Law No. 30, 1935; Local Law No. 21, 1934, as amended by Local Law No. 2, 1935.)

At the outset, the city urges that the complaint should be dismissed on the ground that the remedy by way of action for money had and received is not available since the local laws provide an exclusive remedy for the recovery of illegally collected taxes, whether the illegality of the collection is because of over-assessment, over-valuation, or unconstitutionality. The remedy provided by the local laws furnishes a more expeditious procedure than the action at common law with its six year Statute of Limitations. It requires that all applications for refunds be made within one year of the payment of the tax and that a review by certiorari be applied for within thirty days of the refusal of the Comptroller to grant the refund. (Local Law No. 30, 1935, § 10; Local Law No. 21, 1934, as amended by Local Law No. 2,1935, § 10.)

The provision on which the city relies applies to applications for refunds when the tax is erroneously or illegally collected." The city points out that this is not a case where the laws as á whole are void. As applied to other public utilities they are perfectly valid. Only as applied to corporations situated as is the plaintiff is the claim made that they are void. But while it is clear that an exclusive remedy is provided for the recovery of illegal or erroneous exactions of an otherwise valid tax, it is not at all clear that it was intended to apply where the claim is made that the tax itself is void because of unconstitutionality. In view of this ambiguity we cannot construe the laws as depriving the plaintiff of the common law remedy of action for money had and received. (See Buder v. First Nat. Bank, 16 Fed. Rep. [2d] 990, 993; certiorari denied, 274 U. S. 743.) Having reached the conclusion that the exclusive remedy provided for by the local law does not apply where it is claimed that the tax is unconstitutional, it becomes unnecessary to determine whether the powers delegated by the Legislature to the city of New York included the power to provide such an exclusive remedy.

This brings us to the contention that the tax is unconstitutional.

The constitutionalty of this statute, in so far as the tax is levied on certain other public utilities, has been upheld. (New York Steam Corp. v. City of New York, 268 N. Y. 137; Garfield v. New York Tel. Co., 268 N. Y. 549.) The contention is now made that in so far as the tax is levied on transit companies bound by contract to exact no more than a five-cent fare, it is invalid. This argument has been rejected in the Federal courts (Southern Blvd. Ry. Co. v. City of New York, 86 Fed. Rep. [2d] 633; certiorari denied, 301 U. S. 703), but that determination, while entitled to great weight, is not binding on this court.

At Special Term the complaint was held invalid on every ground save one, and that presents the major question for decision. To paraphrase that ground as alleged in the complaint, the tax was imposed at the same rate on gross incomes of different types of corporations “ * * * which are so essentially different in character that the ratio of net income to gross receipts in the case of one is radically less than in the case of another * * *.”

Special Term, after conceding that exact equality is not required of a tax and that there is nothing inherently improper in a tax on gross receipts, sustained the complaint on the ground that “ * * * gross inequalities result from that method of taxation, and where this inequality is effectuated by the definition of the class to be taxed, the tax must fail,” citing Stewart Dry Goods Co. v. Lewis (294 U. S. 550).

The particular inequality and inequity claimed by the plaintiff is that it is arbitrarily classified, and that the burden of the tax does not fall equally on all those within the group — that the transit companies are required to pay a much greater percentage of their profits than other utilities. In other words, the constitutional objection is to the inclusion of corporations with relatively small net earnings under a fixed income tax rate, in a class with corporations enjoying a ratio of net to gross so radically different as to effect an inequality of burden. Even if so, this does not furnish sufficient reason for declaring a tax invalid where it is imposed upon a group otherwise reasonably classified. Thus in Alaska Fish Co. v. Smith (255 U. S. 44), a tax imposed on herring products was held valid although no tax was levied on other fish or fish products. Also taxes imposed upon wholesale dealers in oil and like products, and not on other wholesale dealers (S. W. Oil Co. V. Texas, 217 U. S. 114), and taxes upon chain stores(Tax Commissioners v. Jackson, 283 U. S. 527), and many like taxes, have been upheld although it is evident that the burden of the tax falls more heavily on some in the classification than on others, whether by reason of low margin of profit, contractual obligations, competition, or other circumstances. The remedy if needed lies not with the judiciary but with the Legislature. (McCray v. United States, 195 U. S. 27, 56 et seq.)

The tax on gross receipts, which was held unconstitutional in Stewart Dry Goods Co. v. Lewis (294 U. S. 550), was a graduated or sliding scale tax on gross receipts, as contrasted with the fixed rate tax in the case at bar, and it was held therein by a majority of the court that there had been no finding that the relation between gross sales and net profits, or increase of net worth, was constant, or even that there was a rough uniformity of progression within wide limits of tolerance ” (p. 559).

The fallacy in the contention that the tax is unconstitutional because it classifies transit companies having a present small margin of profit and contractual inhibition against raising the fare charged by them, with other utilities having much larger margins of profit, is further revealed when we take into consideration that transit companies might have been grouped by themselves and a three percent gross receipts tax imposed while a separate three percent tax was imposed on other utilities. The transit companies could make no valid objection to a tax so imposed. Concerned as we are primarily with substance rather than form, we see no reason for holding a tax on a certain type of utility invalid because it is imposed as part of a general tax on all utilities, when the same result could have been achieved by taxing various types of utilities under separate classifications.

The plaintiff insists also that the complaint is sufficient upon other grounds denied by the court at Special Term and affirmed by the Appellate Division. The plaintiff argues that the tax in question impairs the obligations of the contract of plaintiff with the city in violation of section 10 of article I of the Federal Constitution. The fact that the transit company, with State sanction, has entered into a contract with the city of New York which provides that it shall not charge more than a five-cent fare, in and of itself does not entitle it to exemption from tax. It has long been established that a grant of a franchise does not carry with it an implied surrender of the power to tax. (Memphis Gas Light Co. v. Shelby County, 109 U. S. 398; St. Louis v. United Rys. Co., 210 U. S. 266; Puget Sound Light & Power Co. v. Seattle, 291 U. S. 619.)

In Brooklyn Bus Corp. v. City of New York (274 N. Y. 140, 147) the contract specifically provided that any new form of tax or additional charge that may be imposed by any ordinance of the City or resolution of the Board upon or in respect of the franchise * * * shall be deducted from the compensation payable to the City.” In that case we held that the contract provision was intended to apply to local laws as well as other forms of additional taxes. The contracts of the transit companies with the city contain no such provision, and no reason appears for reading such a provision into the contracts. The transit companies contracted with the city to provide service at a five-cent fare, and to apportion their gross revenues according to a formula whereby the city and the companies are to share the income, but only after the compañíes have been paid interest and sinking fund allowances on new moneys invested in the project. Taxes, of course, have priority over such interest and sinking fund payments.

