author: Lehman, J.

text:
    The People of the State of New York, Respondent, v. Mary Nixon et al., Appellants.
    Crimes — disorderly conduct — appeal — persons walking four abreast on sidewalk, creating no disturbance, may not without warning by police be arrested for disorderly conduct — whether they are participants or sympathizers in a labor dispute immaterial, in absence of disorder — persistence in marching up and down street after warning by police supports finding of guilt — Court of Appeals may review sufficiency of evidence to sustain judgment of court of inferior jurisdiction even where no motion was made to dismiss.
    1. A number of pedestrians walking, quietly, four abreast on a sidewalk, creating no excitement or disturbance, may not, without warning by the police, be arrested for disorderly conduct and sentenced to a term of imprisonment.
    2. Whether they are participants or sympathizers in a labor dispute is immaterial, where there is no evidence from which any inference may be drawn that their quiet presence in numbers at this particular place was in some way calculated to make the labor dispute disorderly. In the absence of evidence that they caused substantial annoyance to others, or persisted in their conduct after protest from others or warning from a police officer, their conviction cannot be sustained.
    3. Where, however, as to others there is evidence that before they were arrested they were warned by police officers that they must not march up and down the street in large groups, and enough is shown to justify the officers in giving the warning, persistence in parading the street in groups thereafter, supports a finding of guilt and their conviction must be sustained.
    4. Even where there is no motion to dismiss, this court may review the sufficiency of the evidence to sustain a judgment of a court of inferior jurisdiction where the case has been submitted to the judge to pass upon all questions, both of law and fact. (People v. Bresler, 218 N. Y. 567; People v. Robinson, 237 N. Y. 567, overruled.)

      People v. Nixon (sub nom. People v. Friedman), 130 Mise. Rep. 525, reversed.
    (Argued April 9, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Term of the Court of Special Sessions of the city of New York, entered September 27, 1927, which affirmed a judgment of a Magistrate’s Court of the city of New York convicting the defendants of the crime of disorderly conduct.

      Aiken A. Pope and Jacob M. Mandelbaum for appellants.
    The defendants were engaged in peaceable, quiet and orderly picketing and did not provoke or excite others to breach the public peace as disclosed by the record, and were, therefore, not guilty of the offense of disorderly conduct as defined in section 1458 of the Consolidation Act. (People ex rel. Clark v. Keeper, 176 N. Y. 465; People ex rel. Frank v. Keeper, 38 Misc. Rep. 233; Matter of Newkirk, 75 N. Y. Supp. 777; People v. Phillips, 245 N. Y. 401; National Protective Association v. Cumming, 170 N. Y. 315; Johnston Harvester Co. v. Mainhardt, 60 How. Pr. 168; 24 Hun, 489; Rogers v. Evarts, 17 N. Y. Supp. 264; Reynolds v. Everett, 67 Hun, 294; 144 N. Y. 189; Kissam v. United States Printing Co., 199 N. Y. 76; Foster v. Retail Clerks’ Protective Assn., 39 Misc. Rep. 48; Sun Printing Assn. v. Delaney, 48 App. Div. 623; Mills v. United States Printing Co., 99 App. Div. 605; Jones v. Maher, 62 Misc. Rep. 388; 141 App. Div. 919.)

      Joab H. Banton, District Attorney (Felix C. Benvenga and John C. McDermott of counsel), for respondent.
    The defendants were properly convicted. (Case of Twelve Commitments, 19 Abb. Pr. 394; People v. Mansi, 129 App. Div. 386; Cohen v. Warden of Workhouse, 150 N. Y. Supp. 596; People v. Lipschitz, 120 Misc. Rep. 633; People v. Gertner, 124 Misc. Rep. 114; People ex rel. Clarke v. Keeper, 176 N. Y. 465; People ex rel. Burke v. Fox, 205 N. Y. 490; Steinert v. Sobey, 14 App. Div. 505.)
   Lehman, J.

Twenty persons, named as defendants in this case, were arrested in the early morning of May 27th, 1927, while walking on the sidewalk on the southerly side of West Twenty-ninth street. The police officer, who arrested them, charged in the sworn complaint that they were in “ West 29th Street using threatening, abusive and insulting behavior, with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned, that said defendants at the hour of 7.30 a. m. did then and there while picketing with a number of others parade up and down in mass formation, thereby obstructing the sidewalk and causing pedestrians to use the roadway.” Nineteen of the defendants have been convicted upon this charge, after a trial before a magistrate, and have been sentenced to terms of imprisonment in the workhouse.

This appeal is one of six appeals from judgments of conviction of about one hundred and twenty people, of whom about fifty are women. All the appeals were argued together. The complaints in all the cases are similar. The alleged offenses all occurred at the same place and within the space of a few days. They were all tried before the same magistrate, and it is evident that the magistrate assumed that the defendants, found guilty in all these cases, were walking on this street as part of some tactics adopted to further the interests of a party to a strike or labor dispute in the fur industry. In some cases there is vague evidence which perhaps supports this assumption.

Though the evidence in the six cases is not identical, and the differences may produce varying consequences, yet the determination of the questions involved in the instant case, which the parties chose as the basis of the oral argument in this court, will dictate the answer to most of the questions presented in the remaining cases on appeal. In this case the police officer who made the arrest testified that he had the defendants under observation for ten minutes. They were walking on the south side of Twenty-ninth street between Sixth and Seventh avenues. They were “ parading ” four abreast. The sidewalk was about twelve feet wide. The defendants in walking four abreast occupied about six feet of' the sidewalk. The regular amount of traffic was just barely getting through.” Some persons were caused ” to enter the roadway. The officer stated: “I fell in line with them and walked up to the southwest corner of 29th Street and Sixth Avenue. When they got to the corner they turned around and they marched back again on the same side and a few persons were caused to enter the roadway again. I then placed them under arrest.” Another officer assisted in the arrest. Neither officer warned the defendants before the arrest. The defendants apparently submitted to arrest without protest.

We have set forth the entire testimony almost verbatim. There is no suggestion in the record that the defendants’ march up and down the street was not quiet and orderly. There is no suggestion that the defendants’ demeanor was threatening, abusive or insulting or that any person on the street or elsewhere believed that he was being threatened, insulted or abused. Nineteen or twenty persons walked up and down a busy street four abreast. They were guilty, we may well concede, of atrociously bad manners, and they discommoded some other persons lawfully using the street, to the extent that a few pedestrians were caused to enter the roadway. There is no evidence that the persons discommoded showed any particular annoyance. Perhaps bad manners are too usual to evoke unusual irritation or annoyance.' As yet bad manners have not been made punishable by imprisonment. The question presented here is whether the defendants’ conduct went beyond mere bad manners and tended towards a breach of the peace.

It is difficult to define exactly and comprehensively the kind of conduct which tends to a breach of the peace,” though a breach of the peace ” was punishable at common law. A definition has been essayed by the Legislature in section 722 of the Penal Law. In cities of five hundred thousand inhabitants or over any person who, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, * * * (2) acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (3) congregates with others on a public street and refuses to move on when ordered by the police.” We do not now decide whether under sections 1458 and 1459 of the Consolidation Act, a magistrate has discretion to find that conduct which does not fall strictly within the offense defined by the Legislature may nevertheless constitute disorderly conduct which tends to a breach of the peace. At least the discretion confided to a magistrate cannot be without limits. The act complained of must at least be one which reasonably does tend to a breach of the peace, and it is not without significance that the Legislature has made “ congregating on the street ” a criminal offense only when the offender refuses to move on when ordered by the police.

Though the charge recites that the offense charged was committed while the defendants were picketing, no evidence was produced to sustain this allegation. Doubtless both the magistrate and the defendants assumed, even without proof, that a labor dispute existed in the fur trade at that time, and that the defendants were walking in the street in pursuance of some tactics intended to advance the interest of a party or parties to that dispute. Even if we, also, should assume the existence of such facts without proof, the question before us would remain unaffected by such facts. It has been said at times that picketing in large numbers near a place of business where a strike is in progress is in itself a threat of violence, and invites counter-violence. Circumstances may in particular cases justify a finding to that effect. Here we are not informed of the nature or extent of the labor dispute, if such there was. If there was a strike on the block where the defendants were walking, it may, for aught that appears, have been in connection with a business conducted on the top floor of one of the loft buildings along the street. There is nothing to show that any other person could have regarded the defendants’ conduct as a threat or as calculated to coerce or impede any one. In the absence of evidence, we may not infer that the conduct of the defendants was intended as a threat, or could be so construed, or was an incentive to violence by others. Even if the defendants were parties to a labor dispute, no circumstances are shown which, it is even claimed, might possibly be considered as an excuse for or palliation of conduct constituting an invasion of the rights of the public. On the other hand, no circumstances have been shown which would give the color of disorder and violence to conduct which is otherwise colorless. Upon this record no question is presented of the rights of parties to a labor dispute to the use of the streets for their own purposes — or of any abuse by them of such rights. The sole question is whether a number of pedestrians walking, quietly, four abreast, on the sidewalk, creating no excitement or disturbance, may without warning by the police be arrested for disorderly conduct and sentenced to a term of imprisonment.

