author: Per Curiam.

text:
    Sam Scarnato, Appellant and Respondent, v. State of New York, Respondent and Appellant.
    (Claim No. 28192.)
    Argued October 6, 1948;
    decided January 13, 1949.

      Julius Applebaum and Louis Masheb for appellant.
    I. The State’s responsibility is measured by the same rules of law applicable to private individuals and corporations. II. The State’s failure to comply with the safety standards it enacted and promulgated by statute and industrial code was the proximate cause of claimant’s injuries. (Johnson v. Johnson, 249 App. Div. 859; Boss v. Delaware, Lackawanna & Western B. B. Co., 231 N. Y. 335; Stewart v. Ferguson, 164 N. Y. 553; Coleman v. Buggles-Bobinson Co., 159 App. Div. 268; Chaffee v. Union Dry Dock Co., 68 App. Div. 578; Morse v. State of New York, 262 App. Div. 324, 287 N. Y. 666.) III. The State was negligent in failing to provide a safe place and safe means and safeguards to do the work. (Bobinson v. State of New York, 242 App. Div. 94.) IV. Claimant was not guilty of contributory negligence. (.Robinson v. State of New York, 242 App. Div. 94; Revelani v. State of New York, 165 Mise. 798; Karpeles v. Heine, 227 N. Y. 74; Pollard v. Trivia Bldg. Gorp., 291 N. Y. 19; Stern v. Great Is. Gorp., 250 App. Div. 115.) V. Claimant sustained very serious injuries and substantial damages as a result of the accident. VI. The Appellate Division erred in reducing the damages from $50,000 fixed and awarded by the Court of Claims to $25,000. (Sturman v. State of New York, 244 App. Div. 865, 269 N. Y. 627; Burton v. American Bridge Go., 273 App. Div. 792, 297 N. Y. 993.)

      Nathaniel L. Goldstein, Attorney-General (John R. Davison, Wendell P. Brown and Ronald E. Coleman of counsel), for respondent.
    I. As the trial judge and two of the justices of the Appellate Division determined, “ the proof failed to establish that any actionable negligence chargeable to the State caused the accident, and that claimant was free from negligence.” (Flaherty v. State of New York, 296 N. Y. 342.) II. Labor Law (§ 240) does not apply. But if it does apply in any respect there is no evidence of it having been violated. (Beale v. State of Neiv York, 46 N. Y. S. 2d 824.) III. If there is ground for imposing liability upon the State, the amount of $25,000 awarded by the Appellate Division is, if anything, excessive. Certainly it is not inadequate. (Adams v. State of New York, 269 App. Div. 482, 270 App. Div. 1062, 296 N. Y. 654; Wasnick v. State of New York, 269 App. Div. 1001, 295 N. Y. 902; Bernardine v. City of New York, 268 App. Div. 444, 294 N. Y. 361; Turack v. State of New York, 259 App. Div. 1105, 285 N. Y. 737; Moon v. Hoy, 252 App. Div. 830, 277 N. Y. 684; Paige v. State of New York, 245 App. Div. 126, 269 N. Y. 352; Wager v. State of New York, 257 App. Div. 580; Rook v. State of New York, 254 App. Div. 67; Rabinowits v. Huber, Inc., 252 App. Div. 770; Gallagher v. State of New York, 248 App. Div. 663.)
   Per Curiam.

Prior to 1944, the jurisdiction of the Court of Appeals to review questions of fact in civil cases was governed by a provision of the State Constitution which read, in part, as follows (art. VI, § 7): The jurisdiction of the court of appeals, except where ⅝ ⅜ * the appellate division, on reversing or modifying a final judgment in an action or a final order in a special proceeding, maltes new findings of fact and renders final judgment or a final order thereon, shall be limited to the review of questions of law (Emphasis supplied.)

The above text authorized the Court of Appeals to review the questions of fact only when the Appellate Division itself had rendered a final determination on new findings of fact.

On January 1, 1944, there became effective a new constitutional provision governing the jurisdiction of the Court of Appeals (art. YI, § 7, as amd.), which reads, in part, as follows: “ The jurisdiction of the court of appeals shall be limited to the review of questions of law except where * ⅝ ⅝ the appellate division, on reversing or modifying a final or interlocutory judgment in an action or a final or interlocutory order in a special proceeding, finds new facts and a final judgment or a final order pursuant thereto is entered ”. (Emphasis supplied.)

The words just' quoted were designed to enlarge this court’s jurisdiction to review questions of fact (see Eighth Annual Report of N. Y. Judicial Council, 1942, p. 171; Ninth Annual Report of N. Y. Judicial Council, 1943, p. 43). The italics in the above-quoted constitutional provisions is meant to point up the specific jurisdictional issue presented by the present case.

The claimant herein brought this suit in the Court of Claims to recover for personal injuries sustained by him while he was an inmate of G-reat Meadow State Prison at Comstock, New York. The Court of Claims rendered a final judgment dismissing his action on the merits. The Appellate Division, Third Department (272 App. Div. 1085), reversed that judgment on the law and facts, made new findings of fact and conclusions of law which fixed liability for the claimant’s injuries upon the State, and remitted the matter to the Court of Claims for an assessment of damages with the result that an award of $50,000 was made to the claimant and a judgment-for that amount was entered in his favor. The State again appealed to the Appellate Division where the judgment for claimant was modified by reducing the award to the sum of $25,000 and the judgment as so modified was affirmed. From the judgment of modification cross appeals to this court have been taken by the claimant and by the State.

There can be no doubt that this court can review'the weight of evidence with regard to the award of damages contained in the final judgment. Such a review was open to us under the constitutional provision as it stood before 1944. The novel jurisdictional issue posed here is whether we can now review the weight of evidence with regard to the State’s the issue determined by the interlocutory judgment herein-— an issue which was not open to reyiew by us under the former constitutional provision.

As we read the above amendment thereof, it confers on this court power to review an interlocutory determination on the facts in a case where that interlocutory determination by the Appellate Division is one of reversal on the facts and the final judgment or order directed or authorized by that interlocutory determination has been rendered by the court of first instance.

In that view, we are authorized in the present case to weigh the evidence both with regard to the issue of liability and with regard to the amount of the award.

We find that the weight of evidence is in' accord with the findings of the Appellate Division on the question of liability. But we are persuaded that, as to the amount to be awarded to the claimant, the facts support the findings of the Court of Claims.

Hence the judgment of the Appellate Division should be reversed and that of the Court of Claims reinstated, with costs.

LoughraN, Ch. J., Lewis, CoNWAY, Dye and Fuld, JJ,. concur.

Judgment reversed, etc. [See 298 N. Y. 916.]


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of Court Square Building, Inc., Appellant and Respondent, against City of New York, Respondent and Appellant.
    Argued November 17, 1948;
    decided January 13, 1949.