Nevertheless, an attempt is made to argue that the imposition of the tax impairs the obligations of the contract in violation of article I, section 10, of the Federal Constitution because it enables the city to obtain funds out of the gross income without giving priority to the interest and sinking fund payments. The right to tax cannot be lost by such tenuous implication, and all doubt vanishes when we find that the contract itself makes provision for the deduction of taxes from gross revenues, and refers to “all taxes or other governmental charges of every description (whether on physical property, stock or securities, corporate or other franchises, or otherwise) assessed or which may hereafter be assessed against the lessee in connection with or incident to the operation of the railroad and the existing railroads.” There is thus no basis whatever for reading into the above contract any express or implied obligation on the part of the city to surrender its power to tax the privilege granted to the plaintiff under laws either in existence at the time of the contract or thereafter enacted. Nor can any merit be found in the argument that the enabling acts, although general in language, must be construed as not intended to apply to transit companies because of their pre-existing contracts with the city.

Plaintiff further contends that the local laws in question deny plaintiff the equal protection of the laws under the Federal Constitution, in that they classify street railroad corporations and other utilities for taxation at a higher rate than ordinary business corporations for the special purpose of unemployment relief.

No one of the above contentions is well founded. We have already decided that the imposition of a tax on utility companies without imposing a similar tax on other industries and businesses is a valid classification and does not constitute a denial of the equal protection of the laws. (New York Steam Corp. v. City of New York, 268 N. Y. 137; Puget Sound Power & Light Co. v. Seattle, 291 U. S. 619.)

Likewise the tax is not invalid because imposed upon utilities with the proceeds earmarked for purposes of unemployment relief. In sustaining the imposition upon the processing of cocoanut oil of a tax which Congress declared should “ be held as a separate fund and paid to the Treasury of the Philipine Islands ” (48 U. S. Stat. 680, 763), the court said: Standing apart, therefore, the tax is unassailable. It is said to be bad because it is earmarked and devoted from its inception to a specific purpose. But if the tax, qua tax, be good, as we hold it is, and the purpose specified be one which would sustain a subsequent and separate appropriation made out of the general funds of the Treasury, neither is made invalid by being bound to the other in the same act of legislation.” (Cincinnati Soap Co. v. United States, 301 U. S. 308, 313.)

Nor may street railroads successfully resist this tax because of alleged competition by city owned subways and by taxicabs, both of which are exempted from this classification. A city’s conduct in operating its own subways, and exempting them from taxation, does not render an act unconstitutional. (Puget Sound Power & Light Co. v. Seattle, 291 U. S. 619.) Innumerable valid reasons suggest themselves for treating taxicabs differently from transit companies and other utilities. (See Hicklin v. Coney, 290 U. S. 169, and cases cited therein.)

Plaintiff further contends that the tax bears so heavily upon it as not to constitute taxation at all, but to amount to a taking of its property without compensation in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution.

Plaintiff seeks to support the above contention through a process of elimination by insisting that these taxes cannot be justified otherwise and hence must amount to a taking of property. As we have heretofore shown, the classification of the utilities and- the imposition of these taxes for unemployment relief is not unlawful. Moverover, hardship arising from the burden of taxation or excessiveness does not render invalid an otherwise valid tax. (Fox v. Standard Oil Co., 294 U. S. 87. Cf. Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412; Powell v. Pennsylvania, 127 U. S. 678.)

It follows that the orders should be reversed and the complaint dismissed with costs in all courts, and the question certified answered in the negative.

Crane, Ch. J., Lehman, Hubbs, Loughran and Rippey, JJ., concur; O’Brien, J., taking no part.

Orders reversed, etc.


author: Hubbs, J.

text:
    Augusta C. Ottmann, as Administratrix of the Estate of Milford H. Ottmann, Deceased, Appellant, v. Village of Rockville Centre et al., Respondents, Impleaded with Another.
    Reargued June 11, 1937;
    decided July 13, 1937.

      Malcolm G. Bibby and John R. Vunk for appellant.
    Public officers are individually liable for their negligence in the performance of their duties, (Moynihan v. Todd, 188 Mass. 301; Perkins v. Blauth, 163 Cal. 782; Volts v. Orange Volunteer Fire Co., 172 Atl. Rep. 220; McCarty v. Bauer, 3 Kan. 237; Bailey v. New York, 3 Hill, 531; McGuinness v. Allison Realty Co., 111 App. Div. 926; Short v. Orange, 175 App. Div. 260; Sauer v. F. & D. Co., 192 Ky. 758; Rounds v. Munford, 2 R. I. 154; Aaron v. Broiles, 64 Tex. 316; Florio v. Jersey City, 101 N. J. L. 535.) The respondent driver of the fire apparatus is answerable in damages for the death of decedent and the careless manner in which he operated the fire truck when no emergency existed. (Floria v. Jersey City, 101 N. J. L. 535; Skerry v. Rich, 228 Mass. 462; Volts v. Orange Volunteer Fire Co., 172 Atl. Rep. 220; Rowley v. City of Cedar Rapids, 212 N. W. Rep. 158; Short v. Town of Orange, 175 App. Div. 260.) Respondent and decedent were not engaged in a joint venture and the negligence of respondent may not be imputed to the decedent. (Denver Tramway Co. v. Orbach, 64 Col. 511; Elyton Land Co. v. Mingea, 89 Ala. 521; McBride v. Des Moines City R. R. Co., 134 Iowa, 398; McKernan v. Detroit Citizens St. R. R. Co., 138 Mich. 519; Norwood v. Crossett, 207 Ala. 222; Donoghue v. Holyoke St. R. R. Co., 246 Mass. 485; Grand Rapids v. Crocker, 219 Mich. 178; Oklahoma R. R. Co. v. Thomas, 63 Okla. 219; Brockstedi v. Meltzer, 111 Atl. Rep. 812; Scheib v. N. Y. City R. R. Co., 115 App. Div. 578; Sommerfield v. Flury, 223
      N. W. Rep. 408; Vandell v. Sanders, 155 Atl. Rep. 193.) The decedent assumed only the usual risk. He did not assume risks caused by the negligent acts of the driver. (Farley v. Mayor, 152 N. Y. 222; Heavey v. Hudson River Water Power & Paper Co., 57 Hun, 339; Muhs v. Fire Ins. Salvage Corps, 89 App. Div. 389; Maloney v. Hearst Hotels Corp., 274 N. Y. 106.)

      William J. Sullivan and Irwin T. Longworth, Jr., for respondent.
    As a volunteer fireman and operator of the fire truck, respondent was engaged in the performance of a governmental duty, and the doctrine of sovereign immunity protects him from personal liability. (Bartlett v. Crozier, 17 Johns. 439; Newell v. Wright, 3 Allen, 166.) The decedent, when he entered upon his duties as a volunteer fireman, assumed the usual risks attendant upon riding on a fire truck. (Farley v. Mayor, 9 App. Div. 536; 152 N. Y. 222; Coots v. City of Detroit, 75 Mich. 628; Matter of Smith v. Village of Sea Cliff, 146 Misc. Rep. 685; Gibson v. Erie Ry. Co., 63 N. Y. 449; Ingersoll v. Onondaga Hockey Club, Inc., 245 App. Div. 137; Blakely v. White Star Line, 154 Mich. 635; Murphy v. Steeplechase Amusement Co., 250 N. Y. 479.)
   Hubbs, J.

