text:
    Kurt E. Fontheim, Suing for Himself and All Other Stockholders of Huron Holding Corporation, Similarly Situated, Appellant, v. George R. Walker et al., Respondents, et al., Defendants.
    Argued March 2, 1954;
    decided April 15, 1954.

      Eugene J. Morris and Bernard Buchwald for appellant.

      Milton M. Bergerman and Joseph Calderon for Iskander Hourwich, respondent.
    J. Adam Murphy for George R. Walker and others, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessei. and Van Voobhis, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Rockvan Realty Corporation, Appellant, v. General Motors Corporation, Respondent.
    Argued March 10, 1954;
    decided April 15, 1954.

      Max Berg, and M. Warren Berk for appellant.

      Edgar F. Burleigh, George A. Brooks, Edward W. Horne and Edward B. Wallace for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Nora Gribbin, Appellant, v. Leon S. Mygatt, Respondent, et al., Defendants.
    Argued March 11, 1954;
    decided April 15, 1954.

      E. F. W. Wildermuth for appellant.

      Charles I. Sterling and Leo E. Falkin for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voobhis, JJ.


text:
    Martha M. Walsh, Appellant, v. John L. Keogh et al., Respondents.
    Argued March 11, 1954;
    decided April 15, 1954.

      John L. Barrett for appellant.

      Mark N. Turner and Thomas J. Kelly for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Oh. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of the Claim of Jean Frank, Respondent, against Freedman Die Cutters, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued March 3, 1954;
    decided April 15, 1954.

      Frederick Behr and Frederick Behr, Jr., for appellants.

      Nathaniel L. Goldstein, Attorney-General (Marry Pastor, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjed, Froessel and Van Yoorhis, JJ.


text:
    In the Matter of David A. Fay, Appellant. Thomas E. Dewey, as Governor of the State of New York, et al., Respondents.
    Argued March 10, 1954;
    decided April 15, 1954.

      David A. Fay, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown of counsel), respondent in person, for Thomas E. Dewey and another, respondents.

      William J. O’Shea for Democratic State Committee, amicus curiae.

      Adrian P. Burlte, Corporation Counsel (Seymour B. Quel, Thomas W. A. Crowe and Milton H. Harris of counsel), for Board of Elections of the City of New York, amicus curiae.

   Order affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fitld, Fboessel and Van Voobhis, JJ.


text:
    Frank Buro, Appellant, v. State of New York, Respondent.
    (Claim No. 28954.)
    (And Fourteen Other Appeals, Claims Nos. 28955-28962; 28988-28993.)
    Submitted April 5,1954;
    decided April 15, 1954.
   Motion for reargument denied. [See 306 N. Y. 730.]

Motion for reargument of motion to amend remittitur denied. [See 306 N. Y. 851.]


text:
    Marion E. Lachs, Respondent, v. Fidelity & Casualty Company of New York, Appellant.
    Submitted April 5, 1954;
    decided April 15, 1954.
   Motion-for reargument denied, with $10 costs and necessary printing disbursements. [See 306 N. Y. 357.]


text:
    In the Matter of Boro Rendezvous, Inc., et al., Appellants, against John F. O’Connell et al., Constituting the State Liquor Authority, Respondents.
    Submitted March 8, 1954;
    decided April 15, 1954.

      Daniel J. Biesner for motion.
    No one opposed.
   Motion denied.


text:
    In the Matter of the Claim of Marion K. Graham, Appellant, against Nassau & Suffolk Lighting Company et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted April 5, 1954;
    decided April 15, 1954.

      Walter F. Forster for motion.
    No one opposed.
   Motion granted.


text:
    In the Matter of Gutwirth & Errante Homes, Inc., Appellant. City of New York, Respondent.
    Submitted April 5, 1954;
    decided April 15, 1954.

      Emanuel Thebner and Martin J. McLaughlin for motion.

      Adrian P. Burhe, Corporation Counsel (Harry E. O’Donnell, Benjamin Offner and Robert D. Joyce of counsel), opposed.
   Motion denied upon the ground that an appeal lies as of right.


text:
    In the Matter of the Industrial Commissioner of the State of New York, Respondent, against W. E. Hedger Transportation Corporation, Judgment Debtor. Haight, Deming, Gardner, Poor & Havens, Third Party; Horace M. Gray, Claimant-Appellant.
    Submitted April 5, 1954;
    decided April 15, 1954.

      Edward B. Phillips for motion.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran and Emarmel Strauss of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Herbert Schreiber et al., Respondents, against Joseph D. McGoldrick, as State Rent Administrator, et al., Appellants.
    Submitted April 5, 1954;
    decided April 15, 1954.

      Sanford Green for landlord-appellant.

      Arthur C. Parker for tenants-respondents.
   Motion is granted and, pending the hearing and determination of the appeal herein, all proceedings and the enforcement of the said order are stayed, provided that the appellant shall deposit in escrow with its attorney the difference between the maximum legal rents in effect immediately prior to the order of the State Rent Administrator, dated July 10,1953, and the rents actually collected from the tenants pursuant to the terms of that order and shall, until the determination of this appeal, continue to make such escrow deposits with respect to any rents hereafter collected, or, in lieu of making such escrow deposits, shall post a surety bond, in the amount of $5,000, of a bonding company licensed to do business in the State of New York, guaranteeing payment of the refunds due tenants in the event of affirmance of the order of the Appellate Division.


text:
    In the Matter of the Probate of the Will of William C. Wangerin, Deceased. Florence Tedeschi, Appellant; Louise H. Wangerin et al., Respondents.
    Submitted April 12, 1954;
    decided April 15, 1954.

      George Kent Weldon for motion.

      Elliott Lasher and Arthur G. Warner opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the papers were not served within the time provided by subdivision 3 of section 592 of the Civil Practice Act.


text:
    The People of the State of New York, Respondent, v. Jerry Jerome, Appellant, et al., Defendants.
    Submitted April 5, 1954;
    decided April 15, 1954.
   Motion to amend remittitur granted. Return of remittitur requested, and when returned, it will he amended by adding thereto the following: A question under the Federal Constitution was presented and passed upon by the Court of Appeals, viz., whether defendant Jerome was deprived of counsel of his own choice in violation of his rights under the Fourteenth Amendment of the Constitution of the United States. [See 306 N. Y. 777.]


text:
    The People of the State of New York, Respondent, v. Leonardo Salemi, Appellant.
    Submitted April 5, 1954;
    decided April 15, 1954.
   Motion for reargument denied. Motion to amend remittitur denied. [See 306 N. Y. 863.]


text:
    Mary Platto et al., Appellants, v. Bertha Stier, Respondent. et al., Defendants.
    Submitted April 5, 1954;
    decided April 15, 1954.

      James M. Baird for motion.

      Murray Eisenberg opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days appellants serve and file an undertaking on appeal and pay $10 costs, in which events motion denied.


text:
    Louise M. Johnston, Appellant, v. City of New York, Respondent.
    Argued March 8, 1954;
    decided April 22, 1954.

      Harvey Nachman, Jerome Golenbock and Harry G. Hurwitz for appellant.

      Adrian P. Burke, Corporation Counsel (Seymour B. Quel, John J. Lee and Fred Iscol of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voobhis, JJ.


text:
    In the Matter of Fifth Madison Corporation, Appellant. Frederick E. Weinberg et al., Respondents.
    Argued March 2, 1954;
    decided April 22, 1954.

      Eugene Blanc, Jr., for appellant.

      Bernard Buchwald, Maurice B. Blumenthal, Daniel W. BVumenthal and Samuel Hoffman, respondents in person, and for Paul Benton and another, respondents.

      Frederick E. Weinberg, respondent in person.

      Gabriel Kaslow and Jacob Goldberg, respondent in person, and for Weil, Gotshal and Manges, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    In the Matter of Irving V. A. Huie et al., Constituting the Board of Water Supply of the City of New York, Relative to Acquiring Title to Real Property for and on Behalf of the City of New York, in Delaware County, for the Purpose of Providing Additional Water for the City of New York. Adar E. Merrill et al., Respondents; City of New York, Appellant.
    Argued March 8, 1954;
    decided April 22, 1954.

      Adrian P. Burke, Corporation Counsel (Seymour B. Quel, Francis T. Murray, John B. McManus and Theodore B. Lee of counsel), for appellant.

      Berman E. Gottfried for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Alexander Teitler, Appellant, against McDermott & McDonald, Respondent.
    Argued March 8, 1954;
    decided April 22, 1954.

      Alexander Teitler, in person, and Mortimer Haas for Alexander Teitler, appellant.

      Karris Birnbaum for respondent.
   Order affirmed, with costs. (See Lien Law, § 12-a.) No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Raemon C. Richards, Appellant, v. Mount Vernon Steel Corporation et al., Respondents.
    Argued March 8, 1954;
    decided April 22, 1954.

      Lawrence Braunstein for appellant.

      William O. Mulligan and Milton Kaplan for Stephen Enright, respondent.

      Julius November and Edwin Stephen Schweig for Mount Vernon Steel Corporation and another, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Mollie Eagle, Appellant, v. Benjamin Cherney et al., Respondents.
    Submitted April 19, 1954;
    decided April 22, 1954.
   Motion for reargument denied, with $10 costs. [See 294 N. Y. 818.]


text:
    In the Matter of Rebecka Peters, Individually and on Behalf of All Others Similarly Situated Who are Members of the Williamsburg Community Association, Appellant, against New York City Housing Authority, Respondent. Joseph Serata et al., Individually and as Members of the International Workers Order, Inc., and as Tenants of the New York City Housing Authority, Interveners, Appellants.
    Submitted April 19, 1954;
    decided April 22, 1954.

      Paul L. Ross and Royal W. France for motion.

      John P. McGrath opposed.
   Motion granted insofar as the order affects the continued occupancy of the tenants in possession, and appeal set down for argument during the May, 1954, session of the Court of Appeals.


text:
    In the Matter of the Voluntary Dissolution of Seamerlin Operating Co., Inc. T. Victor Searing, Respondent; Bartolo Merlino, as Committee of Anthony Merlino, An Incompetent, Appellant.
    Submitted April 21, 1954;
    decided April 22, 1954.

