author: Dye, J. Conway, J.

text:
    Herbert T. Ohman et al., Appellants, v. Board of Education of the City of New York et al., Respondents.
    Argued October 19, 1949;
    decided December 29, 1949.

      Ralph Stout and Saul Goldstein for appellants.
    I. Upon the evidence the question of defendants’ negligence was one of fact which was properly submitted to the jury. (Hoose v. Drumm, 281 N. Y. 54; De Wald v. Seidenberg, 297 N. Y. 335; Thomas v. City of New York, 285 N. Y. 496; Miller v. Board of Educ., 291 N. Y. 25; Govel v. Board of Educ. of City of Albany, 267 App. Div. 621, 293 N. Y. 928; Applebaum v. Board of Educ. of City of N. Y., 297 N. Y. 762; Williams v. Board of Trustees, Town of Eaton, 204 App. Div. 566, 210 App. Div. 161; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Reeder v. Board of Educ. of City of N. Y., 265 App. Div. 158, 290 N. Y. 829; Lee v. Board of Educ. of City of N. Y., 263 App. Div. 23.) II. The Appellate Division erred in holding, as a matter of law, that the teacher’s absence from the classroom was not the proximate cause of the accident to plaintiff. (Meiers v. Koch Brewery, 229 N. Y. 10; McGlone v. Angus, Inc., 248 N. Y. 197; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Payne v. City of New York, 277 N. Y. 393; Kingsland v. Erie Co. Agrie. Soc., 298 N. Y. 409; O’Neill v. City of Port Jervis, 253 N. Y. 423; Connell v. Berland, 223 App. Div. 234, 248 N. Y. 641; Williams v. Board of Trustees, Town of Eaton, 204 App. Div. 566; Collentine v. City of New York, 279 N. Y. 119; Parnell v. Holland Furnace Co., 234 App. Div. 567, 260 N. Y. 604; Blume v. City of Newburgh, 265 App. Div. 965, 291 N. Y. 739; Peterson v. City of New York, 267 N. Y. 204.)

      John P. McGrath, Corporation Counsel (Joseph J. Lucchi and Seymour B. Quel of counsel), for respondents.
    Plaintiff failed to establish any negligence by the board of education, the principal, or the school teacher in exercising control and supervision over the thirteen-year-old plaintiff, No danger was reasonably foreseeable — in the absence of the prior occurrence of any act indicating need for extraordinary vigilance — from the act of the teacher, namely, leaving a suitable monitor in charge of the class for a short period of time while she supervised the storing of surplus drawing materials in a storeroom about- fifty feet from the classroom and within calling distance therefrom. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; Di Biase v. Ewart & Lake, Inc., 228 App. Div. 407, 255 N. Y. 620; Lane v. City of Buffalo, 232 App. Div. 334; Wildman v. City of New York, 254 App. Div. 591; Wilber v. City of Binghamton, 271 App. Div. 402, 296 N. Y. 950; Curcio v. City of New York, 275 N. Y. 20; Peterson v. City of New York, 267 N. Y. 204; Thompson v. Board of Educ. of City of N. Y., 280 N. Y. 92; Clark v. City of Buffalo, 288 N. Y. 62; Ginsberg v. Board of Educ. of City of N. Y., N. Y. L. J., Oct. 14, 1946, p. 870, col. 3, 272 App. Div. 774.)
   Dye, J.

In this tort action for damages for personal injuries

suffered by the plaintiff, then a pupil in a public school, we are asked to say that the jury could properly find that it was due to the negligence of the teacher in absenting herself from the classroom. The board of education in New York City is now liable for the negligence of a school teacher (Education Law, § 881-a, as it existed in 1938, now § 2510; Reeder v. Board of Educ. of City of N. Y., 265 App. Div. 158, affd. 290 N. Y. 829).

On November 15, 1938, at about 2:15 p.m., the plaintiff, Herbert Ohman, then aged thirteen years and a pupil in drawing class 7-B, Public School No. 238, Brooklyn, under the jurisdiction of the board of education, sustained a severe permanent injury when struck in the left eye by a lead pencil. The pencil had been thrown by a classmate in the direction of a third classmate with the remark “ Here is your pencil ”. The boy for whom it was intended ducked and the pencil hit the plaintiff who was standing directly behind him.