This is an action by the administratrix of Milford H. Ottmann to recover damages growing out of the death of appellant’s intestate caused by the negligence of the respondent Otto Stoye, who was a volunteer fireman and driver of a fire track. Deceased was also a volunteer fireman and was riding on the track at the time of the accident which caused his death.

The jury found a verdict against the village and the respondent Stoye. The judgment entered thereon was reversed by the Appellate Division on the law. We decided in this case (reported in 273 N. Y. 205) that the village was not liable and affirmed the judgment. The question now presented is whether Stoye, the driver of the truck, is liable for his negligence which resulted in decedent’s death.

Briefly, the sole question here presented is whether one volunteer fireman is liable to another volunteer fireman, injured by his personal negligence. Ordinarily, one is Hable for his own neghgence. It is urged that the general rule does not apply in an action by one volunteer fireman serving without pay against another as both are engaged in a joint enterprise involving a governmental duty and that each assumes the risk growing out of the relationship. Certain. pubHc officers are immune from Hability for injuries inflicted upon others while faithfully performing the duties of their office. The privilege is in some cases absolute, in others conditional. So too, municipal corporations are, in the performance of governmental functions, absolved from Hability. (Harper on the Law of Torts, § 295.)

“ The modem tendency is against the rule of nonHabiHty.” (Augustine v. Town of Brant, 249 N. Y. 198, 205.)

The principle underlying the granting of such privilege has no appHcation to the relation of governmental employees, agents or officers in their conduct toward each other. As between them, the general principle of. law appHes. They are bound to exercise reasonable care in the circumstances.

Sound pubHc poHcy requires that one injured by the negHgent act of another engaged in a pubHc service should be permitted to recover the damages suffered as a result of such misconduct. PubHc service should not be a shield to protect a pubHc servant from the result of his personal misconduct. How inequitable the contrary rule would be is illustrated by the case at bar. Although the jury has found that intestate met his death as a result of the neghgence of the respondent driver of the fire truck, the municipaHty is not Hable and we so decided. If it be held that the driver is also free from Hability, there would be no HabiHty on the part of any one for the negHgent act which caused decedent’s death. We believe the law to be that a servant, agent or officer of a municipality is required to do his work in a reasonably careful manner and that if he fails to do so and another is injured because of his negligence he is personally responsible, the same as any other person who has by his misconduct caused injury. (Moynihan v. Todd, 188 Mass. 301; Skerry v. Rich, 228 Mass. 462; Voltz v. Orange Volunteer Fire Assn., Inc., 118 Conn. 307; Manwaring v. Geisler, 191 Ky. 532; Rowley v. City of Cedar Rapids, 203 Iowa, 1245 ; 53 A. L. R. 375; Worth v. Dunn, 98 Conn. 51; Florio v. Mayor of Jersey City, 101 N. J. L. 535; Rounds v. Mumford, 2 R. I. 154; Bailey v. New York, 3 Hill, 531; 22 R. C. L. p. 484, vol. 7, Permanent Supplement, p. 5220, and cases cited,)

The Legislature has recognized the fact that volunteer firemen were liable for personal negligence by the enactment of section 50 (c) and section 205 (b) of the General Municipal Law (Cons. Laws, ch. 24), by which the municipalities expressly assumed that liability.

The doctrine of joint enterprise does not apply in an action by an occupant of a car against a driver. It applies only to third persons. Appellant’s intestate did not have joint control of the truck. Neither did he assume the risk of the driver’s negligence. (Harper on the Law of Torts, § 148, note 50, and cases cited; Buddy on the Law of Automobiles [8th ed.], § 814; City of Grand Rapids v. Crocker, 219 Mich. 178, 192; Donoghue v. Holyoke St. Ry. Co., 246 Mass. 485; O’Brien v. Woldson, 149 Wash. 192; 62 A. L. R. 436, and note; Webb v. Elmira Water, Light & R. R. Co., 144 Misc. Rep. 506; Wilmes v. Fournier, 111 Misc. Rep. 9; affd., 194 App. Div. 950; Bailey v. Jourdan, 18 App. Div. 387; Geary v. Metropolitan St. Ry. Co., 84 App. Div. 514; affd., 177 N. Y. 535.)

If appellant’s intestate had been injured through the negligence of a third party, the third party as a defense could not have prevailed by establishing that the driver was negligent. His negligence could not have been imputed to appellant’s intestate. (Bailey v. Jourdan, supra; Geary v. Metropolitan St. Ry. Co., supra.)

The sections of the General Municipal Law cited were enacted after this cause of action arose and are not controlling in this case.

The judgment of the Appellate Division should be reversed as to the respondent Stoye and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Lotjghran, Finos and Rip-pet, JJ., concur; O’Brien, J., taking no part.

Judgment accordingly.


author: Rippey, J.

text:
    John J. Dillon et al., Respondents, v. Jean P. Spilo et al., Appellants.
    Submitted June 11, 1937;
    decided July 13, 1937.

      Henry C. Uterhart and Joseph Otis for Jean P. Spilo, appellant.
    The re-enactment of section 792 of the Civil Practice Act, 'and the enactment of section 793 of the Civil Practice Act indicated a legislative intention to create a new exemption, favorable to a judgment debtor. (Matter of Kaplan v. Peyser, 273 N. Y. 147.)

      Max Taylor, Julius L. Neidle, Theo. A. Delman and William F. Berghold for respondents.
    Section 793 of the Civil Practice Act has no application. (Graff v. Bennett, 31 N. Y. 11; Schenck v. Barnes, 156 N. Y. 316; Newton v. Hunt, 134 App. Div. 325; 201 N. Y. 599; Kene v. Hill, 102 App. Div. 370; Matter of Kaplan v. Peyser, 273 N. Y. 147; American Historical Society v. Glenn, 248 N. Y. 445; Metropolitan Life Ins. Co. v. Zaroff, 157 Misc. Rep. 796.)
   Rippey, J.

On February 19, 1930, Jean Pulaney Spilo transferred to the City Bank Farmers Trust Company, as trustee, certain personal property then aggregating in value about $43,780, in trust, to pay over the income as nearly in monthly installments as possible to the settlor for life and, upon her death, to divide the principal into so many equal shares as there should be one for each child of the settlor then living and to apply all the income of each such share, together with such portion of the principal thereof as the trustee might deem necessary for the child’s proper education, comfort and support, to the use of the child for whom it is set aside during minority and to pay to such child the principal remaining at arrival at the age of twenty-one years; in the event such child should not reach the age of twenty-one years, the principal of the share of the child so dying should be paid to the sisters of the settlor then living or, if none then be living, to those entitled to receive under their wills. Other provisions are not now material.