      Louis George Rudd for motion.

      Bernard Lefkowits opposed.
   Motions granted and case set down for argument in the Court of Appeals on May 20, 1954.


text:
    The People of the State of New York, Respondent, v. Walter Tafelski, Appellant.
    Submitted April 12, 1954;
    decided April 22, 1954.

      John F. Dwyer, District Attorney (Robert A. Burrell of counsel), for motion.

      Walter TafelsM, in person, opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of Caesar Vescera et al., Appellants, against Temporary State Housing Rent Commission, Respondent, and 193-5 East Houston Street Realty Corp., Intervener, Respondent.
    Argued April 7, 1954;
    decided April 23, 1954.

      Max A. Gaber for appellants.

      Norman Adams for intervener-respondent.
   Order affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Jesse O. Dedmon, Jr., et al., Respondents, v. Hubert F. Julian, Appellant.
    Submitted April 20, 1954;
    decided April 23, 1954.

      Bernard A. Grossman and Theodore R. Kupferman for appellant.

      Andrew D. Weinberger and Vertner W. Tandy, Jr., for respondents.
   Appeal dismissed, with costs, upon the ground that the judgment does not finally determine the action within the meaning of the Constitution. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Lillian E. Wirth, Appellant, v. George R. Wirth, Respondent.
    Argued April 12, 1954;
    decided April 23, 1954.

      Bernard Meyerson, Milton M. Eisenberg and Ralph Weller for appellant.

      Harold R. Brophy for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Oswald A. Schlegel, Appellant, v. Chase National Bank of the City of New York, as Executor of Rose G. Stern, Deceased, Respondent, et al., Defendants.
    Argued April 7, 1954;
    decided April 23, 1954.

      Borris M. Komar for appellant.

      Arnold T. Koch and Richard G. Hewitt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. [See 307 N. Y. 679.]


text:
    Gaetano Donato, Appellant, v. American Locomotive Company, Respondent, et al., Defendants.
    Argued April 6, 1954;
    decided April 23, 1954.

      Stephen Della-Rocca for appellant.

      Laurence V. Benedict for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Fboessel, JJ. Taking no part: Van Voobhis, J.


text:
    In the Matter of Harry Kunin et al., as Stockholders of Title Guarantee and Trust Company, Respondents. Title Guarantee and Trust Company, Appellant.
    Argued February 25, 1954;
    decided April 23, 1954.

      Joseph V. McKee, John J. Boyle, John G. O’Malley and Philip G. Reilly for appellant.

      Joseph K. Reichbart, Lester Gutterman and Samuel Fishman for respondents.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Fboessel, JJ. Taking no part: Van Voobhis, J.


text:
    Florindo S. Polo, Respondent, v. Hyman Kibrick et al., Appellants, et al., Defendants.
    Argued April 9, 1954;
    decided April 23, 1954.

      Morris Wagman and Irving Sheinfeld for appellants.

      William M. Kilcullen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Martin Foundation, Inc., et al., Appellants and Respondents, v. Phillips-Jones Corporation, Respondent and Appellant, et al., Defendants. Abraham J. Multer et al., Doing Business as Multer, Nova & Seymour, Appellants.
    Argued April 5, 1954;
    decided April 23, 1954.

      Abraham J. Multer, Barnett J. Nova, Milton A. Seymour, appellants in person, and William Sardell for appellants-respondents.

      Melvin A. Albert and Allan D. Emil for respondent-appellant.
   Order affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voobhis, JJ.


text:
    Mae Gilligan et al., on Behalf of Themselves and All Tenants of 1070 Park Avenue, Similarly Situated, Respondents, v. Tishman Realty & Construction Co., Inc., et al., Defendants, and Sylvan Manheim et al., Appellants.
    Argued February 24, 1954;
    decided April 23, 1954.

      Robert 8. Fougner for Sylvan Manheim and others, appellants.

      Eugene J. Morris and Robert I. Weissmann for J. Kiefer Newman, Jr., appellant.

      Harold L. Herrick for Tenant-Owned Apartment Association, Inc., amicus curiae, in support of appellants’ position.

      Robert 8. Fougner for Bhoda Bercow and another, amici curiae, in support of appellants’ position.

      John F. X. Finn, David M. Palley, Julius R. Oltarsh, Julius L. Neidle and Martin V. Callagy for respondents.
   Order affirmed and order absolute directed against appellants on the stipulation, with costs in all courts. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ.


text:
    Delancey Kosher Restaurant & Caterers Corp., Respondent, v. Phil Gluckstern et al., Appellants, et al., Defendants.
    Submitted April 21, 3954;
    decided April 23, 1954.

      William E. Haudek for motion for a stay.

      Kalman I. Nulman and Irving Schneider for motion to dismiss appeal and in opposition to motion for a stay.
   Motion and cross motion denied.


text:
    In the Matter of Dawn Operators, Inc., Appellant, against William A. Lyon, as Superintendent of Banks of the State of New York, Respondent.
    Submitted April 12, 1954;
    decided April 23, 1954.

      Samuel Bivelson for motions.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Adelbert C. Matthews, Jr., of counsel), opposed.
   Motions denied, with $10 costs.


text:
    Beatrice M. Montanye, Appellant, v. The People of the State of New York et al., Respondents.
    Submitted April 5, 1954;
    decided April 23, 1954.
   Motion for leave to appeal from the order of the Supreme Court, Oneida County, dated March 2, 1954, dismissed upon the ground that this court has no power to grant the relief requested. Appeal taken as of right from this order dismissed upon the ground that there is not solely involved a question under the Constitution. Motion, insofar as it seeks reargument in prior proceedings, denied. Motion, insofar as it seeks to reargue prior motions for leave to appeal, dismissed. Appeals as of right from orders and judgments dismissed.


text:
    The People of the State of New York, Respondent, v. Leonardo Salemi, Appellant.
    Submitted April 21, 1954;
    decided April 23, 1954.
   Motion for reargument of motion to amend remittitur and for stay of execution of judgment denied. [See 306 N. Y. 863.]


text:
    In the Matter of Helen McCarthy Rivette, an Attorney, Appellant. Association of the Onondaga County Bar, Respondent.
    Submitted April 19, 1954;
    decided April 23, 1954.

      Victor Levine for motion.

      Arthur W. Wilson opposed.
   Motion denied.


author: Desmond, J. Fuld, J.

text:
    In the Matter of the Voluntary Dissolution of Radom & Neidorff, Inc. David Radom, Appellant; Anna Neidorff, Respondent.
    Argued January 22, 1954;
    decided April 22, 1954.

      Stanley N. OMbaum for appellant.
    I. It was error to dismiss the petition without a hearing. (Cohen v. Dana, 287 N. Y. 405; Locke v. Pembroke, 280 N. Y. 430; Schafran & Finkel v. Loewenstein & Sons, 280 N. Y. 164, 280 N. Y. 687; MacMurray v. City of Long Beach, 292 N. Y. 286; Kane v. Walsh, 295 N. Y. 198; Dun & Bradstreet v. City of New York, 276 N. Y. 198; Wainwright & Page v. Burr & McAuley, 272 N. Y. 130; Condon v. Associated Hosp. Service, 287 N. Y. 411; Green v. Doniger, 300 N. Y. 238; Birnbaum v. Jamestown Mut. Ins. Co., 298 N. Y. 305.) II. Petitioner showed prima facie grounds for relief under section 103 of the General Corporation Law. (Winter v. American Aniline Products, 236 N. Y. 199; Peabody, Jr., & Co. v. Travelers’ Ins. Co., 206 App. Div. 206; Staten Is. Edison Corp. v. Maltbie, 296 N. Y. 374; People ex rel. Northchester Corp. v. Miller, 288 N. Y. 163.) III. The Appellate Division lacked power to make a final determination in favor of respondent dismissing the petition, in the absence of any hearing or findings of fact by the lower court. (Skinner v. Paramount Pictures, 294 N. Y. 474; Kroll v. Zimmerman, 274 App. Div. 1070; Marwede v. Commercial Hotel, 273 App. Div. 984; Cobb v. Mutual Life Ins. Co. of N. Y., 275 App. Div. 626; Klepper v. Canadian Pacific Ry. Co., 193 Misc. 808; Matter of Chapman, 162 N. Y. 456; Cuff v. Dorland, 57 N. Y. 560.) IV. The Appellate Division erred in entertaining the appeal from a mere order of reference to hear and report which meanwhile held the petition in abeyance pending the coming in of the Referee’s report. (Matter of Silaski, 175 App. Div. 199; Luttenberger v. Alpert Woodworking Corp., 252 App. Div. 862; Magalhaes v. Magalhaes, 254 App. Div. 880; Michel Cosmetics v. Tsirkas, 262 App. Div. 858; Manufacturers Trust Co. v. Madgo Realty Corp., 256 App. Div. 954;
      Carretta v. Evans, 254 App. Div. 773; Warshow v. Herron, 254 App. Div. 699; People ex rel. Keator v. Moss, 6 App. Div. 414; Stock v. Mann, 233 App. Div. 18; Matter of Wellman v. Lipkind, 226 App. Div. 106.) V. In any event, if clarification of the petition was deemed essential, it should not have been summarily dismissed with costs and disbursements without granting petitioner an opportunity to amend. VI. The order of reference of the Special Term was in every way proper under article 9 of the General Corporation Law. (Benintendi v. Kenton Hotel, 294 N. Y. 112; Matter of Gotham Tissue Corp. [Picola], 269 App. Div. 922; Matter of McLoughlin, 176 App. Div. 653; Matter of Numode Realty Co., 278 App. Div. 979; Matter of Hassam Paving Co., 152 App. Div. 610; Matter of Rateau Sales Co., 201 N. Y. 420; Matter of Cantelmo [Brewer], 275 App. Div. 231.) VII. Pendency of an equity suit is not a bar to dissolution. VIII. Corporate solvency and an engorged cash bank account are no bar to dissolution under section 103. IX. The incidental temporary stay at the end of the Special Term order was not an improper exercise of discretion under the circumstances; and in any event did not affect the propriety of the order of reference to hear and report under section 113 of the General Corporation Law. (Metropolitan Trust Co. v. Stallo, 166 App. Div. 639; Levy v. Pacific Eastern Corp., 154 Misc. 655; De La Vergne Mach. Co. v. New York & Brooklyn Brewing Co., 125 App. Div. 649; Matter of Seneca Oil Co., 153 App. Div. 594, 208 N. Y. 545; Pollak v. Long Is. Lighting Co., 246 App. Div. 765.)

