author: Fuld, J. Conway, J.

text:
    The People of the State of New York, Respondent, v. Nancy Choremi, Appellant.
    Argued June 2, 1950;
    decided July 11, 1950.

      Theodore S. Jaffin, Lawrence S. Greenbaum and Louis W. Bookheim, Jr., for appellant.
    I. The information fails to allege the commission of an offense by appellant. (People v. Santiago, 293 N. Y. 895; People v. Van Why, 288 N. Y. 659; People v. Sohn, 269 N. Y. 330; People v. Albow, 140 N. Y. 130; Dedieu v. People, 22 N. Y. 178; People v. Leiby, 184 Misc. 21; People v. Huyck, 171 Misc. 467; Sherwin v. People, 100 N. Y. 351; People v. Santoro, 229 N. Y. 277; People v. Zambounis, 251 N. Y. 94.) II. There is no proof to sustain the conviction. (People v. Santiago, 293 N. Y. 895; People v. Reynolds, 300 N. Y. 616; People v. Phelps, 189 App. Div. 775; People v. Santiago, 192 Misc. 72; People v. Taddio, 292 N. Y. 488; People v. Cooperman, 279 N. Y. 599; People v. Orr, 270 N. Y. 193.) III. All that has been shown is that appellant received only the one telephone conversation at her home from Blavier on May 20th. There is nothing in the record to indicate the period of time appellant was at her apartment. It is submitted that the presence of a person at her home for long enough only to receive one telephone call is not evidence of loitering. The word “ loiter,” though not defined in the Code of Criminal Procedure, has a generally understood meaning and involves an idle waiting around for a period of time. (People v. Berger, 169 N. Y. S. 319; City of Olathe v. Lauck, 156 Kan. 637; City of Columbus v. Aldrich, 69 Ohio App. 396; State v. Badda, 97 W. Va. 417; Stephens v. Dist. of Columbia, 16 D. C. App. 279; People v. Santiago, 293 N. Y. 895; People v. Van Why, 288 N. Y. 659.)

      Louis Bender for American Civil Liberties Union, amicus curiæ, in support of appellant’s position.

      Frank S. Hogan, District Attorney (Edwin C. Hoyt, Jr., and Whitman Knapp of counsel), for respondent.
    Guilt was established beyond a reasonable doubt. (People v. Goldstein, 295 N. Y. 61; People v. Fitch, 282 N. Y. 777; People v. Santiago, 192 Misc. 72; People v. Santiago, 293 N. Y. 895.)
   Fuld, J.

Though there is serious doubt as to the sufficiency of the information filed against defendant (cf. People v. Zambounis, 251 N. Y. 94, 95-96; People v. Santoro, 229 N. Y. 277, 282-283; People v. Albow, 140 N. Y. 130, 134), we choose to place our decision upon the ground that there is no evidence in the record before us to establish that she is a vagrant under subdivision 4 of section 887 of the Code of Criminal Procedure.

Concededly, there is nothing in the record except three wiretapped telephone conversations between defendant and Madeleine Blavier — one on May 5, another on May 20 and the third on May 21,1948 — and one seeks in vain in those conversations for the essential proof of loitering “ for the purpose of inducing, enticing or procuring another to commit * * * unlawful sexual intercourse ” (Code Crim. Pro., § 887, subd. 4, cl, [c].). While those talks do indicate that defendant may have been intent on granting her favors for a price, there is not the slightest bit of evidence that she committed an act of prostitution or of unlawful sexual intercourse or that she loitered any place for the purpose proscribed by the statute.

As the magistrate before whom the case was tried properly ruled, the evidence of defendant’s offense of vagrancy comes down to * * * the alleged telephone * * * [call] of May 20th ” that Blavier made to defendant at the latter’s apartment. After being told by Blavier that she was at 55th Street ’ ’ and had made an appointment “ with Bene ” and a friend ” of his for 2:30 today ”, defendant simply replied All right ” and ‘ I can be there. ’ ’ Where did the defendant “ loiter ” ? Was it at her home where she was when Blavier called her or was it at 55th Street where the. man was to be ? Of what did the loitering consist? Where was the evidence of a purpose to induce, entice or procure another to commit an act of sexual intercourse ? Suggestive though the conversation may have been of an act of prostitution to be committed in the future, it is our view that it contained naught to indicate that defendant was “ loitering ” . at her home — the act charged against her in the information — for the purpose of inducing, enticing or procuring another ” to commit the prohibited act. Suspicion and surmise there may have been that defendant might thereafter engage in illicit conduct, but neither the one nor the other constitutes that kind of proof which our system of justice demands to support a conviction. (See People v. Orr, 270 N. Y. 193, 196; People v. Sohn, 269 N. Y. 330, 335.)

Even assuming that one may loiter ” — as that word is used in the criminal statute under consideration (cf. City of Olathe v. Lauck, 156 Kan. 637, 640; City of Columbus v. Aldrich, 69 Ohio App. 396, 399-400; see, also, Stephens v. District of Columbia, 16 D. C. App. 279, 281; State v. Badda, 97 W. Va. 417, 419; and see, also, Webster’s New International Dictionary [2d ed.], p. 1454) — in one’s own home, the record is devoid of any proof of such an act. And, since the charge was of ‘ ‘ loitering ’ ’ in her home, we merely note that there is not even an intimation that defendaht went to the place on 55th Street, the suggested rendezvous. But even if we were to conclude that there was proof of ‘ ‘ loitering ’ ’, we find it even more difficult to spell out evidence that defendant loitered ‘ ‘ for the purpose of inducing, enticing, or procuring ” anyone to have sex relations with her. Quite apart from other considerations, the telephone call was from Blavier to defendant and the alleged appointment was arranged by Blavier and proffered by her to defendant.

In addition, the utter weakness of the case, its thin and meager nature, is emphasized and accentuated by comparing it with People v. Reynolds (300 N. Y. 616), also a prosecution for vagrancy, though based upon a different clause of subdivision 4. In the Reynolds case (supra), the conviction depended not only upon wire-tapped telephone conversations but upon evidence by the police that they kept the premises in question under surveillance, that they saw the men and women who had been in the apartment pair off and repair to bedrooms where the lights went off shortly after their entry, that they found them in compromising positions when they made arrests, and that the defendant stated that she was responsible for everything that took place.” (Reynolds Record on Appeal, fols. 297, 320, 331-336, 339-340, 365-379, 391, 410-411.)

Contrary to the fears expressed by the minority, the court is not drawing * * * distinctions between different modes of commission of the same, essentially criminal act.” (Opinion of Conway, J., p. 422.) Obviously, if the act charged against a defendant be proved, it matters not how defendant committed it or where. In the case before us, there must be a reversal because the evidence adduced by the prosecution fails to establish that defendant was guilty of the offense charged.

The judgments should be reversed and the information dismissed.

Conway, J.

(dissenting). The decision of the majority seems to us to rest upon an unduly narrow construction of section 887 of the Code of Criminal Procedure, defining vagrancy. Clause (c) of subdivision 4 thereof, under which defendant was charged in the information, provides that a person is a vagrant who ‘‘ loiters in or near any thoroughfare or public or private place for the purpose of inducing, enticing or procuring another to commit lewdness, fornication, unlawful sexual intercourse or any other indecent act ’ ’. This section is part of a comprehensive series of enactments passed by the Legislature in an effort to stamp out the crime of prostitution, with all its attendant evils, by controlling every facet of the illegal enterprise. (See, e.g., Multiple Dwelling Law, §§ 12, 350-360; Public Health Law, § 343-hh; Penal Law, § 3, subd. 9; §§ 70, 1146, 1148, 2460; Civ. Prac. Act, § 1417.) The law’s primary concern is not with punishing the females involved, as is evidenced by the comparatively light punishment provided in section 887 of the code compared to the more severe penalties to which others who make money out of the prostitution of women are subject. Section 887, however, has a vital place in the statutory scheme and is essential to its effective enforcement. The decision here made, we are convinced, restricts section 887 in a manner never contemplated by the Legislature and will undoubtedly hamper our law enforcement officers in their continued attempts to control this social evil.

The majority opinion states that “ there is not the slightest bit of evidence that she [defendant] committed an act of prostitution or of unlawful sexual intercourse or that she loitered any place for the purpose proscribed by the statute.” We find no requirement in the statute (§ 887, subd. 4, cl. [c]) of proof of an act of prostitution or of unlawful sexual intercourse in order to support a conviction thereunder. The statute makes material the defendant’s purpose, not whether she accomplished it. We are here concerned with a provision which is aimed at a preliminary step in the chain of activities, all of which the Legislature, for the common good, has interdicted. The quoted provision of the code is designed to forbid persons from malting themselves available for unlawful sexual intercourse. Basically, the essential element of the offense is the act of the defendant in holding herself forth for the prohibited purpose, i.e., the act of offering to commit unlawful sexual intercourse.

The argument is made that there was here no proof that defendant loitered ” within the meaning of the statute. To reach that conclusion, the majority opinion ascribes to the word ‘ ‘ loiters ’ ’ a strict dictionary definition and ignores the evident intent and purpose of the Legislature. It is commonplace that every statute must be read in the light of the mischief attempted to be remedied. So read, we think that this provision has a meaning and scope beyond the mere dictionary definition of the word “ loiter ”. Logically, the majority decision would make it incumbent upon the People to prove that a defendant lingered aimlessly or idly about a place or moved in a slow and lagging manner for the proscribed purpose in order to sustain a vagrancy conviction under this section of the code — a conclusion which cannot represent the intent of the Legislature.