      M. Carl Levine, David Mor gulas and Albert Foreman for petitioner, appellant and respondent.
    I. The rent control act (L. 1945, ch. 314) does not apply to the City of New York. (Kahlen v. State of New York, 223 N. Y. 383; Weitsner v. Stitchman, 271 App. Div. 255, 296 N. Y. 907; United States v. Petty Motor Co.,
      327 U. S. 372; United States v. General Motors Gorp., 323 TJ. S. 373.) II. If such lease is subject to tbe emergency rent legislation, tbe reasonable rent formula adopted by tbe Appellate Division is correct. (Matter of Belmar Operating Corp. [Boffer], 272 App. Div. 766, 297 N. Y. 609; People ex rel. Gil-mour v. Hyde, 89 N. Y. 11; Matter of New York and Brooklyn Bridge, 72 N. Y. 527; Matter of Fifth Madison Corp. [N. Y. Tel. Co.], 272 App. Div. 766, 297 N. Y. 155; Matter of Sirbo Holdings Inc. [Krapp], 274 App. Div. 129; Kvas, Inc., v. Associated Press, 299 U. S. 269.) III. Two important items bave been erroneously omitted in tbe calculation; if restored, tbe rent provided for by tbe lease need not be disturbed.

      John P. McGrath, Corporation Counsel (Benjamin Offner, Harry E. O’Donnell and of counsel), for defendant, respondent and appellant.
    I. Tbe Business Rent Control Law (L. 1945, cb. 314) is applicable to tbe space occupied by tbe city, and tbe provisions of that statute govern tbe amount of rent to which tbe landlord is entitled. (Twentieth Century Associates v. Waldman, 294 N. Y. 571; Matter of Janis Bealty Co. [City of N. Y.], N. Y. L. J., May 26, 1948, p. 1969; Matter of Crown St. Garage, Inc. [City of N. Y.], N. Y. L. J., April 6,1948, p. 1265.) II. Since tbe total emergency rent plus tbe nonrental income exceeded tbe gross allowable income, tbe landlord was not entitled to a fixation of rent in excess of tbe city’s emergency rent. (Matter of Fifth Madison Corp. [A. Y. Tel. Co.], 272 App. Div. 766; Schack v. Handel, 271 App. Div. 1; Matter of Michel [Lerner], 185 Mise. 876; Matter of Frankel [Hatters’ Oakhide Boxes], 269 App. Div. 531; Matter of Zellner [Brooklyn Trust Co.], 70 N. Y. S. 2d 114, 273 App. Div. 906.) III. Tbe rent to be paid by tbe city, as fixed by tbe Appellate Division, was based on an erroneous computation, and exceeds tbe fair and reasonable proportion of tbe gross rentals. Tbe trial court’s finding that tbe city’s emergency rent is fair and reasonable is in accord with tbe weight of evidence. (Matter of Fifth Madison Corp. [A. Y. Tel. Co.], 297 N. Y. 155; Harrington v. Harrington, 290 N. Y. 126; Pirman v. Confer, 273 N. Y. 357; York Mtge. Corp. v. Clotar Constr. Corp., 254 N. Y. 128.)
   Lewis, J.

Tbe petitioner-landlord is the owner of an office building in tbe city of New York occupying tbe greater portion of a city square bounded by Lafayette, Beade, Elm and Duane Streets. The City of New York, as a tenant, occupies six floors of the petitioner’s building — the second to seventh floors inclusive — and in'addition a ground-floor store on Beade Street and space in the basement. This extensive space has been used since 1935, for courtrooms and related uses by the Municipal Court of the City of New York. In January, 1943, the parties entered into a lease to run until April 30, 1945, at an annual rent of $123,300. On October 31, 1944, a renewal lease was executed for a three-year period commencing May 1,1945, at an annual rent of $163,850.

After execution of the lease last mentioned above, but prior to the commencement of the city’s tenancy thereunder, the Business Bent Control Law (L. 1945, ch. 314) was enacted and became effective. By the terms of that statute rents for business properties were frozen at the rent paid on June 1, 1944, plus 15%. In those circumstances, on May 1, 1945, the city — claiming to be protected by the Business Bent . Control Law — refused to pay the rent reserved in the lease executed October 31, 1944, on the ground that the emergency rent fixed by the statutory formula prescribed by chapter 314 of the Laws of 1945 was applicable. According to that formula the statutory emergency rent per year — computed on the basis of the annual rent paid by the city on June 1, 1944 ($123,300) plus 15% — amounted to $141,795.

By its petition in this proceeding, Court Square Building, Inc., the landlord, seeks a determination that the Business Bent Control Law (L. 1945, ch. 314) does not apply to the City .of New York as a tenant and that the city is obligated to pay the rent specified in the lease executed October 31, 1944. In the event the Business Bent Control Law is held to be applicable, the petitioner asks that the emergency rent provided by that statute be held inadequate and that the reasonable rent be fixed at the figure provided in the lease of October, 1944.

At Special Term, the Business Bent Control Law was held to be applicable to the city’s tenancy and the landlord’s petition for a greater rent than the emergency rent was dismissed — the ruling being that the emergency rent was a fair rent for the space occupied by the city.

At the Appellate Division, it was also ruled that the Business Bent Control Law was applicable to the city’s tenancy. The Appellate Division found, however, that the plaintiff-landlord was entitled to rent in excess of the emergency rent and fixed an annual rent greater than that provided by the Special Term order. From the order of the Appellate Division both the landlord-petitioner and the tenant-respondent appeal to this court.

The landlord’s first contention upon this appeal is that the Business Bent Control Law does not apply to the City of New York as a tenant. In support of that position it is argued that, inasmuch as a lease was executed prior to the effective date of the statute (March 28, 1945), the rent control law cannot be held applicable for it would then constitute a violation of the constitutional prohibition against impairing the obligation of a contract. The same argument was advanced in Twentieth Century Associates v. Waldman (294 N. Y. 571) where this court considered the constitutionality of the Commercial Bent Control Law (L. 1945, ch. 3). The statute there involved differed from the statute now before us in that it covered different types of property, had a different effective date and a different date for the freezing of rents. In other respects the Commercial Bent Control Law and the Business Bent Control Law are alike. In the Twentieth Century Associates case {supra) the Commercial Bent Control Law was held to be a constitutional exercise of the police power and the statute there being considered was held to be applicable to leases executed prior to its effective date. We regard the rule of that case as decisive of the challenge upon this appeal by the petitioner-landlord to the constitutional validity of the Business Bent Control Law. In that connection we note that the enactment of the statute last mentioned was prompted by the same emergency — arising from the prevalence of the same conditions affecting public welfare — that caused the enactment of the Commercial Bent Control Law (compare L. 1945, ch. 314, § 1, with L. 1945, ch. 3, § 1).