      Charles H. Tuttle, Milton M. Eisenberg and Robert P. Knapp, Jr., for respondent.
    I. Radom’s appeal from those portions of the order of the Appellate Division which deny his motions for reargument and for leave to amend his petition should be dismissed. Those portions of the record which reproduce the papers submitted by Radom in support of those motions should be disregarded on this appeal. II. In no real or legal sense is the appellant aggrieved by the determination below. III. The order appealed from is discretionary. Hence the appeal should be dismissed. (Pietraroia v. New Jersey & H. R. Ry. & F. Co., 197 N. Y. 434; Ellensohn v. Keyes, 6 App. Div. 601; Howell v. Mills, 53 N. Y. 322; Wallace & Sons v. Castle, 68 N. Y. 370;
      Syracuse Sav. Bank v. Syracuse C. & N. Y. R. R. Co., 88 N. Y. 110; Jenkins v. Baker, 91 App. Div. 400; Decauville Automobile Co. v. Metropolitan Bank, 124 App. Div. 478; Uttal v. Uttal, 140 App. Div. 255; Muldoon v. Day, 146 App. Div. 873; Matter of Curtiss, 199 N. Y. 36.) IV. Upon the record before it the Appellate Division was furnished with more than sufficient facts to cause it to exercise its discretion in ordering the petition for voluntary dissolution dismissed. Moreover, the undisputed facts established that no case for dissolution existed under the applicable statute; that the dissolution would not have been “ beneficial to the stockholders ”, and that the order of the Supreme Court at Special Term exceeded the bounds of any discretionary power that may be claimed to exist in law. (Matter of Binghamton Gen. Elec. Co., 143 N. Y. 261; Matter of Dolgeville Elec. Light & Power Co., 160 N. Y. 500; Matter of Hamilton Park Co., 1 App. Div. 375; Matter of Tarrytown, White Plains & M. Ry. Co., 133 App. Div. 297; Matter of Cantelmo [Brewer], 275 App. Div. 231; Matter of Myer v. Myer, 272 App. Div. 888, 297 N. Y. 1038; Matter of George W. Anderson, Inc., 279 App. Div. 594; Matter of Pyrolusite Manganese Co., 29 Hun 429; Matter of Ehret, 70 Misc. 576.) V. Badom was not entitled in law to use this dissolution proceeding as the means of staying and killing the Kings County action theretofore brought against him by Mrs. Neidorff in the right of the corporation. VI. The Appellate Division’s reversal of the stay is not appealable as of right to this court. VTI. Inasmuch as the assignment of Mr. Justice Dickstein to Special Term, Part I, had expired without a hearing herein, over three years before issue was joined in this special proceeding by the filing of Mrs. Neidorff’s answering affidavit, his jurisdiction to have the proceeding and make the decision had also long since expired, irrespective of the interpretation of the parties’ stipulation. Nor could such jurisdiction be conferred by consent. (People v. Sullivan, 115 N. Y. 185; Matter of Jacobs v. Steinbrink, 242 App. Div. 197.)
   Desmond, J.

Badom & Neidorff, Inc., the proposed dissolution of which is before us here, is a domestic corporation which has, for many years, conducted, with great success, the business of lithographing or printing musical compositions. For some thirty years prior to February 18, 1950, Henry Neidorff, now deceased, husband of respondent Anna Neidorff, and David Radom, brother-in-law of Neidorff and brother of Mrs. Neidorff, were the sole stockholders, each holding eighty shares. Henry Neidorff’s will made his wife his executrix and bequeathed her the stock, so that, ever since his death, petitioner-appellant David Radom and Anna Neidorff, brother and sister, have been the sole and equal stockholders. Although brother and sister, they were unfriendly before Neidorff’s death and their estrangement continues. On July 17, 1950, five months after Neidorff’s death, Radom brought this proceeding, praying that the corporation be dissolved under section 103 of the General Corporation Law, the applicable part of which is as follows:

“ § 103. Petition in case of deadlock.

“Unless otherwise provided in the certificate of incorporation, if a corporation has an even number of directors who are equally divided respecting the management of its affairs, or if the votes of its stockholders are so divided that they cannot elect a board of directors, the holders of one-half of the stock entitled to vote at an election of directors may present a verified petition for dissolution of the corporation as prescribed in this article.”

That statute, like others in article 9 of the General Corporation Law, describes the situations in which dissolution may be petitioned for, but, as we shall show later, it does not mandate the granting of the relief in every such case.

The petition here stated to the court that the corporation is solvent and its operations successful, but that, since Henry Neidorff’s death, his widow (respondent here) has refused to co-operate with petitioner as president, and that she refuses to sign his salary checks, leaving him without salary, although he has the sole burden of running the business. It was alleged, too, that, because of “unresolved disagreements” between petitioner and respondent, election of any directors, at a stockholders’ meeting held for that purpose in June, 1950, had proved impossible. A schedule attached to the petition showed corporate assets consisting of machinery and supplies worth about $9,500, cash about $82,000, and no indebtedness except about $17,000 owed to petitioner (plus his salary claim). Mrs. Neidorff’s answering papers alleged that, while her husband was alive, the two owners had each drawn about $25,000 per year from the corporation, that, shortly after her husband’s death, petitioner had asked her to allow him alone to sign all checks, which request she refused, that he had then offered her $75,000 for her stock, and, on her rejection thereof, had threatened to have the corporation dissolved and to buy it in at a low price or, if she should be the purchaser, that he would start a competing business. She further alleged that she has not, since her husband’s death, interfered with Radom’s conduct of the business and has signed all corporate checks sent her by him except checks for his own salary which, she says, she declined to sign because of a stockholder’s derivative suit brought by her against Radom, and still pending, charging him with enriching himself at this corporation’s expense.

Because of other litigation now concluded (see Matter of Radom, 305 N. Y. 679) to which Mrs. Neidorff was not a party, but which had to do with a contest as to the ownership of the Radom stock, respondent’s answering papers in this dissolution proceeding were not filed until three years after the petition was entered. From the answering papers it appears, without dispute, that for those three years, the corporation’s profits before taxes had totaled about $242,000, or an annual average of about $71,000, on a gross annual business of about $250,000, and that the corporation had, in 1953, about $300,000 on deposit in banks. There are many other accusations and counteraccusations in these wordy papers, but the only material facts are undisputed: first, that these two equal stockholders dislike and distrust each other; second, that, despite the feuding and backbiting, there is no stalemate or impasse as to corporate policies; third, that the corporation is not sick but flourishing; fourth, that dissolution is not necessary for the corporation or for either stockholder; and, fifth, that petitioner, though he is in an uncomfortable and disagreeable situation for which he may or may not be at fault, has no grievance cognizable by a court except as to the nonpayment of his salary, hardly a ground for dissolving the corporation.

Special Term held that these papers showed a basic and irreconcilable conflict between the two stockholders requiring dissolution, for the protection of both of them, if the petition’s allegations should be proven. An order for a reference was, accordingly, made, but respondent appealed therefrom, and no hearings were held by the Referee. The Appellate Division reversed the order and dismissed the petition, pointing out, among other things, that not only have the corporation’s activities not been paralyzed but that its profits have increased and its assets trebled during the pendency of this proceeding, that the failure of petitioner to receive his salary did not frustrate the corporate business and was remediable by means other than dissolution. The dismissal of the proceeding was “ without prejudice, however, to the bringing of another proceeding should deadlock in fact arise in the selection of a board of directors, at a meeting of stockholders to be duly called or if other deadlock should occur threatening impairment or in fact impairing the economic operations of the corporation.” (282 App. Div. 854.) Petitioner then appealed to this court.

It is worthy of passing mention, at least, that respondent has, in her papers, formally offered, and repeated the offer on the argument of the appeal before us, to have the third director named by the American Arbitration Association, any Bar Association or any recognized and respected public body ”.

Clearly, the dismissal of this petition was within the discretion of the Appellate Division (General Corporation Law, § 106; Matter of Cantelmo [Brewer], 275 App. Div. 231; Matter of Myer v. Myer, 272, App. Div. 888, motion for leave to appeal denied 297 N. Y. 1038). There is no absolute right to dissolution under such circumstances. Even when majority stockholders file a petition because of internal corporate conflicts, the order is granted only when the competing interests are so discordant as to prevent efficient management” and the object of its corporate existence cannot be attained ” (Hitch v. Hawley, 132 N. Y. 212, 221; see Matter of Niagara Ins. Co., 1 Paige Ch. 258). The prime inquiry is, always, as to necessity for dissolution, that is, whether judicially-imposed death “ will be beneficial to the stockholders or members and not injurious to the public ” (General Corporation Law, § 117; Hitch v. Hawley, supra; 1944 Report of N. Y. Law Revision Commission, p. 354, also cases from other jurisdictions cited in that report in the footnotes to p. 363; Matter of Pyrolusite Manganese Co., 29 Hun 429; Matter of George W. Anderson, Inc., 104 N. Y. S. 2d 184, affd. 279 App. Div. 594). Taking everything in the petition as true, this was not such a case, and so there was no need for a reference, or for the talcing of proof, under sections 106 and 113 of the General Corporation Law.

The order should be affirmed, with costs.

Fuld, J.

(dissenting). Section 103 of the General Corporation Law, insofar as here relevant, permits a petition for dissolution of a corporation by the holders of one half of the shares of stock entitled to vote for directors “ if the votes of its stockholders are so divided that they cannot elect a board of directors ”. That is the precise situation in the case before us, for the petition explicitly recites that petitioner Badom and respondent Neidorff “ are hopelessly deadlocked with respect to the management and operation of the corporation ” and that serious disputes have developed between them with the result that “ the votes of the two stockholders are so divided that they cannot elect a Board of Directors.”