The decision thus thwarts the will of the Legislature and puts beyond the reach of the law persons who, in the popular as well as the legal sense, have committed a recognized offense. This decision, moreover, inevitably results in the drawing of unreasonable, untenable and unnecessary distinctions between different modes of commission of the same, essentially criminal act. A female who holds herself forth for the purpose of prostitution on a street corner may be convicted therefor, but a female who performs the same act of holding herself forth in her home over the telephone is now rendered immune from punishment. The Legislature, we submit, could not have intended so incongruous a result. That the Legislature did not so intend was held over thirty years ago in People v. Phelps (189 App. Div. 775-776), where the court said: The county judge was of the opinion that in order to sustain a conviction under subdivision 4 of section 887 of the Code of Criminal Procedure, it was incumbent upon the People to ‘ establish that the defendant was a common prostitute or night walker, that she solicited to the annoyance of the inhabitants or passersby, and that she was there in a public place for the purpose of prostitution. ’ This was a mistaken view of the law. The proof established that the defendant offered to commit prostitution, and this proof was all that was requisite to a conviction. * * * ”

The majority opinion further states that “ assuming that one may ‘ loiter ’ * * * in one’s own home, the record is devoid of any proof of such an act. ” As we have construed the section here under consideration, we think it plain beyond dispute that defendant’s guilt thereunder was satisfactorily shown. The three telephone conversations — which were intercepted by the police under authority of a court order — must be read together and when so read they leave no doubt as to defendant’s use of her apartment as a base for the purpose of procuring others to commit unlawful sexual intercourse. That was not the only evidence of guilt. The Magistrate in a carefully considered decision expressly found corroboration of the testimony of the police in the testimony of two of the three codefendants tried with Mrs. Choremi. Those two codefendants were the only two of the four who testified and one of them was Miss Blavier. In addition when the arrest of Mrs. Choremi was made at her home on the same day on which the last conversation took place — May 21st — she was told by the police officer: “We have intercepted telephone messages between you and Blavier in which you made dates to go out with men. Is that right?” Mrs. Choremi replied: “Yes, I made dates with Blavier.” On May 5, 1948, defendant asked her accomplice codefendant, another woman, “ Did you make that date for me?” and received the reply, “ Yes, you’ll be at my apartment tonight at 6:30. They are very nice and it’s for twice what you expect, you know.” Defendant agreed to be there at the hour suggested. On May 20, 1948, the date specified in the information, she made another appointment of a like nature, the codefendant this time making the comment that the person defendant was to meet “ had not been laid in a month, and so you can get paid and can enjoy yourself at the same time. ’ ’ The next day, defendant expressed disinterest in meeting another person on the ground that the money was insufficient. The codefendant said, “You know you can’t meet fellows like we had yesterday every day. They were exceptional and you can’t always get that money ”, to which defendant replied, “You can call me here if it’s for more.” We must confess that we are unable to understand how these conversations may be read without leading to the inference that defendant, in her apartment, on May 20, 1948, ‘6 loitered ” — as we have construed that term — for the purpose of procuring another to commit unlawful sexual intercourse.

We do not think the case of People v. Reynolds (300 N. Y. 616) is in point. The defendant there was charged with a violation of clause (b) of subdivision 4 of section 887 of the Code of Criminal Procedure which involves prostitution. Miss Blavier, one of the three codefendants, was charged with that here as well as with a violation of clause (c) of subdivision 4 of section 887. Mrs. Choremi, however, was charged only with the latter and, as we have already pointed out, there is no requirement under clause (c) of subdivision 4 of proof of an act of prostitution or of unlawful sexual intercourse to support a conviction thereunder. It no doubt is the fact that Mrs. Choremi could also have been charged with a violation of both subdivisions but she was not and thus People v. Reynolds (supra) has no application here.

There is another, and conclusive, reason why this conviction should be affirmed. We have referred above solely to clause (c) of subdivision 4 of section 887 of the code. Clause (a) of subdivision 4 provides that a person is a vagrant “ who offers to commit prostitution (Italics supplied.) Whether or not defendant here loitered for the purpose of procuring another to commit unlawful sexual intercourse, it cannot be disputed, after considering her telephone conversations, that she at least offered to commit prostitution. Defendant was charged with a violation of clause (c) of subdivision 4 of section 887, but as we recently held in People v. Feiner (300 N. Y. 391, 397-398), “ it is settled that the judgment of conviction in a case such as this will be affirmed if the evidence establishes a violation of any of the subdivisions of the section. (People v. Hipple, 263 N. Y. 242, 244.) ” The Feiner and the Hipple cases (supra) were concerned with the offense of disorderly conduct, but we see no substantial distinction in this respect between that offense and the offense of vagrancy.

The judgment of conviction should be affirmed.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of William B. Mahoney, Respondent, and Another, Petitioner, against James R. Lawley et al., as Commissioners of Election of Erie County, Defendants, and Anthony J. Naples, Appellant.
    Argued August 18, 1950;
    decided August 18, 1950.

      David Diamond for appellant.
    Special Term correctly dismissed the petition on the ground that petitioner was not a proper party. (Matter of Derman v. Cohen, 22 N. Y. S. 2d 684; Matter of Corn v. Cohen, 181 Misc. 832, 267 App. Div. 891; Matter of McDonald v. Heffernan, 196 Misc. 465.)

      Robert M. Hitchcock for respondent.
    Petitioner is a proper party to maintain this judicial proceeding. (Matter of Bergen [Miller], 262 N. Y. 717; Matter of Berman v. Heffernan, 295 N. Y. 593; Matter of Sposato [Graham], 180 Misc. 933; Matter of Lauer v. Board of Elections, 262 N. Y. 416; Matter of Cowles v. Board of Elections, 252 App. Div. 326; Matter of Corn v. Cohen, 181 Misc. 832, 267 App. Div. 891; Matter of Kavesh, 247 App. Div. 175; Matter of Bewley, 138 Misc. 108.)
   Per Curiam.

This is an appeal from an order of the Appellate Division, Fourth Department, rendered August 11, 1950, unanimously reversing an order of the Supreme Court, Erie County, entered August 7, 1950, which dismissed the proceeding upon the ground that the petitioner was not a person aggrieved ” within the meaning and provision of subdivision 1 of section 330 of the Election Law.

The petitioner Mahoney, a resident of the First Assembly District of Erie County and of the same political party as appellant Naples, duly filed objections in accordance with section 145 of the Election Law to a petition by Naples purporting to designate him for the party position of member of the County Committee of the Democratic party of Erie County for the Eleventh Election District of the Twenty-Seventh Ward of the City of Buffalo, which district is within the confines of the First Assembly District of the County of Erie. The party position was to be filled at the primary election of the Democratic party on August 22,1950. The ground of the objection was that Naples was not a resident of the First Assembly District but was a resident of the Third Assembly District and was for that reason not qualified to be designated as a nominee for the position of County Committeeman from the Eleventh Election District in the First Assembly District. Thereafter it was stipulated in open court before the Special Term Justice that the court might accept for the purpose of the proceeding under subdivision 1 of section 330 of the Election Law all the allegations of the petition of respondent Mahoney as true. It was further admitted in open court before us that Naples, if elected, would not be qualified to serve.

The only point on this record requiring our consideration is whether respondent Mahoney is a person who has a right to maintain this proceeding to challenge the validity of the designating petition in view of the fact that he resided in an election district within the First Assembly District other than that in which the appellant Naples was attempting to run for county committeeman and therefore could not vote within that political unit. We hold that he is a proper person within the meaning of subdivision 1 of section 330 of the Election Law by reason of section 12 of the Election Law which reads in part as follows: “ Each member of a county committee shall be an enrolled voter of the party residing in the assembly district from which or in the assembly district containing the election district in which such member is elected.” It is not necessary that a member of the county committee reside in the election district he represents so long as he resides in the assembly district in which the election district is contained. The respondent Mahoney could have been designated to run for the party position of county committeeman in any one of the election districts in the First Assembly District. In that respect this proceeding accords with our decisions that a voter who has the capacity to vote for a candidate in the political unit involved is a person aggrieved within the meaning and, intent of section 330 of the Election Law. (Matter of Bergen [Kiernan], 262 N. Y. 716; Matter of Bergen [Miller], 262 N. Y. 717; Matter of Gaberman v. Cohen, 293 N. Y. 771; Matter of Berman v. Heffernan, 295 N. Y. 593.) It should be noted that the memoranda in 262 New York 716, 717 (supra) covering the two Bergen cases (supra) may give an incorrect impression. The petitioner Bergen was a resident of both the aldermanic and assembly districts there in question. Those facts were incorporated in each of the petitions in those cases and not denied. Both the Appellate Division and this court were aware of it and a note to that effect appears in our minutes as made by the Associate Judge who reported the case. (See, also, Matter of Corn v. Cohen, 181 Misc. 832, 837, affd. 267 App. Div. 891.) It is for these reasons and not because the petitioner Mahoney was the chairman of a committee within the meaning of subdivision 9 of section 2 and subdivision 2 of section 330 of the Election Law that we affirm the order herein.

The order of the Appellate Division should be affirmed upon the ground that the petitioner had the right to bring this proceeding under subdivision 1 of section 330 of the Election Law.

Loughran, Ch. J., Lewis, Conway, Desmond, Fuld and Froessel, JJ., concur; Dye, J., taking no part.

Order affirmed, etc.


author: Desmond, J. Froessel, J.

text:
    Evelyn de Baillet-Latour, Respondent, v. Alexandre de Baillet-Latour, Appellant.
    Argued February 27, 1950;
    decided October 12, 1950.

      I. Maurice Wormser for appellant.
    I. Plaintiff’s judgment of annulment is predicated upon proof which is insufficient as a matter of law, and constitutes an affront to every dictate of the natural law, sound morals and wise public policy. (Great Northern Ry. Co. v. Johnson, 254 F. 683; Ex Parte Suzanna, 295 F. 713; Dalrymple v. Dalrymple, 2 Hagg. Con. 54; Lindo v. Belisario, 1 Hagg. Con. 216; Jackson v. Winne, 7 Wend. 47; Maynard v. Hill, 125 U. S. 190; Bunim v. Bunim, 298 N. Y. 391; French v. McAnarney, 290 Mass. 544; Matter of Case, 214 N. Y. 199; Taylor v. Taylor, 181 Misc. 306; Gabriel v. Gabriel, 274 App. Div. 141.) II. In view of the complete absence of any satisfactory evidence of the facts upon which plaintiff’s simulated allegation of nullity was founded, as required by section 1143 of the Civil Practice Act, the complaint should have been dismissed. (Lederkremer v. Lederkremer, 173 Misc. 587; Feig v. Feig, 232 App. Div. 172; Gabriel v. Gabriel, 274 App. Div. 141; Anonymous v. Anonymous, 69 Misc. 489; Hall v. Hall, 139 App. Div. 120.)