The petitioner-landlord also claims that because the city possesses the power of eminent domain, it does not need, and should not be allowed, the protection of the Business Bent Control Law. We find nothing in the statute which indicates that it applies only to certain types of' tenants — excluding those, such as cities, which have the right of eminent domain. Indeed, under subdivision (g) of section 8 id. — which defines the circumstances in which tenants may be evicted thereunder — it is provided: “In no event, however, shall any tenant be evicted under or pursuant to the provisions of this subdivision # ⅜ * who is * # ⅝ an agency of the federal government, the state, the city, or any county ”. It would thus seem that the need for specifically excluding “ an agency * * ⅜ the city ”, when reference is made to the rights under this section of any tenant ”, is an indication that the Legislature, in referring repeatedly to tenants throughout the statute, intended to include municipalities. Accordingly, we are in agreement with Special Term and the Appellate Division that the provisions of the Business Bent Control Law are constitutional and applicable to the city’s tenancy here involved.

We come then to the landlord’s contention that, if it be held that the city’s tenancy is subject to the provisions of the emergency rent legislation, then the reasonable rent for the space occupied by the city should be fixed at $163,850. Opposed to this contention the city asserts that the emergency rent — fixed according to the statutory formula was a fair and reasonable rent for the premises here involved and, therefore, the landlord is not entitled to rent in excess of this amount. The formula by which the courts are to determine whether a, landlord is entitled to more than the statutory emergency rent is set forth in section 4 of chapter 314 of the Laws of 1945, as follows:

“ § 4. A rent, exceeding in amount the emergency rent, may within the limitations specified by this section, be fixed by arbitration or by the supreme court. The rent to be so fixed shall be a reasonable rent based on the fair rental value of the tenant’s business space as of the date the application to the supreme court or submission to arbitration is made. In the determination of the amount of such reasonable rent: (a) due consideration shall be given to the cost of maintenance and operation of the entire property (including land and building in which such business space is located) including amount paid for taxes assessed against such property, and to the kind, quality and quantity of services furnished, but excluding amortization or interest paid or accrued on any incumbrances thereon; (b) such rent shall be fixed in such manner that it shall not exceed a fair and reasonable proportion of the gross rentals from all the business space in the entire building, giving due consideration to the amount and character of the business space used or occupied by such tenant, provided, however, that the gross rentals from all such business space shall not exceed a fair and reasonable proportion of the gross rentals from the entire building.

A net annual return of six per centum on the fair value of the entire property including the land plus two per centum of principal for amortization of any mortgages thereon shall be presumed to be a reasonable return.”

Using the statutory formula quoted above Special Term and the Appellate Division both found — and there is no objection by either party to the the fair and reasonable income which the landlord was entitled to receive from its land and building was $547,935.40.

Special Term and the Appellate Division differed, however, in the method by which gross income from the property should be computed. Special Term concluded that the landlord’s gross income from the property was $561,382.38 — consisting of rents from the building of $520,729.38 and additional nonrental income of $40,653 from sale of electricity, waste materials, etc. Inasmuch as the gross income found by Special Term exceeded $547,935.40 — which figure both parties agree is the fair and reasonable income to which the landlord is entitled — Special Term declined to fix the city’s rent in excess of its statutory emergency rent of $141,795 per year (the rent paid by the city on June 1, 1944 [$123,300], pins 15%).

At the Appellate Division the landlord’s gross income from the property, including $40,653 received from nonrental income, was found to he $510,000. This amount, being less than $547,935.40, the Appellate Division proceeded to compute the rent for the city which would represent its proportionate share of the total rents to which the landlord is entitled in order to net a fair return on its property. The city’s rent as fixed by the Appellate Division was $155,265.72 per year.

The difference in gross income as found by Special Term and the Appellate Division is brought about in this manner: At the time when this proceeding was commenced, the rent actually being, paid by all tenants other than the city, amounted to $319,473.16 per year. Those tenants —■ other than the city — who were occupying space on June 1, 1944, under long-term leases which had not expired, were not subject to payment of emergency rent or to proceedings for fixation of reasonable rent under the statute. In determining gross income from the premises, Special Term added 15% to the actual income being paid by tenants in the building — other than the city — “ for the purpose of ascertaining the emergency or statutory rent of the building.” The Appellate Division held that the landlord’s gross income must be determined from the actual rent obtained and not from a theoretical emergency rent to which some of the tenants were not subject. Its opinion stated: “ Under the circumstances it would seem that the trial court fell into error in this step of its calculation. The statute seems to contemplate that the amount of gross rentals be determined in relation to the actual income obtainable from the building at the time of application to the Supreme Court for an increase in rent (L. 1945, ch. 314, § 4). It appears, however, that the landlord could not actually obtain any increase of 15% as emergency rent from the tenants other than the respondent occupying space in the premises (L. 1945, ch. 314, § 5).” (273 App. Div. 441, 444.)

We agree with the ruling by the Appellate Division that the Legislature intended a determination of whether a. landlord is receiving a fair return on its investment to be based on the actual rents lie was receiving from the premises at the time the proceeding was commenced rather than on emergency rental figures — especially, as. in this case, where such emergency rents were not applicable to some of the tenancies involved. Our conclusion in that regard is reinforced by the provision of the act which requires a landlord to submit a bill of particulars setting forth the following items for use in determining what a reasonable rent shall be (L. 1945, ch. 314, §4): “In any proceeding * * * under this section, the landlord * * * shall serve upon the tenant a verified bill of particulars, setting forth the gross income derived from the entire building during the preceding year, the names and addresses of all tenants, the rental charged each tenant and how payable, ⅜ * * the assessed valuation of the property as shown by the latest completed assessmenbroll of the city, * * * the cost of maintenance and operation of the building during the preceding year, the kind, quality and quantity of services furnished during such year; and such other facts as the landlord claims affect the net income of the entire building, or the reasonableness of the rent to be charged.” (Emphasis supplied.)

The above excerpt from the statute, referring as it does to “ gross income derived from the entire building during the preceding year ” and to “ the rental charged each tenant ”, is a strong indication that the Legislature intended a landlord’s fair return to be computed on the basis of actual income and not the rent which would have been derived if emergency rents had been applied to each tenancy. (Matter of Relmar Operating Corp. [Roffer], 297 N. Y. 609.)