The court is given discretion, by section 106 of the General Corporation Law, to “entertain or dismiss the application” for dissolution. And, the statute continues, “ Where it entertains the application * * * the court must make an order, requiring all persons interested in the corporation to show cause before it, or before a referee designated in the order * * * why the corporation should not be dissolved.” (Italics supplied.) In this case, the court (per Greenberg, J.) did, in its discretion, “entertain” the application, and it did, on July 18, 1950, make the specified order requiring all parties interested to show cause why the corporation should not be dissolved. No motion was then made to dismiss the petition for insufficiency in law or for any other reason, and neither at that time nor at any other did respondent object to the order to show cause or seek to set it aside on the ground that the facts alleged were legally insufficient. The petition having been filed (§ 103) and the application having been entertained (§ 106), the legislature prescribed in section 113 that the court or the referee “ must hear the allegations and proofs of the parties, and determine the facts.” (Emphasis supplied.) And on June 15, 1953 — following stipulated adjournments — another justice at Special Term (Dicksteiít, J.), in accordance with the statutory mandate of section 113, appointed a referee to hear and report.

That reference was obligatory and should have gone forward. True, once a hearing has been had, the petition may, in the discretion of the court, be dismissed. (See Matter of Cantelmo [Brewer], 275 App. Div. 231; Matter of Myer v. Myer, 272 App. Div. 888, motion for leave to appeal denied 297 N. Y. 1038.) But, if the jurisdictional requirements of section 103 are satisfied and a show cause order under section 106 has issued, then, the legislature has made it clear, the court is powerless to order a dismissal until the facts have been heard and the issues decided. (General Corporation Law, § 113; see Matter of Quicksilver Min. Co., 186 App. Div. 347, 349; Matter of Acker & Jablow, Inc., 124 N. Y. S. 2d 298, affd. 282 App. Div. 941.) And no case, in the Court of Appeals or in any Appellate Division, has held otherwise. (See, for example, cases cited by court, supra, p. 7; Matter of Cantelmo [Brewer], supra, 275 App. Div. 231; Matter of Myer v. Myer, supra, 272 App. Div. 888, motion for leave to appeal denied 297 N. Y. 1038, where hearings were held.) For that reason, the order under review should be reversed.

I would not, however, rest decision on that ground alone. Even if the Appellate Division possessed the power to dismiss the petition without a hearing, its decision in" this case constitutes a gross abuse of discretion. "Whether petitioner will be able to sustain his claims, I do not know, but it seems exceeding plain that he has alleged more than enough to entitle him to a hearing and to an opportunity to present his proofs. (See, e.g., Matter of Acker & Jablow, Inc., supra, 124 N. Y. S. 2d 298, affd. 282 App. Div. 941; Matter of Numode Realty Co., 278 App. Div. 979; Matter of Lynch, 54 N. Y. S. 2d 111.)

For upwards of thirty years, petitioner Badom and Henry Neidorff, respondent’s husband, shared equally in the ownership and management of Badom & Neidorff, Inc. Through all that time, their relationship was harmonious as well as profitable. Neidorff died in 1950, at which time respondent, through inheritance, acquired her present 50% stock interest in the business. Since then, all has been discord and conflict. The parties, brother and sister, are at complete loggerheads; they have been unable to elect a board of directors; dividends have neither been declared nor distributed, although the corporation has earned profits; debts of the corporation have gone unpaid, although the corporation is solvent; petitioner, who since Neidorff’s death has been the sole manager of the business, has not received a penny of his salary — amounting to $25,000 a year — because respondent has refused to sign any corporate check to his order. More, petitioner’s business judgment and integrity, never before questioned, have been directly attacked in the stockholder’s derivative suit, instituted by respondent, charging that he has falsified the corporation’s records, converted its assets and otherwise enriched himself at its expense. Negotiations looking to the purchase by one stockholder of the other’s interest were begun — in an effort to end the impasse — but they, too, have failed.

In very truth, as petitioner states in his papers, ‘ ‘ a corporation of this type, with only two stockholders in it, cannot continue to operate with incessant litigation and feuding between the two stockholders, and with differences as fundamental and wholly irreconcilable as are those of Mrs. Neidorff and myself. * * * settlement of these differences cannot be effected, while continuance on the present basis is impossible, so that there is no alternative to judicial dissolution.” Indeed, petitioner avers, in view of the unceasing discord and the fact that he has had to work without salary and advance his own money to the corporation, he does not, whether or no dissolution be granted, “ propose to continue to labor in and operate this business ”.

It is, then, undisputed and indisputable that the stockholders are not able to elect a board of directors. In addition, it is manifest, on the facts alleged, that the Supreme Court could find that the stockholders are hopelessly deadlocked vis-a-vis the management of the corporation; that the corporation cannot long continue to function effectively or profitably under such conditions; that petitioner’s resignation as president and manager — which he contemplates — will be highly detrimental to the interests of both corporation and stockholders and cannot help but result in substantial loss; and that petitioner is not responsible for the deadlock that exists. In such circumstances, the requisite statutory hearing may well establish that dissolution is indispensable, the only remedy available. As the high court of New Jersey recently declared, in applying to somewhat comparable facts a statute similar to section 103 of our General Corporation Law (Matter of Collins-Doan Co., 3 N. J. 382, 396), In the case at hand, there is a want of that community of interest essential to corporate operation. Dissolution will serve the interests of the shareholders as well as public policy. * * * And, if the statutory authority be deemed discretionary in essence, there is no ground for withholding its affirmative exercise here, for there is no alternative corrective remedy. * * * The dissension is such as to defeat the end for which the corporation was organized.” (Emphasis supplied.)

Here, too, the asserted dissension, the court could find, permits of no real or effective remedy but a section 103 dissolution. And that is confirmed by a consideration of the alternatives seemingly open to petitioner. He could remain as president and manager of the corporation, without compensation, completely at odds with his embittered sister — certainly neither a natural nor a satisfying way in which to conduct a business. Or he could carry out his present plan to quit the enterprise — and thereby risk a loss, to corporation and stockholders, far greater than that involved in terminating the business. Or he could, without quitting, set up a competing enterprise — and thereby expose himself to suit for breach of fiduciary duty to the corporation. (Cf. Duane Jones Co. v. Burke, 306 N. Y. 172.) It is difficult to believe that the legislature could have intended to put one in petitioner’s position to such a choice. Reason plainly indicates, and the law allows, the reasonable course of orderly dissolution pursuant to section 103.

Respondent, however, suggests that, in view of the fact that petitioner is managing the business profitably, he should continue to do so, defend against the stockholder’s suit which she brought attacking his honor and integrity and himself start an action for the compensation denied him for more than three years. But, it seems self-evident, more and further litigation would only aggravate, not cure, the underlying deadlock of which petitioner complains. (See Saltz v. Saltz Bros., 84 F. 2d 246, certiorari denied 299 U. S. 567.) And, if he were to bring the suggested suit for salary due him, the question arises, whom should he sue, and who is to defend? The mere proposal that petitioner embark on a series of actions against the corporation, of which he is president and half owner, indicates the extent of the present impasse, as well as the futility of perpetuating it. The same is true of the other alternative suggested by respondent, namely, that the third of the three directors, required by section 5 of the Stock Corporation Law, be appointed by an impartial party. The deadlock of which petitioner complains is between the stockholders, not the directors, and, when stockholders are deadlocked, section 103 calls for dissolution, not arbitration. Beyond that, and even if the offer to elect an impartial director were relevant, it would still be necessary to inquire when it was made and under what circumstances. It does not justify, alone or in conjunction with the other facts, a summary dismissal of the proceeding without a hearing.

Although respondent relies on the fact that the corporation is now solvent and operating at a profit, it is manifest that, if petitioner carries out his plan to resign as president and quits the business, there may be irreparable loss, not alone to him and respondent, as the owners of the corporation, but also to the corporation’s creditors. Quite apart from that, however, the sole issue under section 103 is whether there is a deadlock as to the management of the corporation, not whether business is being conducted at a profit or loss. (See Benintendi v. Kenton Hotel, 294 N. Y. 112,118; Matter of Acker & Jablow, Inc., supra, 124 N. Y. S. 2d 298, affd. 282 App. Div. 941; Matter of Gotham Tissue Corp., 269 App. Div. 922; Matter of Bob’s Fashion Furrier’s, 52 N. Y. S. 2d 279; Saltz v. Saltz Bros., supra, 84 F. 2d 246, certiorari denied 299 U. S. 567; Bowen v. Bowen-Romer Flour Mills Corp., 114 Kan. 95; Matter of Collins-Doan Co., supra, 3 N. J. 382; Post-Standard Co. v. Evening Journal Assn., 15 N. J. Super. 58, 67; Nashville Packet Co. v. Neville, 144 Tenn. 698; Boothe v. Summit Coal Min. Co., 55 Wash. 167; Matter of Yenidje Tobacco Co., Ltd., [1916] 2 Ch. 426; see, also, Israels, “ The Sacred Cow of Corporate Existence Problems of Deadlock and Dissolution ”, 19 U. of Chi. L. Rev. 778; Note, 50 Col. L. Bev. 100.) Whether the petition should or should not be entertained surely cannot he made to turn on proof that the corporation is on the verge of ruin or insolvency.

Insolvency may be a predicate for dissolution, hut not under section 103. By virtue of other provisions of Article 9 of the General Corporation Law — sections 101 and 102 — directors and stockholders may seek dissolution, when the corporation is insolvent, in order to prevent further loss to the owners and creditors. Section 103, however — which hears the title, “ Petition in case of deadlock” — was designed to serve a far different purpose. As amended in 1944, upon the recommendation of the Law Bevision Commission, that section provides for dissolution “ if the votes of its stockholders are so divided that they cannot elect a hoard of directors ”. Nothing in the statute itself or in its legislative history suggests that a “ petition in case of deadlock ” must wait until the corporation’s profits have dried up and financial reverses set in. Had the commission or the legislature intended to incorporate such a qualification into section 103, it could readily have done so. The only test envisaged by the commission, however, was that which the legislature enacted (see 1944 Report of N. Y. Law Revision Commission, N. Y. Legis. Doc., 1944, No. 65[K], pp. 5-7), and a court may not import any other.