To us it seems that there should be no doubt of the answer to that question. Men and women constantly congregate or walk upon the streets in groups, quite oblivious of the fact that in some degree they are thereby causing inconvenience to others using the street. A public meeting may have aroused such interest that groups of men and women continue the discussion while walking up and down the street. Groups linger in quiet social converse after the religious edifice where services have been held is emptied. School children and college youths, laborers, athletic fans ” and church members, perhaps even judges, do at times congregate or walk upon the streets in numbers sufficient to cause other pedestrians to stand aside or step into the roadway. Surely such conduct is not always “ disorderly and does not always tend to a breach of the peace. The magistrate may draw distinction between innocent and wrongful conduct, but finding of guilt must be based upon logical inference from the circumstances of the case. Of course, no one urges that distinction may be based merely upon difference of social or economic position. Here the fact, if it be a fact, that the defendants are participants or sympathizers in a labor dispute, is immaterial, since there is no evidence from which any inference may be drawn that their quiet presence in numbers at this partic- . ular place was in some way calculated to make the labor dispute disorderly. In the absence of evidence that the defendants caused substantial annoyance to others, or persisted in their conduct after protest from others or warning from a police officer, we find the evidence insufficient to sustain the conviction of the defendants in this case.

In the case of People v. Friedman (248 N. Y. 53l) the evidence produced to sustain the charge is in all material respects similar to the evidence produced in the instant cases. We find that it does not sustain the judgment of conviction. In the other four cases the circumstances are different. There the evidence, though meagre and unsatisfactory, yet seems to us sufficient to support a finding that the defendants acted recklessly of the rights and convenience of others, and that their conduct tended to a breach of the peace.

In all these four cases there is evidence that before the defendants were arrested they were warned by police officers that they must not persist in marching up and down the street in large groups. Police officers are guardians of the public order. Their duty is not merely to arrest offenders but to protect persons from threatened wrong and to prevent disorder. In the performance of their duties they may give reasonable directions. Present at the point where the defendants were congregating they might early sense the possibility of disorder. Even a protest from pedestrians who were annoyed by the defendants’ conduct might be a significant element in determining whether persistence in such conduct was wrongful. Enough has been shown in these cases to justify the officers in warning the defendants. Refusal to heed the warning so given; persistence in parading the street in groups thereafter, is, perhaps, so significant of a contumacious disregard of the rights of others that it supports the finding of guilt of the defendants. In these cases the judgments must be affirmed.

We have considered the question of whether there is any evidence to sustain the finding of guilt in the instant case. The district attorney has not urged that upon this record we have no jurisdiction to review that question. Our jurisdiction is, of course, limited in these cases to a review of questions of law, and that jurisdiction may not be extended by consent. We are, therefore, compelled to determine whether we may review the questions argued, though no objection to such review has been interposed by the People.

Ordinarily a question of law is raised only by exception. That rule applies in criminal as well as civil cases, and in inferior courts as well as in courts of general jurisdiction. (City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 N. Y. 276.) The rule is not entirely without its limitations. It “ must be interpreted in the light of reason and subject to certain inherent limitations. Ordinarily the question which is presented arises on the trial where full opportunity is presented to take an exception and where, generally, justice and fairness require that one should be taken at the time if the party is dissatisfied with the conduct of the trial, and it is concerning such a situation as this that the rule is constantly reiterated and enforced that an exception must be taken for the purposes of appeal to this court. But a case may arise where there is no opportunity to take an exception, and such is the present one.” (Pangburn v. Buick Motor Co., 211 N. Y. 228, at p. 235.)

Here the defendants pleaded not guilty. After hearing the evidence adduced against them, the magistrate decided that the charge against them was sustained. Dissatisfaction with the conduct of the trial must be shown by timely exception. Without such exception we may ordinarily not review the conduct of a trial. Magistrates and other judges of inferior courts pass upon questions of fact and of law. Whether the evidence sustains a decision or judgment is a question of law, and may be reviewed by this court unless an appellant by failure to make appropriate motions or to take appropriate exception has waived his right to urge it. Where a formal decision must be made by a court, the Civil Practice Act, section 445, provides for the taking of an excéption' to a ruling upon a question of law. In the absence of such an exception there can be no review by this court. No provision is made by statute or customary practice for an exception to the decision or judgment of a magistrate or other judge of an inferior court who passes upon questions of fact and of law, without the entry of a formal decision. In the case of People v. Friedman (248 N. Y. 531), decided herewith, the defendants moved for a dismissal of the charge, and the exception to the denial of the motion unquestionably permits us to review the question of law. In the instant case of People v. Nixon, no such motion was made, and the question arises whether by failure to make such motion the defendants conceded “ that issues of fact, to be determined by the trial court, were created by the evidence and precluded themselves from asserting and asking the appellate courts to determine that the judgment of the trial court was wholly without support in the evidence.” (Seeman v. Levine, 205 N. Y. 514.)

Doubtless where the trial is before a court and jury, even in an inferior court, failure to move for the dismissal of the complaint or charge and acquiescence in the submission of questions of fact to the jury is tantamount to a concession that issues of fact to be determined by the jury were created by the evidence. In such case the submission of issues of fact to the jury is itself a ruling made in the course of the trial that such issues exist, and objection in appropriate form should be offered and an exception may and should be taken at the time the ruling is made, if a party is dissatisfied with the ruling. In the case of Seeman v. Levine (supra) this court held that even where there is no jury the failure to move to dismiss before decision by the judge has the same effect. That case was a civil case, but it has been followed by this court in criminal cases. (People v. Bresler, 218 N. Y. 567; People v. Robinson, 237 N. Y. 567.)

These cases cannot be distinguished from the case at bar. We must refuse to review the question of whether there is evidence to sustain the judgment, or overrule the earlier decisions of this court. Further consideration, with the advantage of new experience, has convinced us that our earlier decisions were wrong. Where questions of fact and law are both decided by the judge, a submission to him of all questions after the evidence is taken is not, in truth, a concession that issues of fact are raised by the evidence. Litigants present to the judge the evidence to sustain their respective contentions. He must decide the effect of the evidence. We know, now, that especially in courts where judicial proceedings are often informal, a requirement that a party must at his peril separate questions of law from questions of fact and move for a decision on questions of law before final submission of the case, does not facilitate the administration of the courts and does at times result in injustice.

The instant case shows the artificiality of the rule which we have heretofore followed, and that it is out of harmony with the actual proceedings in the courts. The defendants have pleaded not guilty. They have not controverted the evidence produced against them. Their attitude has consistently been that the evidence did not justify conviction. In order to avail • themselves of the protection of the law which they invoke, they should not be compelled to go through the form of a motion to dismiss. Even the People do not contend that the defendants conceded the sufficiency of the evidence against them or that the judge was not required to pass upon that question when he rendered judgment. It is right that this court should hesitate to overrule a previous decision, but when convinced that an artificial rule of practice, created by it, is erroneous and hampers the administration of justice, it is its duty to refuse to perpetuate previous error. We, therefore, hold that even where there is no motion to dismiss, this court may review the sufficiency of the evidence to sustain a judgment of a court of inferior jurisdiction where the case has been submitted to the judge to pass upon all questions, both of law and fact.

The judgment of the Court of Special Sessions and that of the City Magistrate’s Court should be reversed and defendants discharged.