. The decision of this court in Matter of Fifth Madison Corp. (New York Tel. Co.) (297 N. Y. 155) does not support the city’s assertion in the present case that a landlord’s gross income must be based on the' total emergency rents from the premises rather than on the actual rents received. The record in Matter of Fifth Madison Corp. (New York Tel. Co.) (supra) does not indicate that a question as to the method of computing gross income in this respect was considered by this court. No objection was made by either party to that proceeding as to the method employed by the trial court on that phase of its calculations — the objection chiefly stressed being disallowance of an item of depreciation. However, the point was argued before this court in Matter of Hecht Broadway Corp. (Ashenfarb) (298 N. Y. 769), where it was not passed upon inasmuch as there was evidence that both the actual rents and the emergency rents exceeded the amount required to give the landlord a fair return on its investment.

Having determined that the gross income — computed on the basis of actual rents received from the premises — was inadequate to provide the landlord with a fair return on its investment, it became necessary for the Appellate Division to fix the annual rent payable for the business space occupied by the city. When a court is called upon to fix a reasonable rent under chapter 314 of the Laws of 1945, that statute (§ 4) requires that “ due consideration [shall be given] to the amount and character of the business space used or occupied by such tenant ” in its relation to the remaining rentable space in the building. The city, in the present case, does not dispute the finding by the Appellate Division that, considering the amount and character of the space rented by the landlord to the city, the space occupied by the city amounts to 28.3% of the business space in the entire building. Accepting 28.3% as the portion of the business space occupied by the city we conclude that the Appellate Division erroneously took 28.3% of $547,935.40 —• the latter figure being the gross annual receipts from the property to which the landlord is entitled and includes two sources of income: rents received for business space and nonrental income such as the sale of electricity, waste materials, etc. Inasmuch as the landlord receives annually nonrental income of $40,653, it is entitled to receive as gross annual rentals only $507,282.40 (Matter of Fifth Madison Corp. [New York Tel. Co.], supra).

Accordingly, under the applicable statutory provision (L. 1945, ch. 314, § 4, subd. [b]), the “ ⅜ * * proportion of the gross rentals from all the business space in the entire building * * * payable annually by the city for the business space it occupies is 28.3% of $507,282.40 or $143,560.92.

The order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

LoughraN, Ch. J., CoNway, DesmoNd, Dye and Fuld, JJ., concur.

Ordered accordingly.

       The figures used in reaching this amount were as follows:
      Fair value of
      Principal sum due on mtges.—


author: Fuld, J.

text:
    Louis A. Appellant, v. Ethel Bunim, Respondent.
    Argued January 3, 1949;
    decided January 13, 1949.

      Lloyd Paul Stryker, Harold W. Wolfram and Jacob B. Aginskee for appellant.
    I. The trial court found as a fact that ‘ ‘ the plaintiff is a fit and proper person to have custody of the issue of the marriage.” There was no finding that defendant was a fit and proper person to have custody of these children, and it is significant that defendant submitted no request for the court to find that she was. II. Defendant’s conduct and code prove that she is an unworthy and unfit guardian of her daughters. (People ex rel. Wright v. Gerow, 136 App. Div. 824; Lester v. Lester, 178 App. Div. 205, 222 N. T. 546; Van Kleef v. Van Kleef, 183 Mise. 513, 269 App. Div. 728; People ex rel. Lawson v. Lawson, 111 App. Div. 473; People ex rel. Geismar v. Geismar, 184 Mise. 897.) III. It is only where both parties are equally morally blameless that a court will give any weight,to the desires of the children. (Israel v. Israel, 38 Mise. 335; People ex rel. Glendening v. Glendening, 259 App. Div. 384, 284 N. Y. 598.) IV. The court below erred in failing to distinguish between a child’s pleasure and a child’s welfare.. At the time of the trial, the responsibility of school work and the other common social obligations were encountered in the father’s home, while weekends with the mother represented a pleasant release and undoubtedly dictated the preference which these children expressed for the custody of the mother. (Matter of McLcmrin, N. Y. L. J., Sept. 15, 1948, p. 449, col. 3.)

      James D. G. Murray and Irving Greenberg for 'respondent.
    I. The determination of the question of the custody of minor children in an action for divorce rests wholly within the discretion of the trial court and the- affirmance thereof by the Appellate Division is not reviewable by the Court of Appeals. (Harrington v. Harrington, 290 N. Y. 126; Osterhoudt v. Osterhoudt, 168 N. Y. 358; National Bank of Deposit v. Rogers, 166 N. Y. 380; People ex rel. Sternberger v. Sternberger, 153 N. Y. 684; Matter of Welch, 74 N. Y. 299.) II. The finding that the interests and welfare of the children will be best served by awarding the custody to the defendant is supported by overwhelming evidence. (Van Kleef v. Van Kleef, 269 App. Div. 728; People ex rel. Geis-mar v. Geismar, 184 Mise. 897; Kruczek v. Kruczek, 29 N. Y. S. 2d 385, 264 App. Div. 242, 289 N. Y. 826; Burns v. Burns, 264 App. Div. 894; Rizzo v. Rizzo, 246'App. Div. 838; Israel v.
      Israel, 38 Mise. 335; Tillman v. Ullman, 151 App. Div. 419.) III. The children have testified in a way as to leave no doubt that they want to live with their mother. These children are of suitable age and understanding to mate a choice as to the parent with whom they wish to live and such choice should be given great weight. (Matter of Jiranek, 269 App. Div. 709.)
   On the trial of this divorce suit the wife admitted numerous deliberate adulteries (with a man who was married and had children), attempted to rationalize and justify those adulteries, denied any repentance therefor, committed perjury in swearing to denials in her answer (see Civ. Prac. Act, § 1148), and, as found by both courts below, testified to a deliberately false story as to consent by plaintiff (a reputable and successful physician) to the adulteries. With all that in the record, custody of the two children of the marriage (eleven and thirteen years old at the time of the trial) has been, nonetheless, awarded to defendant.

There is an affirmed finding below that the husband is a fit and proper person to have such custody, and no such finding as to the wife, but a finding that u the interests and welfare of the children, the issue of said marriage, will be best served by awarding the custody to the defendant.” We see in this record no conceivable basis for that latter finding, unless it be the testimony of the two daughters that, though they love their father, they prefer to live with their mother. Unless that attitude of these adolescent girls be controlling as against every other fact and consideration (see, contra, People ex rel. Glendening v. Glendening, 259 App. Div. 384, affd. 284 N. Y. 598), this judgment, insofar as it deals with custody, is unsupported and unsupportable.

Of course, custody of Children is ordinarily a matter of discretion for Special Term and the Appellate Division (see Matter of Welch, 74 N. Y. 299; Kruczek v. Kruczek, 264 App. Div. 242, affd. 289 N. Y. 826; Harrington v. Harrington, 290 N. Y. 126, 130). But that discretion is a judicial discretion, not an uncontrolled one, and its exercise must have sound and substantial basis in the testimony. Therefore, there can be no valid exercise of discretion in a judicial direction which is opposed to everything presented to the court. We hold that there was here such abuse of discretion as to be error of law, with consequent jurisdiction to review,.and duty to reverse, in tbis court.