Nor does section 117 require or suggest any contrary conclusion. That section provides that if — after a hearing (§ 116) — it shall appear “ that a dissolution will he beneficial to the stockholders * * * and not injurious to the public, the court must make a final order dissolving the corporation ”. It would certainly be “ beneficial ” to dissolve the corporation if the court were to find that there is a continuing, irreparable stalemate in the corporate management, for which petitioner is not primarily at fault. Indeed, in Benintendi v. Kenton Hotel (supra, 294 N. Y. 112, 118), this court did not even impose those limitations, when it declared that “ The Legislature has decided that a vote of a majority of the shares, or half of them in case of a deadlock, is sufficient to force a dissolution(Emphasis supplied.) Be that as it may, though, the issue here is, not the propriety of dissolution, but petitioner’s right to be heard on that question. (See, e.g., Matter of Acker & Jablow, Inc., supra, 124 N. Y. S. 2d 298, affd. 282 App. Div. 941; Matter of Gotham Tissue Corp., supra, 269 App. Div. 922.) In advance of that hearing and in the light of the plain language of section 103, we may not say that dissolution could, under no conceivable set of circumstances, be “ beneficial to the stockholders ”, unless it also appears that it would enable the corporation to avoid pecuniary loss.

Until there has been a hearing, it is impossible to decide that “ dissolution is not necessary ” or that “ there is no stalemate or impasse as to corporate policies ” (opinion, p. 6). In point of fact, petitioner expressly denies both of these allegations; and, despite respondent’s protestations, it is significant that she has not pointed to even one matter on which she and petitioner have agreed. Nor may we take at face value respondent’s claim that she is willing to defer to petitioner’s business judgment in the future. It is, to say the least, highly implausible that she is willing and even anxious to have her affairs managed by a person whom she has charged with deliberate fraud, conversion and mismanagement. As the court said in Matter of Yenidje Tobacco Co., Ltd. (supra, [1916] 2 Ch. 426, 431) — which also involved the dissolution of a deadlocked two-man corporation —‘ When one of the two partners has commenced, and has not discontinued, an action charging his co-partner with fraud * * * is it likely, is it reasonable, is it common sense, to suppose those two partners can work together in the manner in which they ought to work in the conduct of the * * * business?” And, even if it is “likely” that these two persons, petitioner and respondent, can work together, the issue should not, and may not, be resolved before it has even been heard.

The court’s decision seems to compel petitioner to abandon the management of the enterprise as a condition to his seeking dissolution. I find no basis in the statute or elsewhere for requiring that irreparable injury must occur before resort may be had to the remedy designed to avert it.

The order of the Appellate Division should be reversed and that at Special Term affirmed.

Conway, Dye and Van Voorhis, JJ., concur with Desmond, J.; Fuld, J., dissents in opinion in which Lewis, Ch. J., and Feoessel, J., concur.

Order affirmed. [See 307 N. Y. 701.]

      . In this connection, it is, perhaps, of some moment that, according to petitioner, he is the sole officer and director of the corporation (cf. Civ. Trae. Act, § 228).


author: Conway, J. Van Voorhis, J.

text:
    In the Matter of the Claim of Frank Penzara, Respondent, against Maffia Brothers et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued March 3, 1954;
    decided April 23, 1954.

      8. Chandler Fraser for appellants.
    The accident did not “ arise out of ” the employment. (Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter of Cooley v. Heaney Co., 249 N. Y. 395;
      Matter of Smith v. Parkchester Gen. Hosp., 293 N. Y. 824; Matter of Lovett v. Buck, 285 N. Y. 526; Matter of Weir v. Board of Educ., 282 N. Y. 709; Matter of Clark v. Voorhees, 231 N. Y. 14; Matter of De Salvio v. Menihan Co., 225 N. Y. 123; Matter of Shultz v. Nation Associates, 281 App. Div. 915; Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443; Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85; Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597, 302 N. Y. 950; Matter of Dodge v. Wm. J. Keller, Inc., 304 N. Y. 792; Matter of Block v. Camp Shows, 272 App. Div. 980, 297 N. Y. 1032.)

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown, Roy Wiedersum and Gilbert M. Landy of counsel), for Workmen’s Compensation Board, respondent.
    The accidental injuries which claimant sustained arose out of his employment. (Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597, 302 N. Y. 950; Matter of Block v. Camp Shows, 272 App. Div. 980, 297 N. Y. 1032; Matter of Polski v. U. S. O. Camp Shows, 272 App. Div. 1094; McCarthy v. Remington Rand, 275 App. Div. 866, 300 N. Y. 715; Matter of Davis v. Newsweek Magazine, 305 N. Y. 20; Matter of Gabunas v. Pan Amer. Airways, 279 App. Div. 697; Matter of de Santis v. U. S. O. Camp Shows, 275 App. Div. 880, 299 N. Y. 798; Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N. Y. 461; Matter of Lyons v. U. S. O. Camp Shows, 298 N. Y. 897; Matter of Scott v. U. S. O. Camp Shows, 298 N. Y. 896; Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443; Matter of Miles v. Gibbs & Hill, 250 N. Y. 590; Matter of Lang v. Franklin Ry. Supply Co., 272 App. Div. 988, 297 N. Y. 1036; Matter of Franck v. Allen, 270 App. Div. 960; Matter of Pedersen v. Nelson, 267 App. Div. 843.)
   Conway, J.

The facts in this ease are not in dispute: the sole issue is whether the injury arose out of and in the course of claimant’s employment.

At the time of the injury claimant was a handyman ” employed in an automobile supply and machine shop. His duties included the repair of brake linings, turning down drums, and other matters concerning automobile parts and their sale and delivery to customers. His hours of work were from 9:30 a.m. to 5:30 p.m. on Mondays through Fridays, and usually from 9:30 a.m. to 3:30 p.m. on Saturdays. Irrespective, however, of whether or not there was work to do, claimant was required to remain at the shop until the closing time.

When things in the shop were slow, claimant was permitted by the employer to work on his own car using the shop’s facilities. This use of the employer’s time and tools was permitted whenever there was slack time. It was not limited to after-working hours. The employer testified that he not only permitted the use of his tools by the claimant for the latter’s personal benefit during non-busy working hours, but that he also supplied, and paid for the parts used by the claimant in such work. The employer no doubt felt that that improved the employee-employer relationship.

On May 23, 1951, claimant had some slack time at about 5:00 p.m. and was spending it fashioning a spring steel clip for use in the glove compartment of his automobile. The clip slipped out of a vise and struck him in the left eye causing a traumatic cataract and lacerated cornea.

On the oral argument the appellants conceded (1) that the employer knew that claimant used slack time to work on personal projects; (2) that the employer permitted claimant to use the tools in the machine shop for those purposes; (3) that the employer testified that he supplied and paid for such parts as claimant used in those slack-time activities; (4) that claimant was required to remain on the premises until quitting time (about one-half hour after the injury), and (5) that the injury took place while claimant, before quitting time (or, as he testified, while he “was waiting for this one job to come in”) was using the tool for the purpose permitted.

The referee and the compensation board have found that the injury here arose out of and in the course of claimant’s employment. The Appellate Division has affirmed.

In Matter of Davis v. Newsweek Magazine (305 N. Y. 20) this court made an extensive review of earlier decisions. Referring to cases similar to the present one (e.g., Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597, motion for leave to appeal denied 302 N. Y. 950; Matter of Block v. Camp Shows, 272 App. Div. 980, motion for leave to appeal denied 297 N. Y. 1032) we said (pp. 27-28): “ Careful examination of these cases reveals that there is one operative factor common to all. In each and every instance the employee had been directed, as part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time. In those circumstances, the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.” (Emphasis in original.)

Here, the evidence indicates that the activities of claimant come directly within the meaning and intent of that passage. Further, claimant was not only required to remain in the shop even though there was no work to be done, but he had the permission of his employer to continue a practice in which the employer aided by furnishing supplies. Apparently claimant was using the same tools when he was injured that he used while doing work for his employer. Any risks he took were the same as those which faced him every day. The injury resulted from such a risk. We cannot say as a matter of law that his injury arose outside of the course of his employment.

The order of the Appellate Division should be affirmed, with costs.

Van Voorhis, J.

(dissenting). In my view, the injury to claimant’s eye did not arise out of and in the course of his employment. The employers are two brothers operating a small automobile supply and machine shop. Claimant was employed as a handyman. On the day in question, while he was bending in a vise a spring clip for the glove compartment of his automobile, the spring slipped injuring his left eye. He was working upon his own automobile, not used in the service of his employers.

Although this accident happened at five o’clock and he was required to remain upon his employers’ premises until the shop closed at 5:30 in the afternoon, and he was permitted to work on his own car when there was nothing else for him to do, it seems to me that while he was engaged in promoting a personal object of his own which was unrelated to his employers’ business, he was not acting in the course of his employment. In numerous decisions it has been held that an injury is not compensable if it occurs while an employee is pursuing some personal object not related to his work (Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85; Matter of Smith v. Parkchester Gen. Hosp., 293 N. Y. 824; Matter of Lovett v. Buck, 285 N. Y. 526; Matter of Weir v. Board of Educ., 282 N. Y. 709; Matter of Clark v. Voorhees, 231 N. Y. 14; Matter of Di Salvio v. Menihan Co., 225 N. Y. 123; Matter of Shultz v. Nation Associates, 281 App. Div. 915).

Here the employee was not idling to pass the time because the conditions of Ms employment required him merely to be present either at the shop or in some distant place (Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597; Matter of Polski v. U. S. O. Camp Shows, 272 App. Div. 1094). The injury resulted directly from a hazardous operation wMch claimant undertook on Ms own account in repairing his own automobile. If the spring flying from the vise had Mt someone else in the eye, the employers could not have been held liable to a tMrd person in negligence upon any theory that claimant was then acting in their service (Fluegel v. Coudert, 244 N. Y. 393). Where an employee in furtherance of some object of his own perpetrates an assault upon a third person, it is held that he has departed from the scope of Ms employment, although the occurrence happens while he is on his employer’s time (Sauter v. New York Tribune, 305 N. Y. 442).

