text:
    James M. Cammack, Respondent, v. J. B. Slattery & Bro., Inc., Appellant.
    Contract — royalties — services — action to recover royalties and selling commissions — notices of termination of contract ineffective where defendant continued to operate under a part thereof — contract under seal may not be modified by supplemental agreement not under seal — optional position as sales manager — abandonment of work for fifteen months, without legal excuse, a discontinuance and retirement from position —incapacity brought on by bad habits no excuse — plaintiff not entitled to sales commissions during absence.
    1. In an action to recover royalties and selling commissions under a contract whereby defendant agreed to manufacture a certain type of radiator and pay to plaintiff royalties thereon and in addition pay him a commission on the price of radiators sold, for his services as sales manager, an argument by defendant that the contract was not entered into for any definite time and that, therefore, it was terminable at will and that notices of intention to terminate were served upon the plaintiff, becomes academic where, as a matter of fact, it did not terminate the contract but continued to manufacture and sell radiators. Under such circumstances it is questionable whether the notice even effected a termination of the contract for plaintiff’s services as sales manager, for it is doubtful whether a notice directed at the entire agreement would serve to effect a termination of one part when the defendant elected to continue to operate under the other part.
    2. The original contract recited that it was under seal and while only the seal of the defendant was, as matter of fact, attached, plaintiff will be regarded as having adopted the seal affixed, thereby making the contract one under seal. A contention, therefore, that by a supplemental contract, not under seal, the commissions to be paid to plaintiff under the original contract were to be reduced, cannot be upheld. It was necessary that a contract designed to modify the first one so far as unexecuted should itself be under seal.
    3. Where, however, the original contract between the parties provided that plaintiff’s position and duties as a sales manager were to continue “ during his pleasure ” and it also provided that in the event he should “ discontinue or retire from the sale of the aforesaid radiators then the said selling commission from any future sales shall be waived by him and thereupon cease and his sole compensation shall be royalties aforesaid,” and the findings and requests to find based upon uncontradicted evidence show that without any adequate legal excuse plaintiff abandoned his work for fifteen months, this must be regarded as a discontinuance of and retirement from his optional position as a sales manager. A finding, therefore, that plaintiff is entitled to selling commissions on all radiators manufactured and sold during a time, included in his absence, is erroneous.

      Cammach v. Slattery & Bro., Inc., 209 App. Div. 877, modified.
    (Argued June 10, 1925;
    decided July 15, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 2, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.

      James F. Donnelly and Frederick J. Flynn for appellant.
    The written agreement of July 19,1915, was duly modified by valid oral agreement found to have been made March 1, 1917, and the court erred in awarding judgment on the basis of the written agreement rather than on the basis of the modified agreement. (McCreery v. Day, 119 N. Y. 1; Mitchell v. Dunmore Realty Co., 156 App. Div. 117; Harris v. Shorall, 230 N. Y. 343; Thompson v. Poor, 147 N. Y. 402; Diamond v. Talbot, 123 Misc. Rep. 339; Lagumis v. Gerard, 116 Misc. Rep. 471; Van Ingen v. Belmont, 121 Misc. Rep. 109; Ressler v. Samphemor Holding Corporation, 201 App. Div. 344; Briggs v. Partridge, 64 N. Y. 357; Lowe v. Morris, 13 Ga. 147.) The contract having specified no definite period of duration was terminable at will and the court erred in refusing to find that the written notice of termination sent by defendant did in fact terminate the contract. (Smyth v. Brooklyn Union El. R. R. Co., 193 N. Y. 335; Fleischman v. Furgeson, 223 N. Y. 235; Mawhinney v. Millbrook Mills, 231 N. Y. 290; Baylies v. Automatic Co., 70 App. Div. 557; Outerbridge v. Campbell, 87 App. Div. 597; Winslow v. Mayo, 123 App. Div. 758; U. S. v. U. S. Fidelity Co., 139 App. Div. 262; Weinstein v. Welden, 160 App. Div. 554; Bradlee v. Southern Coast Co., 193 Mass. 378; Wilcox v. Ewing, 141 U. S. 627.) The conclusions of law as to performance and waiver are not supported by the findings of fact. (Kelly v. Buffalo Sav. Bank, 180 N. Y. 181; Everett v. Everett, 180 N. Y. 452; Todd v. Union Casualty & Surety Co., 70 App. Div. 52; Pope Mfg. Co. v. Rubber Goods Mfg. Co., 110 App. Div. 341; Weeks v. O’Brien, 141 N. Y. 199; Bossert v. Poerschke, 51 App. Div. 381; Brooklyn Heights Co. v. Brooklyn City Co., 151 App. Div. 465; Clarke v. West, 193 N. Y. 349; Ward v. Brady, 63 Misc. Rep. 435; Villhauer v. Gross, 138 App. Div. 10.) It was error for the court to award judgment as for commissions earned. (Butler v. Butler, 77 N. Y. 472; Scott v. Eng. News Pub. Co., 47 App. Div. 558; McCargo v. Jergens, 206 N. Y. 363; Worley v. Calculograph Co., 87 Misc. Rep. 309.)

      Walter R. Kuhn for respondent.
    The judgment was properly awarded on the basis of the written agreement of the parties, dated July 19, 1915, and not on the basis of the unexecuted oral modification thereof. (Rusling v. Union P. & C. Co., 5 App. Div. 448; 158 N. Y. 737; Fuller Process Co. v. Texas Co., 185 N. Y. Supp. 3; Matter of Pierce, 198 N. Y. 209; Weber v. Columbia Amusement Co., 160 App. Div. 835; Weeks v. Esler, 143 N. Y. 374; Smith v. Henning, 10 W. Va. 596; Interrante v. Levinson, 129 App. Div. 495; McKenzie v. Harrison, 120 N. Y. 260; Imperator Realty Co. v. Tull, 228 N. Y. 447;
      Lion Brewery v. Fricke, 204 App. Div. 470; Steinberg v. Simon, 169 App. Div. 67.) The contract is definite as to its duration. (Brooklyn Insurance Co. v. Dueber, 95 U. S. 269; Nicoll v. Sands, 131 N. Y. 19; City v. Railroad, 193 N. Y. 19; Carthage v. Carthage, 200 N. Y. 1; Brown v. Cleveland Trust Co., 195 App. Div. 465; French v. Carhart, 1 N. Y. 96; Syms v. Mayor, 105 N. Y. 153; New York Trust Co. v. Portland R. Co., 197 App. Div. 422; Ga Nun v. Palmer, 202 N. Y. 483 ; 216 N. Y. 603; Schwartz v. Regensburg, 227 N. Y. 568; Bathrick v. Coffin, 13 App. Div. 101; Seed v. Johnston, 63 App. Div. 340.) The essential findings of fact support the conclusions of law. (Dougherty v. Lion F. Ins. Co., 183 N. Y. 302; Hutton v. Smith, 175 N. Y. 375; Kennedy v. Mineola Tractor Co., 178 N. Y. 508; First Nat. Bank v. Chalmers, 144 N. Y. 436; Groves v. Rice, 148 N. Y. 227; Clark v. Howard, 150 N. Y. 239; Thomson v. Bank of British North America, 82 N. Y. 1; Burnap v. Nat. Bank of Potsdam, 96 N. Y. 125; Equitable Co-op. F. Co. v. Hersee, 103 N. Y. 23; Stokes v. Mackay, 147 N. Y. 223; Czerney v. Haas, 144 App. Div. 430.)
   Hiscock, Ch. J.

From the somewhat multitudinous findings in greater part proposed by the parties and from requests to find supported by uncontradicted evidence the following facts appear, which are decisive of this appeal:

In July, 1915, the parties made a contract which in part provided for the manufacture by defendant of a certain type of radiators which embodied ideas and conformed to plans developed by the plaintiff and in return for the right to do which it was to pay plaintiff certain royalties on radiators thus manufactured and sold by it.

By other portions of the agreement plaintiff undertook “ during his pleasure ” to discharge the duties of a sales manager, although not so called in the agreement, in marketing the radiators thus to be manufactured by defendant. To quite an extent performance of the services specified was optional and if rendered at all might be performed by salesmen selected by him. But in addition to these duties optional either as to performance or as to method of performance, there were certain duties which, subject to the right to quit at any time and subject to exceptions hereinafter to be referred to, plaintiff absolutely undertook to discharge. Amongst “these were the ones that he would devote not less than six months in each year to the sale of radiators and that he would report to defendant conditions of business at least three times each week when not on the road or on a vacation. Defendant had the right in case plaintiff became unable and incapacitated by illness or by any other reason beyond his control from discharging his duties or if he neglected to discharge them, to hire salesmen whose salaries and expenses should be charged to the “ commission account of plaintiff.” It was also further provided that in the event plaintiff should “ discontinue or retire from the sale ” of radiators commissions on future sales should be “ waived by him and thereupon cease and his sole compensation be the royalties ” already mentioned. For his services in this capacity of sales manager plaintiff was to receive a certain commission on the price of radiators sold. The agreement did not explicitly specify any time for its duration and while it recited that it was under seal, as a matter of fact only the corporate seal of the defendant was attached thereto.