The accident occurred while the teacher in charge was temporarily absent from the classroom for the purpose of sorting and storing in a corridor closet an issue of schoolroom supplies, a routine task forming part of her usual duties. The testimony as to the length of time the teacher was out of the room is conflicting (which is not at all surprising as nine years elapsed between the date of the accident and the trial) but whether for more than an hour ” as contended by the plaintiff or less than a minute ” as shown by the defendant’s witnesses is wholly immaterial. The most favorable inference in any event is that the teacher was not in the room when the accident occurred. Nonetheless, it does not follow that such absence was the proximate producing cause of the injury, which was due, as we see it, to the tossed pencil. Whether it was done mischievously and heedlessly or wantonly and willfully, or with the serious purpose of returning the pencil to its owner, it was the act of an intervening third party which under the circumstances could hardly have been anticipated in the reasonable exercise of the teacher’s legal duty toward the plaintiff. As we read the statute applicable to New York City, liability of the board for the acts of a teacher is not dependent upon any new or different rules of common-law negligence. Here even if we assume without conceding that the teacher was negligent in leaving the room for any purpose, for any length of time, it does not follow that the board is liable for the consequences of an unforeseen act of a third party. This would constitute the board an insurer, and we would no longer have need to consider the applicability of long-established and well-recognized rules of common-law negligence. ' By such standards, a teacher may be charged only with reasonable care such as a parent of ordinary prudence would exercise under comparable circumstances. Proper supervision depends largely on the circumstances attending the event but so far as the cases indicate, there has been no departure from the usual rules of negligence. For instance, when defective or dangerous equipment or paraphernalia is used, the teacher or board is charged with foreseeability and negligence may be predicated thereon (Applebaum v. Board of Educ. of City of N. Y., 272 App. Div. 875, affd. 297 N. Y. 762; Miller v. Board of Educ., 291 N. Y. 25).

The case of Hoose v. Drumm (281 N. Y. 54) relied upon by the appellant is distinguishable and does not compel reversal. That case arose outside the city of New York prior to the enactment of the indemnity provision of the Education Law (§ 569-a, as it existed in 1938, now § 3023). The plaintiff, a public school student, was injured by a goldenrod stalk thrown by another child during a recess period. The action was against the school district trustees rather than the teacher charged with the responsibility of supervising the class while in the playground. At that time the trustees were under only the statutory duty of promulgating rules for safety and discipline (Education Law, § 275, subd. 9). Because of this we held — and it must be considered the limit of the case as an authority — that the trustees were not liable. By dictum in the closing sentence of that opinión (p. 58) it was suggested that “ any dereliction * * * was the fault of the teachers, for which the trustees cannot be held ”. The teacher’s negligence was not before us and we did not determine it. It is also ■ of some significance that there the accident occurred in the playground and not in the classroom, a place where close supervision of the children is all but mandatory. Also the record contained proof of prior injuries from tossing the goldenrod. Here we have quite a different situation, both factually and legally. There is no proof of similar accidents, nor can anyone seriously contend that a pencil in the hands of a school pupil is a dangerous instrumentality. This is one of those events which could occur equally as well in the presence of the teacher as during her absence. It is not unlike the situation in Maurer v. Board of Educ. of City of N. Y. (294 N. Y. 672), in which we affirmed the dismissal of the complaint on the grounds of no causal relation where the plaintiff had been injured by having a finger stuck into his eye by another boy swimming in the same pool but in a direction opposite to instructions of the coach. (See, also, Graff v. Board of Educ. of City of N. Y., 258 App. Div. 813, affd. 283 N. Y. 574; cf. Clark v. City of Buffalo, 288 N. Y. 62; Berner v. Board of Educ., 286 N. Y. 174.)

The judgment should be affirmed, without costs.

Conway, J.

(dissenting). In New York City, as time passes and we become more communal in practice as a result of population growth, economic pressure and other factors, we shall be more and more dependent upon kindergarten and grade school teachers, as well as baby sitters and day care nursery school directors or nurses in the basements of New York City housing and similar developments, for child care as well as education of our children. In New York City the situation materially differs in degree from that existing throughout the rest of the State. The Legislature seems to have recognized this fact and, as a result, in 1937, added two sections to the Education Law. Section 881-a (now § 2510) provided for the direct liability of a board of education in a city having a population of one million or more inhabitants. (Reeder v. Board of Educ. of City of N. Y., 290 N. Y. 829.) Section 569-a (now § 3023) imposed a somewhat less direct liability upon a board of education, trustee or trustees in any school district having a population of less than one million. Consequently, a high standard of supervision and care in the crowded schools of New York City, requiring as they do part-time classes in order to accommodate the number of pupils, should be imposed upon principals and teachers. Parents do not send their children to school to be returned to them maimed because of the absence of proper supervision or the abandonment of supervision. It is for these reasons that we feel it necessary to write out our views which are not in accord with those of the majority.