The plaintiffs allege that they recovered judgment in the City Court of the city of New York against the settlor on August 15, 1935, and docketed the same with the Clerk of the county of New York on August 17, 1935, for $1,038.06, that execution was issued thereon to the Sheriff of the said county, where the defendant Spilo resided on July 29, 1936, that the Sheriff returned the execution wholly unsatisfied on August 5, 1936, and that the judgment remains wholly unsatisfied. The action was brought against the settlor and the trustee to reach the income from the trust fund and apply it on the judgment until paid, by virtue of the authority granted to a judgment creditor where execution on his judgment has been returned unsatisfied by the provisions of section 1189 of the Civil Practice Act. Each defendant answered separately. Defendant Spilo admits that the judgment was recovered in City Court but denies that the judgment was docketed and that an execution thereon was issued out of a court of record and returned unsatisfied; sets up as a complete and as a partial defense that, on October 7, 1935, one Lucie Goldstein recovered a judgment against her for $889.50 upon which a garnishee execution was issued against the income of the trust fund, that ten per cent of the said income has since been paid by the trustee thereon and that there is still a balance due of about $800; sets up a second complete defense to the effect that the court is without jurisdiction in that plaintiffs have failed to join her infant son, Jay Spilo, as a party defendant, who is the remainderman and an interested and necessary party; and sets up a third partial and complete defense to the effect that the income from the trust fund is insufficient for the support and maintenance of herself and infant son. The trustee puts in issue substantially all the allegations of the complaint, alleges that the income from the trust fund is approximately $1,190 per year and that it is paying on the aforesaid garnishee execution and sets up two separate and complete defenses similar to the second and third defenses in the Spilo answer. Plaintiffs moved for judgment on the pleadings under rule 112 of the Pules of Civil Practice. The motion was denied at Special Term because of the defenses interposed regarding the amount of trust income necessary for the reasonable requirements of the judgment debtor as provided for by section 793 of the Civil Practice Act. Plaintiffs appealed to the Appellate Division on January 14, 1937. Thereupon, on February 6, 1937, the parties stipulated that “ the income derived from the trust involved in this cause is insufficient for the support and maintenance of the judgment debtor ” and that “ the only issue raised on this appeal is whether the defense that the income from this trust is insufficient for the support and maintenance of the judgment debtor is a valid legal defense.” The Appellate Division held that it was not a valid defense, reversed the order of the Special Term and granted the motion for judgment on the pleadings, but held that, under the circumstances disclosed, “ it would be inequitable to direct that the judgment debtor’s interest be sold for the satisfaction of the judgment ” and remitted the matter “ to an Official Referee to take proof as to all the surrounding facts and circumstances and to report to Special Term with a recommendation as to the manner in which the income shall be applied to the satisfaction of plaintiffs’ judgment and prior liens.” Both defendants appeal to this court by permission of the Appellate Division, which has certified the following questions to us:

(1) Is the third defense contained in the answer of the judgment-debtor sufficient in law upon its face thereof to constitute a defense?
(2) Is the matter alleged in paragraph ‘ 7 ’ of the answer of the judgment-debtor sufficient to constitute a partial defense to the plaintiff’s cause of action?
(3) Is an interest reserved for her own benefit by the founder of a trust subject to the claims of her subsequent creditors, and if so, to what extent?”

The defendant Spilo reserved the income for her own use for life. Section 34 of the Personal Property Law (Cons. Laws, ch. 41) provides that “ a transfer of personal property, made in trust for the use of the person making it, is void as against the existing or subsequent creditors of such person.” Plaintiffs do not seek the principal of the trust or the remainder or to declare the trust void. They seek the interest which the settlor reserved for her own use. It is her property with which she never parted. It is only where a third party establishes the trust that the income of the beneficiary may not be reached to satisfy claims of creditors. (Schenck v. Barnes, 156 N. Y. 316.) Where a third party creates the trust, the income of the beneficiary may not be reached in proceedings supplementary to execution (Matter of Kaplan v. Peyser, 273 N. Y. 147), nor may it be reached in a judgment creditor’s action under section 1189 of the Civil Practice Act. (Civ. Prac. Act, § 1196.) In proceedings supplementary to execution, section 793 of the Civil Practice Act enlarged the rights of creditors to reach income from a trust where the beneficiary himself created the trust beyond that afforded through garnishee executions under sections 684 and 685 of the Civil Practice Act. In such a proceeding, it is provided, the court may order the judgment debtor to pay to the judgment creditor or apply on the judgment, in installments, such portion of such income as may be proper after due regard for the reasonable requirements of the judgment debtor and his family, if dependent upon him, in addition to the amount recoverable under garnishee execution. By the enactment of that section, there is no express or implied repeal of section 34 of the Personal Property Law, nor does it apply to or limit recovery in a judgment creditor’s action brought under section 1189 of the Civil Practice Act beyond the limitations specified in section 1196. The judgment, debtor here is not a corporation nor is recovery sought from her earnings. Issues of fact were presented by the pleadings, but they were all disposed of by the stipulation of the parties except those raised in the Appellate Division and here decided.

The plaintiffs have not appealed from the order of the Appellate Division remanding the case to an official referee. We limit our decision to the questions determined in the court below. We decline to answer abstract questions which affect no issue before us. (Schenck v. Barnes, supra.) The third question certified is in that class.

The order should be affirmed, with costs, and the first two questions certified answered in the negative. The third question certified is not answered.

Crane, Ch. J., Lehman, Hubbs, Lottghran and Fin-eh, JJ., concur; O’Brien, J., taking no part.

Order affirmed, etc.


text:
    Olufine Anderson et al., Appellants, v. Robert M. Burkardt, Respondent.
    Argued June 11, 1937;
    decided July 13, 1937.

      Robert L. Callahan for appellants.
    It was error for the trial court to charge that the defendant had the right of way as matter of law. (Ward v. Clark, 232 N. Y. 195; Metzger v. Cushman’s Sons, Inc., 243 N. Y. 118; Shirley v. Larkin Co., 239 N. Y. 94; Shuman v. Hall, 246 N. Y. 51; Plantz v. Greiner, 232 App. Div. 73; Boylan v. Whitehouse, 229 App. Div. 372; Edick v. Davenport, 218 App. Div. 198; Dauch v. Theed, 209 App. Div. 682.) The trial court erred in its charge respecting the guest rule. (Michelson v. Stuhlman, 272 N. Y. 163; Burd v. Bleischer, 208 App. Div. 499; Sinica v. New York Rys. Co., 190 App. Div. 727; Kirchner v. State, 223 App. Div. 543; Elarde v. Mundt, 236 App. Div. 814; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628.)