On or about March 1st, 1917, by an agreement not under seal the parties purported to modify their original contract, the main modifications being a reduction in the amount of royalties and commissions to be paid to plaintiff. The parties continued to operate under the modified contract until some time in 1921, when the defendant attempted to terminate its contract by serving upon plaintiff written notice of its intention so to do, first in May, 1921, and again on November 7, 1921, Notwithstanding these notices, however, it continued to manufacture radiators as provided in the agreement. But in January, 1920, plaintiff discontinued his services as sales manager and in the latter part of February of that year went away to some health resort in an endeavor to overcome the habit of the excessive use of alcoholic liquors and to cure himself of the effects thereof and from that time he remained continuously away and failed to attend to any of the business of the defendant as provided in the agreement. While the trial judge in accordance with the theory of the complaint has found notwithstanding these facts that plaintiff “ performed all of the covenants and conditions of said agreement on his part to be performed except those where the defendant waived performance ” it sufficiently appears from special findings that although it was after the execution of the original contract that plaintiff became so addicted to the excessive use of intoxicants as to become incapacitated and fail to discharge his duties under the contract, the trial justice has excused this failure and found full performance on the theory that his desire for intoxicants became uncontrollable and, therefore, amounted to a form of sickness which, under the terms of the contract, excused him from performance.

Under these circumstances the trial justice has found that plaintiff was entitled to royalties and selling commissions on all radiators manufactured and sold during the year June. 1st, 1921, to June 1st, 1922, less certain sums paid by defendant to other salesmen to discharge plaintiff’s duties and has rendered judgment for the substantial sum of $17,529.01 of which $8,601.77 is for selling commissions during the period above specified when plaintiff failed to render any services.

On these facts we come to certain questions of law. The defendant argues that the contract which it made for the manufacture and sale of radiators was not entered into for any definite time and that, therefore, it was terminable at will and that notices of a desire and intention to terminate were duly served upon the plaintiff. If we assume, as I think is the fact, that defendant might have terminated its contract at any time and did serve purported notices of intention so to do, the answer is that it did not as a matter of fact terminate the contract but continued to manufacture and sell radiators during the year 1921-1922. Under these circumstances this argument of defendant becomes quite academic because, of course, it would be unreasonable and inequitable to hold that the defendant might in form terminate its contract and then continue to manufacture radiators without the payment of any royalties such as it had agreed to pay.

It is also argued that by the purported contract of 1917 the commissions to be paid to plaintiff under the original contract were reduced and this argument quite largely resolves itself into a discussion of the question whether the original contract was under seal and whether, therefore, it was necessary for the purported modifying contract to be under seal as it concededly was not. We think that the courts below have been correct in their disposition of this question. The original contract recited that it was under seal and while only the seal of the defendant as a matter of fact was attached, it is well settled that under such circumstances the party whose seal is not attached is to be regarded as having adopted the seal which has been affixed and, therefore, as making the contract one under seal. (Rusling v. Union Pipe & Constr. Co., 5 App. Div. 448; affd., 158 N. Y. 737.)

This being so it is the rule in such a case as this that it was necessary that a contract designed to modify the first one so far as unexecuted should itself be under seal. (McKenzie v. Harrison, 120 N. Y. 260.) While much has been said about the anachronistic absurdity of giving to seals at the present day the solemnity and force which they once justly possessed and while courts have undoubtedly been quite ready to escape from an alleged invalidity of a contract predicated upon failure to use a seal, nevertheless this court has been unwilling to make a decision generally annulling and destroying well-settled rules pertaining to the use of seals. Such a decision without reservations, which we would be unable to make, would result in affecting contracts in a manner which would be chaotic and unjust. If the use of seals as now required is to be generally discontinued this result should be accomplished by the Legislature, which could make proper reservations preserving the integrity and force of contracts already executed and the task should not be attempted by us. (Crowley v. Lewis, 239 N. Y. 264.)

Therefore, we conclude that so far as royalties are concerned plaintiff was entitled on the findings to the judgment which has been rendered in his favor.

We next come to the question whether plaintiff was entitled to recover for selling commissions during the year 1921-1922 as he has thus far been allowed to do. Plaintiff’s neglect of business to which we shall hereafter refer undoubtedly justified the defendant in terminating its contract with him. In fact it needed no excuse for terminating its contract because, under the agreement the time during which it would continue to manufacture and sell plaintiff’s radiators was entirely indefinite and could be terminated at any time. Defendant, however, in a somewhat blundering way attempted to terminate its contract with plaintiff by serving two notices, one in May, 1921, and one in November, 1921. The trial justice on some theory has found that these notices were for the purpose of terminating the modifying agreement of March, 1917, but in another place it has been found that they were served for the purpose of terminating the entire agreement. An inspection of the notices for the purpose of elucidating these findings shows that they were not confined to the modifying agreement of 1917 and defendant is entitled to the more favorable findings, But if it had been necessary to serve notice upon the plaintiff in order to terminate the contract it is doubtful whether these notices would have had that effect. There was one agreement containing provisions for the manufacture of radiators and for the sale of radiators. Plaintiff was derelict in his duty in respect of the obligations covered by the second part of the agreement and defendant continued to manufacture the radiators as provided by the former part. Under such circumstances we doubt whether a notice directed at the entire agreement would serve to effect a termination of one part when the defendant elected to continue to operate under the other part. It is, however, unnecessary to consider this question at length for we think there is an entirely different theory which relieves defendant from the payment to plaintiff of any sales commissions during the time in question.

The original contract between the parties provided that plaintiff’s position and duties as a sales manager were to continue “ during his pleasure ” and it also provided that in the event he should “ discontinue or retire from the sale of the aforesaid radiators then the said selling commission from any future sales shall be waived by him and thereupon cease and his sole compensation shall be royalties aforesaid.” The findings and the uncontradicted evidence presented by requests to find show that from January, 1920, plaintiff failed to perform a particle of work in making sales of radiators as provided by the contract; he did not devote six months of each year to these duties; he did not confer three times a week with defendant about business conditions; he did not hire or oversee the work of salesmen employed to do this work; he did not visit important customers of the defendant. On the other hand, in February, 1920, he abandoned his place of business and thenceforth constantly remained away therefrom, the method of his going and staying away being so successful that defendant did not even know where he was.

We, of course, do not overlook the findings which have been made that after the contract was made between these parties plaintiff became so addicted to the use of intoxicants and his desire therefor and use thereof became so uncontrollable that he became sick and incapacitated from discharging bis duties as sales manager. Even if we assume that the absence of a party required to perform personal services for a period of 15 months as the result of involuntary and unavoidable sickness would not result in a breach of his contract, that is not this case. As we have pointed out, the plaintiff contracted these habits after he made his contract with defendant. While it has been found and while that may be a popular or even justifiable view, that the craving for intoxicants may become more or less uncontrollable, it has never yet been held so far as we are aware that a party to a contract was excused from his performance because he voluntarily drank to excess and incapacitated himself for the performance of his duties however strong his disposition to do this may have been. It would be a new and rather undesirable excuse for breaking contracts, if one might go out and incur the habit of drinking and carry it to such excess that it incapacitated him for work and then have the habit regarded as an uncontrollable sickness which formed an excuse for his default.

Thus it appears that the plaintiff, having the right at any time to discontinue his duties as a sales manager, in January, 1920, did discontinue them and thenceforward utterly failed to discharge any of them. We think that this clearly brought him within the provision already quoted providing that if he “ discontinued or retired from the sale of the aforesaid radiators ” his selling commission should cease. In our judgment it makes no difference that he did this because of incapacity brought on by his bad habits or that he now endeavors to allege this species of sickness as an excuse for what he did. The controlling facts are that without any adequate legal excuse he abandoned his work for fifteen months and we think that this must be regarded as a discontinuance of and retirement from his optional position as a sales manager. We certainly can think of nothing much more inequitable than a judgment which requires this defendant to pay upwards of $8,000 for alleged services which, as the result of his own shortcomings, were never in the remotest degree rendered by plaintiff.

We conclude, therefore, that the judgment should be modified by reducing it by the amount of $8,601.77 allowed for selling commissions and, as so modified, it should be affirmed, with costs to the appellant in this court and the Appellate Division.

McLaughlin, Crane and Andrews, JJ., concur; Cardozo and Lehman, JJ., dissent on ground that a contract under seal may be modified by a parol contract whether executed or executory; Pound, J., absent.