The plaintiffs, after a jury verdict in their favor, recovered judgment against all of the defendants: The board of education of the city of New York, the principal of the public school, and a teacher in the same school. The Appellate Division, Second Department, however, reversed on the law and facts and dismissed the complaint on the law. In that situation, “We must presume that the jury found every fact in favor of plaintiffs necessary to sustain their verdicts if there was any supporting evidence. In examining the record to see if proof of the facts established a cause of action, appellants must be given the benefit of every favorable inference which can reasonably be drawn.’ (Faber v. City of New York, 213 N. Y. 411, 414.)” (Isaac v. Town of Queensbury, 277 N. Y. 37, 42-43.) We, of course, disregard the testimony in support of the defense which the jury rejected.

The facts, thus ascertained, are these: Herbert T. Ohman (hereinafter called plaintiff) was a pupil in class 7-B of a Brooklyn public school. On the day of the accident, he was thirteen years of age. At 1:00 p.m. on that day, his class met in room 411 for what was scheduled to be a double period of drawing instruction. The teacher referred to above was supposed to be in charge of the drawing class in that room. We shall refer to her hereafter as teacher.

Plaintiff, together with other boys, had been picked by a lower grade teacher who was in charge of school supplies to assist in carrying such supplies from a ground-floor stockroom to different portions of the building. At about 1:15 p.m., plaintiff delivered some supplies, i.e., a few baskets and some books that came in the baskets ”, to room 411. The teacher was not there at the time. Another pupil, one Lupo, was standing in front of the classroom. He said that the teacher was out and that she had left him in charge of the class. At that time, a few of the pupils were fooling around and talking in the class.” They were “ throwing balls of paper and smacking somebody in the back of the head * * * and things of that sort.” Plaintiff left the supplies and returned to the stockroom. There, he was given another load of supplies which he carried to the library — also located on the fourth floor. En route, at about 1:45 p.m., he saw the teacher sitting on a stool inside a supply closet or storeroom on the fourth floor. She was sorting paper on shelves. This storeroom was about forty-eight feet from the nearest door of room 411 and was around an L-shaped corner. It was about twenty-five feet from the nearest door of room 411 to the corner, and about twenty-two or twenty-three feet from the corner to the storeroom.

Plaintiff then made two more trips to the library with supplies. Each time, he passed the storeroom and saw the teacher there on a stool or stepladder. On his next trip, he again delivered supplies to room 411. When he entered the room, the teacher was still absent. He observed that the wicker baskets he had previously deposited there ‘ were being kicked around in the front of the room, just the same way as it was the last time.” The pupils were throwing things around and talking to each other and doing as they pleased.” While he was sorting out the supplies at the platform in front of the room, plaintiff was hit in the leg by a basket which had been kicked. He then brought some of the supplies to the storeroom where the teacher was still working. At her direction, he put them on the floor and returned to the supply room on the ground floor. This time, he was given a stack of six long boxes containing paint. He had to rest his chin on the topmost box to keep it from tipping to the side. In this fashion, he carried them up to room 411. It was about 2:15 p.m.

Plaintiff was preceded into the room by one De Mauro, another thirteen-year-old pupil, who was also bearing supplies. De Mauro dropped his supplies in the front of the room and started to walk to the rear by way of the center aisle. Plaintiff then entered the room by the rear door and started to walk up the center aisle. The teacher was still absent from the room and the children, as before, were walking around, throwing things, fooling around ” and having a lot of fun in her absence.” At that point, Lupo, the boy who had been left in charge of the class, called to De Mauro, Here is your pencil ”. With that, he threw the pencil at De Mauro. It was an overhand throw and it was fast. De Mauro ducked out of the way, and plaintiff, who was behind him, was hit in the left eye by the point of the pencil which came spinning through the air at him. The point entered the center of his eyeball, lacerating the cornea and piercing the lens capsule behind the cornea. After many operations he is practically sightless in that eye.