Cardozo, Ch. J., Pound, Crane, Andrews, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Marie S. Livingston, as Administratrix of the Estate of Robert L. Livingston, Deceased, et al., Respondents, v. Henry G. Ward et al., Appellants, and Bayard U. Livingston et al., Respondents. Marie S. Livingston, as Administratrix of the Estate of Robert L. Livingston, Deceased, et al., Respondents, v. Bayard U. Livingston et al., Respondents, and Charles M. Hough, as Executor and Trustee under the Will of Anne D. Thomson, Deceased, et al., Appellants.
    Practice — costs — Supreme Court has power to make allowances to special guardians and guardians ad litem payable by any party to action or out of property involved — exercise of power must be governed by sound discretion — judgment of Appellate Division in so far as it makes allowance to guardian ad litem affirmed even though it be determined infants had no interest in property.
    1. Section 207 of the Civil Practice Act, read in connection with rule 43 of the Rules of Civil Practice, confers power upon the Supreme Court to fix the fees of a guardian ad litem, or a special guardian to “ be paid by any party to the action or proceeding or out of the proceeds of any property which is the subject matter of the action, as the court shall direct.”
    2. The discretion vested in the Supreme Court is a judicial discretion and there must be circumstances shown which justify the manner of its exercise, but where not only the plaintiff, but the defendants, ask the court to determine what parties have title to real property and the question cannot be determined without the presence of infant defendants, the Appellate Division has power to allow the guardians ad litem reasonable compensation for their services, payable by the adverse parties or out of the proceeds of the property, and that part of its judgment will be affirmed, even though this court determine that the infants have no interest in the property.
    (Submitted March 26, 1928;
    decided May 2, 1928.)
    Motions to amend remittiturs. (See 248 N. Y. 97,517.)
   Lehman, J.

The judgments of the Appellate Division constituted a determination that title to certain real property formerly owned by James Thompson was vested in the plaintiff, and in certain parties defendant who traced their claim of title to the same source as the plaintiff. Some of the successful parties defendant were infants and provision was made in the judgments of the Appellate Division for allowances of compensation to the guardians ad litem of the successful infant parties. Upon appeal this court reversed the judgments of the Appellate Division and affirmed the judgments of Special Term. Our attention was not directed to the fact that the reversal of the judgments of the Appellate Division by this court deprives the guardians ad litem of the allowances made by the Appellate Division as compensation for services rendered. The guardians ad litem now ask this court to amend its remittiturs, so that these allowances may be restored.

Under the judgments of Special Term affirmed by this court, the infant defendants represented by these guardians ad litem have no title to the property which is the subjeqfc-matter of the action. The courts of this State long held that no allowance beyond taxable costs might be awarded to the guardian of an infant party which was payable out of property belonging to parties other than the infant. It was said that the power to grant allowances to guardians is the creature of statute, and that the Legislature had seen fit to limit its grant of such power. (Union Ins. Company v. Van Rensselaer, 4 Paige, 85; Gott v. Cook, 7 Paige, 521; Downing v. Marshall, 37 N. Y. 380; Matter of Holden, 126 N. Y. 589; Matter of Robinson, 160 N. Y. 448.) We must look to recent increase of power conferred upon the courts, rather than to power inherent in the courts as the basis of the courts’ authority if we sustain the allowance to the guardians ad litem made by the Appellate Division, though we reverse the judgment which holds that the infants represented by the guardians ad litem have an interest in the property.'

Section 280 of the Surrogate’s Court Act (formerly 2748 of. the Code of Civil Procedure) provides that “ a special guardian for an infant or incompetent shall receive a reasonable compensation for his services to be fixed by the surrogate, payable from the estate or fund, or from the interest of the ward therein, or from both in such proportion as the surrogate may direct.” It has been held that under this section allowance may be made to special guardians payable out of the estate, at least in cases in which the services of the guardian are shown to be of value not only to the immediate ward or wards, but also to the owners of the estate or fund out of whose pockets the allowance is to be taken.” (Matter of Thaw, 182 App. Div. 368.)

Section 207 of the Civil Practice Act, read in connection with rule 43 of the Rules of Civil Practice, confers similar power upon the Supreme Court. (Reszemini v. Brooks, 236 N. Y. 184.) The court may fix the fees and compensation of a guardian ad litem or a special guardian. (Section 207.) “ If a guardian ad litem or special guardian shall have been appointed for an infant defendant who is not entitled to any money or property under the terms of the final judgment, such guardian may, nevertheless, receive such compensation as the court shall deem reasonable, which shall be paid by any party to the action or proceeding or out of the proceeds of any property which is the subject matter of the action, as the court shall direct.” (Rules of Civil Practice, rule 43.)

Doubtless the discretion vested in the Supreme Court is a judicial discretion, and there must be circumstances shown which justify the manner of its exercise. Here such circumstances are present in abundant measure. Not only the plaintiff, but the defendants, ask the court to determine what parties have title to or interest in the real property which is the subject-matter of the actions. The court could not determine the questions before it without the presence of the infant defendants. It was necessary to appoint guardians to represent the infants. It was their duty to urge with vigor any substantial claims of the infants. Here those claims were so substantial that they prevailed in the Appellate Division. The services rendered by the guardians were beneficial to the adverse parties, for without the presence of the guardians these parties could not have judicially established their claims. The amounts allowed to the guardians were reasonable, in view of the services rendered.

Under these circumstances the Appellate Division had power to allow the guardians ad litem compensation for their services, payable by the adverse parties or out of the proceeds of the property which is the subject-matter of the action. Though the Appellate Division exercised its discretion at a stage of the proceedings when there was an adjudication that the infants had an interest in the property, yet even now there are considerations present which would justify, even if they might not compel, the exercise of its discretion in similar manner. In such case, it seems unnecessary to remit the guardians to the Supreme Court to pass upon the question anew. The provisions of the judgment of the Appellate Division which provide for an allowance of compensation to the guardians ad litem should be affirmed and the remittitur is amended accordingly.

Cardozo, Ch. J., Pound, Crane, Andrews, Kellogg and O’Brien, JJ., concur.

Motions granted. The recall ■ of the remittiturs is requested and when recalled the remittiturs will be amended in accordance with opinion.


author: Crane, J.

text:
    Bernard McGlone, Appellant, v. William Angus, Inc., Respondent, Impleaded with Others.
    Negligence — building — erection of platform or scaffold by one of several contractors on building — duty to employees of other contractors — question for jury whether it might reasonably anticipate that employees of other contractors would use it — erroneous dismissal of complaint in action by such an employee for injuries received through giving way of platform.
    1. Where one of several contractors on a building erects a platform which it might reasonably anticipate would be used by employees of other contractors in the performance of their work, it is its duty to use reasonable care to construct it safely with due regard to such user.
    2. Where, therefore, the respondent, a stone setting contractor, had placed boards across the iron floor beams in a building under construction, forming a scaffold on which to place a derrick to raise stone, and plaintiff, an ironworker, in the course of his employment, stepped on the platform which gave way causing him to fall to the cellar, in an action to recover for the injuries received, where there is evidence that it was natural and customary, if not necessary, for workmen employed on the building to walk across the platform, it is a question for the jury whether respondent could reasonably have anticipated that other workmen on the structure would walk thereon, and it was error to dismiss the complaint.

      McGlone v. Angus, Inc., 222 App. Div. 818, reversed.
    (Argued April 12, 1928;
    decided May 8, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 3, 1928, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.

      R. W. Barth, Edwin L. Smart and William V. Hagendorn for appellant.
    The defendant, who was an independent subcontractor, is liable for plaintiff’s injury, notwithstanding the fact that there was no contractual relationship between plaintiff and defendant. (Flanagan
      v. Ley, 241 N. Y. 607; Litsch v. Todds, Irons & Robertson, Inc., 239 N. Y. 559; Quigley v. Thatcher, 207 N. Y. 66; Clemens v. Benzinger, 211 App. Div. 586; Murphy v. Rochester Telephone Co., 208 App. Div. 392 ; 240 N. Y. 629; Rosenbusch v. Ambrosia Milk Corp., 181 App. Div. 97; O’Rourke v. Waite Co., 125 App. Div. 825; Bill v. N. Y. Expanding Metal Co., 60 App. Div. 470; Smith v. Brady, 136 App. Div. 665; Lynch v. Ley & Co., Inc., 119 Misc. Rep. 681.)

      Clarence S. Zipp and E. C. Sherwood for respondent.
    Respondent was under no duty to make its platform safe for plaintiff, and the complaint was properly dismissed. (Vaughan v. Transit Development Co., 222 N. Y. 79.)
   Crane, J.