It seems to me to be immaterial that claimant was using the employers’ facilities and that the spring which he was bending had been given to Mm by the employers.

The situation may be different where an employee becomes the victim of horseplay by fellow employees (Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443). The principle upon which the horseplay cases have been held to be compensable is that an employer, cognizant of the tendency of persons brought together by employment to play pranks upon one another, is responsible for resulting injury done to the victim as a natural incident of the work. Those cases have no application to the present situation where the injury has resulted from a purposeful act of the claimant Mmself to accomplish something which is admitted to have been solely for his own advantage. This accident no more arose out of and in the course of his employment than would have been the case if the same incident had happened while he was repairing his automobile in his own back yard (Matter of Heitz v. Ruppert, 218 N. Y. 148, 151). The test prescribed by the leading case just cited is that the injury must be received while the workman is doing the duty he was required to perform as a natural incident of the work. The circumstance that his employers were aware of what he was doing without objecting, does not bring the accident within the coverage of the statute.

The cases holding that there is liability for compensation where injury occurs during organized games or other recreational activity planned by the employer as a fringe benefit to employees, bear no analogy to the present situation (Matter of Tedesco v. General Elec. Co., 305 N. Y. 544; Matter of Wilson v. General Motors Corp., 298 N. Y. 468). The employers did not organize this activity for claimant; he simply chose to work on his own automobile when there was no work to do for them. The mere fact that it occurred while he was on their time does not make it an activity that he was employed to perform or a natural incident of his regular work.

The order appealed from should be reversed and the claim dismissed.

Lewis, Oh. J., Desmond, Dye, Fuld and Froessel, JJ., concur with Conway, J.; Van Yoorhis, J., dissents in opinion.

Order affirmed.


author: Froessel, J. Dye, J.

text:
    Wilson Sullivan Company, Inc., Appellant, v. International Paper Makers Realty Corporation, Respondent.
    Argued March 12, 1954;
    decided April 23, 1954.

      Bernard Ellenbogen and Meyer A. Jeneroff for appellant.
    I. As a matter of law, the Appellate Division erred in considering this an action for commissions rather than one for damages for breach of contract due to wrongful discharge. II. Nowhere in this contract is there any provision, express or implied, terminating this contract upon a sale of the building. Absent such provision, plaintiff has a good cause of action for wrongful discharge. (Parsil v. Emery, 242 App. Div. 653; Hudak v. Hornell Industries, 304 N. Y. 207; Vail v. Jersey Little Falls Mfg. Co., 32 Barb. 564; Fisher v. City of Mechanicville, 225 N. Y. 210; Greenberg v. Remick & Co., 230 N. Y. 70; Mandel v. Liebman, 303 N. Y. 88; Tel-Hotel Corp. v. Lexnott Corp., 205 Misc. 576; Wells v. Alexandre, 130 N. Y. 642.) III. There can be no ambiguity in a contract on a subject that is not even mentioned therein. IV. If there be no ambiguity in the contract, there is no need for its interpretation. Its legal effect is then a pure question of law for the court. V. The courts below have improperly rewritten this contract of employment. (Rosenthal v. American Bonding Co., 207 N. Y. 162; Matter of Loew’s Buffalo Theatres, 233 N. Y. 495.) "VI. The courts below erred in failing to apply the fundamental rule that contracts terminate on their expiration date, absent any provision to the contrary. They should not have dismissed the complaint herein for insufficiency. VII. Plaintiff’s motion for a summary judgment should be granted. In the absence of ambiguity, no extrinsic evidence, including that of practical construction, is available to vary the terms of this employment agreement. The same should be enforced as written. (Brainard v. New York Central R. R. Co., 242 N. Y. 125; Hopwood Plays, Inc., v. Kemper, 263 N. Y. 380; General Phoenix Corp. v. Cabot, 300 N. Y. 87; Heller & Henretig v. 3620-168th St. Corp., 302 N. Y. 326; Barrand v. Quinn, 277 App. Div. 938, 302 N. Y. 744.) VIII. Computation of plaintiff’s damage is a matter of simple mathematics. No issue of fact is presented and no assessment of damage is required. (Ware Bros. Co. v. Cortland Cart & Carriage Co., 192 N. Y. 439.)

      Charles J. Tobin, Jr., and William J. Roberts for respondent.
    I. By its terms the contract clearly provided that it was to be effective only as long as defendant owned the building. II. The intent of the parties and the meaning of the contract should be determined from a consideration of the contract in its entirety. (Fleischman v. Furgueson, 223 N. Y. 235; Paige v. Faure, 229 N. Y. 114.) III. If it be assumed that a good faith sale of the building does not terminate defendant’s liabilities under the contract, the terms of the contract do not permit the fixing of liability upon the basis argued by plaintiff. (Bers v. Erie R. R. Co., 225 N. Y. 543; Lehman v. Reiner, 126 Misc. 465; Baker v. Schleyer, 233 App. Div. 584, 260 N. Y. 673; Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1.) IV. Any ambiguity in the contract must be construed against plaintiff who drew the instrument. (Gillet v. Bank of America, 160 N. Y. 549.) V. Failure on the part of plaintiff to allege bad faith on the part of defendant in defendant’s sale of the building renders the complaint fatally defective. (Du Boff v. Matam Corp., 272 App. Div. 502; Matter of United Cigar Stores Co., 72 F. 2d 673; Gray & Co. v. Western Borax Co., 99 F. 2d 239; Petroleum Frgt. Lines Corp. v. Better Gas & Oil Co., 157 Misc. 1; Wells v. Alexandre, 130 N. Y. 642; Atwater & Co. v. Terminal Coal Corp., 32 F. Supp. 178, 115 F. 2d 887; Knight v. Emmons Bros. Co., 181 App. Div. 751; Natural Home Products Co. v. Union Carbide & Carbon Corp., 281 App. Div. 604, 306 N. Y. 638.) VI. Should it be determined that the complaint herein is sufficient in law, there remain triable issues of fact. (Gale v. Frost-Anderson Sales Co., 216 App. Div. 780.)
   Froessel, J.

On November 1, 1946, plaintiff and defendant entered into a written agreement whereby defendant “ employ [ed] and appoint [ed] ” plaintiff as exclusive renting and managing agent of the building ” owned by defendant. Plaintiff was to receive, among other compensation for its services, 5% of the total amount of rental collections from the building. The duration and provisions for termination of this agreement were provided for in its seventh paragraph, which reads, in part: “ The agreement * * * shall continue in full force and effect until last day of February 1948, and, if not then terminated by either party giving to the other thirty (30) days prior notice in writing, shall continue from year to year until terminated by either party at the end of any extended yearly term, by the giving of a like notice ”.

Up to June 1, 1949, neither party had exercised its power of termination. But during June of that year defendant notified plaintiff it intended to sell the building in question, and that it expected to terminate their contract with respect to the management thereof when transfer of title to the new owners was completed. On or about June 30, 1949, eight months before the contract’s provisions permitted termination, defendant did sell the building.

Plaintiff contends that since the agreement had not been terminated in February, 1949, it had a contractual right until February, 4950, to continue its duties as defendant’s exclusive renting and management agent, and to receive the stipulated compensation therefor. By selling the building, plaintiff urges, defendant breached its duty under the contract to employ plaintiff as agent, at least until February, 1950, for which breach defendant must respond in damages. Defendant, on the other hand, maintains that since all of plaintiff’s services were to be performed in connection with this particular building, defendant’s duty to employ plaintiff therein was subject to the implied condition that defendant continue to own the building.

At the outset we should sharply distinguish between the parties’ powers, rights and duties arising under the contract itself, and those arising under the agency relationship created by the contract. It is well settled that, with but a few exceptions not pertinent to the facts of this case, a principal has the power to revoke at any time his agent’s authority to represent him. This is not to say, however, that in doing so he is immune from liability to the agent for breach of contract (see Prescott v. Buffalo Fire Appliance Corp., 237 App. Div. 198, affd. 262 N. Y. 475; Janvier, Inc., v. Baker, 229 App. Div. 679). Thus, while defendant had the power to terminate at will its agency relationship with plaintiff, if in so doing it violated its obligations under the contract, it must respond to plaintiff in damages (1 Mechem on Agency [2d ed.], § 568; 2 Am. Jur., Agency, § 37; Note, 38 L. R. A. [N. S.] 366; Restatement, Agency, §§ 118, 450; Williston on Contracts, § 279, cf. § 280). As was said in the old English case of Toppin v. Healey (11 Weekly Repr. 466, 467 [1863] ; 1 New Rep. 326, 327): You may revoke an authority although you cannot revoke a contract.”

Obviously, then, the central issue of the case is whether under the terms of this management agreement defendant had the right to terminate the agreement by selling the building which the plaintiff was to manage. The agreement itself fully sets forth in clear and unambiguous language the respective parties’ rights and duties. But it does not in any of its clauses give defendant the right to terminate by disposing of the building. By the clear and explicit language of the seventh paragraph, quoted above, it appears that the contract can come to an end by act of the parties only on the last day of February of any renewal year, after thirty days’ prior written notice of termination. In that provision there is no ambiguity, nor is there any language which we could reasonably construe to grant defendant an additional right to terminate by selling the building.

Defendant agrees that “ no ambiguity exists in the present contract ”, yet urges that when read as a whole, the agreement implies that it was designed and drawn with the sole idea that defendant would have a right to terminate it by selling the building. A simple answer is that since no such term expressly appears, it cannot be supplied by the courts under the guise of construction or interpretation, their power being limited to giving effect only to the parties’ expressed intent (Friedman v. Handelman, 300 N. Y. 188, 194; Matter of Loew’s Buffalo Theatres, 233 N. Y. 495, 501; Rosenthal v. American Bonding Co., 207 N. Y. 162, 168-169; Dwight v. Germania Life Ins. Co., 103 N. Y. 341, 347-348; Zimmermann v. Loft, 125 App. Div. 725, 729; Donavin v. Thurston, 190 App. Div. 48, 50; Williston on Contracts, § 610). We “ concern ourselves with what the parties intended, but only to the extent that they evidenced what they intended by what they wrote ” (Raleigh Associates v. Henry, 302 N. Y. 467, 473). Here they wrote that the agreement shall continue in full force and effect ” until terminated as specifically provided therein.