The principal of the school, a defendant, was examined and cross-examined at the trial as to what constituted proper supervision under his rules and regulations, promulgated pursuant to the by-laws of the board of education, at the time of the accident. No documentary evidence of such rules and regulations was submitted. The principal testified that ‘ If the teacher was required physically to go outside the immediate confines of her classroom in connection with her teaching and was still consciously supervising the classroom, she violated no regulation. ’ ’ He said that the storeroom fifty feet down the hall and around the corner was within the immediate confines ” of the classroom. If the teacher were there for five minutes, he said it would depend upon the teacher and the class as to whether there was proper supervision. He admitted that “ If the teacher neglected her class during that entire ten-minute period, I would not regard that as proper supervision.” Nor would he regard it as proper supervision, he stated, if the teacher were away for an hour and fifteen minutes.

There can be no doubt that the jury was justified in finding, upon this evidence, that the teacher was absent from her classroom for an hour and fifteen minutes, i.e., from one o’clock, when the class met, until two fifteen, when the accident occurred; and further, that such failure, under the standards set by the principal, constituted a failure of supervision or improper supervision on her part. Likewise, the jury was justified in finding that the principal was, negligent in failing to adopt adequate regillations insuring proper supervision of classes ip Ms school and in assigning or permitting the performance of additional duties by the teacher, during scheduled teaching hours, so that she was away from her classroom for an hour and fifteen minutes. The Appellate Division does not seriously dispute the fact that the evidence warranted a finding of negligence on the part of the teacher and the principal. It is undisputed that the negligence of the teacher and the principal is imputable to the board of education of the city of New York and renders it liable under section 2510 of the Education Law and Reeder v. Board of Educ. of City of N. Y. (290 N. Y. 829, supra).

The reason assigned by the Appellate Division for reversal was as follows: “* * * In our opinion there was no causal relation between the absence of the teacher from the room and the happening of the accident. There is no proof upon which a finding that the teacher’s absence from the room was a proximate cause of the accident would be warranted. The proximate cause of the accident was the unforeseen act of the pupil who threw a lead pencil to another pupil. * * * ” (275 App. Div. 840.) We fail to see how the issue of proximate cause can thus be decided against plaintiff as a matter of law. On the contrary, under the circumstances here presented, we think the jury may properly have found that the teacher’s dereliction of duty was the proximate cause of the accident.

When a large number of children are gathered together in a single classroom, without any effective control or supervision, it may .reasonably be anticipated that certain of them may so act as to inflict an unintentional injury upon themselves or their classmates. Children have a known proclivity to act impulsively without thought of the possibilities of danger. It is precisely this lack of mature judgment which makes supervision so vital. The mere presence of the hand of authority and discipline normally is effective to curb this youthful exuberance and to protect the children against their own folly. On the other hand, it may reasonably be anticipated that the prolonged absence of such authority at a time when the children’s activities are usually supervised will result in just such a situation as is demonstrated in the instant case.

Here, the jury could find that, because of the teacher’s absence from the classroom for over an hour, the pupils became progressively more restless and unruly, that they were throwing and kicking things around the classroom, and that Lupo, the appointed monitor, in keeping with the prevailing spirit of horseplay and disorder, threw the pencil at De Mauro, who ducked out of the way so that it spun past him and hit plaintiff in the left eye. It is a legitimate inference upon this record that the exercise of greater supervision,, or, indeed of any supervision, on the part of the teacher would have averted the accident and its tragic aftermath. As we stated recently in Kingsland v. Erie Co. Agrie. Soc. (298 N. Y. 409, 424): “ The issue of proximate cause was also properly left to the jury. In Carlock v. Westchester Lighting Co. (268 N. Y. 345, 350), we said: Where harmful consequences are brought about by intervening and independent forces, the operation of which might have been reasonably foreseen, there is no break in the chain of causation of such character as to relieve the actor from liability.’ ” (Emphasis in original.) Here, the infliction of an injury upon one of the children by reason of the uncontrolled horseplay and disorder should reasonably have been foreseen as a consequence of the teacher’s failure to supervise the classroom for over an hour. At least, it is clear, a jury might so find.