      Sol A. Rosenblatt, Julian B. Rosenthal and Charles Roden for respondent.
    I. The judgment was' based upon defendant’s fraudulent misrepresentations as to his intention to consummate the marriage, and not merely upon the fact of such non-consummation. II. Defendant’s fraudulent misrepresentations that he would consummate the marriage entitled plaintiff to a judgment of annulment, (di Lorenzo v. di Lorenzo, 174 N. Y. 467; Fundaro v. Fundaro, 272 App. Div. 825; Coppo v. Coppo, 163 Misc. 249; Mirizio v. Mirizio, 242 N. Y. 74; Herrman v. Herrman, 93 Misc. 315, 176 App. Div. 914.) III. Defendant’s misrepresentations as to his future intentions constituted a ground upon which plaintiff was entitled to judgment. (Adams v. Gillig, 199 N. Y. 314; Watkins v. Watkins, 197 App. Div. 489; Costello v. Costello, 155 Misc. 28; Ottinger v. Bennett, 144 App. Div. 525, 203 N. Y. 554; Smith v. Smith, 112 Misc. 371; Weill v. Weill, 104 Misc. 561; Schulman v. Schulman, 180 Misc. 904; Churchill v. St. George Development Co., 174 App. Div. 1; Gregory v. Binghamton Trust Co., 168 App. Div. 805, 220 N. Y. 626.) IV. The credible evidence fully corroborates plaintiff’s proof of defendant’s fraudulent misrepresentations. The Court of Appeals may affirm upon any grounds upon which the trial court could have granted an annulment. (Feig v. Feig, 232 App. Div. 172; Gabriel v. Gabriel, 274 App. Div. 141; Yates v. Yates, 211 N. Y. 163; Winston v. Winston, 165 N. Y. 553, 189 U. S. 506; Svenson v. Svenson, 178 N. Y. 54; Rutstein v. Rutstein, 221 App. Div. 70; People ex rel. Witherbee v. Board of Supervisors, 70 N. Y. 228; People ex rel. Sweet v. Lyman, 157 N. Y. 368; Corr v. Hoffman, 256 N. Y. 254; Forrest v. Forrest, 25 N. Y. 501; Boyd v. Boyd, 252 N. Y. 422.)
   Desmond, J.

Of the three alleged causes of action .pleaded in the complaint in this action for annulment of a marriage, two have been dismissed below, and are out of the case. There remains the first cause of action only, which charges defendant with fraud (see Civ. Prac. Act, § 1139; Domestic Relations Law, § 7) in that he, it is alleged, induced plaintiff to marry him, by falsely representing to her that he would cohabit with her and perform the customary duties of the married state, whereas, it is alleged, he never intended to carry out those promises and in fact failed and refused, after marriage, to fulfill them. The trial court believed the testimony of plaintiff (which was supported by some circumstantial evidence to which we will refer) that defendant refused to have, and never did have, sexual intercourse with her. The trial court thereupon made findings that this refusal by the husband was in pursuance of his premarital fraudulent intent not to perform the marital act, and granted a judgment of annulment, which has been affirmed by the Appellate Division, and is now before us by leave of the Appellate Division.

The only point argued to us by defendant-appellant is as to the alleged legal insufficiency of the proof on which this marriage has been declared to be void. This court is, of course, without any power to review the weight of evidence or to pass on the truthfulness of the witnesses. If the evidence makes out a prima facie case for annulment under New York law, we must affirm.

A determination as to the sufficiency of the proof here requires us to answer three questions: first, was there evidence as to each of the requisite elements of the fraud; second, is section 1143 of the Civil Practice Act applicable here; and third, if section 1143 be applicable, were its requirements satisfied here? We give an affirmative answer to each of those queries.

Plaintiff, to make out the fraud alleged, had to prove a premarital representation by defendant that he intended to perform the duties of the married state, that the representation was willfully false and that plaintiff relied thereon in consenting to marry defendant. As to the making of such a representation, we have here not only the traditional implication thereof from the very entry into the marriage contract (Moore v. Moore, 94 Misc. 370, 373; Coppo v. Coppo, 163 Misc. 249, 256; see Mirizio v. Mirizio, 242 N. Y. 74, 81), but we have more, since plaintiff testified to premarital statements and attitudes of defendant which could be construed as promises of a normal marriage relationship. Such a false statement of intent was a statement of material, existing fact (see Adams v. Gillig, 199 N. Y. 314, 322), and concealment of a contrary intent was fraudulent (Svenson v. Svenson, 178 N. Y. 54, 57). The falsity of that representation could be inferred (taking plaintiff’s testimony as true, as we must on this appeal) from defendant’s refusal at any time to have sexual intercourse with plaintiff, and from his several explanations of his reasons therefor. Plaintiff, according to her, relied on that false representation in consenting to marry defendant, and brought this suit only when she became convinced that defendant had never intended to perform. Thus there was testimony, taken as true by both courts below, of each of the essential ingredients of fraud.

The second question of law here presented is as to the applicability, to this case, of section 1143 of the Civil Practice Act: § 1143. Proof required for judgment by default in action to annul a marriage. In an action brought to annul a marriage, a final judgment annulling the marriage shall not be rendered by default for want of an appearance or pleading, or upon a trial of an issue, without proof of the facts upon which the allegation of nullity is founded. The declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced.”

At first glance, that statute, from its heading and from the word default ” in its first sentence, might seem to confine itself to undefended cases, and this lawsuit was vigorously defended. However, we have concluded from the section’s history and from decisions applying it, as well as from investigation as to its purpose, that its meaning is this: the first sentence forbids the grant of an annulment judgment solely by reason of default in pleading or appearance, but requires proof, and the second sentence states the rule as to what that proof must consist of. The historical basis for that conclusion is set out in Judge Froessel’s opinion here. We add this: section 1143 of the Civil Practice Act, as it now stands, is identical, except for slight grammatical alterations, with the first two sentences of old section 1753 of the Code of Civil Procedure. The heading of section 1753 was “ Certain proceedings regulated in action to annul marriage ”, and the word “ default ” did not appear in that heading. When the Code of Civil Procedure was revised into the Civil Practice Act the revisers recommended a new section 1157 of the Civil Practice Act, which, as finally numbered, became the present section 1143 of the Civil Practice Act. The 1919 report of the Joint Legislative Commission on Simplification of Civil Practice (N. Y. Legis. Doc., 1919, No. 111) states that the new Civil Practice Act section is the same as the old code section without change of substance ”, but, unfortunately perhaps, the revisers put the word “ default ” into the heading. However, especially in the ' light of the historical matter given by Judge Froessel in his opinion, it seems plain that what the old section and the new section meant was that annulments could not be granted by default, but that there must be proof and that the proof must contain satisfactory evidence in addition to the declarations or confessions of the parties, a requirement as to proof which would be applicable whether or not the defendant contested the case. Going further back into statutory history, we find that section 1753 of the old code was drawn, in part, from Revised Statutes of New York, part II, chapter VIII, title 1, section 36, which read as follows: “ No sentence of nullity of marriage shall be pronounced solely on the declarations or confessions of the parties, but the court shall, in all cases, require other satisfactory evidence of the existence of the facts, on which the allegation is founded.” For many years this statutory mandate has been held, or assumed, to control contested, as well as noncontested, annulments (Hall v. Hall, 139 App. Div. 120, 123; Feig v. Feig, 232 App. Div. 172; Gabriel v. Gabriel, 274 App. Div. 141; see Lyon v. Lyon, 62 Barb. 138). One of the purposes of these enactments was, undoubtedly, to prevent collusion by demanding that there be evidence from persons other than the parties. However, collusion is possible in an ostensibly contested case as well as in a default. We conclude that the second sentence of section 1143 governs all annulment actions, and that it requires, in all annulment actions, other proof in addition to the “ declaration or confession of either party ”.

Our last inquiry, then, is as to whether the present record contains, in addition to such declarations or confessions, ‘ ‘ other satisfactory evidence of the facts ”. Plaintiff gave evidence as to all the essential elements of fraud, and her son corroborated her as to certain admissions, or confessions ”, made by defendant. The “ other proof ” pointed to by plaintiff consisted of this: defendant, who insisted that he had had normal physical relations with his wife on many occasions, was asked whether she had any conspicuous scars on her body, which he denied. The existence of such scars was then demonstrated. That, of course, was not proof of defendant’s fraudulent intent. It did no more than impugn defendant’s truthfulness, without in itself proving or disproving his asserted cohabitation with his wife. However, it seems to us, that it was, in the meaning of section 1143 “ other satisfactory evidence of the facts ”. That language must be construed according to its purpose and, so construed, it requires only that there be in the record, in addition to “ declarations ” or “ confessions ” of the parties, other material from other sources, substantial and reliable enough to satisfy the conscience of the trier of the facts (see Winston v. Winston, 165 N. Y. 553, 556, 557, affd. 189 U. S. 506). It follows that the requirements of the second sentence of section 1143 were met by the proofs offered by plaintiff on the trial of this case.

All of the judges of this court deplore the indiscriminate granting of annulments on insubstantial grounds or flimsy “ proof ’ ’. But here there was evidence, accepted by the courts which have power to pass on the facts, of a deliberate fraud as to a fundamental of marriage. “ * * * the refusal of husband or wife without any adequate excuse to have ordinary marriage relations with the other party to the contract strikes at the basic obligations springing from the marriage contract when viewed from the standpoint of the State .and of society at large ” (Mirizio v. Mirizio, 242 N. Y. 74, 80-81, supra). Even canon law, strict as it is as to the indissolubility of marriages, grants decrees of nullity in cases such as this (see Woywod, Practical Commentary on the Code of Canon Law, p. 654; Woywod, The New Canon Law, p. 219; Ramstein, Manual of Canon Law, p. 443).

The judgment should be affirmed, with costs.

Froessel, J.

(dissenting). Plaintiff has been awarded a final judgment annulling her marriage to defendant upon the ground of fraud. The fraud is said to consist of defendant’s implied premarital fraudulent representation that he would cohabit and “ engage in normal marital relations ’ ’ with plaintiff, and that he willfully failed to consummate the marriage. At the time of the trial, plaintiff was over fifty-nine years of age, defendant fifty-three. They had been living together, holding themselves out to the world as husband and wife, and sharing the same bedroom for seven months.

After the entry of the interlocutory judgment, defendant moved that it he set aside and the case opened for the purpose of taking further testimony, as well as for related relief, which motion was subsequently denied. Inasmuch as the motion was not an application for a new trial, and no appeal was taken from the order of denial, nor is said order specifically mentioned in the notice of appeal, we do not consider that branch of the record (Civ. Prac. Act, § 580).