Moreover, we have previously held that when A enters into a contract whereby B is to provide A for a stated period of time with goods or services, which both parties realize are for use in a particular enterprise owned by A, in the absence of a specific clause so providing, A cannot escape his obligations under that contract by voluntarily selling his interest in the enterprise before the expiration of the expressed contract term (Hudak v. Hornell Industries, 304 N. Y. 207; Wells v. Alexandre, 130 N. Y. 642; see Parsil v. Emery, 242 App. Div. 653; Tel-Hotel Corp. v. Lexnott Corp., 205 Misc. 576; see, also, Carouso v. Empire Case Goods Co., 271 App. Div. 149, affd. 297 N. Y. 514).

In the Hudak case (supra), defendant employer contracted to hire plaintiffs to work in defendant’s business for a full year at a stipulated weekly wage. We there held that despite its voluntary sale of the business before the contract term had expired, defendant was still bound by its contractual obligations to the plaintiffs. Likewise, in the case at bar, where defendant contracted to give plaintiff an exclusive management and renting agency until at least February, 1950, its voluntary sale of the building in June, 1949, could not release defendant from the express terms of its agreement with plaintiff.

Defendant attempts to distinguish the Hudak case (supra) on the ground that there, an employer-employee relationship existed, whereas here, plaintiff does not hold the status of an ‘ ‘ employee ’ ’. It should be noted in passing that the agreement here specifically states that defendant employs ” plaintiff and that plaintiff accepts employment”. More important, however, such an attempted distinction is immaterial in this case, because, as already pointed out, the decision here must turn upon the terms of the yarties’ contract, not upon the abstract nature of the relationship created by that contract, whether denominated as employment or agency. Cases cited by defendant which involve the peculiar requirements ” or “ output ” type of contract are not apposite here.

Defendant finally contends that there is no ground for imposing liability against it because plaintiff rendered no services after July 1, 1949, and made no collections from which plaintiff’s 5% commission could be taken. However, plaintiff’s action is not to collect earned commissions; rather, it is for damages resulting from defendant’s breach of contract, which damages are measured by the commissions plaintiff would have earned but for the breach, less the expenses plaintiff would have incurred in performing its part of the contract (Eestatement, Agency, § 445 and comment a thereunder). Defendant, after having voluntarily sold the building, thereby preventing plaintiff’s collection of the rentals, cannot now assert the fact of no collections as a basis for defeating plaintiff’s claim for damages.

We are therefore of the opinion that the trial court erred in dismissing plaintiff’s complaint for legal insufficiency. We are further of the opinion that on the record before us defendant has failed to raise any triable issue of fact except as to the amount of damages; indeed, the parties agreed at Special Term that the problem is purely one of law. Consequently, plaintiff’s motion for summary judgment should have been granted.

The judgment and order of the Appellate Division should be reversed, with costs in all courts, and the case remitted to the County Court with directions to deny defendant’s motion to dismiss the complaint for legal insufficiency, to grant plaintiff’s motion for summary judgment and to assess damages.

Dye, J.

(dissenting). When this contract is read in the light of its avowed purpose, it seems entirely clear that the parties do not stand in the relationship of employer and employee. The contract, by its terms, is not one of employment, but is in form and tenure, the usual real estate management agreement. Throughout the parties are designated as “ Owner ” and “ Agent and the compensation to be paid for services is in the nature of commissions to be computed on a percentage basis according to certain named conditions. The use of the words “ employs ” and “ employment ” occurs in but one place and then in conjunction with the words appoints ” and “ appointment ”. Thereafter and throughout the whole contract, the language used refers to Owner ” as authorizing the Agent * * * to perform * * * the Agent’s agreements * * * as agent of the Owner ” and that the ¿ ‘ Owner shall indemnify and save the Agent completely harmless ” and grants to “ Agent ” the privilege of displaying Agent’s sign ” on the premises announcing that it is under its management ” all terms and phraseology characteristic of a real estate management contract and not normally incident to the relationship of master and servant or employer and employee.

When so read — for we may not lift the words employs ” and “ employment ” out of context — the contract is one of management and not of “ employment ”, which was terminated when the subject matter was extinguished by a bona fide sale of the premises, after notice. When so viewed, there is no actionable breach. The Hudak case (Hudak v. Hornell Industries, 304 N. Y. 207) is not authority to the contrary — that had to do with the breach of an employment agreement negotiated between the employer and a trade union and, according to its specific terms, provided for the employment of the plaintiff, a journeyman printer, for a definite period at a guaranteed weekly wage.

Here the alleged employee is a corporation organized for the purpose of engaging generally in the business of real estate, a field in which it acts as agent for those who seek its services and whose compensation depends on the commissions, as here, based on services rendered in connection with the managed property rather than wages or salary. When the property was sold the mutual obligations terminated.

The judgment appealed from should be affirmed, with costs.

Lewis, Oh. J., Conway and Fuld, JJ., concur with Froessel, J.; Dye, J., dissents and votes for affirmance in an opinion in which Desmond and Van Voorhis, JJ., concur.

Judgment reversed, etc.


author: Fuld, J. Van Voorhis, J.

text:
    In the Matter of the Accounting of Louis P. Snyder et al., as Surviving Executors and Trustees under the Will of Elisabeth Campbell, Deceased, and of Sanford Chafee, as Administrator of the Estate of Carl F. Hofferberth, Deceased Executor of Elisabeth Campbell, Deceased. New Rochelle Hospital et al., Appellants; Morris Gutt, Special Guardian of Carl F. Hofferberth, Jr., and Another, Infants, et al., Respondents.
    Argued March 10, 1954;
    decided April 23, 1954.

      John Lane, James T. Heenehan, Edmond M. Hanrahan and Warren J. Dawson for New Rochelle Hospital and another, appellants.
    I. The will properly construed and, following the intention of the testatrix, gives the remainder of the trust to the three designated charitable institutions. II. It was the intention of the testatrix to give to the designated charitable institutions if Carl F. Hofferberth did not survive to the time of distribution. (Matter of Burdsall, 128 Misc. 582, 221 App. Div. 756.) III. An examination of the will discloses the testatrix’ intention to give only to the specific persons or charities named therein.

      Richard J. Turh, Jr., and Harry A. Leigh for Manhattan Eye, Ear and Throat Hospital, appellant;
    Under the true meaning and construction of the will, the nephew, having predeceased the termination of the trust, neither he nor his estate has any interest in the principal of the trust fund, and such principal is distributable equally among the three appellants. (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Krooss, 302 N. Y. 424.)

      John J. Dillon and Edward F. Asip for Sanford Chafee, as administrator, respondent.
    I. The will created a vested remainder in Carl F. Hofferberth, subject to being divested only if he had predeceased both the sister and cousin of the testatrix. (Fulton Trust Co. v. Phillips, 218 N. Y. 573; Matter of Tamargo, 220 N. Y. 225; Matter of Krooss, 302 N. Y. 424; Matter of Merriam, 168 Misc. 932; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Benton, 244 App. Div. 56, 269 N. Y. 579.) II. The remainder could not be divested except by clear and unequivocal language. (Herzog v. Title Guar. & Trust Co., 177 N. Y. 86; Matter of Rooker, 248 N. Y. 361; Clarke v. Leupp, 88 N. Y. 228; Byrnes v. Stilwell, 103 N. Y. 453; Goodwin v. Coddington, 154 N. Y. 283; Banzer v. Banzer, 156 N. Y. 429; Matter of Hayes, 263 N. Y. 219; Connelly v. O’Brien, 166 N. Y. 406; Scott v. Guernsey, 48 N. Y. 106; Matter of Brown, 93 N. Y. 295; Matter of Johnson, 212 App. Div. 768; Matter of Werner, 167 Misc. 92.) III. The testatrix could reasonably have intended the construction advocated by respondent and adopted by the Surrogate; contrary views of what is reasonable should not prevail over the plain terms of the will or overthrow settled rules of construction. (Matter of Watson, 262 N. Y. 284.) IV. If doubt exists, that interpretation should be adopted which prefers blood relations to strangers. (Wood v. Mitcham, 92 N. Y. 375; March v. March, 186 N. Y. 99; Matter of Werlich, 230 N. Y. 516; Matter of Rooker, 248 N. Y. 361; Matter of Pettit, 241 App. Div. 209.)

      Morris Gutt, special guardian for Carl F. Hofferberth, Jr., and another, infants, respondents.
    The decree as affirmed, reflects the plain expressed intent of testatrix. (Herzog v. Title Guar. & Trust Co., 177 N. Y. 86; Tilden v. Green, 130 N. Y. 29; Matter of Watson, 262 N. Y. 284; Matter of Krooss, 302 N. Y. 424; Wood v. Mitcham, 92 N. Y. 375; March v. March, 186 N. Y. 99; Matter of Rooker, 248 N. Y. 361.)
   Fuld, J.

Elisabeth Campbell died in January of 1943, leaving a will in which she placed the bulk of her estate in trust — to be measured by the lives of her sister, Bertha Hoffer berth, and of her cousin, Emily Van Hovenberg — for the benefit of those two and a nephew, Carl Hofferberth. The income, the will provided, was to be divided among Bertha, Emily and Carl, and, upon the termination of the trust, its corpus was to go to Carl and his heirs absolutely and forever.” If, however, Carl died before Bertha and Emily, or if all three predeceased the testatrix, the trust corpus or the residue of the estate, as the case might foe, was to be given to three charitable institutions, the appellants upon this appeal. The will, insofar as here relevant, reads in this way:

Upon the death of my cousin, Emily Seville Yah Hovehberg, and of my sister, Bertha Hofferberth, the said trust shall come to an end, and I do hereby give, devise and bequeath the principal or corpus thereof, and any accumulated income thereof, unto my nephew, Carl F. Hofferberth, for himself and his heirs, absolutely and forever.
“ In the event, however, that my nephew, Carl * * * should die before the death of my sister, Bertha * * * and my cousin, Emily * * * then upon the death * * * [of Bertha and Emily], I do hereby give, devise and bequeath the principal or corpus of the trust herein-above created, and any accumulated income thereof, share and share alike,”

to Manhattan Eye, Ear & Throat Hospital, New Rochelle Hospital and Colburn Memorial Home.