Judgment accordingly.


source: Caselaw Access Project

author: Hiscock, Ch. J.

license: Public Domain

text:
    In the Matter of the Application of Albert Ottinger, Attorney-General of the State of New York, Appellant, for a Writ of Mandamus against John R. Voorhis et al., Constituting the Board of Elections of the City of New York, Respondents.
    Elections — New York city — voting machines — statutes requiring the Board of Elections of the city of New York to install voting machines for use in the elections in said city construed and applied — the Board of Elections having failed to obey the mandate of the statutes, the duty therein prescribed devolves upon the Secretary of State.
    1. The Legislature having amended the Election Law (Cons. Laws, ch. 17) so as to enact that all the election districts in New York city should be equipped with voting machines in time for the general election in 1924 and that their use was to be permanent (§§ 243, 245, 246), the Board of Elections of that city was charged with the duty of selecting a type of machine to be used, and in ease of its failure so to do, as it did fail, the Secretary of State was charged with the duty of making such selection, which he discharged; the Board of Elections was charged with the duty of making contracts for equipment of the election districts with voting machines and on their failure to discharge this duty on or before certain dates specified in the statute the duty to make such contracts passed to the Secretary of State. The Board of Elections did fail to make the contracts and the Secretary of State has likewise failed to do so. The Board of Elections having failed to act as it was authorized and required to do by the statute, has lost all of its powers, and the duty once possessed by it to make contracts for supplying machines under the statute has now passed to and rests upon the Secretary of State as a continuing obligation.
    2. While the statute required all districts to be equipped in time for the election of 1924, the provisions as a whole show that their use was not to expire with that election but was to be permanent. The public cannot be deprived of the benefits of a statute because a public official charged with the duty of carrying out the statute is tardy or neglectful in so doing. Unless it is otherwise prescribed by the statute the duty of the Secretary of State to act continues, and although the time has passed within which it was contemplated he would act, the duty continues and follows him until discharged.
    3. This proceeding having been instituted to obtain a peremptory . mandamus compelling the Board of Elections of the city of New York to carry out the legislative mandate by adopting and installing within the city some kind of voting machines, the application for such mandamus was properly denied, because whatever powers and duties were originally conferred and imposed upon the Board of Elections have been canceled and expired and are imposed upon the Secretary of State.

      Matter of Ottinger v. Voorhis, 213 App. Div. 561, affirmed.
    (Argued June 11, 1925;
    decided July 15, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 22, 1925, which affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel defendants to comply with section 243 of the Election Law and adopt voting machines for use at elections in the city of New York.

      Wendell P. Brown and A, S. Gilbert for appellant.
    A continuing duty rests on the respondents to designate and redesignate as and when necessity requires a type or types of voting machine for use in the city of New York. (Cons. Laws, ch. 17, § 243.)

      George P. Nicholson, Corporation Counsel (Charles J. Druhan and Arthur J. W. Hilly of counsel), for respondents.
    The order of the Supreme Court, denying the application for mandamus, is correct because the undisputed facts clearly show that the respondents are not in default. (Cons. Laws, ch. 17, § 243.)
   Hiscock, Ch. J.

The Legislature, apparently thinking that the use of voting machines in the city of New York would tend to reduce expenses, eliminate errors and prevent frauds of and in elections held in that city, attempted in 1921 to adopt legislation providing for their installation there as well as other places. This proceeding has been instituted to compel the defendants to carry out such legislative purpose by adopting for use in elections in New York city some kind of voting machines, it being claimed that they have failed to discharge their duties in that respect and are now in a default which may be corrected by mandamus. The courts have refused to grant the prayer of the petition and for reasons which we shall state, we think that this decision is correct.

The first attempt to provide for the use of voting machines in New York was in the form of amendments to the Election Law adopted in 1921, but, while some steps were taken under the law as thus amended, no results were accomplished in the way of actual installations of machines*

In 1922, becoming effective March 11th, amendments to the Election Law relating to the use of voting machines were adopted whereby sections 393 and 395 of the Election Law were amended and a new section known as '395-a added. These sections subsequently became sections 243, 245 and 246 of the Election Law which took effect April 12, 1922, and, with various supplementary and subordinate provisions, constitute the law governing the disposition of the present proceeding. I shall use section numbers employed in the first act referred to.

Section 393, as amended, provided that The Board of Elections of the city of New York and the common council or other legislative governing body of each other city of the first class shall * * * adopt for use at elections any kind of voting machines approved by the State Board of Voting Machine Commissioners * * *. If, on or before the 1st day of April, 1922, such Board of Elections * * * shall have failed to agree thereon (the kind of machine to be adopted) the Secretary of State within ten days thereafter, shall adopt a kind or kinds of voting machine for use at elections in such cities. A sufficient number of voting machines shall thereafter be provided in the manner prescribed in section 395-a so that at the general election in 1922 polling places in such cities to the extent of at least 15 per centum shall be equipped therewith. At least an additional 40 per centum of the polling places in such cities shall be so equipped with voting machines for u§e at the general election in 1923. All the remaining polling places in such cities shall be so equipped with voting machines for use at the general election in 1924.” Section 395-a, so far as applicable, provided: “ Whenever a kind or kinds of voting machine shall have been or hereafter shall be adopted for use in a city of the first class and such machines shall not have been provided on or before the first day of May, 1922, the Board of Elections of the city of New York, * * * shall provide a sufficient number of voting, machines to satisfy the requirements of section 393 of this chapter.” Said section then contains provisions for designating the election districts in which such voting machines should be installed in each year, and then provides: “ The voting machine adopted shall be thereafter used in the districts so determined upon * * *. In the event that such Board of Elections, * * * ¡¡¡hall not agree upon and execute a contract or contracts-for the purchase of the necessary voting machines for the year 1922 on or before the 15th day of May, 1922, and for 1923, and 1924, on or before the 1st day of March in each of such years respectively, such contract or contracts shall be awarded, made and executed by the Secretary of State on approval of the Attorney-General as to form,” and then follow provisions for payment of the expenses connected with the purchase and installation of said voting machines by the city for which they were purchased.

The petition of the Attorney-General in reference to acts performed under these statutes is quite incomplete but from the affidavit of the defendant Voorhis filed in opposition to the present application we secure quite a complete record of what was done and which furnishes the basis for our decision.

It appears from the records of the Board of Elections as set forth in the affidavit of Mr. Voorhis that some time prior to April 1st, 1922, various voting machines had been approved by the State Board of Voting Machine Commissioners and were before the Board of Elections for consideration. While it does not directly appear that the United States Standard Voting Machine had been thus approved, it had been adopted by the Secretary of State in the proceedings under the statutes as they existed in 1921 and it seems to have been assumed by the Board of Elections that this machine was properly before it for consideration and no contention to the .contrary is made upon this appeal.

With several machines before it for consideration the Board of Elections was unable to agree upon the particular machine to be adopted and, under the statute, so notified the Secretary of State who thereupon in accordance with the provisions of the statute approved and adopted the United States Standard Voting Machine as the one to be used. Thereafter the Board of Elections secured appropriation by the board of estimate and apportionment of a sufficient sum with which to pay for the number of said voting machines then required to be installed. But when still later it attempted to make a contract with the company manufacturing said machines it failed to do so and still later when, upon such failure of the Board of Elections, the Secretary of State in accordance with the statute attempted to make a contract with said company, he also failed and thus and there ended, so far as the papers disclose, any attempt to comply with the statutes and install in the city of New Ybrk voting machines. The provisions relating to the selection of election districts in which the machines should be placed by installments have ceased to be of importance because the time has now passed when all districts were to be equipped.

Therefore, summarizing the provisions of the statute and the acts performed thereunder the present situation seems to be this: The Legislature enacted that all' the election districts in New York city should be equipped with voting machines in time for the general election in 1924 and that their use was to be permanent; the Board of Elections of that city was charged with the duty of selecting a type of machine to be used and in case of its failure so to do, as it did fail, the Secretary of State was charged with the duty of making such selection, which he discharged; the Board of Elections was charged with the duty of making contracts for equipment of the election districts with voting machines and on their failure to discharge this duty on or before certain dates specified in the statute the duty to make such contracts passed to the Secretary of State. The Board of Elections did fail to make the contracts and the Secretary of State has likewise failed to do so.

Under these circumstances we think that the Board of Elections having failed to act as it was authorized and required to do by the statute, has lost all of its powers and that the duty once possessed by it to make contracts for supplying machines under the statute has now passed to and rests upon the Secretary of State as a continuing .obligation, While the statute required all districts to be equipped in time for the election of 1924, the provisions as a whole show that their use was not to expire with that election but was to be permanent. It is well settled that the public cannot be deprived of the benefits of a statute because a public official charged with the duty of carrying out the statute is tardy or neglectful of his duty. Unless it is otherwise prescribed by the statute his duty to act continues and although the time has passed within which it was contemplated he would act, the duty continues and follows him until discharged. (Pond v. Negus, 3 Mass. 230; People v. Allen, 6 Wend. 486; People v. Cook, 14 Barb. 259; Looney v. Hughes, 26 N. Y. 514; Matter of Clark, 168 N. Y. 427.)

Therefore, simply interpreting the statute as it is written, we reach the conclusion that whatever powers and duties were originally conferred and imposed upon the Board of Elections have been canceled and have expired and that the order denying the application for mandamus was correctly made and should be affirmed, with costs.