      Leo F. Potts for respondent.
    Plaintiff cannot complain of the charge with respect to the right of way. (Zvonik v. Interurban St. Ry. Co., 88 N. Y. Supp. 399; Bresslin v. Star Co., 166 App. Div. 89; Hurley v. Olcott, 134 App Div. 631; Robinson v. Insurance Co. of North America 198 N. Y. 523; Thomas v. Union Ry. Co., 18 App. Div. 185; Shuman v. Hall, 246 N. Y. 51.)
   Crane, Ch. J.

The plaintiffs, husband and wife, were riding in an automobile driven by their son along Rocky Hill road in Queens county, New York, on December 8, 1934, when the car was struck by the defendant’s auto coming in the opposite direction. The son was turning to his left into Two Hundred and - Twenty-second street when the defendant’s car was 400 or 500 feet away, according to the plaintiffs’ testimony.

Subdivision 4 of section 82 of the Vehicle and Traffic Law (Cons. Laws, ch. 71) provides in part that Every driver of a vehicle approaching an intersection shall grant the right of way at such intersection to any vehicle approaching from his right, * * *»” The County Judge, without referring in terms to this statute, charged the jury that the defendant had the right of way. So, also, article II, section 6, of Traffic Regulations promulgated by the Police Department. Irrespective of any such regulations, one turning across traffic must use care commensurate with the situation and look out for approaching cars, but he is not obliged to wait until every one in sight has passed. Others must also show consideration and use like care not to hit the turning car. The relative rights depend upon distance and speed. The judge, we think, made these cautionary rules sufficiently plain to the jury.

A passenger may recover for injuries received in a collision between two automobiles even though both drivers were at fault. (Michelson v. Stuhlman, 272 N. Y. 163; Prindle v. Rockland Transit Corp., 271 N. Y. 580.) This is the so-called guest rule.” It does not apply, however, to the owner who is being driven in his own car; he is no guest. The record before us fails to show who owned this car. Father and mother sat in the back seat; the son operated the car. As he made a report of the accident we will assume he was the owner, and father and mother guests. While the judge could have made the law of contributory negligence as applicable to guests a little clearer, we think that, taking the charge as a whole in connection with the evidence to which it was to apply, there was no error calling for reversal. Plaintiffs’ counsel requested:

I ask your Honor to charge the jury that even though the negligence of the driver of the automobile in which the plaintiffs were riding contributed to the injury, the plaintiffs may still recover if the jury finds the negligence of the defendant was also a direct and proximate cause of the injury sustained by the plaintiff.
The Court: I have already so charged.”

At the very beginning of his charge the judge said: It is true that any negligence on the part of the driver of the car, the plaintiffs being passengers, is commonly what we call contributory negligence in this case but does not bar a recovery; but you must find from the evidence that it was the negligence of the defendant that was the proximate cause of the accident.”

The judgment should be affirmed, with costs.

Lehman, Hubes, Loughran, Finch and Rippey, JJ,, concur; O’Brien, J., taking no part.

Judgment affirmed.


text:
    In the Matter of Brooklyn Audit Co., Inc., Respondent, v. Department of Taxation and Finance of the State of New York, Appellant.
    Argued May 21, 1937;
    decided July 13, 1937.

      Seth T. Cole and Harry T. O’Brien, Jr., for appellant.
    Resignation of a respondent during the pendency of charges, brought pursuant to section 22 of the Civil Service Law (Cons. Laws, ch. 7), does not terminate the proceeding thereunder. (People ex rel. McCune v. Board of Police, 26 Barb. 487; People ex rel. Swan v. Loomis, 8 Wend. 396; People ex rel. Childs v. Dart, 57 Minn. 261; Daugherty v. Nagel, 27 Ida. 511; Hunter v. Chandler, 45 Mo. 452; Hammer v. State ex rel. Richards, 44 N. J. L. 667; Commonwealth ex rel. Jackson v. Smith, 45 Penn. St. 59; People v. Rodgers, 118 Cal. 393; Albright v. Territory, 13 N. M. 64; State v. Pierce, 35 Wis. 93; People v. Hartwell, 12 Mich. 508.) The resignation is not effective for any purpose until accepted by the Commissioner of Taxation and Finance. (Edwards v. United States, 103 U. S. 471; People ex rel. McCune v. Board of Police, 26 Barb. 487; Van Orsdall v. Hazard, 3 Hill, 243; People v. Board of Education of New York, 32 How. Pr. 167; Matter of Palmer, 49 State Dept. Rep. 75; People ex rel. German Ins. Co. v. Williams, 145 Ill. 573; Fryer v. Norton, 67 N. J. L. 537; Clark v. Board of Education, 112 Mich. 656; Rogers v. Slonaker, 32 Kan. 191; Coleman v. Sands, 87 Va. 689; Sutliffe v. City of New York, 132 App. Div. 831.)

      Charles Berlin, Herman S. Bachrach and Harry P. Albert for respondent.
    The removal proceedings against the tax examiner were terminated by his resignation. (Op. Attorney-General, [1913] 293; People ex rel. Hanrahan v. Board of Police, 26 N. Y. 316; Olmsted v. Dennis, 77 N. Y. 378; Gilbert v. Lucy, 11 Barb. 91; Cassedy v. Wilkins, 137 Misc. Rep. 748; Young v. City of Rochester, 73 App. Div. 81; Gelson v. City of New York, 262 N. Y. 497.)
   Finch, J.

The resignation of the income tax examiner in the Department of Taxation and Finance during the pendency of charges brought pursuant to section 22 of the Civil Service Law (Cons. Laws, ch. 7) does not terminate the proceeding. If the facts were that the only-result of the proceeding would be removal from office, and that nothing survived a resignation, then the latter might terminate the proceeding, a continuation of which would be futile. In the case at bar, however, if a person is removed from the civil service, as distinguished from resigning, he may be disqualified by the Civil Service Commission from holding further office under the civil service (Civil Service Law, § 14; Buies for Classified Civil Service, rule 9, subd. 4). To permit the resignation to terminate the proceeding would deprive the Civil Service Commission of the right to disqualify the offending employee from holding further office in the civil service. The purpose of a proceeding under section 22 of the Civil Service Law, therefore, is not consummated by the mere withdrawal of the examiner from the position which he has occupied.

It follows that the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman and O’Brien, JJ., concur; Hubbs, Loughran and Bifpey, JJ., dissent.

Ordered accordingly.


author:
Rippey, J. Lehman, J.
      Finch, J.

text:
    City of New York, Respondent, v. New York Central Railroad Company et al., Appellants.
    Argued May 19, 1937;
    decided July 13, 1937.

      Kenneth O. Mott-Smith and Clive C. Handy for appellants.
    The facts pleaded in the fourth separate defense state a good defense of illegality. (Burns v. Lopez, 256 N. Y. 123; Reddington v. Elco Corp., 236 App. Div. 64; Corporation v. Mayor, 5 Cow. 538; People v. Globe Mut. Life Ins. Co., 91 N. Y. 174; Buffalo East Side R. R. Co. v. Buffalo Street R. T. Co., 111 N. Y. 132; Meade v. Lamarche, 150 App. Div. 42; Railroad Comm. v. Southern Pacific Co., 264 U. S. 331.) The facts pleaded in the fourth separate defense state a valid reason why a decree of specific performance should be denied by a court of equity in the exercise of its discretion. (Forstmann v. Joray Holding Co., 244 N. Y. 22.)