Two additional causes of action for annulment pleaded in plaintiff’s supplemental complaint were dismissed by Special Term, from which determination no appeal has been taken. One of said causes was based on defendant’s misrepresentation that he had sufficient means to support plaintiff, as to which the court, in an oral opinion rendered immediately following the close of the trial, held that the “ representations were not of a sufficiently material nature to warrant an annulment under the circumstances here present.” The remaining cause was based on defendant’s misrepresentations that he was a member of a famous European family, had a substantial family inheritance — a great fortune — and a family chateau in France of international renown; as to this cause, Special Term said: If our courts were to lend themselves to the annulment of marriages upon any such ground they would be making a mockery of the institution of marriage.” The Appellate Division unanimously affirmed Special Term, but granted permission to appeal on unspecified questions of law.

We need therefore consider only the first cause of action dealing with defendant’s premarital fraudulent intent not to consummate the marriage, and its alleged nonconsummation. The question before us is whether the evidence is legally sufficient to sustain the decree of annulment. In turning to a consideration of the evidence in this case, we have no disposition to deal with the facts beyond those necessary to indicate the reasons for our conclusion.

This was plaintiff’s third marital venture. She first married at the age of twenty-eight in 1917, her then husband being nearly twice her age. A son was born of that marriage in 1918. She divorced her husband in Nevada in 1939 when he was seventy-six-years of age. Less than five months after the divorce, she remarried, but her second husband died about two years later, leaving her upwards of $350,000. She married this defendant on August 2,1945, when she was fifty-six years of age, at which time she had an annual income of $15,000, in addition to an allowance from her first husband, the amount of which she stated she did not know.

Defendant is six years younger than plaintiff. He was born in Holland, and in due time was graduated from the Leyden University School of Law. He became a member of the Netherlands Bar, and practiced law in Holland from 1929 to 1939. In the latter year he came to the United States, following two previous visits to this country, and has remained here ever since. He too had been previously married, and has three children of said union. He also secured an uncontested divorce against his first wife in January, 1933. After coming to this country, he studied law from 1942 to 1945, passing the New York State Bar examinations in October, 1944. He became a naturalized citizen on January 8, 1945 and was admitted to our Bar in June, 1945.

According to plaintiff, she met defendant in January, 1943. He proposed to her in June, 1945, and they were married on August 2, 1945. During this period she had seen him some twenty-eight times. When they first met, both lived at the Waldorf-Astoria Hotel. Shortly thereafter, she moved to an apartment on the same floor and in the same wing where the defendant resided. She subsequently invited him to her apartment, to her country home in Connecticut, to various functions where he met some of her lawyer and business acquaintances, and she had a horoscope prepared for him. She conceded he was “ very demonstrative ” and very, very affectionate ”, and expressed ardor and affection ” for her “ completely ”; she found him a desirable lover ”. They had been to her country home twice before the marriage when he was the only guest. He had not given her an engagement ring, but she herself had one made up after the marriage.

Plaintiff testified that from the time of their marriage until she left defendant on March 14, 1946, during which period they lived together continuously, no act of sexual intercourse between them took place. On their wedding night and the night following, he kissed her and was very demonstrative ”, but she said they slept in separate rooms. She was very tired ”, and thought he was chivalrous ”. During their twelve-day honeymoon at her country home, they had no servants, but the dressmaker came in three days after the wedding, and the gardener’s daughter came in to do chores. On August 14th, they returned to the hotel, where they shared a bedroom with twin beds, and a living room. On August 17th, she gave him $10,000 in cash to pay the rent for their hotel apartment and other expenses.

According to her testimony, they discussed the subject of their marital relations many times.” The first conversation took place the very month of their marriage. At that time defendant was already urging her to sell her real estate; ‘ ‘ there was constant conflict. ’ ’ In their second talk, a few weeks later, he spoke of their marriage as a spiritual one ”. The third conversation took place during the 1945 Christmas season, when she complained that the marriage had never been consummated.” At that time she had very high blood pressure ”, was “ very ill ”, and was having medical attention. She never told her physician that she had no marital relations with defendant. In January, 1946, she went to a hospital, remaining over two weeks, and received surgical ministration for an old condition that had required medical attention over a period of many years. Defendant visited her at the hospital and telephoned constantly.”

She then told of a further conversation in February, 1946, concerning their marital relations, in the course of which defendant said: “ ‘ Well, why should-1 have intercourse with someone who doesn’t trust me? If you don’t trust me in your financial things, how would I trust you as a wife? ’ ” Certainly then, if not before, he had, according to her testimony, made his position clear; yet she continued to remain with him, stating that she took his word that he was sick, that she wanted to make the marriage a success; and that ‘ ‘ he always was so very affectionate and everything; but the financial thing was what he kept at me constantly about * * * because he wanted me to sell all my property.” In January they discussed a trip to Palm Beach, Florida, but she did not wish to go. In February they visited her friend in Providence, Rhode Island; he came into her room, but she went to another bed, because he had been drinking.” During the same month she signed a joint passport application with him for a European trip.

In March, very shortly before their separation, she signed an affidavit “ agreeing to stand up for his son Erik who was coming in from the Dutch East Indies ”, and procured a letter from her banker to accompany said affidavit. When asked whether she did this with full knowledge that defendant had not supported her and was making demands upon her for money, she replied: ‘ ‘ He was going to support me very soon, with big money.” The final conversation took place during the first half of that same month. They ‘ ‘ were constantly quarreling ’ ’; he was pressing her to sell her real estate and to go with him to Holland, and when she declined, he said, according to her: “ ‘ I want you to understand this, that you are constantly bringing up this question of the consummation of the marriage. That marriage will never be consummated until [your first husband] dies and my wife dies. Then we will be married in the Catholic Church. ’ ” It is significant that though she was nominally an Episcopalian and he nominally a Catholic, the evidence disclosed that neither one attended the church of her or his faith, that each had previously procured a divorce, and that defendant had married his first wife by a civil ceremony not followed or preceded by any religious ceremony.

She left him on March 14th, to visit her son, who was studying law at Yale, and never returned to their marital home. In her bill of particulars plaintiff claims that she discovered the falsity of defendant’s representations “ from time to time during the period between the dates of her marriage to, and separation from, the defendant, and finally was convinced of their falsity on or about March 24, 1946 ”, despite the earlier conversations above referred to.

Plaintiff’s son also testified. He admitted that on occasion he stayed at the apartment of the parties and slept on the couch in the living room while they slept in the bedroom, and on one occasion he saw them “ dressed for bed on other occasions he would come in late. Because of his separation from his own wife, he was living with his mother at the time of the trial. He was also associated with her attorney in the practice of law, doing the “ leg work ” in this case. He also testified that defendant, his stepfather, told him that the marriage had not been consummated, and that defendant also made substantially the same statement to him as was testified to by his mother, namely, that the marriage would not be consummated until defendant’s first wife and plaintiff’s first husband had died, and a religious ceremony had been performed. It should be noted that these alleged admissions to plaintiff and her son make no reference to premarital fraudulent intent.

At this stage of the case all that the record contained as to the first cause of action — the only one with which we are here concerned — consisted of the declarations of plaintiff and the alleged admission ” of defendant. At the close of plaintiff’s case, defendant moved to dismiss upon “ the ground that the plaintiff has wholly failed in fact and in law to make out a prima facie cause of action ’ ’ for annulment, which motion was denied and exception duly taken. Later, however, the trial court recognized the weakness of plaintiff’s case when it dismissed the second and third causes of action, and indicated that on this evidence alone it would have had genuine difficulty * * * in reaching a conclusion awarding to the plaintiff a decree of annulment upon the first cause of action.”

It will serve no useful purpose to review defendant’s evidence. Much of his testimony dealt with the second and third causes of action, which are not now before us. He vigorously denied that there was no consummation of the marriage, and claimed that the parties had marital relations not only during their honeymoon in Connecticut, but in the hotel bedroom they shared for seven months. He also denied that he had made the aforesaid admissions to plaintiff or to her son. When asked whether he had observed any scars and other physical imperfections on plaintiff’s person, he responded as to his observations, what he noted when we had intercourse ”, but stated that he did not notice any scars.

Plaintiff then called in rebuttal a physician who examined plaintiff that very week, more than two years after their separation. He testified as to his observations, and particularly with respect to four scars. It was this testimony which induced the trial court to conclude that plaintiff had made out her first cause of action, for it said: I want to say frankly that until the advent of [the doctor] upon the witness stand this morning, my mind was torn with extreme doubt as to whether or not the plaintiff had established her first cause of action sufficiently to enable the Court to find that there had been, as claimed by her, deliberate failure and refusal on the part of the defendant to consummate the marriage. The plaintiff’s testimony on that issue was quite forthright. The defendant’s contradictory testimony on that issue was equally forthright.”

It further stated that under the rule of fair preponderance ”, it would have denied plaintiff relief on her testimony, and even with the testimony of her son, it would have had ‘ ‘ genuine difficulty ’ ’ in deciding for plaintiff, and then added: “ To sum it up, the testimony of [the doctor] decidedly establishes the plaintiff’s case upon her first cause of action by a preponderance of the credible evidence.”

It is quite apparent from the foregoing that, without the testimony of the physician, plaintiff would not have been awarded judgment, and properly so. The trial court probably had in mind section 1143 of the Civil Practice Act, which, so far as pertinent here, provides: “ The declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced.” (Emphasis supplied.)

This statute has been held to apply to contested as well as uncontested actions (Feig v. Feig, 232 App. Div. 172; Gabriel v. Gabriel, 274 App. Div. 141), and is but the reiteration of a rule which comes to us from the ecclesiastical courts of England, which had jurisdiction in matrimonial matters prior to 1858 (20 & 21 Vict., ch. 85). Among the canons ratified at the Convocation of Canterbury in 1603, we find canon 105, providing as follows: “Forasmuch as matrimonial causes have been always reckoned and computed among the weightiest, and therefore require the greater caution * * * we do straitly charge and enjoin, that in all proceedings to divorce and nullities of matrimony, good circumspection and advice be used * * * and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath, either within or without the court.” (Emphasis supplied.) (Devanbagh v. Devanbagh, 5 Paige 554, 555; 2 Burn on Ecclesiastical Law 503; 1 Phillimore on Ecclesiastical Law 640.) In 1829, our Legislature embodied the rule in the Revised Statutes in the following language: “ No sentence of nullity of marriage shall be pronounced solely on the declarations or confessions of the parties; but the court shall, in all cases, require other satisfactory evidence of the existence of the facts, on which the allegation of nullity is founded.” (Emphasis supplied.) (Rev. Stat. of N. Y., part II, ch. VIII, tit. 1, § 36.) In 1836, Chancellor Walworth applied the rule in the annulment action of Devanbagh v. Devanbagh (supra). It later became part of the Code of Civil Procedure (§ 1753) in the language of the present statute. Thus, it has been the law in England and in this State for three and one-half centuries, and is the law today (Civ. Prac. Act, § 1143; 9 Carmody on New York Practice, § 82, pp. 114-115; Feig v. Feig, supra; Gabriel v. Gabriel, supra; Weiman v. Weiman, 295 N. Y. 150; 2 Bishop on Marriage and Divorce [6th rev. ed.], §§ 240-241).