Emily predeceased the testatrix. Carl outlived both of them, but died before Bertha, survived by two young children. On Bertha’s death in 1952, the trust came to an end, in accordance with the provision of the will. That precipitated a dispute, between the executors and trustees under Elisabeth Campbell’s will and the administrator of Carl’s estate, as to the disposition of the trust corpus. The former, in their petition for judicial settlement, took the view that the corpus should go to the three institutions, while the latter, respondent upon this appeal, maintained that Carl or, more precisely, his estate was entitled to take.

Simply put, the issue before us is whether Carl had to survive the termination of the trust — that is, outlive both Bertha and Emily — in order to be entitled to the remainder. Under applicable principles of testamentary construction, it is clear, no such requirement of survival was intended or imposed.

The first paragraph quoted above indisputably gave Carl a vested interest which was not to be defeated by his death before the trust ended. “Upon the death.of ” her sister and her cousin, the testatrix declared, the “ trust shall come to an end, and I do hereby give, devise and bequeath the principal * * * unto my nephew * * * for himself and his heirs, absolutely and forever.” Had the will gone no further, the remainder to Carl — as a person ‘‘ in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates ” (Real Property Law, § 40; see, also, Matter of Watson, 262 N. Y. 284, 299) — would hive been indefensibly vested. Such being the case, that clear and absolute grant could not be cut down by language contained in a later testamentary provision, unless “ that language [was] as clear and decisive as that which created the vested remainder.” (Matter of Krooss, 302 N. Y. 424, 428; see, also, Matter of Rooker, 248 N. Y. 361, 364; Herzog v. Title Guar. & Trust Co., 177 N. Y. 86, 93; Goodwin v. Coddington, 154 N. Y. 283, 286.) Moreover, the courts have long expressed a preference for a testamentary construction which results in an early indefeasibility, an early and final vesting of estates. Accordingly, a construction which renders a vested remainder defeasible will be restricted to the exact circumstances specified. (See, e.g., Matter of Krooss, supra, 302 N. Y. 424, 428; 2 Powell on Real Property [1950], § 330, pp. 729, 730; 3 Restatement, Property, § 254.)

The will’s further language indicates that the condition under which Carl’s remainder could be defeated was very narrowly circumscribed. "When read literally — and it is a reasonable reading — it demonstrates that Carl’s interest was subject to divestment only upon the happening of a single contingency — his death before that of the testatrix’ sister “ and ” her cousin. The remainder was to be divested, not if he died after the death of one and before the death of the other or after the death of both, but only if he died before both of them.

The appellant charitable institutions, however, would have us read the “ and ” as or,” for they argue that the language in question accomplishes a divestiture of Carl’s remainder if he died before the death of the testatrix’ cousin or sister or, to put it slightly differently, before their collective deaths. In effect, treating Carl’s remainder as contingent upon his survival, appellants maintain that, since Carl was to receive the remainder only upon the death of ” the testatrix’ sister and cousin, he was not entitled to it unless he survived them. The argument borders on verbal legerdemain, confusing as it does the time of enjoyment of the remainder with the time of its vesting in interest. The use of the phrase, upon the death of,” as an adverbial expression of time has on innumerable occasions been interpreted to annex futurity only to possession and not to the substance of the gift. (See Matter of Krooss, supra, 302 N. Y. 424, 431; Staples v. Mead, 214 N. Y. 625, affg. 159 App. Div. 922, 152 App. Div. 745; Connelly v. O’Brien, 166 N. Y. 406; Matter of Bates, 272 App. Div. 559, 562; Matter of Bostwick, 203 App. Div. 158, 159.) In addition, words of “ present gift ” — in this case, “ I do hereby give, devise and bequeath the principal ” to Carl “ absolutely and forever ” — afford further proof that his remainder was vested. ‘ ‘ An explicit present gift of a future interest implies, in the absence of contrary indications, that the intervening estate * * * merely suspends the enjoyment of the interest and does not prevent the vesting thereof.” (Powell, op. cit., § 331, p. 735; see, also, Restatement, Property, op. cit., § 257.)

We will not speculate on whether the testatrix had some reason for making a distinction betweeen Carl’s death before the death of both Bertha and Emily and his death after the death of only one of them. It is enough that the testatrix declared that such was her desire. Beyond that, the constructional preference ” for “ favoring the blood of the testator rather than strangers ” (Matter of Rooker, supra, 248 N. Y. 361, 364) and for early indefeasibility will not be disregarded unless the testamentary language employed makes such a, course mandatory. (See, e.g., Matter of Krooss, supra, 302 N. Y. 424; Powell, op. cit., § 330, p. 729.)

If Elisabeth Campbell had created a trust for the lives of her sister and cousin with a remainder to Carl, if Tie be living at their deaths, his interest would then have been conditioned upon his surviving the other two and would have become indefeasibly vested only if he were alive at the termination of the trust. (See, e.g., Matter of Gates, 239 App. Div. 666, 671; 3 Jessup-Redfield on Surrogates’ Law and Practice [Rev. ed., 1949], § 2434.) But the testatrix did not so provide, and Carl did not have to outlive both of the other life beneficiaries.

The situation is not too unlike that in Matter of Krooss (supra, 302 N. Y. 424), however different the family relationships involved and the type of language employed. There, the testator gave his wife a life estate, remainder to his children Florence and John, but — the will proceeded — if either died before their mother, leaving descendants, the descendants were to take their parent’s share. We there held that Florence, who died before her mother, without having had descendants, took a vested remainder subject to being divested only upon the happening of the exact conditions stipulated, namely, death before her mother, leaving descendants. Since both those conditions did not eventuate, her share remained vested and went to her next of kin upon the death of the life beneficiary. So, here, Carl’s remainder was subject to divestiture only upon the happening of the one condition specified in the will, and, since it did not occur, his interest remained vested and passed to his estate when the trust ended.

Moreover, the type of supplanting limitation ” employed may well point the construction to be adopted. “ Supplanting limitations differ,” writes Powell in his work on Real Property (op. cit., pp. 729-730), “ in that some provide a taker who is to become the substitute whenever the prior taker fails to survive, while others provide a taker who is to become the substitute only under some circumstances. In cases of the second type, the constructional preference for early indefeasibility causes the requirement of survival to be strictly construed, and to operate.only under the exact circumstances stipulated.” (See, also, Restatement, Property, op. cit., § 254.) In the case before us, the supplanting limitation ” in the will is of the second type, with the consequence that appellants became “ substitute ” takers only if Carl failed to survive both Bertha and Emily. When that ‘ ‘ exact ” event did not transpire, when, in other words, Carl, having survived the testatrix, outlived Emily, appellants could not possibly establish their right to the remainder over. Our conclusion must, of necessity, be that Carl’s vested interest passed to his estate upon the termination of the trust.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

Van Voorhis, J.

(dissenting). In the construction of wills, presumptions are not indulged if the effect is to violate the intention of the testator as expressed in the instrument (Matter of Tamargo, 220 N. Y. 225). That, it seems to me, is the consequence of applying to this will the presumption in favor of vesting applied in such cases as Matter of Krooss (302 N. Y. 424, 428) and Matter of Watson (262 N. Y. 284, 299).

The question is whether Carl F. Hofferberth’s remainder was divested by his death before the termination of the trust. Such was clearly the intention of the testatrix, who made a substitutional gift of the remainder to charitable institutions in that event. The measuring lives were those of testatrix’ cousin and sister. Her will states that “ Upon the death of my cousin, Emily Seville Yah Hovehberg, and of my sister, Bertha Hofferberth, the said trust shall come to an end,” in which event the remainder is given to the nephew Carl. If that was all there were to it, Carl would have taken a vested remainder that would not have been subject to divestment in event of his death before the termination of the trust. The next paragraph, however, expressly states that in the event of Carl’s death “ before the death of my sister, Bertha Hofferberth* and my cousin, Emily Seville Yah Hovehberg, then upon the death of my said sister, Bertha Hofferberth, and my cousin, Emily Seville Yah Hovehberg, I do hereby give, devise and bequeath the principal or corpus of the trust hereinabove created * * * unto * * * Mahhattah Eye, Ear & Throat Hospital, of New York City, New Rochelle Hospital, of Guión Place, New Rochelle, New York, and Colburh Memorial Home, of New Rochelle, New York ”.

Having measured the trust in accordance with the rule against perpetuities by the lives of Emily and Bertha, the manifest intention'was to give the remainder to these charities instead of to Carl if Carl died before the trust ended when, if he were then living, it would have vested in interest in him. The meaning is that if Carl should die before Bertha and Emily were both dead, then Carl’s remainder would be divested and would pass to the charitable institutions which are substituted in his place. It is a familiar canon of interpretation that the singular is to be read as the plural, and vice versa, where the wording and structure of the instrument or statute indicate that such was the intent (General Construction Law, § 35; Culver v. Title Guar. & Trust Co., 296 N. Y. 74; People v. Gates, 56 N. Y. 387, 392).

In this instance testatrix demonstrated in this very clause that when she said death ” she meant deaths ”, inasmuch as the will speaks of the “ death of my sister, Bertha Hopper-berth, and my cousin, Emily Seville Van Hovenberg,” (italics supplied). In the previous paragraph she had also mentioned 61 the death of my cousin, Emily * * * and of my sister, Bertha Hopperberth ’ ’. By referring to the death of two persons, testatrix obviously meant their deaths. It is equally plain that she intended the plural in using the singular where she divests Carl’s remainder if he “ should die before the death of my sister, Bertha Hopperberth, and my cousin, Emily Seville Van Hovenberg ”. That signifies the deaths of both Bertha and Emily, and means that Carl’s remainder is divested unless he survives them both. She plainly intended to give the remainder to the charities instead of to Carl unless he survived Bertha and Emily, whose joint lives measured the duration of the trust. He survived one but not the other, in which event the will, without ambiguity, gives the remainder to the three appellant charitable institutions.

The order appealed from should be reversed and the remainder held to belong to appellants, with costs to parties appearing payable out of the estate.

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

Order affirmed.