      Paul Windels, Corporation Counsel (Herman Horowitz and William G. Mulligan, Jr., of counsel), for respondent.
    The fourth defense was properly stricken out. (Matter of Staten Island R. T. Ry. Co., 220 App. Div. 80; 245 N. Y. 643; 276 U. S. 603; Missouri-Kansas-Texas R. R. Co. v. Mars, 278 U. S. 258.) Even if separately pleaded an allegation that there is no need for the station would not constitute a valid defense. (City of New York v. Brooklyn City R. R. Co., 232 N. Y. 463; Village of Fort Edward v. Hudson Valley Ry. Co., 192 N. Y. 139; Matter of Staten Island Ry. Co., 220 App. Div. 106; Public Service Comm. v. Westchester Street R. R. Co., 206 N. Y. 209.)
   Rippey, J.

Plaintiff asserts that this is an action to compel defendants specifically to perform an alleged contract by which, it is said, defendants agreed (1) to construct a station in the vicinity of East) One Hundred and Forty-ninth street and Park avenue in the borough of the Bronx according to plans proposed by defendants and approved by the Board of Estimate and Apportionment of the City of New York, and (2) to reimburse plaintiff in the sum of $55,000 for moneys advanced by plaintiff in 1919 for the construction of certain underground passageways in that vicinity and referred to in those plans and completed by the city on April 30, 1921, in the event that it should be determined that the defendants were obligated to construct such passageways at their own expense. Defendants admit the making of the contract and that plaintiff has duly performed, but deny that they agreed to construct a station. They put in issue the question of their obligation to pay the $55,000, plead the six, ten and twenty-year Statutes of Limitation as bars to the maintenance of the action and set up a fourth separate defense, to which later reference will be made. The latter defense was stricken out by the Special Term on motion by plaintiff. Upon appeal, the Appellate Division affirmed by a divided court and certified to us the question as to whether the defense is sufficient in law.

By chapter 558 of the Laws of 1909 (in effect May 28, 1909), the Legislature of the State of New York authorized and empowered the city of New York to grant to defendants, by suitable instruments in writing, the right to occupy and use for the purpose of theirJncorporation and during their corporate existence certain underground areas for track and station_facilities in the neighborhood of One Hundred and Forty-ninth street and Park avenue in the city of New York upon such consideration as the city, acting by its Board of Estimate and Apportionment, might arrange, and imposed upon the New York Central and Hudson River Railroad Company the duty of submitting to the Board of Estimate and Apportionment of the city plans and profiles showing the proposed location of its tracks and structures and all proposed alterations or changes or modifications of grade in such lands or streets; approval of any such plans was required to be made by the Board of Estimate and Apportionment, to be evidenced by a resolution of the Board duly certified by the Mayor and Comptroller of the city of New York and, when so approved, they were to be deemed duly authorized and the street maps to be changed accordingly. The act was purely permissive and did not expressly determine that public convenience and necessity required the changes contemplated or the erection of a station at or in the vicinity of One Hundred and Forty-ninth street in New York city. Under the authority of the act, the defendants submitted plans and the Board of Estimate and Apportionment approved and agreements were entered into. The four written instruments out of which the alleged contract in suit arose were dated respectively June 8, 1911; November 6, 1916; and February 15, 1917, and July 26, 1917. By the terms of the contract it was agreed that defendants should pay to the city the sum of $55,000 in case of a final adjudication in favor of the city upon an agreed statement of fact, which reads as follows: Whether the Central Company (as successor of the New York Central and Hudson River Railroad Company) is obligated to the City under the agreement of 1911 to construct at its own expense, the portion of the passageway shown on the plans of 1911, between the easterly line of Spencer Place and the east limits of the present Mott Avenue Station platforms as shown on the plans of 1911, even if the Central Company should not desire the construction of such passageway? ”

There is no allegation in the complaint that any such question has ever been submitted to any court or that any such adjudication has been had. There is no express agreement by the defendants to erect any station. Whether there is any implied agreement so to do cannot be decided until all the facts are before the court.

The plaintiff is a municipal corporation and as such has no power to determine whether public convenience and necessity require erection of a station by defendants or to compel the erection of the station if public convenience and necessity so require. That is a legislative function and has been delegated generally to the Public Service Commission. Plaintiff does not allege that the Legislature delegated that function to the city to perform. It may be claimed by the city that the Legislature determined by the 1909 act that public convenience and necessity then required the construction of a station and made the city its agent to carry through the detail. Whether such a claim could be sustained, if made, we do not decide. In any event, there is nothing in the act of 1909 which delegated to the city the duty or power to enforce on behalf of the State the erection of the station at One Hundred and Forty-ninth street.

Any contract here sought to be enforced was complete in all its terms not later than 1917. So far as any action to compel defendants to perform is concerned, it has been a dead letter for at least twenty years. The court may take judicial notice of the fact that traffic conditions and means of handling traffic in the city of New York have radically changed in the past twenty years. It is alleged by defendants in the fourth separate and distinct defense that since the completion of the contract an act has been passed by Congress that has changed the conditions under which any financing may be undertaken and approved and that it will now require the defendants to secure the approval of the Interstate Commerce Commission before they can issue the necessary securities for financing a new station. Section 20 (a) of the Transportation Act, enacted February 28, 1920 (41 IT. S. Stat. 494; U. S. Code, tit. 49, § 20a), does not render the contract illegal. At most it renders the contract unenforceable -until permission should be given to issue and sell securities to obtain funds with which to erect the station. This, standing alone, would not be a sufficient or complete defense to the action for specific performance, but it is a material fact on the question of change of conditions and the manner in which the court should exercise its discretion in the event it should decree performance. It is alleged that operating conditions now render it impossible for defendants to stop trains at One Hundred and Forty-ninth street and that erection of the station and the stoppage of trains at that point would now be a public detriment, even though it might have been of public convenience and necessity between 1909 and 1917. Had an order been made in 1917 by the Public Service Commission, even with the consent of the defendants, and permitted to lie dormant for eighteen years and then revived, that body would now be required to take and consider new proofs submitted by defendants on all matters alleged in the defense before it could require enforcement of its ancient order. It might appear that conditions had so changed in the interval as to render performance unduly burdensome or impossible or that public convenience and necessity no longer demanded compliance. If the city may claim that it is acting in behalf of the public, defendants should be permitted to submit the facts alleged in this defense to the court on the question of whether the contract, if any, should be enforced.