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

Order affirmed.


author: Cardozo, J.

text:
    The People of the State of New York, Respondent, v. Henry H. Werblow, Appellant.
    Crimes — grand larceny — obtaining money by false pretenses— jurisdiction — conspiracy formed in New York does not give to our courts jurisdiction to punish for a larceny abroad — counts in indictment for obtaining money under false pretenses insufficient where they state that pretenses were made and money obtained in foreign country — inconsistent counts in indictment—• where case submitted to jury on some good and some bad counts, Court of Appeals, notwithstanding unanimous affirmance, will search record to determine whether good counts are sustained by evidence.
    1. Under subdivision 1 of section 1930 of the Penal Law, subjecting to punishment within this State “ a person who commits within this State any crime in whole or in part,” a conspiracy formed in New York does not give jurisdiction to punish for a larceny abroad merely because some overt act can be found to have been here committed in furtherance of the conspiracy, if the act is not a constituent of the executed larceny. A crime is not committed either wholly or partly in this State unless the act within this State is so related to the crime that if nothing more had followed, it would amount to an attempt, and to constitute an attempt neither combination, nor incitement, nor preparation is enough (Penal Law, § 2); the stage, of fulfillment must have been reached and that of promise left behind.
    2. A count in an indictment charging that defendant and his two brothers conspired to cheat and defraud a New York corporation which had a branch in London, England, in furtherance of which one brother transmitted cablegrams and messages to defendant in China and received others in return and another brother sailed to England and there received cablegrams and messages in furtherance of the project from the brother in New York and later, in execution of the conspiracy, defendant, still in China, transmitted to the London branch of the corporation forged cablegrams in the form of orders drawn by a bank in China directing payment to a fictitious person of a large sum in pounds sterling, of which the brother in London, through false and fraudulent representations, obtained payment and appropriated to his own use and to the use of those conspiring with him, does not give to our courts jurisdiction of the crime. The combination in New York may charge the participants with responsibility as principals. They are principals, however, in a crime committed upon English territory, and (if we except the acts in China) committed there in all its parts. Incitement from abroad will entail criminal responsibility here, if the crime is here committed, and this though the offender might once have been ranked as an accessory. (Penal Law, § 1930, subd. 3.) It does not follow that incitement from here will entail a like responsibility when the crime that is the subject of incitement is committed abroad. The act, not the mere word, is still the test of jurisdiction, and in this case the line was not crossed that divides execution, partial or complete, from incitement and conspiracy. (Strassheim v. Daily, 221 U. S. 280, distinguished.)
    3. Another count of the indictment omits the allegations of confederacy, but also states that the false pretenses were made in London, and the money there obtained. In this count the theory is abandoned that part of the crime was in New York, within the meaning of section 1930 of the Penal Law, but an attempt is made to bring it within section 1933, by which “ a person who commits an act without this State which affects persons or property within this State * * * and which, if committed within this State, would be a crime, is punishable as if the act were committed within this State,” by alleging, in effect, that the principal office of the corporation was in New York, that its business at London was a branch of the business conducted here, and that all losses sustained in the operation of the branch were in truth losses of the company itself, a domestic corporation. These allegations do not show an act in London affecting persons in New York. The larceny at London was not an act affecting any property in New York. The property, pounds sterling, was in London, and from London was transmitted to China. It was not an act affecting any person in New York, for it was not a crime against or injuring the person at all, but one directed against property.
    4. The first and second counts of the indictment are on their face sufficient; one of them states that all the criminal acts were committed in New York; the other states that some of the acts were committed here and some in China and England, and if the case had gone to the jury on these counts only, defendant would have no grievance in respect of the form of the indictment. The difficulty is, however, that the case was submitted under all the counts, and what is stated in the first and second counts is contradicted by the third and fourth. These contradictory statements cannot both be true; a presumption of evidence sufficient to sustain the statements made in counts 1 and 2 would be repelled by an equal presumption that the evidence sustains the statements to the contrary in counts 3 and 4, and, notwithstanding the verdict of conviction was unanimously affirmed by the Appellate Division, this court may search the record so far as may be necessary to determine whether defendant was aggrieved by the denial of his motions to dismiss the counts that are defective, and having so done, it is held that the evidence was insufficient to sustain the inconsistent counts or to justify the inference that their allegations were accepted by the jury.

      People v. Werblow, 212 App. Div. 445, reversed.
    (Argued June 11, 1925;
    decided July 15, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1925, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree,

      George Gordon Battle and Isaac H. Levy for appellant.
    The indictment does not state facts sufficient to constitute an offense, since it does not allege that the crime was committed in New York county, and does not allege facts sufficient to show either that the crime was committed in part in the county of New York, or that the acts committed without this State affected persons or property within this State, within the meaning of section 1933 of the Penal Law. (United States v. Britton, 108 U. S. 204; People v. Mills, 178 N. Y. 284; People v. Arnstein, 211 N. Y. 585; People v. Zayas, 217 N. Y. 78; People v. Licenziata, 199 App. Div. 106; People v. Inter. Nickel Co., 155 N. Y. Supp. 156.)

      Joab H. Banton, District Attorney {Felix C. Benvenga and Hugo Wintner of counsel), for respondent.
    The courts of New York had jurisdiction of the offense. The indictment sufficiently alleges the jurisdictional facts. (People v. Zayas, 217 N. Y. 78; People v. Arnstein, 211 N. Y. 585; People v. Summerfield, 48 Misc. Rep. 242; People v. Licenziata, 199 App. Div. 106; People v. Cummins, 209 N. Y. 283; Hope v. People, 83 N. Y. 418; Phelps v. People, 72 N. Y. 365; 1 Bishop’s New Crim. Pro. [2d ed.] § 381; Connor v. State, 29 Fla. 455; State v. Hazzard, 75 Wash. 5; People v. Burke, 11 Wend. 129; People v. Staples, 91 Cal. 23; State v. White, 76 Kans. 654.)
   Cardozo, J.

The defendant Henry H. Werblow, and his brothers Isaac and Robert, are charged with the crime of grand larceny in obtaining money by false pretenses. The false pretenses were made and the money was paid in London, England. At that time Henry was in China, and Robert in New York. Of the parties to the combination, Isaac only was in London. The plan was laid here. The execution was in other lands. The question is whether our courts have jurisdiction of the crime.

At the outset, we do not go beyond the indictment, for, if this be sufficient, the unanimous affirmance at the Appellate Division enforces upon us the presumption that supporting evidence exists (Constitution, art. VI, § 9). The fullest statement of the facts is found in the fourth count. That being so, we put aside the others for the moment, and address ourselves to this one. A summary of its allegations will suffice without literal reproduction.

On June 14, 1922, in the county of New York, the brothers Werblow conspired to cheat and defraud the Guaranty Trust Company of New York, a domestic corporation, with its principal office in this State and a branch at London, England. In furtherance of that conspiracy, Robert, in New York, transmitted cablegrams and messages to Henry in China, and received others in return. In furtherance of the same project, Isaac sailed from New York for England, and upon his arrival at London received cablegrams and messages which were transmitted to him in continued furtherance of the project from Robert in New York. Still later, and again in execution of the conspiracy, Henry, still in China, transmitted to the Guaranty Trust Company in London forged cablegrams in the form, of orders drawn by the Asia Banking Corporation of Hankow, China, and directing the payment to one Max Elliott of 31,630 pounds sterling. Thereupon at the city of London, Isaac Werblow, assuming the fictitious name of Max Elliott, falsely and fraudulently represented to the said Guaranty Trust Company of New York that there was a person named Max Elliott interested in the building of a certain bridge in China, and that he, the said Isaac Werblow, was such person and so interested; that large sums of money were due and about to become due to him from the Wuchang Provincial Government in China; that the two cablegrams signed in the name of the Asia Banking Corporation were genuine and authentic; and that he, the said Isaac Werblow, posing as Max Elliott, was entitled to payment under them; by virtue of which false pretenses the Guaranty Trust Company at its London branch paid to him the sum of 23,350 pounds sterling, which he appropriated to his own use and to the use of those conspiring with him. There are general allegations at the end of the count that some of the acts constituting the crime were committed in New York and some in England and China, but these by fair construction characterize the acts already set forth in the same count with description of time and place, and are controlled and limited thereby.

Penal Law, § 1930, subdivision 1, subjects to punishment within this State a person who commits within this state any crime, in whole or in part (Cf. U. S. Rev. St. § 751, and Davis v. U. S., 104 Fed. Rep. 136, 138). The statute announces a departure from the rule at common law. At common law, jurisdiction in respect of felonies belonged to the courts of the state where the felony was completed (1 Russell on Crimes, p. 19; 2 Stephen History Crim. Law, p. 11; R. v. Keyn, L. R. 2 Ex. Div. 63, 103). There was no jurisdiction elsewhere, no matter how material or flagitious the earlier acts might be. In larceny by false pretenses, the place where the crime is completed is the place where the money or other property was obtained by the offender (People v. Adams, 3 Den. 190; affd., 1 N. Y. 173; Queen v. Ellis, 1899, 1 Q. B. 230). There, under the rule at common law, and not at the place where the pretenses were made, was the seat of jurisdiction.

We have held that where the constituent acts which in their union are the crime, have been committed, some of them in New York and some in another State, the courts of New York, if they can catch the offender, may punish for the offense. More specifically, we have held this in a case where false pretenses were made in New York, and the fruits obtained in Pennsylvania (People v. Zayas, 217 N. Y. 78). We are now asked to go farther and to hold that a conspiracy formed in New York gives jurisdiction under the statute to punish for a larceny abroad if only some overt act can be found to have been here committed in furtherance of the conspiracy, even though the act is not a constituent of the executed larceny.