The question thus presented is whether the physician’s testimony is such “ other satisfactory evidence of the facts ”, and sufficient in the eyes of the law. It will be recalled that this testimony was offered in rebuttal for the purpose of impeaching the credibility of defendant when he said that he had not seen the scars. It does not touch directly upon the premarital fraudulent intent of defendant, nor does it, in our opinion, satisfactorily establish nonconsummation here.

In a case such as this, the law requires, among other, things, that there be a material representation, that it be made with premarital fraudulent intent, and that it be false. It is true that the representation may be implied in the marriage contract (see Mirizio v. Mirizio, 242 N. Y. 74, 80-81; Coppo v. Coppo, 163 Misc. 249, 256). As to the fraudulent intent, the evidence must show that it existed at the time the marriage contract was entered into. No subsequently formed intent is sufficient. We have here no direct evidence of premarital fraudulent intent, and Special Term in its opinion made no reference whatever to this requirement; it referred only to nonconsummation. Fraud is not presumed, but we do not mean to say that in an appropriate case, where nonconsummation without adequate excuse is satisfactorily proven, the court may not infer therefrom premarital fraudulent intent. However, inasmuch as the representation may be implied and the premarital fraudulent intent may under such circumstances be inferred, it becomes of paramount importance that the evidence of nonconsummation be, to say the least, satisfactory ” as required by the statute.

But here, in addition to implying the representation of a promise to cohabit, we are asked to infer that because defendant states he did not see the scars on the person of plaintiff during the few months of their marriage, they had not one act of sexual congress, and from that inference further infer that he had a premarital fraudulent intent not to cohabit. There is no reasonable basis for such a finding in the record before us, since the evidence as to the scars was not satisfactory evidence of the facts ”, i.e., premarital fraudulent intent and nonconsummation, and the trial court indicated it was not satisfied with the evidence of plaintiff and her son.

Plaintiff testified that she was ‘ ‘ always rather reserved ’ ’; that during the more than seven months of their married life, she never exhibited her person to defendant, that she was never completely undressed in his presence, nor did she see him undressed; indeed, she denied she was in his presence in a nightgown excepting in bed ”, and asserted she never went into his bed. It follows, therefore, that she, by her own voluntary action, never exhibited her scars, and one can readily understand why, like any average woman, she would wish as far as possible to conceal rather than expose them. Moreover, these people were no longer young; she was a grandmother, he the father of three grown children; marriage was no novelty to them; and plaintiff was not in excellent physical condition, as hereinbefore indicated. We recognize that the secrets of the bedchamber are difficult to substantiate by witnesses, but this difficulty confronts a defendant as well as a plaintiff.

We are not here concerned with an ordinary fact situation as to which parties give conflicting testimony, and which may as readily be true as false. We are dealing with the realities of human nature, and the exceedingly strong implications that flow from the association of a man and woman, husband and wife, who concededly demonstrated their ardor and affection for each other in a variety of ways, held themselves out to the world as a normal married couple and actually lived together continuously, sharing the same bedroom, for seven months, without any obstacle — legal, moral or physical — to consummation.

No court would hesitate for a moment on these facts to grant a divorce on the ground of adultery to a spouse of either of these parties, if they were not husband and wife. But here they are, with every right to engage in marital relations, and yet it is said they did not. Upon this record, every human probability cries out against the claim of nonconsummation, and even more so when the ulterior motives ascribed by plaintiff to defendant, a lawyer, who knew the importance of consummation, are accepted as true. Plaintiff’s claim does not merely shatter credibility; we simply do not have here the “ other satisfactory evidence of the facts ” which the statute says “ must be produced ” (Civ. Prac. Act, § 1143).

The general rule in civil cases is that a plaintiff must prove his case by a preponderance of the evidence, and, in some cases, ‘ ‘ to make out a preponderance, the evidence should be clear and convincing” (McKeon v. Van Slyck, 223 N. Y. 392, 397). Our courts, as well as eminent text writers, have said that evidence in support of an annulment must be such as to constitute proof of a clear and definite, credible, convincing and satisfactory character, in respect of every factor required to make out a situation calling for such relief (Gabriel v. Gabriel, 274 App. Div. 141, supra; Feig v. Feig, 232 App. Div. 172, supra; 9 Carmody on New York Practice, § 81; Woodward v. Heichelbach, 97 N. J. Eq. 253; 3 Nelson on Divorce and Annulment [2d ed.], § 31.64; 35 Am. Jur., Marriage, § 88; 55 C. J. S., Marriage, § 58, subd. c). Our statute specifically requires that the “ other evidence ” be satisfactory. It does not define “ satisfactory evidence ”, but in Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn. (126 N. Y. 450, 453), we said that these words mean “ with reasonable definiteness and certainty ”. Clearly the “ other evidence ” as to nonconsummation and premarital fraudulent intent was not “ satisfactory ” within the meaning of the statute. This is not merely a rule ‘ ‘ for the guidance of the judicial conscience ” (Winston v. Winston, 165 N. Y. 553, 556, affd. 189 U. S. 506), but a statutory rule of evidence.

The record here makes it abundantly clear that each of the parties sought material advantage from the other, and, failing in their objectives, the marriage simply did not succeed. Our law, however, does not regard marriage lightly, and such contracts may not be abrogated, as other contracts, at the will of the parties themselves, merely because they do not get along or because they have made a mistake. Although marriage in this State is regarded as a civil contract (Domestic Relations Law, § 10), it is “ of a peculiar character and subject to peculiar principles. * * * There are, in effect, three parties to every marriage, the man, the woman and the State ” (Fearon v. Treanor, 272 N. Y. 268, 271-272). As we said in di Lorenzo v. di Lorenzo (174 N. Y. 467, 472): “It, certainly, does differ from ordinary common-law contracts, by reason of its subject-matter and of the supervision which the state exercises over the marriage relation, which the contract institutes. In such respects, it is sui generis.”

Despite the complacent attitude towards marriage found in many quarters today, its importance to the State, the nation and civilization cannot be overemphasized. In Bunim v. Bunim (298 N. Y. 391, 394), we quoted with approval from Maynard v. Hill (125 U. S. 190, 205): “ ‘ Marriage, as creating the most important relation in life,’ has more to do with the morals and civilization of a people than any other institution ’ ”.

To allow a dissolution of the marriage upon the evidence disclosed by this record would tend to open even wider a door that is already ajar for the indiscriminate granting of countless annulments where an absolute divorce could not be obtained on the statutory ground. It is the public policy of our State that in divorce actions a husband and wife may not testify against each other on the statutory issue. In an annulment action they may, but it is also the public policy of our State in adopting a rule centuries old that in such an action other satisfactory evidence of the facts must be produced ” in addition to the declaration or confession of either party. Since our laws permit annulments only upon stated grounds, the courts are not at liberty to disregard the statutory mandate as to the character of evidence required.

Applying such requirement to the evidence contained in this record, we are of the opinion that the defendant’s premarital intent to commit a fraud and his failure to consummate the marriage have not been established by satisfactory proof under the law. It is insufficient in the eyes of the law, and insufficient evidence is no evidence. The proof does not reach the point where conflicting inferences may be reasonably drawn (Matter of Case, 214 N. Y. 199, 203; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241). Accordingly, the order and judgment appealed from should be reversed and the complaint dismissed.

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

Judgment affirmed. [See 301 N. Y. 778; 302 N. Y. 600.]


text:
    The People of the State of New York, Respondent, v. Isidor Shifrin, Appellant.
    Argued October 10, 1950;
    decided October 20, 1950.

      Samuel Safronoff and Sophie Gluck for appellant.
    I. “ Pigeon feed ” is food within the use of the term in subdivision 1 of section 2147 of the Penal Law. (Union Dairy Co. v. United States, 250 F. 231; City of Chicago v. Arbuckle Bros., 344 Ill. 597; Commission v. Pflaum, 236 Pa. 294; State v. Ohmer, 34 Mo. App. 124; Savage v. Jones, 225 U. S. 501; Jewett Bros. & Jewett v. Smail, 20 S. D. 232; City of Chicago v. Chicago Beverage Co., 372 Ill. 33; Aetna Cas. & Sur. Co. v. Kimball, 206 Iowa 1251; McCarthy v. State, 170 Wis. 516.) II. Defendant’s business being a farmers’ market, may sell on Sundays, at any time of the day, merchandise usually sold by them. (Penal Law, § 2147.)

      Frank A. Gulotta, District Attorney (Henry P. De Vine of counsel), for respondent.
    I. Pigeon feed is not food within the meaning of the word “ food ” as used in section 2147 of the Penal Law. (Lindenmuller v. People, 33 Barb. 548; People v. Dunford, 207 N. Y. 17; People v. Havnor, 149 N. Y. 195.) II. Defendant’s business is not a farmers’ market. (Ketchum v. City of Buffalo, 14 N. Y. 356; Taggert v. City of Detroit, 71 Mich. 92; People ex rel. Guernsey v. Somers, 153 App. Div. 623, 208 N. Y. 621; Dubuc v. Lazell, Dalley & Co., 182 N. Y. 482; Young v. United States, 315 U. S. 257; Ford v. Dilley, 174 Iowa 243.)
   Per Curiam.

Defendant was convicted of selling a bag of pigeon feed ” before 10:00 a.m. on a Sunday, in alleged violation of section 2147 of the Penal Law. That section, which prohibits generally the sale of any property on Sunday, contains, among others, the following exception: “ 1. Articles of food may be sold, served, supplied and delivered at any time before ten o ’clock in the morning ’ ’.

“ Food ” is uniformly defined by lexicographers as including nutriment for animals as well as humans (see, also, Penal Law, §§ 185, 187). Inasmuch as the Legislature has not limited the word “ food ” to that meant for human consumption only (as, e.g., Penal Law, § 1760), we may not impute to it an intention to render the act charged a crime. “ Acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” (People v. Phyfe, 136 N. Y. 554, 559; People v. Wallace & Co., 282 N. Y. 417; People v. Adamkiewicz, 298 N. Y. 176; Winters v. New York, 333 U. S. 507, 515-516.)