But in this action, so far as enforcement is concerned, the city is not authorized to act as agent of the State. It is acting, or pretending to act, in its private capacity for the enforcement of private rights, and the rules applicable in actions for specific performance may be deemed to be those applicable as if the action were between private individuals. The action is to specifically enforce the contract to which reference has been made. The defendants agree that that is the nature of the action. The agreement which it is sought to enforce was complete, in all its terms, as above stated, not later than July 26,1917. If the city were not then in a position to compel performance of the contract by suit, it surely was entitled to bring its action on April 30, 1921, which was the date when it asserts it had completely performed all of the conditions on its part to be performed. Even though a contract fixes no time for performance, if not void for uncertainty, an agreement is implied that the act shall be done within a reasonable time. (Horner v. Clark, 27 Ind. App. 6; Williams v. Hart, 116 Mass. 513.) Suit was not instituted until May 6, 1935.

It is a cardinal rule that in an action to specifically enforce a contract the one seeking enforcement must act promptly. (Delavan v. Duncan, 49 N. Y. 485, 488.) Unexplained delay is evidence of waiver and acquiescence in non-performance. (McLaurie v. Barnes, 72 Ill. 73, 77.) Even though the delay should not be held to be sufficient to amount to an abandonment, the situation of the parties may have radically changed during the period between the time that the right to enforce arose and the time of bringing of the suit. That hardship and injustice to defendant through change of circumstances would result may be sufficient ground, especially when accompanied by unreasonable delay, to require a court of equity to refuse to decree specific performance, and this may be the result even though the action is brought before the time arrives when the Statutes of Limitation pleaded as defenses may bar the suit. (Peters v. Delaplaine, 49 N. Y. 362, 367.) As said by Chief Judge Church in that case: The granting or withholding specific performance is within the discretion of the court, and it will not be granted when it would be against conscience and justice to do so. * * * The question * * * must be decided in each action, although brought within the statutory limit as to time, whether under the peculiar circumstances equity and good conscience require that the contract shall be specifically performed or whether the party should be left to his remedy at law for the non-performance.” The circumstances in the case at bar are out of the ordinary and are without precedent. Plaintiff seeks to require specific performance of two separate parts of the contract only. One of those affects public rights, but plaintiff proceeds as though it were a private right to be enforced. The defendants allege that the circumstances have so changed since the contract was executed that public convenience and necessity do not require the erection of a station at One Hundred and Forty-ninth street, that the stoppage of trains at such a station would be impossible without serious interference with the proper and efficient operation of defendants’ railroads, that to erect a station there would now work injury to the public interests, that specific performance would injure both parties and benefit neither, and, in any event, legislation enacted subsequent to the contract renders it unenforceable. If those facts are established on the trial, the court might properly withhold relief from plaintiff or grant it upon conditions in accord with the requirements of justice and equity.

The question of whether the facts set up in the fourth separate defense must be pleaded to be available to defendant might be answered in the negative if this were an ordinary action for specific performance and damages might be substituted for the breach of the contract (Miles v. Dover Furnace Iron Co., 125 N. Y. 294, 298), or if plaintiff were seeking to get property back which was transferred to defendants as consideration for their erecting a station. But this is not such a case. The facts alleged are not a defense to the action to recover the item of $55,000. We think they may be held to be a complete defense against the requirement to erect the station under the peculiar situation existing in this case and should be pleaded to be available to defendants.

The orders should be reversed and the motion denied, with costs in all courts, and the question certified answered in the affirmative.

Lehman, J.

(concurring). Pursuant to chapter 558 of the Laws of 1909 and for the purpose of enabling the defendant railroad companies to relocate their railroad tracks and to erect a railroad station in the vicinity of Park avenue and One Hundred and Forty-ninth street in accordance with plans and profiles previously prepared and approved, the city of New York entered into an agreement with the railroad companies whereby the city granted to the railroad companies certain real property, easements and subsurface rights. Alleging that by “ the foregoing acts and transactions defendants undertook and agreed to construct a passenger station in accordance with the said plans and profiles,” the city has brought this action in equity to compel the defendants to carry out this agreement and to erect the station. Incidentally they ask also for the recovery of $55,000 which under the terms of the agreement the defendants concededly are now obligated to pay to the city.

The defendants have pleaded, as an affirmative defense, that the construction of the railroad station would entail an expense of at least five million dollars, which could be raised only by the issue of new securities, and that authorization of the Interstate Commerce Commission for such issue could not be obtained without proof that such issue would be in the public interest. That in fact neither public interest nor convenience now require that such a station should be erected. That it would not be practicable to stop trains at One Hundred and Forty-ninth street without detriment to the efficiency of the service now rendered by the companies. That their revenue has now so shrunk that they cannot assume the added indebtedness which would be required for the erection of the station. The plaintiff has challenged the sufficiency of the defense.

In testing the sufficiency of a defense, the complaint must also be searched. The defense would be an insufficient answer to an action to recover the $55,000 which the defendants are obligated to pay. In this action, however, recovery- of that money is asked, as already said, only as an incident to equitable relief. Upon the argument of the appeal, the plaintiff so conceded. If equity cannot compel specific performance of the alleged agreement, the plaintiff does not maintain that it is entitled to a money judgment in this action. (Cf. Pomeroy on Equity Jurisprudence [3d ed.], § 237, pp. 342, 343, n. 3; Sternberger v. McGovern, 56 N. Y. 12, 20.) Both parties seek a determination of the sufficiency of the plea as a defense to the equitable cause of action. If sufficient for that purpose, it may not be sustained because it would be insufficient in a different form of action for minor relief.

Arguments, not- without force, might be made that the challenged defense would be' insufficient if addressed to a cause of action for specific performance of an ordinary contract between private persons which does not seriously affect public interests. The alleged agreement in this case is of a different character. A railroad company performs a public function subject to public regulation. The State or United States, as the case may be, determines through its officers whether a station shall be constructed and where it may be located. A railroad company cannot by contract with the city assume an obligation, which the courts will specifically enforce, unless or until the proper public authorities have approved. Even then the courts act, not because a person or corporation seeks their aid, but because the State, in the public interest, so demands. The Public Service "Commission, as agent of the State, is authorized to issue commands and to take steps to enforce them. The city has no such powers. It is acting here in a private capacity. It asks the courts to compel the railroad company to carry out a private contract, not a public duty.

It is said that chapter 558 of the Laws of 1909, which authorized the railroad companies and the city to enter into an agreement for the acquisition by the companies of franchises and rights required for the relocation of the tracks and the construction of the station, constitutes legislative authority for the assumption of a contractual obligation to construct the station and a legislative determination of necessity and convenience. Assuming, though only arguendo, that such construction is justified, it would not follow that the contractual obligation would be specifically enforced at the suit of the city."' In the years which have passed since the making of the contract, a public policy that railroad companies must operate their railroads in accordance with public convenience and necessity and are subject to the supervision and direction of commissions established for that purpose, has become embodied in the statutes of this State. Even if the ■ railroad company has assumed by contract made more than twenty years ago a legal obligation to construct a station, the obligation will not be enforced unless the station will promote the public convenience now. The function of determining such questions has been intrusted, by the State and by the United States, to appropriate commissions. They and not the courts must pass upon such questions in the first instance.