Such a reading of the statute strains it to the breaking point. We think a crime is not committed either wholly or partly in this State unless the act within this State is so related to the crime that if nothing more had followed, it would amount to an attempt. We do not mean that this construction of the statute is the consequence of some inherent limitation upon the power of the Legislature. We assume that the Legislature may fix the beginning of the crime at a point earlier than attempt, and identify it with the initial stages of combination or incitement or preparation. The question is whether by this statute it had any thought of effecting a change so revolutionary. An act, done with intent to commit a crime, and tending but failing to effect its commission, is ' an attempt to commit that crime ’ ” (Penal Law, § 2). Neither combination nor incitement nor preparation is enough (People v. Mills, 178 N. Y. 274, 284; People v. Sullivan, 173 N. Y. 122; People v. Collins, 234 N. Y. 355, 359, 360; Regina v. Taylor, 1 F. &F. 511, 512; 1 Bishop Crim. Law [9th ed.], § 729, subd. 2). Acts in furtherance of a criminal project do not reach the stage of an attempt unless they carry the project forward within dangerous proximity to the criminal end to be attained (Holmes, J., in Hyde v. U. S., 225 U. S. 347, 387). Where the line is to be drawn will differ with different crimes (People v. Collins, 234 N. Y. 355, 359; People v. Sobieskoda, 235 N. Y. 411, 419; cf. cases collated in 9 Halsbury Laws of England, § 539). Wherever it is drawn, it marks the division between promise and partial or complete fulfillment (People v. Collins, supra). We may not say that any part of a crime has been committed in New York unless by something here done the stage of fulfillment has been reached, and that of promise left behind.

The argument for the People can be tested by its consequences. If combination and incitement and preparation are sufficient though not amounting to an attempt, there will ensue an extension of jurisdiction until now unknown to our law. In that view, two or more criminals confederating iñ New York to commit a murder in California or in China, and arming themselves in New York with weapons for that purpose, may be prosecuted here for the killing of their victim. They may even be put to death under our law, though the State of the homicide punishes by imprisonment, and nothing more, or classes the guilt of the offenders as homicide of a lower grade. A fortiori, of course, there may be prosecution in one county of a State for a murder in another county, if confederation and preparation can be traced to the county of the trial (cf. People v. Hudson Valley Construction Co., 217 N. Y. 172, 176). What is true of murder will be true in like measure of rape or robbery' or burglary. Such changes may come to pass hereafter. When they come, they will establish new landmarks of criminal jurisdiction (cf. Bishop, supra, citing People v. Youngs, 122 Mich. 292). There was indeed an attempt in England to punish an alien, one Bernard, under the rules of the common law as an accessory before the fact for the murder in Paris of several persons killed by a shell thrown by one Orsini at the carriage of Louis Napoleon (R. v. Bernard, 1 F. & F. 240; 1 Russell on Crimes, 30). The prisoner was acquitted, and the point of jurisdiction which had been reserved was not decided (See the comments of Stephen, History of Criminal Law, vol. 2, p. 13). “As regards the particular crime of homicide and incitement to homicide, the question has been set at rest in England by a statute too plain for misconstruction (24 & 25 Vict. c. 100, §§ 4 and 9, revising 9 Geo. IV, c. 31, § 7, which had been limited to the King’s subjects). We are asked to declare that changes like to those of the statute of Victoria have been effected in our State, not merely in respect of homicide, but in respect of crimes of every kind. The declaration should be withheld until our Legislature has spoken with like clearness and directness. Penal Law, § 1930, subd. 3, expressly covers the case of one who while remaining in another State, incites the commission of a crime in this State. There is no equivalent provision for the converse case of one who, remaining in this State, incites the commission of a crime in another. Nothing within which such a situation can be forced is to be found in the statute unless it be the vague language of subdivision 1.

The common law in fixing the boundaries of jurisdiction drew distinctions which in this connection it will be helpful to recall between the responsibility of principals and that of accessories before the fact. A principal keeping himself in one State might be punished in a different State for a felony there committed by the hand of another (People v. Adams, 3 Den. 190, 207; affd., 1 N. Y. 173; People v. Rathbun, 21 Wend. 509, 537, 540). An accessory before the fact, absent from the jurisdiction of the crime at the time of its commission, might not be punished as accessory though he were afterwards to come there (State v. Wyckoff, 31 N. J. L. 65; State v. Moore, 26 N. H. 448; Johns v. State, 19 Ind. 421; People v. Adams, supra; Holmes, J., in Hyde v. U. S., supra, at p. 389). Doubt existed at common law whether he was punishable anywhere (State v. Moore, supra; 1 Hale P. C. 623). In classifying principals and accessories, nice distinctions were drawn between innocent and guilty agents. One who employed an innocent agent, e. g., by the delivery of a letter embodying a false pretense through the intervention of a young child or of a servant ignorant of its contents, was held to be a principal (People v. Adams, supra; People v. Rathbun, supra; Comm. v. White, 123 Mass. 430; 1 Russell on Crimes, p. 56). He was constructively present, though hiding in another State, or so the books spoke of him in an attempt by the aid of fiction to give coherence to the rule (Hyde v. U. S., 225 U. S. at 386; Comm. v. Macloon, 101 Mass. 1, 9). One who employed for a like purpose a servant or other representative who was a sharer in the guilty plan, was ranked as an accessory, and the servant became the principal. Constructive presence on the part of an accessory, there was none. These distinctions did not apply to misdemeanors. Responsibility as principals attached to all who had any part in offenses of that grade. So in felonies, the notion of constructive presence where a principal, in one jurisdiction acted through the intervention of an innocent agent in another, was extended to cases where he acted through an inanimate instrument. A shot taking effect in this State, though fired from another, might be punished by our courts (2 Stephen, History Criminal Law, pp. 10, 11; R. v. Keyn, L. R. 2 Ex. Div. 63, 103; State v. Hall, 114 N. C. 909). A libel or false pretense, though mailed from abroad, would charge the sender with criminality where the document was received (Matter of Palliser, 136 U. S. 257, 265, 266, and cases there cited; U. S. v. Thayer, 209 U. S. 39, 44; Hyde v. U. S., supra; Brown v. Elliott, 225 U. S. 392). Changes wrought by legislation have robbed these refinements of their significance for some purposes, but not for all. The distinction between inanimate or innocent intermediaries upon the one hand and guilty ones upon the other has an importance even now in fixing the division between incitement and attempt. The thief who after writing a false pretense commits the writing to the mails directed to his victim has done an act which tends with unbroken continuity to the attainment of the end in view. The mailing is a part of the group or aggregate of acts which together make the crime. It is, therefore, an attempt. The thief who employs a confederate to go to foreign lands and there commit a fraud, has done a wrongful act which is not yet the beginning of the crime, though it incites and prepares for the crime that is to come. The force set in motion is neither continuous nor mechanical, and its operation may be broken before the stage of attempt has been attained by the withdrawal or repentance of the guilty intermediary (Comm. v. White, supra; People v. Adams, supra; People v. Collins, supra; Matter of Palliser, supra).

The statutes of our State have put an end to the old distinction between principals in felony and accessories before the fact. Now all who counsel, incite or advise the commission of any crime, whether felony or misdemeanor, are responsible as principals (Penal Law, § 2). The People argue from this that counsel or incitement or advice must be a part of the crime if it entails such responsibility. The conclusion, however, does not follow from the premise. What the statute has done is to assimilate the relation of confederacy in crime to that of principal and agent (People v. Bliven, 112 N. Y. 79; People v. Peckens, 153 N. Y. 576; People v. Katz, 209 N. Y. 311, 325; People v. Adams, 3 Den. 190, at 208), though, of course, not identifying them completely (People v. McLaughlin, 150 N. Y. 365). The analogy will help us to fix the locus of the wrong. An employer in New York sends his servant to New Jersey with authority to close a contract or with instructions to commit a tort. No doubt the grant of power in New York must be proved in any attempt to charge the employer with liability. The fact remains, however, that the contract has been made or the tort committed in New Jersey, and nowhere else. We find no substantial distinction between the case supposed and the one before us. The combination in New York may charge the participants with responsibility as principals. They are principals, however, in a crime committed upon English territory, and (if we except the acts in China) committed there in all its parts. Incitement from abroad will entail criminal responsibility here, if the crime is here committed, and this though the offender might once have been ranked as an accessory (People v. Adams, supra). It does not follow that incitement from here will entail a like responsibility when the crime that is the subject of incitement is committed abroad. The act, not the mere word, is still the test of jurisdiction.

Much that is said by counsel for the People would be relevant and indeed persuasive if the defendant, instead of being indicted for larceny, had been indicted for conspiracy. Conspiracy is, of course, a separate crime, and all that must be shown to establish its commission is the unlawful combination and some overt act in furtherance thereof (Penal Law, §§ 580, 583; People v. Mather, 4 Wend. 259). “ There must be an overt act, but this need not be itself a criminal act; still less need it constitute the very crime that is the object of the conspiracy ” (U. S. v. Rabinowich, 238 U. S. 78, 86). Indeed, there are some conspiracies that are crimes under our statute though an overt act has been omitted altogether (Penal Law, § 583). So at common law, incitement to a felony, when it did not reach the stage of an attempt, was itself a separate crime, and like conspiracy, which it resembled, was a misdemeanor, not a felony (King v. Higgins, 2 East, 5; R. v. Gregory, L. R. 1 C. C. R. 77). What was done in New York by the exchange of cablegrams or messages wherewith to inform the confederates of their parts in the drama of this crime was merely confirmation of the plot and encouragement to execute it. The line was not crossed that divides execution, partial or complete, from incitement and conspiracy. Nothing to the contrary was held in Strassheim v. Daily (221 U. S. 280). There the crime had been consummated in Michigan, the State or district of the indictment. Jurisdiction was undoubted under the rule of constructive presence (Holmes, J., in Hyde v. U. S., supra, and in Brown v. Elliott, 225 U. S. 392, at 403; Comm. v. White, supra). The only question was whether there existed such an element of actual presence as to constitute the defendant a fugitive from justice. Acts innocent in themselves, but related to the criminal scheme were held sufficient for that purpose. “ All that is necessary to convert a criminal under the laws of a State into a fugitive from justice is that he should have left the State after having incurred guilt there (Roberts v. Reilly, 116 U. S. 80), and his overt act becomes retrospectively guilty when the contemplated result ensues ” (Strassheim v. Daily, supra, at p. 285). There was no suggestion that the same acts would have served without more to establish jurisdiction for a crime completed elsewhere (Hyde v. U. S. and Brown v. Elliott, supra). Whether they would have laid such a basis we need not now consider. They approached closer to the stage of execution than the acts relied on here. Enough for present purposes that this was not the point decided.