No decision by any court can restore tbis broken borne or give these children what they need and have a right to — the care and protection of two dutiful parents. No court welcomes such problems, or feels at ease in deciding them. But a decision there must be, and it cannot be one repugnant to all normal concepts of sex, family and marriage. The State of New York has old, strong policies on those subjects, strongly stated by the Legislature (see, for instance, Penal Law, § 100; Civ. Prac. Act, §§ 1147, 1161, 1170; Domestic Relations Law, § 8). Our whole society is based on the absolutely fundamental proposition that: Marriage, as creating the most important relation in life,” has “ more to do with the morals and civilization of a people than any other institution ” (Maynard v. Rill, 125 U. S. 190, 205). Defendant here, in open court, has stated her considered belief in the propriety of indulgence, by a dissatisfied wife such as herself, in extramarital sex experimentation. It cannot be that “ the best interests and welfare ” of those impressionable teen-age girls will be ‘ ‘ best served ’ ’ by awarding their custody to one who proclaims, and lives by, such extraordinary ideas of right conduct.

The judgment should be modified by striking therefrom the provisions thereof dealing with custody and support, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.

Fuld, J.

(dissenting). This case involves a problem, as perplexing as any in the field of human relationships, and, while a different result could, of course, have been reached below, I hesitate to stamp as an abuse the discretion exercised by the Special Term judge, and affirmed by four justices of the Appellate Division, only after the most painstaking and conscientious consideration.

Especially in a case such as this, the judge who sees and hears the witnesses, who is face to face with the children and the parents, is in a far better position to make a decision calling for the exercise of discretion than is the appellate judge whose only source of guidance is the cold print, the lifeless pages, of the record. No one can disagree with the statement of high principle in the opinion for reversal, but, on the other hand, no one can dispute that “ The factors that made Ms [the Special Term judge’s] duty clear to him can at this distance he seen by us only, as it were, through a glass darkly.” (People ex rel. Herzog v. Morgan, 287 N. Y. 317, 322.)

The primary and paramount concern of the trial judge was the welfare and happiness of the children. Would it better serve their interésts and their well-being to place them with their mother or with their father ? Bearing directly on that issue was evidence that the father was inordinately preoccupied with his professional duties; that, as a result, he gave little of Ms time or of himself to the children; and that not infrequently he treated them brusquely, impatiently and even intemperately. Likewise pertinent was proof that the wife was ever a good and devoted mother; that her indiscretions were unknown to the children; that she was deeply devoted to the children and truly concerned with their welfare; and that, for their part, the children returned her affection with an attachment that was, in the language of the trial court, “ almost Biblical ” in its intensity.

With such evidence — and there was more of like import — in the record, the decision at Special Term and the judgment of the Appellate Division awarding custody to the mother cannot be said to be completely beyond the pale of permissible discretion.

I would affirm the judgment. [See 298 N. Y. 923.]

LoughraN, CM J., Lewis and CoNway, JJ., concur with Des-moNd, J.; FtrLD, J., dissents in opinion in wMch Dye, J., concurs.

Judgment accordingly.


text:
    In the Matter of Alfred H. Gruner et al., Appellants, and George Blumenthal, Intervener, Appellant, against Joseph A. McNamara et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued January 4, 1949;
    decided January 13, 1949.

      George Blumenthal for petitioners-appellants.
    I. The determination of the Municipal Civil Service Commission must be reversed if it is arbitrary, capricious, or unreasonable. II. Answer A is the best answer, as a matter of law and of fact.
      (Matter of Fink v. Finegan, 270 N. Y. 356.) III. Answer D is incorrect, according to defendants’ own statements. IV. At the very least, the question should he stricken from the examination. (Matter of Blumenthal v. Morton, 273 App. Div. 497, 298 N. Y. 563.)

      John P. McGrath, Corporation Counsel (Frank H. Crabtree and Seymour B. Quel of counsel), for respondents.
    I. The selection of a best answer to question No. 60 was a matter within the discretion of th'e commission, and it was not the province of Special Term to substitute its opinion for that of the commission. (Matter of Blumenthal v. Morton, 273 App. Div. 497, 298 N. Y. 563; People ex rel. Caridi v. Creelman, 150 App. Div. 746; Matter of Allen v. Finegan, 254 App. Div. 858, 278 N. Y. 737; Matter of Immediato v. Kern, 254 App. Div. 672, 278 N. Y. 680.) II. The selection of answer D as the best answer to question No. 60 was neither arbitrary nor capricious, but was based upon entirely logical and reasonable grounds.
    ents’ position.
    I. The selection by the commission of answer D as the best answer was reasonable and proper in view of the language of question No. 60. (People v. Burt, 171 Mise. 166, 258 App. Div. 896, 283 N. Y. 740.) II. Unless the answer selected by the commission as the best answer is factually wrong or patently and provably wrong by every reasonable standard, the court will not, in the absence of fraud or bad faith, review such determination. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; People ex rel. Braisted v. McCooey, 100 App. Div. 240; People ex rel. Caridi v. Creelman, 150 App. Div. 746.)
   Per Curiam.

In our judgment, question No. 60 is so indefinite and ambiguous as not to be capable of a “ best ” answer — the standard fixed by the Municipal Civil Service Commission for the examination in question. In point of fact, that was the initial view of the commission when, in publishing the tentative key answers, it accepted as correct the diametrically opposite answers “ A ” and “ D ”, with the notation that the question “ does not clearly indicate ” whether or not “ the licensee was licensed to carry the particular weapon found ”. Inclusion of that sort of question deprives the examination of a standard “ sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.” (Matter of Fink v. Finegan, 270 N. Y. 356, 362.)

In such a case] one answer could be selected as ‘ ‘ best ’ ’ only on some arbitrary or compromise basis, with resulting injustice and prejudice to those candidates who selected the opposite answer, previously accepted by the commission as equally satisfactory. Fairness and a regard for settled principles require that the question be eliminated from the examination and that there be credit adjustments for the remaining questions. Only in that way will arbitrary action be avoided, requisite objectivity assured. To require the commission to eliminate any question which is not susceptible of a single best answer does not constitute interference with the discretion committed to the commission, but merely serves to keep that body within the constitutional limits of its jurisdiction.

The order appealed from should be reversed, and the Municipal Civil Service Commission directed to eliminate question No. 60 from the examination, making the essential readjustment in the credit to be given on each of the remaining questions, with costs in this court and in the Appellate Division.