The existence of the duty on the teacher to supervise her pupils, and further authority for the conclusion that failure in that respect may be the proximate cause of injuries resulting from impulsive and violent conduct of the pupils themselves may be found in Hoose v. Drumm (281 N. Y. 54). There, plaintiff lost' an eye when he was struck by a stalk of goldenrod thrown by another boy when they were at play, during a recess, on part of the school property out of sight of the teachers. We said in part (pp. 57-58): “ * * * Teachers have watched over the play of their pupils time out of mind. At recess periods, not less than in the classroom, a teacher owes it to his charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances. * * *

* * * The danger lay in the probability that the pupils would play as they did. The effective cause of the plaintiff’s injuries was the failure to protect the boys against themselves. Any dereliction in this aspect was the fault of the teachers * * (Emphasis supplied.) That language, furthermore, was necessarily approved in Miller v. Board of Educ. (291 N. Y. 25, 31). More recently, in Applebaum v. Board of Educ. of City of N. Y. (297 N. Y. 762) we affirmed a judgment in favor of an eleven-year-old schoolgirl who was injured by falling glass when a seven-foot window pole she was carrying struck and shattered a suspended light globe. She had been directed to open windows with the pole by the principal of the school, but she was without any supervision in performing the task and at the time of the accident. There was no claim of defect in the ceiling fixture and our decision rested upon the finding of faulty supervision.

In the instant case, the jury was entitled to believe the testimony of the plaintiff and De Mauro who stated that they saw the teacher away from the classroom and in the storeroom every time they passed with supplies and to find that she was absent from-the classroom for one and a quarter hours. The only contrary testimony was by the defendant teacher whose credibility was at issue. Every fact necessary to support the jury’s verdict which the jury could properly find from the evidence is presumed to have been found by it in order to support the verdict.

An ordinary layman, without any special knowledge or training, must, in some instances, anticipate subsequent conduct of children by which they may harm themselves. Whether such subsequent conduct could have been foreseen by the exercise of reasonable care and prudence under the circumstances has been held a question of fact for the jury. (Tierney v. New York Dugan Bros., 288 N. Y. 16.) How much more should school teachers and principals be required to exercise reasonable care and prudence, under the circumstances, to anticipate and guard against dangerous conduct on the part of their youthful pupils affecting one another.

The judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.

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

Judgment affirmed. [See 301 N. Y. 662.]


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of the Claim of Theresa A. McKenna, Claimant, against Atlas Contractors Equipment Corp. et al., Respondents. Workmen’s Compensation Board, Appellant.
    Argued January 5, 1950;
    decided January 12, 1950.

      Nathaniel L. Goldstein, Attorney-General (Gilbert if. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for appellant.
    Decedent’s death arose out of and in the course of his employment. (Matter of Giliotti v. Hoffman Catering Co., 246 N. Y. 279; Matter of Finnegan v. Biehn, 276 N. Y. 50; Matter of Pisko v. Mintz, 262 N. Y. 176; Matter of Bollard v. Engel, 278 N. Y. 463; Matter of Norris v. New York Central R. R. Co., 246 N. Y. .307; Matter of Hoffman v. New York Central R. R. Co., 290 N. Y. 277; Matter of Welz v. Markel Service, Inc., 296 N. Y. 640; Matter of Martin v. Plant, 293 N. Y. 617; Matter of Lynch v. City of New York, 242 N. Y. 115.)

      Charles P. Barre for respondents.
    Decedent’s death was not the result of accidental injuries arising out of and in the course of the employment. (Matter of Pisko v. Mintz, 262 N. Y. 176; Matter of Comr. of Taxation & Finance v. Brookshire Constr. Co., 251 App. Div. 761, 275 N. Y. 578; Matter of Comr. of Taxation & Finance v. Fure, 241 App. Div. 644, 264 N. Y. 678; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Doris v. National Biscuit Co., 214 App. Div. 827; Matter of Fagan v. Simonsen, 215 App. Div. 849.)
   Per Curiam.

There was evidence to support the conclusions of the Workmen’s Compensation Board, first, that the fire originated from a source separate and apart from the employee; second, that, since that was so, there was no question but that the death arose out of and in the course of the employment; and, third, that the employer and carrier had failed to establish that the injury and the ensuing death were * solely occasioned by intoxication of the * * * employee ” (Workmen’s Compensation Law, §§ 10, 21, subd. 4). We pass upon no other question.

The order of the Appellate Division should be reversed and the award of the Workmen’s Compensation Board affirmed, with costs in this court and in the Appellate Division.

Loughran, Ch. J., Lewis, Conwat, Desmond, Dte, Fuld and Froessel, JJ., concur.

Order reversed, etc.


author: Desmond, J.

text:
    Moe Rosner et al., Copartners Doing Business under the Name of Rainbow Greeting Card Co., Respondents, v. Textile Binding & Trimming Co., Inc., Appellant.
    Argued January 6, 1950;
    decided January 13, 1950.