In all that has gone before, we have been dealing with the fourth count of the indictment. We must now pass to the others.

The third count omits the allegations of confederacy stated in the fourth, but is like the fourth in stating that the false pretenses were made in London, England, and the money there obtained. In this count the theory is abandoned that part of the crime was in New York, within the meaning of Penal Law, section 1930, but an attempt is made to bring it within section 1933, by which a person who commits an act without this State which affects persons or property within this State * * * and which, if committed within this State, would be a crime, is punishable as if the act were committed within this State.” To that end, the third count alleges in effect that the principal office of the Guaranty Trust Company of New York was in the county of New York, that its business at London was a branch of the business conducted here, and that all losses sustained in the operation of the branch were in truth losses of the company itself, a domestic corporation. We think these allegations do not show an act in London affecting persons or property in New York. If they were to be given that effect, the robbery of a salesman in China or Peru would be punishable in New York if New York was the residence of the employer. The larceny at London was not an act affecting any property in New York. The property, pounds sterling, was in London, and from London was transmitted to China. It was not an act affecting any person in New York, for It was not a crime against or injuring the person at all, but one directed against property (cf. Penal Law, § 43), Section 1933 is aimed at situations of a different order altogether. It covers a libel published, let us say, in New Jersey, and later circulated in New York. It covers a nuisance created in New Jersey, and from there spreading to New York (Comm. v. Macloon, 101 Mass. 1, 6). There was no thought to bring within our- jurisdiction every criminal act committed in another State which in its consequences might affect the pocket of some one residing within our borders. This reading of the section accords with the theory of the trial. The trial judge, as we read the record, did not submit the case to the jury under section 1933. He told them that the defendant must be acquitted unless part of the crime had been committed in New York.

The first and second counts remain. On their face they are ■ sufficient. One of them states that all the criminal acts were committed in New York. The other states that some of the acts were committed here, and some in China and England. If the case had gone to the jury on those counts only, the defendant would have no .grievance in respect of the form of the indictment. The difficulty is, however, that it was submitted to them under all the counts, and that what is stated in the first and second counts is contradicted by the third and fourth. The first and second state in effect that the representation's were made and the moneys paid in New York, or that some at least of those events occurred there, whereas the third and the fourth tell us that the representations were made and the moneys paid in London. These contradictory statements cannot both be true. We are told that it is our duty, in view of the unanimous affirmance, to presume that the evidence is sufficient to sustain the verdict (Const, art. 6, § 9). The difficulty remains that a presumption of evidence sufficient to sustain the statements in counts numbers 1 and 2 would be repelled by an equal presumption that the evidence sustains the statements to the contrary in counts numbers 3 and 4. We think it is our duty in such circumstances to search the record so far as may be necessary to determine whether the defendant was aggrieved by the denial of his motions to dismiss the counts that are defective.

Aggrieved we think he was unless the other and inconsistent counts have evidence to uphold them. In so holding, we do not overlook decisions to the effect that where a case is submitted on several counts, and a general verdict rendered, the verdict will stand if any of the counts are good (Hope v. People, 83 N. Y. 418, 424; People v. Cummins, 209 N. Y. 283, 296). This was said of cases where the counts were consistent with one another, charging a single crime, though in varying forms and phrases. On the other hand, a different rule has been applied where the crimes set forth in the several counts are different or inconsistent. The distinction was pointed out in Phelps v. People (72 N. Y. 365, 373, 374, citing Wood v. People, 59 N. Y. 117). One might as well say in a civil action for damages that error in the denial of a motion to dismiss one cause of action would be disregarded as unsubstantial if the motion was properly denied as to a different cause of action. Here the several counts are not simply different versions of the same transaction ” (Phelps v. People, supra). They are versions of different transactions in that they are contradictory of each other. The denial of the motion to dismiss the counts that are defective was equivalent to a ruling that the facts there stated, if proved, made out the commission of a crime within the jurisdiction. The charge as a whole shows that this is no forced deduction,' but that the case went to the jury on that theory and no other. In such circumstances, though the error in the charge is imperfectly challenged by exception, the error in sustaining the defective counts of the indictment ought not to be disregarded as immaterial unless there is evidence sustaining the inconsistent counts and justifying the inference that the allegations of those counts were accepted by the jury (Wood v. People, 59 N. Y. 117, 122). Evidence may be examined despite the unanimous affirmance, so far as such examination is necessary to determine the materiality of error (D’Aurio v. L. I. R. R. Co., 240 N. Y. 241; Matter of Santrucek, 239 N. Y. 59, 62).

We find in the record one act and only one that reinforces in any degree the overt acts enumerated in the fourth count of the indictment. There is evidence that Isaac Werblow, before setting sail for England, bought from the Guaranty Trust Company of New York at its principal office in this State a draft upon its London branch for 100 pounds sterling in favor of Max Elliott, which name he then assumed. Upon his arrival in England, this draft was placed to his credit in the London branch, and was used to open his account, and also, it is possible, to accredit him in some degree. We cannot find, however, that the delivery of this draft in the county of New York was a part of the crime as distinguished from an act of preparation. The situation would not be different if a murderer had provided himself with a weapon or a thief with a disguise or a swindler with a sum of money that might lend an air of respectability. The draft like a weapon was capable of being used in ways and for purposes that would make it an instrument of crime. It did not become such an instrument until devoted to the use.

The defendant should answer for his crime to the courts of the sovereignty within whose territorial dominion it was committed in all its parts.

Other rulings complained of by the defendant have been considered, but no error has been found in them.

The judgment of the Appellate Division and that of the Trial Term should be reversed, the third and fourth counts of the indictment dismissed, and a new trial ordered upon the first and second counts.

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

Judgments reversed, etc.


author: Lehman, J.

text:
    In the Matter of the Application of Frank N. McCoy, Jr., Respondent, for an Order of Mandamus against James K. Apgar et al., Individually and Constituting the Board of Trustees of the Village of Peekskill et al., Appellants.
    Streets — villages — constitutional law — municipal corporation may not in absence of legislative authority permit encroachment upon public street — board of trustees of village of Peekskill authorized to graph permission to abutting owner to erect gasoline pump at curb line of street — power of Legislature to authorize encroachments upon public streets qualified and limited — obstruction challenged only on the ground it interferes with public rights — when sanction therefor comes within legislative power of control and regulation of rights of the public.
    1. Streets and highways are established for the benefit of the public, and a municipal- corporation or local governing body may not, at least in the absence of legislative authority, permit an incumbrance thereon which but for such permission would constitute a nuisance. Such legislative authority should be express or clearly implied.
    2. By the charter of the village of Peekskill the board of trustees of the village is authorized under specified circumstances “ to also issue permits for placing tanks and containers for storage of gasoline, kerosene or other oils, within the bounds of a public highway and beneath the surface thereof and to permit arrangements for drawing therefrom upon the curb line of such street,” and it cannot be said that if the Legislature had power to grant the village officers the authority conferred by the statute, the permission to .construct a fixed pump upon the sidewalk near the curb line, as a reasonable “ arrangement ” for drawing gasoline from underground tanks, exceeded the authority given. (Matter of Kahabkav. Schwab, 205 App. Div. 368, 371; affd., 236 N. Y. 595, distinguished.)
    3. The powers of the Legislature to authorize encroachments upon public streets are qualified and limited not only by express prohibitions contained in the Constitution directly referring to the streets and highways but also by the general constitutional limitations that the Legislature may not deprive the individual of his property without compensation nor may it authorize the private appropriation of property held in trust for the public, in a manner which would unreasonably interfere with its use by the public.
    4. Where, however, obstructions or encroachments, sanctioned by the Legislature, are challenged only on the ground that they interfere with public rights, the courts may consider whether the sanction of the Legislature comes within its power of control and regulation of the rights of the public, which, within constitutional limitations, may be created, governed, increased or diminished by the Legislature, and where it has seen fit to leave to the village authorities the determination of whether the advantage of permitting, subject to revocation of the permission, the erection near the curb line of a village street of pumps which serve a public convenience in connection with the use of the street and benefit abutting property owners in the use of their property, does not outweigh the disadvantages of the consequent slight encroachment, it cannot be said that the Legislature acting as the representative of the public in the control of the use of the street and in the determination of the public rights therein has exceeded its constitutional powers and diverted to private purpose property which is held subject to a public trust.