The evidence in this case is decidedly unsatisfactory. The parties evidently took much for granted and with their understanding of the situation read into the record much that we cannot see. However, there is sufficient in my judgment to make out a cause of action; that is a question for the jury. The Girls High School, at Classon avenue, between President and Union streets, Brooklyn, N. Y., was on the 14th day of March, 1924, in the course of erection. The defendant William Angus, Inc., was engaged in setting the stone thereon. The Dickens Erecting Co. was erecting the iron work, or a portion of it. The plaintiff was employed by the Dickens Erecting Co. and was obliged to climb up the iron girders and walk over the iron framework. On the second floor of the structure the Angus Co. had placed boards across the iron beams forming a scaffold upon which to place the derricks to raise the stone. The plaintiff in going for his tools, walking along the narrow beams, stepped upon this planking erected by the Angus Co., which gave way under him. He fell to the basement and was badly hurt. The planks had been insecurely placed on the beams and a coil of wire, it is said, hid the defects. There is no dispute apparently that this planking or scaffold gave way, and that the plaintiff was dropped to the cellar.

Negligence is gauged by the ability to anticipate. The Angus Co. apparently knew that its men were not the only ones at work upon the building. As the iron work went up, the stone work soon followed. Both classes of employees were working together. When the Angus Co. placed boards over the iron beams forming a scaffold or flooring for its derricks, could it reasonably anticipate that other workmen on the structure would walk over the flooring? On the evidence this was a question for the jury. The last words in the case given by the foreman rigger of the Angus Co. indicate what he would anticipate under such conditions. Q. Did you ever tell any of the workmen on the job, that is, workmen of other contractors, that they should not walk across or use the platforms? A. No, because that would be useless.” I take this answer to mean that it would be useless to tell men not to do a thing which is natural and customary, if not necessary for them to do.

Under these circumstances and conditions, if reasonable care would have anticipated such use then it was the duty of the defendant to erect its platform or flooring with due regard of the user by others. That is, it was under the duty to use reasonable care to construct it safely for those whom it had reason to anticipate would naturally and customarily use it in the course of the work. (Quigley v. Thatcher, 207 N. Y. 66; Flanagan v. Ley & Co., 241 N. Y. 607; Murphy v. Rochester Telephone Co., 208 App. Div. 392; affd., 240 N. Y. 629.)

The judgments should be reversed, and a new trial granted, with costs to abide the event.

Cardozo, Ch. J., Pound, Lehman, Kellogg and O’Brien, JJ., concur; Andrews, J., dissents.

Judgments reversed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Samuel Wiesenthal, Appellant.
    Crimes — Labor Law — factories — exits — where defendant. maintains in factory all exits required by law, act of landlord in closing door between it and part of premises leased to another not attributable to him.
    Where a factory is maintained with every exit required by the statute (Labor Law, § 272; Cons. Laws, ch. 31), violation by the landlord and by the tenant of the adjoining factory in reducing the number of exits of that factory by barring and otherwise obstructing the door between the two factories does not constitute an infraction of the law as to the factory occupied by defendant. Their illegal acts in relation to that factory cannot be attributed to defendant.

      People v. Wiesenthal, 222 App. Div. 172, reversed.
    (Argued March 28, 1928;
    decided May 8, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1927, which affirmed a judgment of the Court of Special Sessions of the city of New York, convicting the defendant of a violation of section 272 of the Labor Law in that as a proprietor conducting a factory where two or more persons were employed, he had, during working hours, kept a door leading into and out of said factory locked or fastened. Defendant occupies the larger part of the floor of a building formerly used as offices. When he leased it the landlord removed all partitions, making one large room, and permanently closed a door which led into one of the rooms not leased to defendant. This is the door complained of. Aside from this the premises have more than the number of exits required by statute.

      Bernard Gordon and Harry A. Lieb for appellant.
    Section 272, subdivision 3, of the Labor Law does not refer to a former door of an interior partition, where the defendant concededly has the required number of exits. (Lau Ow Bew v. U. S., 144 U. S. 47; Jacobson v. Massachusetts, 197 U. S. 39.)

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly and Vine H. Smith of counsel), for respondent.
    The door in the partition between the factory premises leased by the appealing defendant and the factory conducted by the United Weaving Company was a “ door leading into or out of any factory ” within the meaning of section 272, subdivision 3, of the Labor Law, and was kept “ locked, bolted or fastened ” by the defendant within the condemnation of that statute and in violation of its provisions. (People v. Shevitz, 177 App. Div. 565; 224 N. Y. 627; People v. Lewis, 160 N. Y. Supp. 765.)
   Per Curiam.

There was no violation of section 272 of the Labor Law (Cons. Laws, ch. 31) by defendant. His factory was maintained with every exit required by the statute. Violation by the landlord and by the tenant of the adjoining factory in reducing the number of exits of that factory by barring and otherwise obstructing the door between the two factories does not constitute an infraction of the law as to the factory occupied by defendant. Their illegal acts in relation to that factory cannot be attributed to defendant.

The judgment of the Appellate Division and that of the trial court should be reversed and the defendant discharged.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.


text:
    In the Matter of the Estate of Orin Akin, Deceased. Nette Akin, Appellant; Arthur G. Atwood, as Administrator, Respondent.
    Decedent’s estate — discovery — Surrogate’s Court — jurisdiction — surrogate has jurisdiction, in discovery proceeding, to hear and determine every issue whether raised by answer or not.
    In a discovery proceeding the Surrogate’s Court has jurisdiction to dispose of every claim to property which should be delivered to an executor, administrator or guardian. (Surr. Ct. Act, §§ 205, 206.) A contention, therefore, that the statute confers upon the surrogate the power to hear and determine an issue and make a decree accordingly only where the issue is raised by an answer which alleges title to or the right to possession of property involved in the inquiry, cannot be sustained.

      Matter of Akin, 222 App. Div. 710, affirmed.
    (Argued April 12, 1928;
    decided May 8, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1927, which unanimously affirmed a decree of the Rensselaer County Surrogate's Court directing payment to the administrator of Grin Akin, deceased, of discovered assets.

      Donald S. Taylor for appellant.
    The Surrogate’s Court was wholly without jurisdiction to order delivery to the petitioner of the property concerning which the inquiry was had. (Matter of Hyams, 237 N. Y. 211; Matter of Walker, 136 N. Y. 20; Matter of Lowen, 95 Misc. Rep. 421; 175 App. Div. 895; Matter of Carney, 119 Misc. Rep. 104; 206 App. Div. 734; Matter of Fonda, 201 App. Div. 780; Matter of Beagan, 112 Misc. Rep. 292; Matter of Adler, 107 Misc. Rep. 574; Adler v. Levene, 191 App. Div. 40; Matter of Gick, 113 App. Div. 16; Matter of Mathewson, 210 App. Div. 572.)

      H. P. Humphrey for respondent.
    The amendment to the various sections of the Surrogate’s Court Act in 1924 were intended to give the surrogate full power and authority to make a determination in any case in which it appears from the evidence that property is withheld from the estate. (Matter of Fraley, 221 N. Y. Supp. 461; Matter of Coffer, 200 N. Y. Supp. 906.)
   Lehman, J.

Orín Akin died on February 19th, 1927. Until February 15th, 1927, he maintained a deposit account in the National City Bank of Troy. On February 15th, 1927, Nette Akin, a son of the decedent, presented at the bank a draft or order, apparently signed by the decedent, for the payment of the entire fund on deposit. The bank honored the draft and the moneys were thereupon deposited in a new account which was opened by Nette Akin in his own name.

After the death of Orin Akin, an administrator was appointed who promptly began proceedings in accordance with section 205 of the Surrogate’s Court Act to discover property withheld. The petition alleged that the moneys of the deposit account are in the possession or under the control or within the knowledge or information of one Nette Akin.” An order for an inquiry was made by the surrogate, and Nette Akin was directed to attend the inquiry “ and be examined according to the prayer of the said Petition and show cause why he should not deliver the property set forth in the said Petition, if it is in his control, to the said Administrator.”

Section 206 of the Surrogate’s Court Act provides:

“ Trial and decree. If the person directed to appear submits an answer denying any knowledge concerning, or possession of, any property which belonged to the decedent, or any property of the estate, or shall make default in answer, he shall be sworn to answer truly all questions put to him touching the inquiry prayed for in the petition. If it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery thereof to him, or if the estate property shall have been diverted or disposed of the decree may direct payment of the proceeds or value of such property or may impress a trust upon said proceeds or make any determination which a court of equity might decree in following trust property or funds. If such answer alleges title to or the right to possession of any property involved in the inquiry, the issue raised by such answer shall be heard and determined and a decree made accordingly.”

Nette Akin made default in answer. He appeared at the inquiry with counsel and was examined under oath concerning the fund which had been deposited in the bank by the decedent. He claimed that the decedent had made a gift to him of the moneys deposited. The administrator disputed the claim. Witnesses were produced by each side and examined by opposing counsel. Upon the evidence so taken, a fair question of fact is presented as to whether the decedent before his death gave to Nette Akin, his son, the moneys on deposit. The surrogate resolved that question in favor of the administrator and directed payment of the proceeds of the account to him.