The judgments should be reversed and the information dismissed.

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

Judgments reversed, etc.


author:
      Per Curiam.

      Fuld, J.

text:
    Lillian B. Hettich, Respondent, v. Ernest L. Hettich, Appellant.
    Argued October 3, 1950;
    decided October 19, 1950.

      George Trosk for appellant.
    I. Section 51 of the Domestic Relations Law prohibits an agreement releasing a man from his “ liability.” to support his “ wife ”. The 1935 agreement does not violate this section because the provision therein relieving defendant from the obligation to support plaintiff is, by its terms, not to be operative until after they have ceased to be man and wife. (Hoops v. Hoops, 292 N. Y. 428; Graham v. Hunter, 266 App. Div. 576.) II. In holding the third defense insufficient, the Appellate Division evidently overlooked the allegations therein that subsequent to the making of the agreement on which plaintiff sued, she procured a divorce in an action in which defendant duly appeared, and that defendant has fully performed all the terms of the decree in that action. These allegations constitute a complete defense to the first cause of action. (Williams v. North Carolina, 317 U. S. 287; Polk v. Polk, 277 App. Div. 885; Scheinwald v. Scheinwald, 231 App. Div. 757; Matter of Herzog, 301 N. Y. 127; Goldman v. Goldman, 282 N. Y. 296; Chester v. Chester, 171 Misc. 608; Kunker v. Kunker, 230 App. Div. 641; Fales v. Fales, 160 Misc. 799, 250 App. Div. 751.)

      Clifton F. Weidlich for respondent.
    I. The third defense to the first cause of action is insufficient since a wife may not release her husband from the duty of support contrary to section 51 of the Domestic Relations Law. (Haas v. Haas, 298 N. Y. 69; Bickford v. Bickford, 269 App. Div. 657.) II. The third defense is also insufficient under section 51 prohibiting spouses from contracting to alter or dissolve their marriage. (Schley v. Andrews, 225 N. Y. 110; McDonald v. McDonald, 228 App. Div. 341; Lake v. Lake, 136 App. Div. 47; Gould v. Gould, 261 App. Div. 733; Reed v. Robertson, 276 App. Div. 902; Wynn v. Wynn, 189 Misc. 96.)
   Per Curiam.

The third affirmative defense to the first cause of action cannot be a complete defense in view of the admitted failure to pay installments due under the 1932 agreement for the months of June, July and August, 1935. Moreover, the agreement alleged in said defense upon its face violates the public policy exemplified in section 51 of the Domestic Relations Law, in that it has a direct tendency toward dissolving the marriage between the parties and was by its terms entered into in order to facilitate “ their divorce action ” (Harris v. Harris, 287 N. Y. 444, 448; Schley v. Andrews, 225 N. Y. 110).

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

Fuld, J.

(dissenting). I cannot concur in the court’s conclusion that the separation agreement here under consideration violates section 51 of the Domestic Relations Law or, to use the language of the majority opinion, “ the public policy exemplified ” therein. We all recognize that the agreement is not a contract to “ relieve the husband from his liability to support his wife ” (§ 51), and, in my view, it is not one which either alters or dissolves the marriage (§51) or “ has a direct tendency toward dissolving ” it.

Accordingly, I vote to reverse the order of the Appellate Division.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ., concur in Per Curiam opinion; Fuld, J., dissents in memorandum.

Order affirmed, etc.


author: Lewis, J.

text:
    Charlotte A. Davis, as Administratrix of the Estate of Joseph P. Davis, Deceased, Appellant, v. Long Island Rail Road Company, Respondent.
    Argued October 5, 1950;
    decided November 30, 1950.

      Benjamin H. Siff and Theodore I. Welenken for appellant.
    I. On plaintiff’s proof there was a clear question of fact on the issue of contributory negligence. (Elias v. Lehigh Valley R. R. Co., 226 N. Y. 154; Horton v. New York Central R. R. Co., 237 N. Y. 38; Wisniewski v. New York Central R. R. Co., 228 App. Div. 27; Flynn v. Long Island R. R. Co., 289 N. Y. 283; Dumala v. Long Island R. R. Co., 242 App. Div. 287; Dumbrowski v. New York Central R. R. Co., 257 App. Div. 916; Christensen v. James S. Hannon, Inc., 230 N. Y. 205; Silverman v. Ulrika Realty

      Corp., 239 App. Div. 194; Downs v. Brown Realty Co., 152 App. Div. 451.) II. The Appellate Division was in error in determining as a matter of law what was visible to an automobilist driving towards Bellmore Avenue from Broadway. III. The extent of visibility by reason of the terrain was not a material fact on the issue of contributory negligence in this case. (McCowan v. Lehigh Valley R. R. Co., 232 App. Div. 446; Royal Ind. Co. v. Long Island R. R. Co., 258 App. Div. 252, 283 N. Y. 714; Wadsworth v. Delaware, L. & W. R. R. Co., 296 N. Y. 206; Peters v. Long Island R. R. Co., 275 App. Div. 721; Latourelle v. New York Central R. R. Co., 301 N. Y. 103.)

      William F. McNulty, Richard R. Bongartz, William J. O’Brien and John McKim Minton for respondent.
    I. The Appellate Division properly held that intestate was guilty of contributory negligence as a matter of law. (Matter of Case, 214 N. Y. 199; Proefrock v. Denney, 258 App. Div. 5, 283 N. Y. 648; Wadsworth v. Delaware, L. & W. R. R. Co., 296 N. Y. 206; Crough v. New York Central R. R. Co., 260 N. Y. 227; Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148; Fitch v. New York Central R. R. Co., 233 N. Y. 356; Hagglund v. Erie R. R. Co., 210 N. Y. 46.) II. There is no merit to the claim that “ the extent of visibility by reason of the terrain was not a material fact on the issue of contributory negligence in this case.” (Latourelle v. New York Central R. R. Co., 301 N. Y. 103; McCowan v. Lehigh Valley R. R. Co., 232 App. Div. 446; Royal Ind. Co. v. Long Island R. R. Co., 258 App. Div. 252, 283 N. Y. 714; Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148; Barnasky v. New York, O. & W. Ry. Co., 226 N. Y. 435; Miller v. New York Central R. R. Co., 226 App. Div. 205, 252 N. Y. 546; Proefrock v. Denney, 258 App. Div. 5, 283 N. Y. 648.)
   Lewis, J.

The plaintiff’s intestate met death in a railroad grade crossing accident which occurred in the village of Bell-more, Nassau County, at a point where three tracks of the defendant intersect Bellmore Avenue — a north-south thoroughfare— at right angles. From that grade crossing easterly for a distance of 3,000 feet the defendant’s right of way is straight. As a measure of public safety, and in conformance with an order of the Public Service Commission, the defendant has installed at the northwesterly and southeasterly corners of the grade crossing intersection red flasher lights designed to flash red signals to traffic moving in either direction on Bellmore Avenue when a train is approaching the crossing. The . warning thus given is emphasized by a sign, placed under each flasher signal, which carries in bold type the direction — “ STOP ON RED SIGNAL ”. When operating properly each flasher signal is activated when a train approaching Bellmore Avenue from either east or west passes over a circuit breaker located 2,500 feet from the crossing.

Just prior to the accident the decedent, who was driving an ice truck, had proceeded easterly along Broadway — an east-west street which ends at the west curb of Bellmore Avenue and runs parallel to and 50 feet north of the defendant’s tracks. After stopping his truck at a through traffic stop sign erected west of the westerly curb of Bellmore Avenue the decedent proceeded easterly and upon entering the avenue he turned to the right and drove southerly onto the defendant’s tracks. The fatality occurred when his truck was struck by one of defendant’s westbound trains.

Although the evidence is in conflict, there is testimony upon which the jury could have found that as the decedent approached the defendant’s tracks the red flasher signal lights did not operate and no whistle was sounded to warn the decedent of the approach of a train. Insofar as that evidence involves a question of fact as to any warning given the decedent that a train was approaching the crossing, we are concluded by the action of the courts below. (People v. Most, 171 N. Y. 423, 427.) That action is recorded in the following paragraph of the order of the Appellate Division upon which was entered the judgment which we now review: “ * * * and it is Further Ordered that the findings, implied by the verdict, that there was no whistle signal from the train and that the flasher lights at the crossing were not operating, are hereby affirmed.”

As the Appellate Division reversed on the law the judgment entered at Trial Term in plaintiff’s favor and dismissed the complaint, we give to the plaintiff the most favorable inferences fairly to be deduced from the evidence. (Horton v. New York Central R. R. Co., 237 N. Y. 38, 41.) The Appellate Division also held ‘ * * * * as matter of law that the neglect of the decedent, who, concededly, was well acquainted with the crossing, contributed to the accident ” and ruled further that “ The testimony that the approaching train was not visible to the decedent for a sufficient time within which to permit the exercise of precaution for his safety is held incredible as a matter of law in view of the photographic evidence.” (276 App. Div. 975, 976.)

We are mindful that the statutory change (L. 1913, ch. 228) which cast upon the defendant in a death action the burden of proving contributory negligence by the deceased person, did not change the common-law standard of care required of such decedent — that being a matter of substantive law. Upon that subject this court has said: “ * * * If it does not appear whether or not the deceased exercised proper care when approaching the crossing, or if the proofs are equally balanced, the defendant fails to bear the burden of proof imposed upon it. Such is the substance of the statutory change in the common-law rule. Except for the shifting of the burden of proof, the rule is the same as in cases of personal injury not resulting in death. * * * ” (Schrader v. New York, C. & St. L. R. R. Co., 254 N. Y. 148, 150, 151.)

In the record before us there is testimony by six witnesses — each of whom was familiar with the terrain surrounding the grade crossing here involved —from which it appears that upon approaching the defendant’s tracks along the course taken by the decedent just prior to the accident, the view of the tracks easterly from Bellmore Avenue was obstructed not only by a signal control box eight feet in height but also by underbrush and shrubbery “ four, five or six feet high ” then growing upon an embankment four feet in height which bordered the defendant’s right of way on the north. Indeed each of those six witnesses testified that for a person proceeding southerly along Bellmore Avenue, as did the decedent, an unobstructed view of the defendant’s tracks east of the avenue is not to be had until a point is reached a few feet from the tracks. There was also testimony by an eyewitness to the accident that as the decedent drove southerly along Bellmore Avenue and was about to pass onto the defendant’s tracks a northbound closed-body truck, which had just crossed the tracks, passed the decedent on his left thus cutting off momentarily any view to the east which might otherwise have been available to him.