      Matter of McCoy v. Jordan, 212 App. Div. 534, reversed.
    (Argued June 3, 1925;
    decided July 15, 1925.)

      Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 27, 1925, which affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel the defendants to remove all curb gasoline pumps from the streets of the village of Peekskill.

      Robert F. Barrett, Corporation Counsel {Daniel J. Kenefick of counsel), for appellants.
    The Legislature expressly delegated power to the municipal authorities of the village of Peekskill to permit the erection and maintenance of the gasoline pumps in the public streets. (L. 1917, ch. 198, § 3, subd. 7.) The legislative power over public streets is absolute and unrestricted except as qualified by constitutional limitations and in the exercise of this power the Legislature may authorize structures in the streets which without such authority would be encroachments and obstructions, and this power it may delegate to a municipal corporation. (Bradley v. Degnon Const. Co., 224 N. Y. 60; Wormser v. Brown, 149 N. Y. 165; Hoey v. Gilroy, 129 N. Y. 132; Jorgensen v. Squiers, 144 N. Y. 280; Sauter v. U. C. Nat. Bank, 45 Misc. Rep. 368; 119 App. Div. 898; 193 N. Y. 661; Reis v. City of New York, 113 App. Div. 464; 188 N. Y. 464; People ex rel. Winthrop v. Delany, 120 App. Div. 801; 192 N. Y. 533; .Matter of Woolsey, 95 N. Y. 135; Stanley v. J. S. C. R. R. Co., 182 App. Div. 399; 227 N. Y. 639; Cohen v. Mayor, 113 N. Y. 532.) The act of 1917 was in substance and effect a legislative declaration that the proprietary right of the abutting owners, as owners of the fee of the street, to erect and maintain gasoline tanks and pumps therein was not an interference with the public easement. (Jackson v. Hathaway, 15 Johns. 447; Robert v. Saddler, 104 N. Y. 230; Deverell v. Bauer, 41 App. Div. 53; Etz v. Daily, 20 Barb. 32; Platt v. Vil. of Oneonta, 88 App. Div. 192; People ex rel. Retsof Mining Co. v. Priest, 75 App. Div. 131; 175 N. Y. 51; People ex rel. Abraham v. Perley, 67 Misc. Rep. 471; 143 App. Div. 915; 202 N. Y. 620; Mott v. Eno, 181 N. Y. 346; Bradley v. Crane, 201 N. Y. 14.)

      Myle J. Holley for respondent.
    Gasoline pumps placed upon the sidewalks of the public streets and near the curb lines thereof are nuisances as a matter of law. (Kahabka v. Schwab, 205 App. Div. 368; Hoffler v. Buck, 230 N. Y. 608; Cohen v. Mayor, 113 N. Y. 533; Warden v. City, 123 App. Div. 733; 193 N. Y. 699; Lyman v. Vil. of Potsdam, 228 N. Y. 398; H. E. Protective Co. v. Williams, 228 N. Y. 407.) Chapter 198 of the Laws of 1917 does not confer any authority upon the board of trustees to grant permits to place gasoline tanks upon the public streets which will interfere with the public use thereof. (City of Mt. Vernon v. N. Y., N. H. & H. R. R. Co., 232 N. Y. 309; Bradley v. Degnon Const. Co., 224 N. Y. 60; Town of Mt. Pleasant v. City of New York, 199 App. Div. 315; Acme v. Schinasi, 215 N. Y. 495; City of New York v. Rice, 198 N. Y. 124; Hatfield v. Strauss, 189 N. Y. 208; Ackerman v. True, 175 N. Y. 353; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390; People ex rel. Hoffler v. City of Buffalo, 193 App. Div. 262; 230 N. Y. 608; People ex rel. Kahabka v. Schwab, 205 App. Div. 363; 236 N. Y. 594.) Gasoline pumps similar to those complained of are not a public use. (Matter of Mayor, etc., of N. Y., 135 N. Y. 259; Dillon on Mun. Corp. § 1117; Elliott on Highways, § 829; McQuillan on Mun. Corp. § 1355; People ex rel. Hoffler v. City of Buffalo, 193 App. Div. 262; 230 N. Y. 608.)
   Lehman, J.

Pursuant to an ordinance passed by the village of Peekskill, the village authorities have permitted. the erection of several gasoline pumps upon the sidewalks of public streets or highways, at or near the curb line. A peremptory mandamus order has been issued to compel the removal of these pumps on the ground that they constitute unlawful encroachments or obstructions in the highways.

Licenses have been issued by the village authorities for the erection of these pumps. The village ordinance passed on April 27th, 1920, provides for such licenses. Similar pumps erected upon the sidewalks close to the curbstones of streets in Buffalo have been held to constitute an unlawful encroachment upon the city streets though authorized under the terms of a municipal ordinance. (Matter of Kahabka v. Schwab, 205 App. Div. 368, 371; affd., without opinion, 236 N. Y. 595.) The question presented in that case was whether the municipal authorities of the city of Buffalo had power to authorize the erection of such incumbrances or obstructions and the opinion of the Appellate Division points out that neither in the provisions of the charter nor any other statute to which our attention has been called have we found authority to authorize the city to divert the public streets to such private use.” We did not pass upon the question of whether the Legislature had the power to grant such authority if it saw fit. We decided that the Legislature did not attempt to grant the authority. The charter of the village of Peekskill does authorize the board of trustees of the village under specified circumstances “ to also issue permits for placing tanks and containers for storage of gasoline, kerosene or other oils, within the bounds of a public highway and beneath the surface thereof and to permit arrangements for drawing therefrom upon the curb line of such street,” and the legality of the incumbrance of which the relator complains depends upon the construction and effect of this provision of the village charter.

Streets and highways are established for the benefit of the public and it is too well established to require any * citation of authority that a municipal corporation or local governing body may not, at least in the absence of legislative authority, permit an incumbrance thereon which but for such permission would constitute a nuisance. Such legislative authority should be express or clearly implied. It is claimed that the authority to “ permit arrangements ” upon the curb Une of a highway for drawing gasoline from a tank within the bounds of the highway should not be construed as authorizing permission for the erection of a pump. We think that the Legislature clearly intended to confer authority to give such permission. While perhaps it would be practical to draw gasoline from tanks in some other manner, which, it may be argued, would interfere less with the enjoyment of the entire street by the public, yet the Legislature has chosen to leave the choice of “ arrangements ” for such purpose to the discretion of the village authorities. In expressly conferring upon the village officers the authority to grant such permission, the Legislature must have contemplated that some “ arrangement ” might be permitted which without such permission would not be lawful. The use of such pumps for this purpose was not unusual and we cannot say that if the Legislature had power to grant the village officers the authority conferred by the statute, the permission to construct a fixed pump as a reasonable arrangement ” for drawing gasoline from underground tanks exceeded the authority given. The highways affected by the statute are in a village and not in a great city. The authority conferred is coupled with the right to prohibit such constructions at any point or place where the village board 11 may deem the location thereof as unnecessary and to cause the removal thereof at the expense of the adjoining property owner, when said board shall deem it necessary and proper.” These circumstances may enter into our consideration of the proper construction of the authority which the Legislature attempted to grant and of the power of the Legislature to confer such authority.

We have in many cases pointed out that a local governing body even though it owns the fee of the streets

or highways may permit occupation of a part thereof only by express authority derived from the Legislature. “ The title to the streets and highways, whether in the people or a municipality, or in fee or in easement, is held for the public use. The fee of the streets acquired by the city of New York is held by it in trust for the use of all the people of the State and not as corporate or municipal property. The power of the Legislature in respect to them is qualified by the Constitution alone. * * * The Legislature may, unless forbidden by the Constitution, delegate to a municipality, or an agent for such purpose, the power to authorize it, (an encroachment) but the delegation must be in clear and unmistakable language.” (People ex rel. City of New York v. N. Y. Rys. Co., 217 N. Y. 310, 315.) Of course the powers of the Legislature in this respect may be qualified and limited not only by express prohibitions contained in the Constitution directly referring to the streets and highways but also by the general constitutional limitations that the Legislature may not deprive the individual of his property without compensation nor may it authorize the private appropriation of property held in trust for the public, in a manner which would unreasonably interfere with its use by the public. In the case of Bradley v. Degnon Contracting Co. (224 N. Y. 60) we recognized both -the extent and the limitations of the legislative control of streets and highways. The Legislature, as the representative of the State, has control and authority over them, absolute and unrestricted, except as qualified by the Constitution, and the rule that the free use of them ,for the purposes and in the modes inherent in their creation will not be unreasonably interfered with through or for any private appropriation or use. It can authorize structures in them for private use and benefit which are reasonably incident to the ordinary uses of a street and which without such authority would be encroachments and public nuisances.” (p, 67.)

In the present case the authority to permit the erection of a pump upon the sidewalk of the highway will, if sustained, give sanction to the private appropriation and use of a part of the highway by the abutting owner. There are many.cases where the courts have sustained the power of the Legislature to authorize private appropriation of part of the highway through an encroachment on the sidewalk by an abutting owner; in other cases the courts have held that the attempted grant by the Legislature exceeded its powers. In all these cases alike the determining principle of the decision was that the private appropriation was unlawful where it infringed upon another’s private right of property or easement in the highway or where it unreasonably interfered with the free use of highways by the public for the purposes and in the modes inherent in their creation.”