The decree of the surrogate is attacked upon the ground that the statute in express terms confers upon the surrogate the power in a discovery proceeding to hear and determine an issue, and to make a decree accordingly, only where the issue is raised by an answer which alleges title to or the right to possession of property involved in the inquiry. Assertion by formal answer of a claim to title is a condition precedent, it is said, to the surrogate’s jurisdiction to hear and determine a disputed claim of title. Though even where no such answer has been interposed, the inquiry must proceed and “ if it appears that the petitioner is entitled to the possession of the property the decree shall direct delivery thereof to him,” the appellant urges that the surrogate may make such direction only if it appears that no claim of substance is made to the property. In other words, that where a person directed to appear at the inquiry has a substantial claim to the property, he has the privilege of electing to try his title in the Surrogate’s Court or elsewhere, and he does not elect trial in the Surrogate’s Court unless he serves an answer setting up his adverse claim.

The language of the statute, especially if read in the light of its history, does not in our opinion so restrict the jurisdiction of the surrogate in discovery proceedings. The right of an executor or administrator to compel discovery of the decedent's property is not a new one. It has a history recorded in legislation and decision. For many years the law was that in such a proceeding there could be no trial of title. If an opposing claim of title was put forward by sworn answer, the proceeding was dismissed. (Matter of Walker, 136 N. Y. 20, 29; Matter of Gick, 49 Misc. Rep. 32, and cases there cited.) An amendment of the statute in 1903 (Laws of 1903, chapter 526) empowered the surrogate to determine whether the adverse claim had a substantial basis. Unless he found it frivolous, he left the parties to an action. (Matter of Gick, 113 App. Div. 16, affg. 49 Misc. Rep. 32.) The last amendment in 1914 permits a trial of title. If necessary, a jury may be summoned. (Code Civ. Procedure, sec. 2538.) Delivery may then be decreed as the title may be found.” (Matter of Heinze, 224 N. Y. 1.) The Legislature has expressly provided that even where no answer is submitted alleging title or right to possession of the property “ if it appears that the petitioner is entitled to the possession of the property, the decree shall direct delivery thereof to him.” The express grant of power to the surrogate to hear and determine the issue raised by an answer which alleges title to or the right to possession of any property involved in the inquiry ” shows a legislative intent that the surrogate should have jurisdiction to determine title to the property in spite of an assertion of adverse claim of title in an answer. It does not make such assertion a condition precedent to the surrogate’s jurisdiction. The position of a wrongful possessor is not more favorable upon default than it would be after answer.

In Matter of Hyams (237 N. Y. 211) this court pointed out that under the statute as it then existed, the jurisdiction of the surrogate in discovery proceedings is in terms limited to an inquiry and decree concerning “ specific personal property which was owned by the decedent in his lifetime.” The next year the Legislature amended sections 205 and 206 of the Surrogate’s Court Act so as to remove even that limitation. (L. 1924, ch. 100.) If doubt as to the legislative intent had existed before, that amendment makes clear that in a discovery proceeding the Surrogate’s Court has now jurisdiction to dispose of every claim to property which should be delivered to an executor, administrator or guardian.

The order should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Kellogg and O’Brien, JJ., concur.

Order affirmed.


author: Pound, J.

text:
    Daniel J. McKenna, Respondent, v. Louise M. Meehan, Appellant.
    Equity — partition — parties — evidence — Statute of Frauds — judgment — plaintiff who seeks to establish an oral declaration of trust in real property is not tenant in common until judgment in his favor — oral evidence competent to establish declaration of trust where Statute of Frauds not pleaded — waiver of statutory defense does not result in seizin — plaintiff not entitled to jury trial in partition until establishment of ownership in equity — where abuse of confidential relation is shown equity will grant relief independently of Statute of Frauds — in such action verdict of jury merely advisory — erroneous direction of judgment on verdict without making decision stating facts found and conclusions of law.
    1. Though section 1018 of the Civil Practice Act provides that no person other than a joint tenant or a tenant in common of property may be a plaintiff in an action of partition, a person claiming to be an heir may maintain such an action, notwithstanding an apparent devise to another and possession thereunder, if he allege and establish that the apparent devise is void. (Civ. Pr. Act, § 1016.) Where, however, plaintiff does not put himself in the position of one who seeks to obtain or who has obtained an adjudication that an appa ent devise is void but seeks to establish an oral declaration of trust in real property, claiming under the deed, not adversely to it, and asserting misconduct not in the obtaining of the deed, but in the failure of the grantee to perform conditions orally established, until judgment of the court in his favor, he is not a tenant in common of the property.
    2. Oral evidence is competent to establish such a trust where the parties by their pleadings raise no objection to the lack of written evidence. An oral declaration of trust was valid prior to the Statute of Frauds and that which was valid before the statute is not made invalid thereby unless the statute is pleaded or the question raised by motion on the pleadings. Waiver of the statutory defense, however, by failure to plead it, thereby giving plaintiff an opportunity to establish the trust, does not result in seizin from the beginning and he must establish ownership in equity before he is entitled to a jury trial in partition as a matter of right. The Statute of Uses (Real Prop. Law, §§ 92, 93) cannot operate automatically upon an oral declaration of trust to vest title in the beneficiaries until it is finally decided that the Statute of Frauds is not a bar to the establish ent of the trust.
    3. Even though the Statute of Frauds had been pleaded, where the evidence shows that the defendant obtained from her mother, while on her death bed, a deed of all of her property to the exclusion of plaintiff, her brother, who was absent, the question would still remain whether there had been such an abuse of a confidential relation as to lead, without a writing, to an implication of.a trust, in which event equity would give relief independently of the Statute of Frauds, but in an action merely for equitable relief a jury trial is not a matter of right, as in partition (Civ. Pr. Act, § 1023); if issues are framed, the verdict is advisory and the facts must still be passed upon and a decision made by the court under section 440 of the Civil Practice Act. It was error, therefore, in this action for the court to grant an interlocutory judgment in partition on the verdict

      McKenna v. Meehan, 220 App. Div. 690, reversed.
    (Argued April 3, 1928;
    decided May 11, 1928.)
    Appeal, by permission, from a judgment, entered August 6, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, unanimously affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term after framed issues had been submitted to a jury in an action for partition.

      Maurice Rose for appellant.
    The verdict of the jury was not binding on the Special Term. (Morse v. Morse, 85 N. Y. 53; Underwood v. Curtis, 127 N. Y. 523; Crooke v. Prince, 97 N. Y. 421; Ogilby v. Hickok, 144 App. Div. 61.) The interlocutory judgment without findings of fact and conclusions of law is without legal basis. (Lowenthal v. Lowenthal, 157 N. Y. 236; MacDonald v. Slawson, 108 Misc. Rep. 127; Watts v. Doull Miller Co., 164 App. Div. 259; Brewster v. Brewster, 145 App. Div. 812; 204 N. Y. 687; Smith v. Geiger, 202 N. Y. 306.) The interlocutory judgment is not supported by the verdict. (Wheeler v. Reynolds, 66 N. Y. 229; Cowee v. Cornell, 75 N. Y. 91; Jones v. Jones, 137 N. Y. 610; Doheny v. Lacy, 168 N. Y. 213; La Tourette v. La Tourette, 54 App. Div. 137; 167 N. Y. 613; Cooke v. Higgins, 152 App. Div. 204.)

      Martin Lippman for respondent.
    The defendant did not set up the Statute of Frauds in her answer and the same is, therefore, not available as a defense to her in this action. (Zim v. Cohen, 221 App. Div. 341; Matthews v. Matthews, 154 N. Y. 288.) The Statute of Frauds will not be used as an instrument of fraud. (Sinclair v. Purdy, 235 N. Y. 245; Goldsmith v. Goldsmith, 145 N. Y. 313.) The defendant received the property impressed with a trust in favor of herself and her brother, and under the Real Property Law, this being a naked trust, the legal title to the land in question was vested in both the plaintiff and the defendant as tenants in common. (Bryant v. Shaw, 190 App. Div. 578; McGuire v. McGuire, 201 App. Div. 71.)
   Pound, J.