Although we have examined with care the photographs in evidence depicting the scene at the site of the accident, we cannot say, as did the Appellate Division, that the testimony of the six witnesses mentioned above, bearing upon the visibility from Bellmore Avenue easterly along defendant’s tracks, is incredible as a matter of law. We think that testimony, when considered with findings by the courts below — which for us are conclusive upon items of evidence adduced upon the trial that the decedent was given no warning of an oncoming train by either the red flasher signal or the sounding of a whistle — made the question of decedent’s contributory negligence one to be determined by the jury.

Although neither the failure of the flasher signal to operate and thus to warn the decedent to stop on the red signal short of the defendant’s tracks, nor the failure of the defendant’s agents to sound a warning whistle as its train approached the crossing, relieved the decedent of all care for his own safety, such failures, in the circumstances there prevailing, may well have affected the vigilance required of him. Such was the rule announced in Elias v. Lehigh Valley R. R. Co. (226 N. Y. 154, 157) where this court dealt with a like problem: Where, although not required so to do, a railroad has stationed flagmen at a crossing, that fact, as to one who knows it and has come to rely upon it, may be considered by a jury in deciding whether under all the circumstances he has used reasonable care for his own protection. The absence of such a flagman may well affect the vigilance they would otherwise have required of an approaching traveler.” (Emphasis supplied.) (See, also, Christensen v. James S. Hannon, Inc., 230 N. Y. 205, 208-209; Horton v. New York Central R. R. Co., supra, p. 49; Wisniewski v. New York Central R. R. Co., 228 App. Div. 27, 28.)

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

Loughran, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment accordingly.


author: Conway, J.

text:
    The People of the State of New York, Respondent, v. Benjamin Jacobs, Appellant.
    Argued October 5, 1950;
    decided November 30, 1950.

      J. Bertram Wegman, Richard J. Burke and Myron L. Shapiro for appellant.
    A laundry license is not required under section B32-167.0 et seq. of the Administrative Code of the City of New York for the operation by a linen supplier of its own laundry for the purpose of washing its own linen, exclusively, performing no other laundry services. (People v. 34th St. Hotel Co., 158 Misc. 839; People v. Bloom, 193 N. Y. 1; Van Zandt’s, Inc., v. Department of Labor of State of N. Y., 223 App. Div. 478; People v. Benc, 288 N. Y. 318.)

      Miles F. McDonald, District Attorney (Aaron Nussbaum of counsel), for respondent.
    I. Appellant’s operation of a laundry for the general public, without a license, was in violation of section B32-167.0 of the Administrative Code. II. The case of People v. 34th St. Hotel Co. (160 Misc. 243) has no binding effect upon this court. (Van Vliet & Place, Inc., v. Gaines, 249 N. Y. 106; People v. Long Island R. R. Co., 194 N. Y. 130; Matter of Tishman v. Sprague, 293 N. Y. 42; Matter of Russo v. Valentine, 294 N. Y. 338.)
   Conway, J.

The defendant was convicted of the offense of conducting a linen supply laundry in violation of section B32-167.0 et seq. of article 23 of the Administrative Code of the City of New York, in that he had not procured a laundry license.

The facts are not in dispute. The defendant was the president of Arrow Linen Supply Co., Inc. (hereinafter called Arrow Linen) and was actively engaged in its management. Arrow Linen was in the business of furnishing restaurants, night clubs and bars with a complete laundered linen service consisting of tablecloths, napkins, aprons, coats and pants. The linens remained at all times the exclusive property of Arrow Linen and were supplied to customers on a rental basis. Fresh linens were delivered as frequently as they were needed and the used linens were collected from the customers. After laundering by Arrow Linen the linens were again distributed to its customers.

The business was conducted from a two-story building located in Brooklyn which was fully equipped as a going laundry. Eighteen to twenty persons were employed and three trucks were maintained and operated to deliver and collect the company’s linens.

The sole issue raised on this appeal is whether a linen supply service is required to obtain a license in order to operate a laundry devoted exclusively to washing its own linen and performing no other laundry service. The word “ laundry ” is defined in article 23 of the Administrative Code :

“ § B32-167.0 Definition.— Whenever used in this article the word ‘laundry’ shall mean and include:
“ 1. Any place, which is used for the purpose of washing, drying, starching or ironing, for the general public, wearing apparel, household linens, or other washable fabrics, or a place used or maintained for the storage, collection or delivery of such articles for such service, or
“ 2. Any place maintained by a person dealing in laundry service either as an independent contractor or jobber, or any private laundry maintained or operated in connection with any hotel, restaurant or public institution, whether for the tenants, customers or inmates of the same or otherwise, except a hospital or charitable institution where no charge is made for laundry services.”
“ § B32-168.0. License required.— It shall be unlawful for any person to establish, maintain, or operate a laundry without a license therefor.” (Emphasis supplied.)

The District Attorney contends that Arrow Linen was engaged in the business of laundering “ for the general public ” as that term is used in subdivision 1 of section B32-167.0 (supra). A more reasonable and more accurate construction would lead to the opposite conclusion. As we read the statute Arrow Linen fails to come within its provisions. An establishment engaged in laundering for the general public in the popular and ordinary sense and understanding, is a place to which the public is invited to deliver its soiled clothes and linens to be cleaned and made suitable for further, use by those delivering them. Such laundering as Arrow Linen did was limited to its own property. Its services were confined to supplying linens to a small segment of the public engaged in conducting restaurants, night clubs and bars. (It is conceded by the District Attorney that Arrow Linen does not come within the provisions of subdivision 2 of section B32-167.0).

There is a sound reason for requiring the operator of a laundry to procure a license when he is engaged in the business of laundering property other than his own which does not exist when the laundering is confined to the operator’s own property. In the former case the public must be protected against conversion and loss or damage to its property while in the hands of the laundry. In the case at bar loss or damage to the linens through negligence on the part of Arrow Linen would work no hardship on its customers since they have no property interest in the linens while in the hands of Arrow Linen and consequently there is no‘public interest that needs to be protected. The primary purpose sought to be accomplished by the licensing requirements for laundries, then, is to protect against loss, damage or conversion of property belonging to members of the general public. The Administrative Code makes express provisions for just such situations. It provides (art. 23):

§ B32-171.0. Fee; bond.— a. Prior to the issuance of a laundry license, each applicant therefor shall pay an annual fee and furnish a bond to the commissioner in such amounts as are indicated in the following schedule * * *.
d. Such bonds shall be executed with two or more sureties, or a duly authorized surety company approved by the commissioner, shall be payable to the people of the city of New York, and shall be conditioned for compliance with the provisions of this article, and upon the further condition that the licensee will pay to the city any fine, penalty or other obligation within thirty days of its imposition, or any final judgment recovered by any person dealing or trading with such licensee for the loss or conversion of a laundry bundle or any part thereof, within thirty days from the entry and filing of such judgment.”

The only case to reach this court in which was involved a judicial construction of the word laundry ” as used in article 23 of the Administrative Code is People v. Benc (288 N. Y. 318 [1942]). We there held that an apartment house owner who maintained in the basement an automatic washing machine for the exclusive use of the tenants of the building was not operating a laundry, within the meaning of the Administrative Code, because it was not for the use of the ‘ ‘ general public ’ ’. In People v. 34th St. Hotel Co. (160 Misc. 243 [1936]) the Appellate Part of the Court of Special Sessions of the City of New York held that a hotel need not procure a license when the laundering was confined to the hotel’s own linens, such as tablecloths, bedsheets and towels which it provided for the use of its guests. The statute then involved was the predecessor to section B32-167.0 of article 23 of the Administrative Code but it differed in no material respect. (Baldwin, Code of Ordinances of the City of New York [1936 ed.], ch. 14, art. 19, § 201.) (See, also, Van Zandt’s Inc., v. Department of Labor of State of N. Y., 223 App. Div. 478).

The contention that the licensing statute should "be construed as applicable to Arrow Linen, on the ground that supervision of sanitary procedures is necessary to insure that minimum health standards are met, is not cogent. Sanitation requirements are prescribed by the Sanitary Code and the licensing statute adds nothing in that regard. By section 556 of chapter 22 of the New York City Charter, all matters affecting health are within the exclusive jurisdiction of the department of health. Section 561 gives the board of health control of granting, suspending and revoking permits in business activities affecting health. In order to operate residential self-service laundry equipment a permit must be obtained from the board of health. (Sanitary Code, § 336a.) As we have seen in People v. Benc (supra) we decided that it was not necessary to obtain a license from the department of licenses in order to operate a laundry of that kind. Moreover, diaper laundries are regulated by section 336 of the Sanitary Code and no license is required for that type of service. Restaurants are regulated by section 149 of the Sanitary Code. It is apparent, therefore, that the Sanitary Code is intended to establish sanitary regulations necessary for the protection of the public and that such matters are not within the purview of the licensing statute.

The judgments should be reversed and the complaint dismissed.

Loughran, Ch. J., Lewis, Dye and Froessel, JJ., concur; Desmond and Fuld, JJ., concur for reversal on the sole ground that the interpretation of this statute arrived at in 1936 in People v. 34th St. Hotel Co. (160 Misc. 243), has been accepted by the public authorities for many years and should not now be disturbed.

Judgments reversed, etc.


author:
Froessel, J.
      Desmond, J.

text:
    In the Matter of the Estate of Raia Wittner, Deceased. Henry L. Wittner, Appellant; Louis S. Adler et al., as Executors of Raia Wittner, Deceased, et al., Respondents.
    Submitted October 4, 1950;
    decided November 30, 1950.

      Arthur L. Gould for appellant.
    Appellant has an absolute right of election to take his full share as in intestacy against the will because (a) it fails to give appellant, as decedent’s spouse, the prescribed minimum, and (b) the trustees have the potential power to destroy the alleged whittled-down trust (for appellant) by clear and express provisions which allow them to invade the corpus at any time for the benefit of any of decedent’s children. (Matter of Matthews, 255 App. Div. 80, 279 N. Y. 732; Matter of Sheppard, 189 Misc. 367; Matter of Clark, 275 N. Y. 1; Matter of Byrnes, 260 N. Y. 465; Matter of Schmidt, 171 Misc. 95, 257 App. Div. 827, 282 N. Y. 787; Matter of Phillips, 266 App. Div. 374.)