The courts in such case must refuse specific performance not because in the exercise of discretion they deny equitable remedy for legal wrong, nor because the Legislature has limited or withdrawn a jurisdiction which the courts would otherwise have. It is because the Legislature has paramount power, except as limited by the State or Federal Constitutions, to regulate the operation of a railroad within the State, and the courts do not give commands which might conflict with regulatory measures of the State. If a private person attempted to enforce in an action in equity an obligation created for his benefit by contract with the railroad company, though such obligation might conflict with the public convenience, it would be evident that such action would not lie. There is no difference in principle where the city brings a similar action. To such an action the defense pleaded is sufficient, though it might be insufficient to a cause of action with more substance. “ A bad answer is good enough for a bad complaint.” (Baxter v. McDonnell, 154 N. Y. 432, 436.)

For these reasons I agree that the orders of the courts below should be reversed and the motion denied. Certified question answered in the affirmative.

Finch, J.

(dissenting). The New York Legislature in 1909 authorized the city of New York to grant the defendant railroads such franchise rights as might be reasonably required for suitable track and station facilities in the vicinity of One Hundred and Forty-ninth street in New York city. Pursuant to this legislation, the railroads submitted plans and in 1917 these plans were approved by the city, and an agreement was entered into between the city and the railroads confirming the franchise obligation and providing that the railroads should pay the city $55,000 in the event of a final adjudication in favor of the latter upon an agreed statement of facts. Since 1917 the defendants have failed to construct the station. Nor has the $55,000 been paid. Finally, in 1935, the city instituted this suit for specific performance and to recover the $55,000. An answer was interposed by the defendants and, on a motion by the city, the Special Term struck out the fourth separate defense. The Appellate Division has affirmed and certified to this court the general question whether that defense is sufficient in law.

I believe that the Special Term and the Appellate Division have reached the correct result in granting the motion to strike out the fourth separate defense. Courts should not construe pleadings too strictly, especially on motions to strike out, but where the matter pleaded in an answer does not under any construction constitute a defense, the plaintiff is entitled to have it struck out.

The fourth defense is pleaded as a complete defense to the cause of action, yet admittedly it does not constitute a defense to the demand for judgment for the $55,000. This alone furnishes sufficient ground for affirming the decision already reached.

Turning, however, to a consideration of the defense as applied to the demand for specific performance, again it is found to be inadequate. It contains three separate elements: First, that the funds which the defendants will need for the erection of the station can be raised only by the issuance of securities and that under Federal statute such securities cannot be issued without obtaining the permission of the Interstate Commerce Commission, which permission will not be granted unless it is shown that the issue is for some object compatible with public convenience and necessity; second, that neither public convenience nor necessity require the construction of the station, and that the stopping of trains at such a station will interfere with the proper operation of the railroads and the efficiency of their service; and third, that the defendants cannot afford to construct such a station.

The fact that the necessary funds will have to be raised by the issuance of securities, and that permission of the Interstate Commerce Commission will be necessary before such securities can be issued, does not constitute a defense to this action for specific performance. The Interstate Commerce Commission has no jurisdiction over the erection of stations, such jurisdiction remaining in the States, and at most the approval of the plans by the Interstate Commerce Commission may be necessary. (See Interstate Commerce Comm. v. United States ex rel. Los Angeles, 280 U. S. 52; Atchison, T. & S. F. Ry. Co. v. Railroad Comm., 283 U. S. 380.) Certainly it is no defense to an action for specific performance of a contractual obligation to say that permission for the issuance of securities will be necessary and that such permission if applied for may be denied, in the future, by the Commission.

Nor does the allegation that the defendants cannot afford to erect the station constitute a defense. Neither poverty nor difficulty of obtaining the money has ever been recognized as a defense to an action on a contract.

Although the defendants admit that the fourth defense, when drafted, was intended only to raise the question of the necessity for obtaining permission to issue securities from the Interstate Commerce Commission, they now contend that the language of the defense is so broad that it also raises the defense that the erection of the station is contrary to public necessity and convenience. By statute the Legislature authorized the erection of a station at or in the vicinity of One Hundred and Forty-ninth street, subject to the approval of the plans by the city. This amounted to a finding that public convenience and necessity would be served by such a station. (City of New York v. Brooklyn City R. R. Co., 232 N. Y. 463; Village of Fort Edward v. Hudson Valley Ry. Co., 192 N. Y. 139.) The making of such a determination is a legislative function, and although it is generally delegated to the Public Service Commission, the Legislature always has the power to make the determination for any particular case.

The Legislature made the determination that public necessity and convenience would be served by the construction of the station, and authorized its erection, and the city cannot be forced to turn again to the Public Service Commission, which the Legislature itself created, to request it to confirm the determination of the Legislature. It is true that many years have elapsed since the statute was enacted, and conditions may have changed during that time. Nevertheless, any argument that public necessity and convenience will no longer be served by the erection of the station must be directed to the Legislature and not to the courts. (Public Service Comm. v. Westchester Street R. R. Co., 206 N. Y. 209, 220; Matter of Staten Island R. T. Ry. Co., 220 App. Div. 80; affd., 245 N. Y. 643.) At least two legislative sessions have been held since the commencement of this suit, and apparently no action has been taken by that body or the defendants.

This suit by the city is based on its contract with the defendants. There has been long delay on the part of the defendants, and perhaps the city has been overly patient. Whether unexplained delay may be evidence of waiver or acquiescence in non-performance, we do not have to decide. The defendants neither claim that they have been harmed by the delay nor do they plead waiver or abandonment. The defense merely states that public convenience and necessity will not be served. That question, as already noted, is in the case at bar one for the Legislature and not for the courts.

The case of Delavan v. Duncan (49 N. Y. 485) does not appear to be in point. It involved the question whether specific performance should be granted to private individuals where loches and other acts on the part of the plaintiff make it inequitable to grant such relief. The pleading involved herein makes no reference to lapse of time nor loches. Moreover, it is doubtful whether mere delay is sufficient ground for denying specific performance where the plaintiff is a municipality and the object of the suit is to require the erection of a station which the Legislature has determined is required by public convenience and necessity. If the defendants were obligated to erect this station they should not be in a better position through failure to keep their agreement.

In addition it may be pointed out that evidence in support of an appeal to the discretion of a court of equity to withhold relief or to grant it upon conditions in accord with justice and equity, need not be pleaded in the answer. (Miles v. Dover Furnace Iron Co., 125 N. Y. 294.) There is no valid reason for drawing a distinction between that case and the case at bar.

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

O’Brien, Hubbs and Loughran, JJ., concur with Rippey, J.; Lehman, J., concurs in opinion, in which Crane, Ch. J., concurs; Finch, J., dissents in opinion.

Orders reversed, etc.