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

Order reversed, etc.


author: CoNway, J. Fuld, J.

text:
    In the Matter of the Accounting of S. Bruce Wilson et al., as Executors of Kate B. Wilson, Deceased, Respondents. Morris Orenstein, as Receiver of Leslie B. Wilson, Appellant; Robert B. Wilson, as Administrator of the Estate of Leslie B. Wilson, Deceased, Respondent.
    Argued October 4, 1948;
    decided January 13, 1949.

      William F. Wund and Ernest M. Morrison for appellant.
    I. The judgment debtor’s renunciation of his legacy to defeat his creditor after the receiver’s title had attached and in violation of the restraining orders and the Debtor and Creditor Law of this State, was void and ineffective. (Albany Hosp. v. Albany Guardian Soc., 214 N. Y. 435; Matter of Waring, 293 N. Y. 186; Burritt v. Silliman, 13 N. Y. 93; Matter of Mahlstedt, 140 Mise. 245,-234 App. Div. 891; Matter of Matthiessen, 175 Mise. 466; Matter of Merritt, 155 App. Div. 228; Matter of Wolfe, 89 App. Div. 349; Matter of Clarkson, 137 Mise. 741; People v. Flanagin, 331 Ill. 203; Crane v. Beecher, 6 N. Y. S. 225; Matter of Trent, 159 Mise. 822; Hallett v. Thompson, 5 Paige Ch. 583.) II. In the case of a beneficial devise or legacy, uncoupled with any condition, there is a presumption of acceptance. (Lehr v. Sweitzer, 213 Iowa 658; McGarry v. Mathis, 226 Iowa 37; Bradford v. Calhoun, 120 Tenn. 53; Sanders v. Jones, 347 Mo. 255; Matter of Howe, 112 N. J. Eq. 17; Strom v. Wood,-100 Kan. 556; Crumpler v. Barfield, 114 G-a. 570; Oliver v. Wells, 254 N. Y. 451.) III. A legacy before renunciation constitutes a property right, and title thereto passed to the receiver. (Civ. Prac. Act, §§ 807, 808; Herlihy v. Watkins, 252 App. Div. 605; Hubbard v. Lewis Co., 128 App. Div. 416; Matter of Ewald, 174 Mise. 939; Monahcm v. Fitzpatrick, 16 Mise. 508; Matter of Trent, 159 Mise. 822; Hallett v. Thompson, 5 Paige Ch. 583; Tompkins v. Fonda, 4 Paige'Ch. 448; Payne v. Becker, 87 N. Y. 154; Matter of Haase, 174 Mise. 42.)

      Albert Ritchie for respondents.
    I. The legacy to Leslie B. Wilson never vested in him and hence the receiver got no title thereto. (Burritt v. Silliman, 13 N. Y. 93; Albany Hosp. v. Albany Guardian Soc., 214 N. Y. 435; People v. Flanagin, 331 III. 203; Bradford v. Leake, 124 Tenn. 312; McGarry v. Mathis, 226 Iowa 37; Carter v. Carter, 63 N. J. Eq. 726; Hidden v. Hidden, 103 Mass. 69; Matter of Wolfe, 89 App. Div. 349, 179 N. Y. 599; Matter of Merritt, 155 App. Div. 228; Matter of Mahlstedt, 140 Mise. 245, 234 App. Div. 891; Matter of Matthies-

      sen, 175 Mise. 466; Matter of Kalt, 16 Cal. 2d 807; Matter of Lansing, 182 N. T. 238; Helvering v. Orinnell, 294 IT. S. 153; Matter of Van Alstyne, 207 N. T. 298.) II. The question of acceptance of the legacy by the legatee is not before the conrt. There was, however, no acceptance. (Oliver v. Wells, 254 N. Y. 451; Matter of Phipps, 77 Hun 325, 143 N. Y. 641; Matter of Zefita, Countess de Bohan-Chabot, 167 N. Y. 280; Matter of Wolfe, 89 App. Div. 349; Matter of Meyer, 137 Mise. 730; Matter of Howe, 112 N. J. Eq. 17; Matter of Matthiessen, 175 Mise. 466; Smillie v. Quinn, 90 N. Y. 492; Jackson v. Tallmadge, 246 N. Y. 133; Friede v. National City Bank, 250 N. Y. 288.) III. The renunciation by the legatee did not violate the injunction order or the Debtor and Creditor Law. (Schaefer v. Fisher, 137 Mise. 420; Burritt v. Silliman, 13 N. Y. 93; Matter of Meyer, 137 Mise. 730.) o
   CoNway, J.

The facts presented for our consideration are not in dispute. They are established by court documents, exhibits and a stipulation of the parties to a statement of facts proven pursuant to rule 230 of the Buies of Civil Practice. In 1929, one Maria Eckerlein recovered judgment against Leslie B. Wilson, (hereinafter referred to as debtor) the now deceased respondent. Thereafter, in March of 1945, his mother, Kate B. Wilson, died leaving a will and codicil, which were probated in April, 1945, by which he received as a legacy one third of her residuary estate. The remaining two thirds were divided between his brother and sister. Only personalty is here involved.

Some ten months after the death of the debtor’s mother and on January 10, 1946, a third party order in supplementary proceedings, in connection with the judgment mentioned, was served upon his brother as an executor. It was returnable on January 29th, and contained an injunction forbidding transfer or disposition of ahy property or debts due the debtor. On his examination the executor testified that the value of the debtor’s legacy was approximately $12,000.

Pursuant to an order in supplementary proceedings issued on January 12th, returnable on January 29th, and served personally, the debtor was examined. That order restrained him from making or suffering any transfer or other disposition of, or interference with any of his property. Two questions and answers may be quoted as indicating quite clearly that at that time, ten months after the decease of his mother, he had accepted the legacy in his own mind and- had no thought or intention of rejecting or renouncing it:

“ 111 Q. By the terms of the Last Will and Testament and Codicil of your deceased mother, Kate B. Wilson, what interest have you in her Estate? A. One third of the residuary estate.”
‘ ‘ 123 Q. What do you figure and compute at this time, approximately, that there is still due to be paid to you by the executors of the estate, in settlement and payment of your interest in the estate? A. I have no idea what it will amount to.”

He further testified that neither his brother nor his sister (the two executors) had made any payments to him on account of his interest in the estate and that he had made no assignment of such interest. At the conclusion of the examination on January 29th, a receiver was appointed whose title to the debtor’s personal property was fixed in the order of his appointment as January 17th.

In this proceeding by the executors of the will of Kate B. Wilson, deceased, for an accounting and other relief, the courts below have upheld the validity of the judgment debtor’s purported renunciation of his legacy while the supplementary proceedings were pending.