      Harold M. Geller and Theodore Shulman for Renate Baum, respondent.
    Appellant does not have an absolute right of election by reason of the terms and provisions of the will. (Matter of Winburn, 265 N. Y. 366; Matter of Hayes, 263 N. Y. 219.)

      Israel S. Schwartz for executors, respondents.
    Appellant is not entitled to an absolute right of election. (Matter of Clark, 275 N. Y. 1; Matter of Herts, 165 Misc. 738; Matter of Wyand, 253 App. Div. 921; Matter of Gallien, 247 N. Y. 195; Livingston v. Ward, 247 N. Y. 97; Williams v. Jones, 166 N. Y. 522; Matter of Eddy, 173 Misc. 723, 258 App. Div. 860, 283 N. Y. 556; Matter of Wilson, 167 Misc. 758; Matter of Burr, 168 Misc. 240, 254 App. Div. 825; Matter of Sheifer, 178 Misc. 340; Matter of Tanenbaum, 258 App. Div. 285; Matter of Harris, 150 Misc. 758.)
   Froessel, J.

Petitioner-appellant, the surviving husband of Raia Wittner, has brought this proceeding for a determination pursuant to section 145-a of the Surrogate’s Court Act, and subdivision 8 of section 18 of the Decedent Estate Law, of the validity and effect of his election to take an intestate share of her estate against the provisions of her will. The courts below have determined that appellant is not entitled to take or receive absolutely his full intestate share, which would be one third of the estate, since decedent had two children by a prior marriage.

After gifts of jewelry, household furniture and other effects, Raia Wittner’s "will bequeathed $15,000 in trust for her daughter, and then divided the residue into three equal parts. The first part she gave outright to her son, the second she gave in separate trust for her daughter, and the third in separate trust for appellant. The will granted exceedingly broad discretionary powers to the executors and trustees in the administration of the estate and the trusts, including the following in paragraph “ Eleventh ” thereof: “ (o) The Trustees are authorized, in their sole and absolute discretion, in the event of any need on the part of any of my children, or of my husband, occasioned by misfortune, sickness or by any other reason whatsoever, to pay to or use, apply or expend for the use and benefit of any of my said children or of my husband, the corpus of any trust fund held for the benefit of said child or of my husband to such extent and as often as said Trustees, in their sole and absolute discretian, may determine to be adequate to provide for the reasonable needs and comforts of any of my said children or of my husband during such period or periods of need.” (Emphasis supplied.)

We are of the opinion that this clause had the effect of giving appellant an absolute right of election (Matter of Matthews, 279 N. Y. 732; Matter of Schmidt, 282 N. Y. 787; Matter of Sheppard, 189 Misc. 367, 370). Certainly by this unambiguous language the testatrix could not have meant, as the courts below have found, that a trust fund could only be invaded for the benefit of its particular income beneficiary. If the testatrix had intended that result, she would never have used the words ‘‘ any need on the part of any of my children ” or “ for the use and benefit of any of my said children ” or “ for the reasonable needs and comforts of any of my said children ”. The son was not the income beneficiary of any trust, and since the testatrix obviously intended that the invasion clause was to be for his benefit, as well as for that of the daughter (i.e., any of my children ”) as well as appellant, she could not have meant that the son was to be limited to invading the corpus of his own nonexistent trust. The testatrix must have intended-that the son be permitted to invade someone else’s trust — namely, the trust of appellant and the two trusts of the daughter.

This conclusion is all the more compelling because of the use in the invasion clause of the words “ the corpus of any trust fund held for the benefit of said child ”. The use of the singular “ child ” here demonstrates that the testatrix recognized that a trust had been set up for only one of her children — i.e., the daughter. Her language there was precisely descriptive, and significantly different from the language in other parts of the clause where the plural “ my children ” is used. The inference is unmistakable that the testatrix intended that the two trusts set up for her daughter and the one for appellant should all be subject to invasion in the event of sickness or other misfortune falling upon the daughter, the son, or appellant.

The courts below have held that appellant is restricted to the exercise of the limited right of election under paragraph (f) of subdivision 1 of section 18 of the Decedent Estate Law, subject to a future accounting proceeding in which the extent and valuation of the estate property will be determined. In this they are in error, because the trust referred to in said section must be deemed to refer to a substantially beneficial trust and not the kind of illusory disposition which exists here (Matter of Matthews, supra). To hold otherwise would be to allow the destruction, in whole or in part, of the trust corpus which the statute clearly contemplates shall be the basis of appellant’s income during life; or, to put it otherwise, would permit appellant’s rights to “ ‘ be whittled down by the ingenuity of the draftsman of a will or by the design of the [testatrix] to deprive the [appellant] of [his] lawful rights ’ ” (Matter of Curley, 245 App. Div. 255, 257, affd. 269 N. Y. 548), contrary to the well-recognized doctrine that section 18 must be liberally construed in favor of the surviving spouse in order to fulfill “ the evident purpose of the Legislature that a surviving spouse should retain the right to claim his or her full intestate share, in spite of any will, unless the instrument should provide substantial equivalents ” (Matter of Byrnes, 260 N. Y. 465, 470, 474, reargument denied 261 N. Y. 623).

Courts have no right to vary or modify the terms of a will to bring a gift to the spouse within the provisions of section 18. As we said in Matter of Durand (250 N. Y. 45, 54), ‘‘ In declaring a testator’s intention * * * courts áre limited to the words which the testator, himself, has used in his will.” And at page 55, “ Even if we thought that [the testator] would have followed the interpretation which the lower courts have put upon this will, the fact is he did not do so, and the courts cannot reconstruct wills in accordance with the near intention of the maker. * * * No power of revision of wills is intrusted to the courts.” And in Manion v. Peoples Bank of Johnstown (292 N. Y. 317, 321), “ Courts are not at liberty to inquire as to a testator’s understanding or appreciation of the legal implications of words that were selected for him by a draftsman of his will.” It follows that appellant has an absolute right of election under subdivision 1 of section 18.

The order of the Appellate Division and the decree of the Surrogates’ Court should be reversed, and the matter remitted to the Surrogates’ Court for further proceedings not inconsistent with the opinion herein, with costs payable out of the estate to all parties appearing separately and filing separate briefs.

Desmond, J.

(dissenting). We think that this court should accept the meaning ascribed to the will by both courts below.

So far as is material to the question before us, the will: (1) sets up a trust of $15,000, with income to the daughter until she shall reach the age of thirty-five, at which time the corpus is to be paid to her, and (2) divides the residue into three equal parts, one third to the son outright, one third in another trust with income to the daughter and the corpus to be paid to her at age thirty-five, and the other one third in a trust with income to the husband for life and provisions for the disposition thereof at the husband’s death. The will then goes on to say this: (o) The Trustees are authorized, in their sole and absolute discretion, in the event of any need on the part of any of my children, or of my husband, occasioned by misfortune, sickness or by any other reason whatsoever, to pay to or use, apply or expend for the use and benefit of any of my said children or of my husband, the corpus of any trust fund held for the benefit of said child or of my husband to such extent and as often as said Trustees, in their sole and absolute discretion, may determine to be adequate to provide for the reasonable needs and comforts of any of my said children or of my husband during such period or periods of need. ’ ’

The Surrogate and the Appellate Division interpreted the quoted language as saying that any invasion of the principal of the husband’s trust fund was to be for the benefit of the husband alone. By the decision about to be made, this court is taking a contrary view and holding that the invasion provisions above summarized mean that the husband’s trust may be invaded, in case of necessity, not only to take care of the husband’s needs, but also for the benefit of either of the two children of testatrix. We think that the will, read as a whole, is at least reasonably susceptible of the meaning put upon it by both courts below, and that, accordingly, this court, although it may have the power so to do, should not attach to the words a different meaning.

This is a problem of interpretation, not of construction. Interpretation ” and “ construction ” are frequently used interchangeably, but actually have different connotations. Interpretation is an investigation as to what a testator actually meant by the use of certain words, while construction is concerned with the legal effect of the language used (for illustration, see Matter of Union Trust Co. [Detmold], 89 Misc. 69, mod. 170 App. Div. 176, mod. 219 N. Y. 537, 220 N. Y. 657; also, People ex rel. Twenty-third St. R. R. Co. v. Commissioners of Taxes of City of N. Y., 95 N. Y. 554, 558, 559; Manion v. Peoples Bank of Johnstown, 292 N. Y. 317, 321; 1 Davids on New York Law of Wills, p. 733). If a will is written in ambiguous, obscure or contradictory words, the question is as to what the maker really meant, and that question is answered by a process of interpretation, which means discovering the testator’s actual intent, and is, thus, essentially, a question of fact. When, on the contrary, the terms, the meaning of which is in dispute, are words of art, that is, words having a fixed legal meaning, then the process is one of construction, that is, of applying to words of art the fixed meanings given them by our law.

Here is the case of a woman drawing an essentially simple will in which she gives an outright bequest to her son, and then erects two trusts for her daughter, and one trust for her husband. The clause above quoted, which provides for invasion of the trusts under certain circumstances, is ambiguous in the sense that it might mean that each trust could be invaded but for the benefit of the beneficiary thereof only, or it might mean that any one or all of the trusts could be invaded for the benefit of the husband, daughter or son, although the son had already been taken care of in the will by an outright bequest. The most that can be said for appellant’s position here is that the language could bear the latter meaning. However, the invasion provision, so read, is a most unusual if not unprecedented one, and one that goes far toward destroying the whole general scheme of the will. It is common for a testator, setting up a trust with income to a relative, to provide that the principal of the trust fund may be invaded to take care of unforeseen necessities of the beneficiary, but I doubt if anyone has heretofore heard of a will in which such a trust was opened wide to invasion not only for the beneficiary of that trust, but also for the beneficiary of other trusts in the same will, and for the benefit of a legatee also.

The words used here in the invasion clauses are not words of art, but simple English verbiage, and so they need no construction but only interpretation. Since both courts below have interpreted them as meaning that each trust could be invaded for the benefit of its income beneficiary only, and since that interpretation is not only not an unreasonable one but a more reasonable and consistent one, we should, even if we have power to do the contrary, exercise judicial self-restraint and let stand the reasonable interpretation arrived at by the two courts which have the primary responsibility of disposing of such factual questions of actual intent.

The order should be affirmed.

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

Ordered accordingly.