In the present case the permission to maintain tanks under the sidewalk and pumps at the curb has been conferred upon abutting owners. The relator does not claim any private' ownership in the fee of the street or any private easement of any kind therein. No injunction is asked for the protection of his property rights. He claims no special injury. He speaks for the public, demanding protection of public rights against the acts of public officers, themselves under a duty to protect such rights. The power to take private property even for public use without compensation has been by the Constitution expressly withheld from the Legislature; control of and power to regulate a public right or use has been conferred by the Constitution upon the Legislature and the Legislature alone.' When an encroachment or obstruction, sanctioned by the Legislature, is challenged on the ground that it injures the property rights of an abutting .owner, the courts may consider whether the sanction of the Legislature falls within the constitutional prohibition. The nature of private property rights is determined by the courts and when determined they may ordinarily not be taken in whole or in part by the Legislature even in the interests of the public without compensation. (Muhlker v. N. Y. & Harlem R. R. Co., 197 U. S. 544.) When similar obstructions or encroachments are challenged on the ground that they interfere with public rights the courts may consider whether the sanction of the Legislature comes within its power of control and regulation of the rights of the public. Within constitutional limitations rights of the public may be ircated, governed, increased or diminished by the Legislature. In one instance the courts deal with rights outside of unlimited législative control; in the other instance the courts deal with rights within the plenary control of the Legislature when the Legislature acts as representative of the public and in the interests of the public. In neither instance may the courts consider the wisdom of the legislation, though they must determine whether the legislation may reasonably tend to promote the public comfort or convenience in the use of the streets without unreasonable interference with the primary purpose for which they were created.

A large part of the traffic on highways to-day is by means of gasoline-driven automobiles. When the gasoline in the automobile is exhausted, the automobile cannot proceed until the supply is renewed. Convenience in obtaining a fresh supply benefits a large part of the traveling public; in fact, unless some means of obtaining such supply is available the use of the highways by automobiles must cease. It is argued that the use of a part of the sidewalk for the erection of a gasoline pump to supply vehicles in the roadway results in the obstruction of traffic not only through the- physical encroachment of the pump structure upon the street but through the consequent invitation to automobiles to use the pump and to form lines in the roadway while awaiting their turn to avail themselves of its use. That argument itself emphasizes that the use of the street which the Legislature has attempted to sanction conduces to the convenience of large numbers of travelers. In a village street the gasoline cannot be supplied to automobiles unless arrangements can be made for bringing the gasoline to the automobiles in the roadway or the automobiles pass over the sidewalk to private property where the gasoline is stored. Any method adopted may involve to a greater or lesser degree obstruction of the traffic in the highway and upon its sidewalks. The Legislature has seen fit to leave to the village authorities the determination of whether the advantage of permitting, subject to revocation of the permission, the erection, near the curb line, of pumps which serve a public convenience in connection with the use of the street and benefit abutting owners in the use of their property, does not outweigh the disadvantages of the consequent slight encroachment. The village authorities have so determined. The inducement which led to the granting of the permission may have been solely to benefit the abutting owner but all the public have access to the pump and its use may add to the convenience of travel. We cannot say under these circumstances that the legislative control of the use of the street for street purposes does not include a right to authorize the use of a small portion of the street for the purpose under consideration. (Bradley v. Degnon Contracting Co., supra.) We are dealing here with an erection upon a village street and not the street of a great city; the obstruction to traffic is relatively small; the user is one which is directly connected with a lawful means of locomotion on the street. What may be a reasonable use of the street, serving the public convenience, may under somewhat different circumstances become patently unreasonable. We do not decide that the Legislature could grant similar authorization where the obstruction of traffic would be serious, nor use part of a street permanently or temporarily for the vending of other kinds of commodities not directly tending to make the movement of traffic more convenlent. We decide only that the relator fails to show that the Legislature acting as the representative of the public in the control of the use of the street and in the regulation of the public rights therein has exceeded its constitutional powers and diverted to private purpose property which is held subject to a public trust.

The orders should be reversed, with costs in all courts, and application denied, with costs.

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

Orders reversed, etc.


text:
    The People of the State of New York, Respondent, v. Earl Snyder, Appellant.
    Crimes — burglary in third degree •—• constitutional law —• double jeopardy — conviction for larceny in stealing chickens no bar to subsequent prosecution for burglary in breaking into building with intent to steal chickens.
    1. Section 404 of the Penal Law makes criminal the act of breaking and entering a building with intent to commit a second crime. When that act is done, the crime of burglary is complete; if the intent to commit a second crime is effectuated by overt acts thereafter, a separate crime may be committed which under the provisions of section 406 of the Penal Law may be separately punished.
    2. The fact that one has been convicted of and sentenced for petty larceny for stealing chickens is not a bar, under the double jeopardy clause of the Constitution, to his thereafter being convicted and sentenced for the crime of burglary in the third degree for breaking into the chicken coop with intent to steal the chickens.

      People v. Snyder, 214 App. Div. 742, affirmed.
    (Argued June 5, 1925;
    decided July 15, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 15, 1925, which affirmed a judgment of the Schoharie County Court rendered upon a verdict convicting the defendant of the crime of burglary in the third degree.

      John E. Kelly for appellant.
    The indictment charging the defendant with burglary, with intent to commit larceny, was placing the defendant in jeopardy a second time. (Haskins v. People, 16 N. Y. 348; People v. Snyder, 2 Park. Cr. Rep. 223; People v. Colburn, 162 App. Div. 651; People v. Lawton, 56 Barb. 126; People v. Jackson, 3 Hill, 92; People v. Miller, 143 App. Div. 251; People v. Smith, 57 Barb. 46; Hurst v. State, 86 Ala. 604; Jones v. State, 66 Miss. 380; Cook v. State, 43 Tex. 63; State v. Emery, 68 Vt. 109.)

      Alberti Baker, District Attorney, for respondent.
    There is ample statutory authority for a conviction for burglary in the third degree committed • at the same time petit larceny is committed as in this case. (Penal Law, § 406; People v. McCloskey, 5 Park. Cr. Rep. 57; People v. Warren, 109 N. Y. 617.) This statute is not in violation of the Constitution and no constitutional right of the defendant has been invaded. (People ex rel. Cunningham v. Bingham, 134 App. Div. 602; People v. Vevins, 74 Misc. Rep. 377; 149 App. Div. 935; People ex rel. Dawkins v. Frost, 129 App. Div. 498; People v. Rodgers, 184 App. Div. 461; People v. McCloskey, 5 Park. Cr. Rep. 57; People v. Warren, 109 N. Y. 615; People v. McGrath, 202 N. Y. 445.)
   Lehman, J.

The defendant on May 26, 1923, broke into the chicken coop of one Fred Hemstreet and stole therefrom thirty chickens. He was charged with petty larceny and pleaded guilty to the charge. Sentence of thirty days in the county jail was imposed and then suspended, pending good behavior. Thereafter he was indicted for burglary in the third degree for breaking into the chicken coop with intent to steal the chickens. His conviction under this indictment has been unanimously affirmed.

The Constitution of the State by positive enactment restates the rule which from time immemorial has been regarded as implicit in our conceptions of fundamental human rights that “ no person shall be subject to be twice put in jeopardy for the same offense.” (Article 1, section 6.) Not only the letter but the full spirit of the constitutional prohibition is embodied in, if not indeed extended by, our statute law in section 1938 of the Penal Law, which provides that an act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision.”

Authority may be cited for the view that at common law a conviction could not be had under an indictment upon a charge of burglary after a previous conviction for the larceny which represents the consummation of the felonious intent, which constitutes an element of the alleged burglary. (People v. Smith, 57 Barb. 46, and cases there cited.) If those cases are correctly decided they establish only that at common law the offense of burglary includes as an element the offense of larceny, when committed in connection therewith, and that punishment for the burglary, therefore, also includes punishment for the larceny as the greater includes the less. The Legislature has now defined criminal offenses and their punishment, and the question of whether a charge of larceny is included in an indictment for burglary and whether punishment for burglary includes punishment for larceny as part of the same offense depends solely upon the legislative intent. Question may hardly be raised that there can be no double jeopardy if the Legislature has seen fit to provide that up to a particular point the acts of the defendant constitute one crime and that the acts of the defendant, committed thereafter, constitute a second crime and that each series of acts constituting a separate crime are subject to separate punishment.

The provisions of our statutes are not open to other construction. Section 404 of the Penal Law provides that “ a person who: 1. with intent to commit a crime therein, breaks and enters a building, or a room or any part of a building; * * * is guilty of burglary in the third degree.” 1 The statute makes criminal the act of breaking and entering a building with intent to commit a second crime. When that act is done, the crime of burglary is complete; if the intent to commit a second crime is effectuated by overt acts thereafter, a separate crime is committed which the Legislature may declare should be separately punished. Its declaration that there shall be separate punishment for separate crime is clear and unequivocal. “ A person who, having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the burglary; and may be prosecuted for each crime, separately, or in the same indictment.” (Section 406.) TTnder the provisions of that section the two separate crimes of larceny and burglary may be joined as two counts in one • indictment (People v. Wilson, 151 N. Y. 403), yet they remain separate crimes, committed through different acts, subject to separate punishment.

The judgment of the Appellate Division should be affirmed.

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Judgment affirmed.