We all agree that the debtor had a reasonable time, after his mother’s death and the probate of her will, within which to renounce his legacy. During such period the presumption was that he would accept it when'he had the opportunity since it was beneficial to him, at least where there were “ no rights or new considerations intervening the probate of the will and the refusal or acceptance by- the devisee ” or legatee. (Albany Hosp. v. Albany Guardian Soc., 214 N. Y. 435, 443.) However, if á reasonable time elapses during which a legatee does nothing one way or the other, the legacy is his absolutely. A legatee of an unconditional legacy need never formally accept the legacy. If he does not wish it, he must affirmatively renounce it. So long as it is not needed for creditors of the deceased or for administration expenses, no one has the power to deprive him of it. He may not rid himself of his legacy except by his own affirmative act.

It is not enough, therefore, to have only in if the debtor Wilson renounced his legacy within a reasonable time, such renunciation would relate back to the date of the death of his testatrix. Under the circumstances here presented, the equally, if not more important question is, did the debtor have any property right in the legacy during the passage of the reasonable time allowed him for renunciation. As we have seen if nothing was done, the legacy was his. If he died it would pass to his distributees or creditors — even in a case where he did not know of its existence. He could allow a reasonable time to elapse or, during its passage, could evidence, by word or deed, acceptance or renunciation. Eenunciation is a word of art at common law and was quite important when realty and title thereto was involved as is made clear in Albany Hosp. v. Albany Guardian Soc. (supra). As to personalty, however, it is no longer a matter of common law solely but, in this State at least, a matter of statute. We speak of a vested legacy as distinguished from a contingent one and as vesting immediately upon the death of a testatrix. (2 Jessup-Bedfield’s Law and Practice in the Surrogates’ Courts [3d ed.], § 929.) It is assignable. By statute ('Civ. Prac. Act, § 916) it may be reached by levy of attachment. Section 916 makes no qualification in its language as to whether a legacy has been accepted or renounced. It treats the legacy as belonging to the legatee. The presumption that one will accept is assumed in that statute as one of existing fact. If the legacy is renounced within a reasonable time after decedent’s death, it is true that the renunciation relates back to the date of death and that it may then be said that there never was a legacy but the question remains as to what a legatee has during the passage of such reasonable time. It may be considered as a gift which may be rejected within a reasonable time or even the offer of a gift which may be rejected within a reasonable time. In either event, during that reasonable time, he has a chose in action and that is personal property. (General Construction Law, § 39.) In section 39 of the G-eneral Construction Law, personal property is broadly defined and includes “ everything, except real property, which may be the subject of ownership ” and specifically “ things in action ”. It is that which is vested, assignable and attachable. (See Decedent Estate Law, § 146.) Thus, the word ‘ ‘ renunciation ’ ’ is defined in Bouvier’s Law Dictionary as “ The act of giving up a right.” It is important at the outset to determine that the debtor here had such a property right because, having it, he could be forbidden by restraining order to rid himself of it as was done here. There was then property to which the provisions of article 45 of the Civil Practice Act could apply.'

As we have said, the debtor allowed ten months to pass after the death of his mother without taking any action. "What is a reasonable time to be allowed for renunciation must always depend upon the facts of the particular case. We deal with this record and our interpretation of it. The acceptance of a devise or bequest being a question of fact (Oliver v. Wells, 254 N. Y. 451, 460-461) the time within which a devisee or legatee may be required to act to rebut or overcome the presumption of acceptance is a reasonable time which will vary with the circumstances of each case. Since the Surrogate’s Court historically and by statute (Surrogate’s Ct. Act, § 40) is an equity court and equity and good conscience require that a man pay his contract obligations, the time allowed for action should be shorter when the effect of renunciation will be to prevent satisfaction of a judgment in whole or in part. We had this in mind in Oliver v. Wells (supra, pp. 459-460), when, in discussing the question of an election to take a conditional bequest, we said (Cardozo, Ch. J.): The general principle is that election must be made within a time that is equitable in the light of all the circumstances. This time may be very long, if injury to others will not result from the delay, and by the same token very short if the failure to act promptly may work injury or hardship (1 Pomeroy Equity Juris. [4th ed.] § 513; Halsbury Laws of England, title Equity, §§ 141, 144, and cases there collated).” (Emphasis supplied.)

If the debtor here had assigned his legacy, that would have disclosed his acceptance by act. He could also evidence by words that he had accepted it by disclosing his state of mind and prior mental acceptance of it. That he did in his answers when examined. We need not here determine whether a surrogate, presiding as he does in a court of equity, has the competence and duty to direct a judgment debtor to accept a legacy in order that his creditor may be paid. Thus in Hallett v. Thompson (5 Paige Ch. 583), a legacy was bequeathed hut the executor was directed to retain it and put it at interest for the benefit of the legatee for life unless the legatee should by a sealed instrument require the payment of the legacy to him. The testator had expressly declared that neither the legacy nor the income should be liable to the legatee’s creditors. The Chancellor said (p. 586): “ Independent of any statutory provisions, therefore, I have no doubt that it would he competent for this court, and would also be the imperative duty of the court, to compel the defendant Thompson to execute this beneficial trust power, so as to enable the complainant to obtain payment of the legacy; to be applied in satisfaction of his judgment, as far as it would go. ’ ’ (See, also, 43 Yale L. J. 1030.)

It is sufficient in this case to say that the debtor had a property right in the legacy, that he was enjoined from disposing of it and that the uncontradicted and stipulated proof established as matter of law both acceptance of it by passage of time and by word and conduct so that his power of renunciation had been lost to him prior to his attempt to exercise, it.

The order of the Appellate Division should be reversed, with costs and the decree of the Surrogate’s Court modified by directing that the residuary share payable to Leslie B. Wilson, the distributee, be paid to the receiver to be applied toward satisfaction of the judgment and interest.

Fuld, J.

(dissenting). By its decision, the court is holding that no conclusion is possible on this record other than that the debtor accepted the legacy. I cannot agree; in my view, there was sufficient evidentiary basis for the determination made by the Surrogate’s Court and unanimously affirmed by the Appellate Division.

As presented in the court’s opinion, the case poses one simple question: did the legacy vest in the debtor on or by February 4. 1946, the date on which he filed a renunciation of the bequest to him?

The underlying law is clear. Since a legacy or devise is deemed an offer to the named beneficiary —- which he may accept or refuse — and not a transfer, title to the gift passes and vests only upon the beneficiary’s acceptance. (See Matter of Waring, 293 N. Y. 186, 189; Albany Hosp. v. Albany Guardian Soc., 214 N. Y. 435, 441; Burritt v. Silliman, 13 N. Y. 93, 96; Matter of Wolfe, 179 N. Y. 599, affg. 89 App. Div. 349; Matter of Mahlstedt, 140 Misc. 245, 253; Brown v. Routzahn, 63 F. 2d 914, 917, certiorari denied 290 U. S. 641; People v. Flanagin, 331 Ill. 203; Schoonover v. Osborne, 193 Iowa 474; Bradford v. Calhoun, 120 Tenn. 53; Matter of Meiburg, 1 F. Supp. 892, 895; see, also, Restatement, Property, § 2; 43 Yale L. J. 1030.)