The complaint alleges in substance that Catherine McKenna, mother of plaintiff and defendant, who are her only heirs at law, was prior to her death the owner of real property in the borough of Manhattan known as No. 73 West Eighty-third street and No. 481 Columbus avenue; that for several years prior to her death she was sick, confined to her bed and incapable of managing her affairs; that when the plaintiff was in the United States Army defendant was intrusted by her mother with the management of her real property; that the defendant induced her mother, while lying on her death bed, to give her a- deed of such real estate, dated May 2, 1919, in reliance on her representation that the property would be regarded as the mother’s as long as she lived but that she would after the death of the mother hold the property for herself and her brother, the plaintiff, share and share alike, divide the net income between them and upon a sale of the premises divide the proceeds equally between them; that defendant received the deed on these conditions and after the death of her mother refused to convey to plaintiff his share of such property or to account for the rents, issues and profits thereof.

The complaint demands judgment (a) declaring the deed a trust deed for the benefit of plaintiff and defendant; (b) that plaintiff and defendant are tenants in common of the premises thus conveyed; (c) for an accounting; (d) for a partition and sale thereof. The complaint does not state whether the declaration of trust relied on was oral or in writing. The answer puts in issue the material allegations of the complaint but does not plead the Statute of Frauds.

The question is whether plaintiff may maintain an action for partition. “No person other than a joint tenant or a tenant in common of the property shall be a plaintiff in the action.” (Civ. Prac. Act, § 1018.)

The plaintiff moved to have issues framed for a jury trial on the ground that the action is for partition. (Civ. Prac. Act, § 1023.) If the action is for partition the court may not disregard the findings of the jury, as it may in equity cases where issues are, in the direction of the court, sent to the jury for trial. (Jones v. Jones, 120 N. Y. 589, 599.) The Special Term held that as plaintiff was seeking to enforce a trust and was not claiming a legal title, partition would not lie and denied the motion. The Appellate Division reversed the order of the Special Term and granted the motion. The jury found in favor of the plaintiff on issues framed. The court granted an interlocutory judgment without making a decision stating separately the facts found and the conclusions of law, in conformity with Civil Practice Act, section 440. On appeal the Appellate Division unanimously held that, as the trial justice was bound by the verdict, judgment was properly entered as on a motion. Final judgment was thereafter entered from which an appeal has been taken by permission to this court. The defendant contends that the judgment was improperly granted.

In partition the title or interest of any party in the property as stated in any pleading may be put in issue and the issues thus joined must be tried and determined in the action. (Civ. Prac. Act, § 1022.) A person claiming to be an heir may maintain an action in partition notwithstanding an apparent devise thereof to another by the defendant and possession under such devise, but the plaintiff must allege and establish that the apparent devise is void. (Civ. Prac. Act, § 1016.) In other words, a disseized cotenant may, by proper allegations and proof, maintain compulsory partition as against a void devise. (Weston v. Stoddard, 137 N. Y. 119.)

Plaintiff does not put himself in the position of one who seeks to obtain or who has obtained an adjudication that an apparent devise is void. He seeks to establish an oral declaration of trust in lands and the automatic execution thereof in his favor as one of the beneficiaries. He claims under the deed, not adversely to it. He asserts misconduct, not in the obtaining of the deed, but in the failure of the grantee to perform under its conditions as orally established.

Real Property Law (Cons. Laws, chap. 50, § 242) reads as follows: § 242. When written conveyance necessary. An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, can not be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this section does not affect the power of a testator in the disposition of his real property by will; nor prevent any trust. from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same.”

Defendant claims that she is not bound by the oral declaration of trust because there is no writing which complies with the requirement of the statute. An oral declaration of trust was valid in England prior to the Statute of Frauds of 1677, but was enacted by the statute to be “ utterly void and of none effect.” (29 Charles II, ch. 3, § 7.) Under the statute, a trust must rest on a conveyance in writing, although informal memoranda or subsequent letters signed by the party declaring the same, if they show the nature, character and extent of the trust interest, are held to be a sufficient declaration thereof. (Wright v. Douglass, 7 N. Y. 564; Hutchins v. Van Vechten, 140 N. Y. 115.) “ The trust must have existed at the time of the grant to the trustee, although it may have been effectually declared after-wards.” (Bates v. L. M. Co., 130 N. Y. 200, 205.) The recognition of the trust must be found in the writing, and not elsewhere.” (Cardozo, J. in Sinclair v. Purdy, 235 N. Y. 245, 250.)

One having been sued with regard to an alleged trust of which there is no sufficient declaration in writing may deny the existence of the trust or may admit it and plead the Statute of Frauds. Defendant denied the creation of the trust without pleading the statute. The section (§ 242) does not prevent any declaration of trust from being proved by a writing subscribed by the party declaring the same. The question arises whether it prohibits an oral declaration of trust as a rule of property and as wholly illegal and void or whether it merely creates a defense which may be waived by failure to plead it.

The provision of the Statute of Frauds declaring contracts void which by their terms are not to be performed in one year unless in writing (Personal Property Law [Cons. Laws, ch. 41], § 31) may be waived by failure to plead it, either by demurrer (now by motion) if the defect appears on the face of the complaint, or otherwise by answer. (Crane v. Powell, 139 N. Y. 379.) The rule has been applied in actions brought to recover damages for the breach of a contract to convey real property. (Real Property Law, § 259; Matthews v. Matthews, 154 N. Y. 288.) It was held that where the defendant intends to assail, on statutory grounds, a contract which, although declared void under the Statute of Frauds, is not illegal or a mere nullity, he must give notice of this intention to the opposing party by the pleadings.

While this is not a case of contract the same principle applies. In the light of the adjudged cases, a defendant who intends to avail himself of the benefit of the statute to prevent the proof of an oral declaration of trust must plead it. (Sinclair v. Purdy, supra, p. 254; see, also, Bogert on Trusts, 60.) “ The statute enacts a rule of evidence.” (Hutchins v. Van Vechten, supra.) That which was valid before the statute is not made invalid by the statute unless the statute is pleaded or the question raised by a motion on the pleadings. To hold otherwise would be contrary to the general spirit of the statute as construed by the decisions of this State, whatever the rule may be elsewhere. (1 Reeves on Real Property, 436; 1 Perry on Trusts [6th ed.], § 79.) The oral declaration of trust may be established if the parties by their pleadings raise no objection to the lack of written evidence. Oral evidence was, therefore, competent to establish the trust.

That this action will lie as for partition does not follow. Plaintiff was neither a joint tenant nor a tenant in common of the property at the beginning of the action. He had no seizin in fact or in law, nor had he been disseized by a void devise. He had neither possession nor right to possession of the lands. He had a chose in action to have an oral trust declared which might have been defeated if the Statute of Frauds had been pleaded as a defense. A trust declared in writing, other than one of the express trusts provided for by the Real Property Law, would be executed automatically by force of the statute so as to vest the legal estate in the beneficial owners. (Real Property Law, §§ 92, 93.) An oral trust would have been unenforceable from its creation (Melenky v. Melen, 233 N. Y. 19, 22), if defendant had not waived the objection to oral proof of the declaration of trust. Plaintiff by such waiver was given the opportunity to establish the trust which the statute declared to be unenforcible. To say, however, that waiver of the statutory defense would result in seizin from the beginning is to state an obvious fallacy. Where the trust is not declared in the deed or in subsequent writings, ownership arises, not out of the deed alone but out of the waiver, the evidence in the case and the decision thereon. Ownership being acquired, partition with all its retrospective incidents, would follow, but plaintiff has not seizin until his right is judically established. The deed and the decision may result in seizin ab initio, but without the judgment of the court in his favor, plaintiff is not a tenant in common of the property. He must establish ownership in equity before he is entitled to a jury trial in partition as a matter of right.

If the Statute of Frauds had been pleaded, the question would still remain whether there had been such an abuse of a confidential relation as to lead without a writing to the implication of a trust. (Sinclair v. Purdy, supra.) Equity gives relief on the ground of the perpetration of fraud independently of the Statute of Frauds. If such relief is granted, the legal estate remains in the grantee but equity holds her to the performance of her verbal agreement. A constructive trust is declared to hold and sell which fastens itself on the property. In cases of established fraud, where the conveyance is not set aside and the trust is not executed automatically by the provisions of the statute, equity will suffer the title to rest in the fraudulent grantee as trustee ex maleficio to execute the trust in accordance with its terms. (Wood v. Rabe, 96 N. Y. 414, 422.)