Under this settled rule, it is the beneficiary and he alone who determines whether he will own the property, for, as this court remarked nearly a century ago, “ the law does not compel a man to accept an estate, either beneficial or in trust, against his will ”. (Burritt v. Silliman, supra, 13 N. Y., at p. 96; see, also, Schoonover v. Osborne, supra, 193 Iowa 474, 479.). And, since an acceptance is prerequisite to the vesting of the gift, it follows that a prior renunciation will be effective to prevent the passage of any interest to the beneficiary, even though that renunciation was manifestly designed to avoid some burdensome condition attached to the gift by the testator (see Winguist v. Doering, 135 Kan. 92), to escape the incidence of inheritance tax (see Matter of Wolfe, supra, 179 N. Y. 599, affg. 89 App. Div. 349; Brown v. Routzahn, supra, 63 F. 2d 914, certiorari denied 290 U. S. 641; People v. Flanagin, 331 Ill. 203, supra; Matter of Stone, 132 Iowa 136; Tax Comm. of Ohio v. Glass, 119 Ohio St. 389), or to deprive creditors, including judgment creditors, of a means of satisfying their claims. (See Matter of Meiburg, supra, 1 F. Supp. 892, 895; Schoonover v. Osborne, supra, 193 Iowa, at p. 477; Lehr v. Switzer, 213 Iowa 658.) In short, the law does not delve into the motives which dictate the legatee’s acceptance or refusal, nor does it, in the absence of fraud or collusion, forbid a choice prompted by selfish reasons.

The power of a legatee to refuse is, then, precisely the same as that of a donee of a gift inter vivos, and, of course, it is perfectly evident that, if such a donee refuses to accept the gift, his creditors are completely powerless to compel his acceptance. The mere fact that the gift is provided for by will and that the donor is dead should not and does not deprive the recipient legatee of his option to reject it, in spite of his creditors. That being so, the decisive question — as already noted —■ is whether or no there was, prior to the debtor’s express renunciation on February 4, 1946, an acceptance of the legacy which disabled him from renouncing it.

Although it is true that a presumption operates in favor of acceptance, that presumption is not conclusive. (See Matter of Waring, supra, p. 189; Albany Hosp. v. Albany Guardian Soc., supra, pp. 440, 443.) As a matter of evidence, it is completely rebutted by an effective renunciation. (See Albany Hosp. v. Albany Guardian Soc., supra, pp. 441-442; Defreese v. Lake, 109 Mich. 415, 431; Gottstein v. Hedges, 210 Iowa 272, 275.) Thus, the presumption fails -- and the court agrees to this — whenever there has been a timely and outright disclaimer of the gift, whether formally or informally, in writing or by parol, as long as the disclaimer was not preceded by an acceptance. Since there was in this case an explicit written renunciation, we need hut consider whether it was antecedent to acceptance; if it was, all will concede that the renunciation was effective, “ that there never was a' legacy ” (p. 403), and that the debtor took no property under the will.

The courts below have found as fact that there was no acceptance. The majority of this court, however, have decided that the record establishes an acceptance as matter of law, and it is from that conclusion that I am impelled to dissent.

As to what constitutes an acceptance, the law is plain. It may be either express, by proof of actual and outright acquiescence, or implied, by inference from the words and conduct of the legatee. There is no claim here that an acceptance was accomplished by explicit acts or words; rather, it is said to be established by “ passage of time and by word and conduct ” of the ‘ so that his power of renunciation had been lost to him prior to his attempt to exercise it ” (p. 405).

In reaching this conclusion, the court states that ‘ ‘ the debtor had a reasonable time, after his mother’s death and the probate of her will, within which to renounce his legacy ” (p. 402). Loss of his power to refuse a legacy is then predicated upon the passage of some ten months between the probate of the will and the date of the asserted renunciation. While I concede that under some circumstances a beneficiary may disable bimself by unreasonable delay from effectively renouncing a legacy, tbe present is not such a case. Several decisions in courts of other States, holding that power to renounce may be lost after passage of time — another way of saying that an acceptance had occurred — deal with delays of a far lengthier period than is here involved. In one, for example, the lapse of time was thirteen years (Crumpler v. Barefield & Wilson Co., 114 Ga. 570), in another, five years (Strom v. Wood, 100 Kan. 556), and, in a third, several years at least (Daniel v. Frost, 62 Ga. 697); and, in all of them, the debtor had been living on the property devised for the entire period involved. In my judgment, the mere lapse- of ten months before renunciation does not compel the conclusion óf accepance as matter of law.

And, certainly, such an acceptance is not to be found in the questions and answers from the debtor’s examination in supplementary proceedings. All that the legatee there declared was' that the will provided a gift in his favor and that he had not received any part of it. In the testimony quoted by Judge Cox-way (p. 402), I cannot see any more than a simple statement by the debtor that he was named as a legatee in his mother’s will, that his share amounted to one third of the residuary estate, and that he was unaware of its exact value. No duty existing to volunteer that he had renounced or planned to renounce his share, the debtor’s answers cannot be stretched or strained to spell out an acceptance as matter of law.

Nor may an acceptance be founded upon any theory of intervening rights and new considerations ”. This is not a case where the creditor, in extending credit to the debtor, relied either upon the legacy or upon his debtor’s supposed acceptance of it. (Cf. Daniel v. Frost, supra, 62 Ga., at p. 707.) There was here no change of position by the creditor, no action to his prejudice in reliance upon any act or conduct of the debtor vis-a-vis the legacy or the debtor’s asserted'acceptance of it. If the debtor had renounced the gift a day or two after the will was probated, the creditor would have received nothing and could have claimed nothing — and, as I read the opinion, the court makes no contrary suggestion. While the debtor’s delay in renouncing and his acknowledgment on the examination that the will named him a legatee may conceivably constitute some evidence that he had not rejected the gift, those circumstances are insufficient to establish as matter of law that he had accepted it.

The case would, of course, he different if the debtor had entered into a collusive agreement with those who would benefit by his renunciation. (See Schoonover v. Osborne, supra, 193 Iowa 474; Bradford v. Calhoun, supra, 120 Tenn. 53, 60.) Suspicion of collusion cannot, however, take the place of evidence; and here there is not the slightest suggestion, much less proof, of collusion or fraudulent agreement among the several beneficiaries.

The order of the Appellate Division should be affirmed.

Lewis, DesmoNd and Dye, JJ., concur with Couway, J.; Fuld, J., dissents in opinion in which LoughraN, Ch. J., concurs.

Order reversed, etc.