In an action for equitable relief, a jury trial is not a matter of right. If issues are framed, the verdict is advisory. The facts must be passed upon and a decision made by the court under Civil Practice Act, section 440.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Cardozo, Ch. J., Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgments reversed, etc.


author: O’Brien, J.

text:
    The People of the State of New York ex rel. Percy W. Horton et al., Appellants, v. William A. Prendergast et al., Constituting the Public Service Commission. Niagara, Lockport and Ontario Power Company, Respondent.
    Eminent domain — condemnation proceedings — water and watercourses — riparian rights — condemnation by power corporation of real property for water power site — determination by Public Service Commission requisite that site sought is single one in major part owned by corporation, that property sought is necessary to development, and that heat, light or power is necessary for public use — test whether property sought comprises one or two power sites — sufficiency of evidence to sustain finding that major part of usable flow for power is vested in corporation — corporation under duty to produce, transmit and distribute electricity to public for light, heat and power — subdivision 3 of section 624 of the Conservation Law constitutional.
    1. Subdivision 3 of section 624 of the Conservation Law (Cons. Laws, eh. 65) authorizes condemnation by a power corporation of real property for a water power site only after determination by the Public' Service Commission, upon evidence, that the site sought to be condemned is a single one, that the part already owned by the corporation constitutes the major part thereof, that the property sought is necessary for the full development and utilization of that undeveloped single site and that the heat, light or power sought to be developed is necessary for a public use.
    2. The test whether the property sought to be condemned comprises one power site or two is whether each can be operated without crippling the other and where it is conceded by two owners of the river bed and adjacent lands that a development by one would prevent a development by the other, the site is a single one. Subdivision 2 of section 624 of the Conservation Law, which relates to the development of more than one water power site, has, therefore, no application and the Public Service Commission rather than the Water Power Commission is the appropriate official agency to make the determination.
    3. Upon application to the Public Service Commission, under subdivision 3 of section 624 of the Conservation Law, for a certificate of necessity as provided for therein, a finding by the Commission that the major part of the head and volume of the usable flow for power at the site in question is vested in the petitioner, a power corporation, is supported by evidence that at the location proposed for its dam ten thousand horse power can be developed while at the property of relator only three thousand can be obtained and that of the fifty feet of head in the river the relators make claim to no more than twenty-two while the power company owns the remaining twenty-eight.
    4. A contention that, as matter of law, the power company’s use of the additional power will not constitute a public use, cannot be sustained. It was organized and exists by virtue of chapter 722 of the Laws of 1894 and is engaged in producing, transmitting and distributing electricity to the public for light, heat and power purposes. It is under a duty to perform such service. (Public Service Commission'Law, § 5, subd. 2, §§ 65, 66, 71, 72; Cons. Laws, ch. 48, amd. L. 1921, ch. 134.) The only theory upon which the Legislature can delegate to a power company the right to take private property is founded upon the right of the general public to use the heat, fight or power generated by it and such use cannot be refused when demanded by the public.
    5. Nor may a contention be sustained that subdivision 3 of section 624 of the Conservation Law is unconstitutional in that it violates the equal protection clause of the Fourteenth Amendment by arbitrarily giving to the owner of the major part of the head and volume of the usable flow of a stream rights which are withheld from the owner of the minor part. The sovereign right of eminent domain may be withheld from afi except the sovereign or it may be delegated at the will of the Legislature, subject only to the constitutional restrictions that just compensation must be paid for the private property taken and that the use for which it is taken must be public.

      People ex rel. Horton v. Prendergast, 220 App. Div. 351, affirmed.
    (Argued May 9, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 7, 1927, which confirmed, on certiorari, a determination of the Public Service Commission granting a certificate of necessity under subdivision 3 of section 624 of the Conservation Law.

      Allen S. Hubbard and Delos M. Cosgrove for appellants.
    The statute violates the equal protection clause of the Fourteenth Amendment, in that it arbitrarily gives to the owner of a major part of the head and volume of usable flow of a stream rights not given to the owner of a minor part of the head and volume of usable flow of such stream. (Commonwealth v. Alger, 61 Cush. 53; City of Rochester v. Holden, 224 N. Y. 386; Village of Saratoga Springs v. Saratoga Gas, Elec. Light & Power Co., 191 N. Y. 123; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Atchison, Topeka & Santa Fe Ry. Co. v. Vosburg, 238 U. S. 56; Truax v. Corrigan, 257 U. S. 312; Kentucky Finance Co. v. Paramount Auto Exch. Corp., 262 U. S. 544; St. Louis Compress Co. v. Arkansas, 260 U. S. 346; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150.) The statute violates the equal protection clause of the Fourteenth Amendment in that owners whose property is taken under subdivision 3 of the section are not given rights equal to the rights given to owners whose property is taken under subdivision 2. (Stuart v. Palmer, 74 N. Y. 183; City of Rochester v. Holden, 224 N. Y. 386.) The Public Service Commission erred in holding that the power company was the owner of the major part of the head and volume of usable flow of the stream at the proposed power site. (United Paper Board Co. v. Iroquois Pulp & Paper Co., 226 N. Y. 38.) The Public Service Commission erred in holding that the proceeding to condemn relators’ power sites was properly brought under subdivision 3 of the statute. (Matter of Water Commrs. v. Amsterdam, 96 N. Y. 351; Matter of Poughkeepsie Bridge Co., 108 N. Y. 483; Bd. of Education of Malone v. O’Rourke, 191 App. Div. 317.) The Public Service Commission erred in holding that the power to be developed at the proposed site was required for public use. (Matter of Mayor, etc., of New York, 135 N. Y. 253; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Matter of Split Rock Cable Road Co., 128 N. Y. 408; Matter of Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42; Oneonta Light & Power Co. v. Schwarzenbach, 164 App. Div. 548; Randolph on Em. Dom. 52, § 56; Nichols on Em. Dom. [2d ed.] 140; Black on Const. Law [3d ed.], 477, § 177; Attica Water, Gas & Elec. Co. v. Alden-Batavia Natural Gas Co., 3 P. S. C. 207.)

      Henry W. Killeen, Francis E. Cullen, Warren Tubbs and Charles R. Sweeney for respondent.
    The statute does not deny to the appellants, nor to any one, the equal protection of the law. (People v. Adirondack Ry. Co., 160 N. Y. 225; 176 U. S. 335; People ex rel. Lasher v. City of New York, 130 App. Div. 75; 194 N. Y. 439; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234; Matter of Union E. R. R. Co. of Brooklyn, 112 N. Y. 61; Mott v. Eno, 181 N. Y. 346; Joslin Co. v. Providence, 262 U. S. 668; Sears v. City of Akron, 246 U. S. 242; Matter of Public Service Comm., 217 N. Y. 61; Kahlen v. State of New York, 223 N. Y. 383; People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 206 N. Y. 274; People v. B. & O. R. R. Co., 117 N. Y. 150; Matter of Townsend, 39 N. Y. 171; District v. Ogsbury, 203 App. Div. 43; Matter of Simmons, 58 Misc. Rep. 581.) The use of real property as part of a hydro-electric development is a public use and power of condemnation of such property may lawfully be delegated to a private corporation. (Matter of Niagara, Lockport & Ontario Power Co., Ill App. Div. 686; Oneonta Light & Power Co. v. Schwarzenbach, 164 App. Div. 548; 219 N. Y. 588; Matter of East Canada Creek Co., 49 Misc. Rep. 565; Matter of Long Sault Development Co. v. Kennedy, 158 App. Div. 398; 212 N. Y. 1; Matter of Niagara, Lockport & Ontario Power Co., 125 Misc. Rep. 269; Alabama Power Co. v. Mt. Vernon Cotton Co., 186 Ala. 622; Jones v. North Georgia Electric Co., 125 Ga. 618; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429; Helena Power Transmission Co. v. Spratt, 35 Mont. 108; Hollister v. State, 9 Ida. 8; Webster v. Pole Line Co., 112 Md. 416; Rockingham Light & Power Co. v. Hobbs, 72 N. H. 531; Public Service Co. v. Recktenwald,
      290 Ill. 314.) The statute does not empower the Public Service Commission to determine whether the use for which condemnation is sought is a public use; nor to try and decide conflicting claims of title to real estate. (Matter of Fowler, 53 N. Y. 60; Matter of City of Rochester v. Holden, 224 N. Y. 386.)
   O’Brien, J.

Preliminary to the institution of a proceeding to condemn lands belonging to relators, application was made to the Public Service Commission by respondent Niagara, Lockport and Ontario Power Company for such a certificate of necessity as is provided by section 624, subdivision 3, of the Conservation Law (Cons. Laws, ch. 65) as amended by chapter 242 of the Laws of 1923. The application was granted and the Commission certified and determined that relators’ real property is necessary for the full development and utilization of a certain single undeveloped water power site on the Salmon river in Oswego county for the production of heat, light or power for sale or distribution to the public; that such heat, light or power to be produced at that site is necessary for public use and that the power company already is the owner of the lands and rights constituting the major part of the head and volume of the usable flow for power at that site. The determination has been unanimously affirmed and the appeal is here by permission of the Appellate Division. After the issue of this certificate, respondent instituted its condemnation proceeding and has prosecuted it to judgment. (Matter of Niagara, L. & O. P. Co., 125 Misc. Rep. 269.) The record in that proceeding is not before us.

Relators argue in the appeal now before us that the Public Service Commission was without authority to proceed under subdivision 3 of section 624 but rather that the jurisdiction to make the necessary determination is vested in the Water Power Commission by subdivision 2 of that section. They urge further, that, even assuming subdivision 3 to be the appropriate part of the statute, the Public Service Commission erred in its findings of fact, that the power to be developed was not required for a public use and that subdivision 3 is unconstitutional.

Before considering the validity of subdivision 3, its [ meaning and application must be decided. Section 624 of the Conservation Law relates to the acquisition of real property for water power sites in the exercise of the right of eminent domain and in seven subdivisions regulates that right. Appellants say that subdivision 2 is the appropriate provision controlling the facts at bar, while respondent points to subdivision 3. It authorizes condemnation of “3. Real property on the application of a corporation organized for the production of heat, light or power, after a determination by the public service commission that such property is necessary to the full development and utilization of a single undeveloped water power site, a major part of the head and volume of the usable flow for power at which site is owned by such corporation, for the production of heat, light or power for sale or distribution to the public and that such heat, light or power is necessary for public use. * * By the requirements of this subdivision, no power corporation is authorized to condemn unless the Public Service Commission makes a certain determination. That determination must rest upon evidence tending to prove that the site, instead of consisting of several different sites, constitutes a single one and that the part of it already owned by the power corporation constitutes the major part of the single site. The real property in order to become subject to condemnation must be necessary for the full development and utilization of that undeveloped single site. The heat, light or power sought to be developed by the power corporation must be necessary for a public use.

Approach must first be made to the proposition that the site is a single one. If two or more existed, subdivision 3 would not apply and the Public Service Commission would have no jurisdiction.. Subdivision 2 would control and the Water Power Commission would have authority to act. Examination of the map which includes the real property owned by the parties when considered with all the other evidence supports the determination that the site is a single one. By section 610, subdivision 5, the term water power site ” is defined. It means “ the real property including rights appurtenant thereto or which may become appurtenant thereto which, when a water power is developed, is necessary or useful for the construction, maintenance and operation of a plant for the use of a fall of water for the generation of power.” Respondent owns and has developed a water power site at Bennett’s Bridge the dam, hydro-electric power house and tail race of which, completed in 1914, are situated up stream from the location of the proposed dam at Lighthouse Hill for the power plant which is the subject of the present appeal. Title to the river bed and adjacent lands between the Bennett’s Bridge power site and the Lighthouse Hill dam is vested in respondent except that portion, comparatively small in area, shown in yellow on the map. Respondent by prior adjudication has the right to impound the waters above the Bennett’s Bridge dam and to control and vary the natural flow of the river between that site and the proposed one. The practical result is that the proposed site will be available for the generation of power only while the plant at Bennett’s Bridge is in operation and on those infrequent occasions when the stream is swollen by freshets. While appellants own real property available for the erection of a dam, its presence would be useless dining such times as the water upstream should be impounded by the dam at Bennett’s Bridge. Then, too, a dam erected upon appellants’ property would render inoperative any dam constructed by respondent on its land further down stream. Both parties concede that a development by one would prevent a development by the other. This fact supplies the test whether the area below Bennett’s Bridge comprises one power site or two. Of course if each development would cripple the other, only one site can exist. The real property -with its appurtenances on the mapped area is not useful for the operation of more than one plant for the generation of power and, therefore, only one water power site does in fact exist. Since that is the fact, subdivision 2 of section 624 has no application and the Public Service Commission rather than the Water Power Commission is the appropriate official agency to make the determination.

The interest in the head and volume of the usable flow of water which, by prior adjudication, vests in respondent, constitutes, as matter of fact, the major part of such head and volume. Evidence supports this finding by the Commission. At the location proposed for respondent’s dam ten thousand horsepower can be developed; at that of appellant’s only three thousand horsepower. The full head of the river within the project area, that is, the difference in elevation, is fifty feet. Relators make claim to no more than twenty-two feet. Respondent owns the remaining twenty-eight feet of head. This constitutes the major part.

The Commission has determined that production of light, heat and power at the proposed site is necessary for public use, and that relators’ real property is necessary for the production of heat, light or power for sale or distribution to the public. Appellants do not appear to contest the fact relating to the necessity for additional production of heat, light or power. That is a legislative question. They contend that, as matter of law, respondent’s use of the additional power will not constitute a public use. This is a subject for judicial inquiry and does not lie within the jurisdiction of the Legislature or its agents to determine. (Matter of City of Rochester v. Holden, 224 N. Y. 386, 390.) Neither body has assumed to determine this issue of law. Appellants argue that a public use is one which can be demanded and cannot be refused. (Matter of Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42; Matter of Split Rock Cable Road Co., 128 N. Y. 408; Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 259; Matter of Mayor, etc., of N. Y., 135 N. Y. 253, 259.) There is no need to consider whether there are any exceptions to that rule. We hold that the use of the additional light, heat or power to be produced by respondent at its new power site cannot be refused when demanded by the public. The only theory upon which the Legislature can delegate to respondent the right to take private property is founded upon the right of the general public to use the heat, light or power generated by respondent. This power company cannot and will not be allowed to avail itself of a right resting upon only one principle and later be permitted to repudiate that principle. It makes no attempt to repudiate. It professes and undertakes to serve the public and will be held to such profession and undertaking. In its petition to the Commission it alleges that it is engaged in producing, transmitting and distributing electricity to the public for light, heat and power purposes. Its counsel stated to the Commission that it had 17,500 customers and its general manager testified that as of December 1, 1923, it had 21,309 customers. Among these are industrial plants, distributing corporations, electric transportation corporations, municipalities and many miscellaneous residential and commercial retail customers supplied directly by respondent and by subsidiary companies owned by it. It was organized and exists by virtue of chapter 722 of the Laws of 1894 and is engaged in producing, transmitting and distributing electricity to the public for light, heat and power purposes. It is under a duty to perform such service. By section 5, subdivision 2, of the Public Service Commission Law (Cons. Laws, ch. 48), as amended by chapter 134, section 10, of the Laws of 1921, the Commission possesses jurisdiction, supervision, powers and duties over the manufacture, sale or distribution of electricity for light, heat or power, over electrical plants and over persons or corporations owning, leasing or operating such plants. By section 65, as amended by section 37 of the act of 1921, every electrical corporation is required to provide such service as shall be just and reasonable and all charges shall be just and reasonable, and not more than allowed by law or by order of the Commission. By section 66, as amended by section 39 of the act of 1921, the Commission is empowered to prescribe the efficiency of the electrical supply system of the current supplied by the persons or corporations generating and selling electric current. By sections 71 and 72, as amended by sections 48 and 49 of the act of 1921, the Commission may fix just and reasonable rates and charges for electricity manufactured, sold or supplied for heat, light or power, and may order improvement in the manufacture, transmission or supply of electricity. This respondent has in fact ranged itself within the jurisdiction of the Public Service Commission. (Niagara, L. & O. P. Co. v. Seneca I. & S. Co., 128 Misc. Rep. 335.) There can be no doubt that the power to be generated at its new site is for a public use and must be supplied to the public on reasonable demand.

Appellants argue that subdivision 3 of section 624 is unconstitutional in that it violates the equal protection clause of the Fourteenth Amendment by arbitrarily granting to the owner of the major part of the head and volume of the usable flow of a stream rights which are withheld from the owner of the minor part. The sovereign power of eminent domain may be withheld from all except the sovereign or it may be delegated at the will of the Legislature. The legislative authority to delegate is restricted by the Constitution in only two respects; just compensation must be paid for the private property taken and the use for which it is taken must be public. (People v. Adiron dack Railway Company, 160 N. Y. 225; affd., 176 U. S. 335; Joslin Mfg. Co. v. City of Providence, 262 U. S. 668.)

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

Cardozo, Ch. J., Pound, Andrews and Kellogg, JJ., concur; Crane, J., dissents on the ground that the act, section 624, subdivision 3, of the Conservation Law is unconstitutional; Lehman, J., not sitting.

Order affirmed.