      Herbert L. Wasserman for appellant.
    1. The first cause of action is insufficient in law. (Daley v. Haight, 170 App. Div. 469, 224 N. Y. 726; Burks v. Bosso, 180 N. Y. 341; Anderson v. Wilson, 289 U. S. 20; Woollcott v. Shubert, 217 N. Y. 212; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38; Sno-Wite, Inc., v. Gerald Operating Corp., 271 App. Div. 314, 297 N. Y. 1007; Joanette Juniors, Inc., v. Board of Home Missions

      of Cong. & Christian Churches, 273 App. Div. 999, 298 N. Y. 826; Wigod v. Jamina Realty Corp., 275 App. Div. 717.) II. The second cause of action is insufficient in law. (David v. Fayman, 273 App. Div. 408; Rosenbluth v. Sackadorf, 298 N. Y. 761; Delaney v. Valentine, 154 N. Y. 692; Fowler-Curtis Co. v. Dean, 203 App. Div. 317; Adams v. Clark, 239 N. Y. 403; Brang v. Stachnik, 261 N. Y. 614; Bernhan Chemical & Metal Corp. v. Ship-A-Hoy, Ltd., 200 App. Div. 399; Gomprecht v. Ludwig, 65 Misc. 557; Lefferts v. Lefferts, 243 App. Div. 278; Abraham v. Wechsler, 120 Misc. 811, 210 App. Div. 876.) in. Tenants waived any right to sue, by voluntarily remaining in possession after the expiration day of their lease. (David v. Fayman, 273 App. Div. 408; Cleaners Holding Corp. v. Trunz, Inc., 272 App. Div. 825; Stern v. Equitable Trust Co., 238 N. Y. 267.)

      Meyer Schiff for respondents.
    I. The first cause of action is sufficient in law. (Vernat, Inc., v. Schock, N. Y. L. J., Oct. 15, 1947, p. 866, col. 6; Vernat, Inc., v. Cross & Brown Co., 273 App. Div. 843; Morse & Grossman, Inc., v. Acker & Co., 297 N. Y. 304; Rosen v. 370 West 35th St. Corp., 184 Misc. 172; Woollcott v. Shubert, 217 N. Y. 212; Rosenfeld v. Aaron, 248 N. Y. 437; Joanette Juniors, Inc., v. Board of Home Missions of Cong. & Christian Churches, 273 App. Div. 999, 298 N. Y. 826; Sno-Wite, Inc., v. Gerald Operating Corp., 271 App. Div. 314, 297 N. Y. 1007; Kinsch v. Flohr Realty Corp., 191 Misc. 787; Tourneur Realty Corp. v. Frank Bros. Footwear, Inc., 274 App. Div. 1049; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38.) II. The second cause of action is sufficient in law. (Wigod v. Janina Realty Corp., 275 App. Div. 717; Arndt v. Altman, 181 Misc. 887, 290 N. Y. 594; Sommer v. Kelley Co., 182 Misc. 119.) HI. Plaintiffs did not voluntarily vacate their premises and the removal on February 4, 1948, did not constitute a waiver of their rights. (Whitmarsh v. Farnell, 298 N. Y. 336; Moncel Realty Corp. v. Whitestone Farms, Inc., 188 Misc. 431, 273 App. Div. 963.)
   Desmond, J.

Plaintiffs’ three-year lease of “ commercial space ” (as defined in the Commercial Rent Law, § 1; L. 1945, ch. 3, as amd.; also McKinney’s Unconsol. Laws, § 8521), in defendant’s building, expired January 31, 1948. In October, 1947, defendant, by letter, notified plaintiffs that defendant would, at the lease’s end, require possession of the space for defendant’s immediate and personal use for commercial purposes. That letter threatened, also, that if plaintiffs failed to remove on January 31, 1948, defendant would evict plaintiffs and hold plaintiffs for defendant’s resulting damage or expense. In reliance on that demand and threat (and similar oral communications from defendant) and for no other reason, say plaintiffs in their complaint herein, plaintiffs, on February 4, 1948, surrendered possession of the' rented space and moved out of the building. Defendant, however, as the complaint avers, did not move into the space but instead leased it to another tenant, for commercial purposes. Plaintiffs say that all this resulted in $15,000 damage to them (because of the expense of securing other quarters and moving thereto, and because of loss of business, etc.). Such are the allegations of the first cause of action in the complaint.

In a second count, the complaint repeats the allegations above summarized, and adds charges that defendant’s demand for possession, and defendant’s statement that it needed immediate possession for defendant’s own use, were false and untrue, and made not in good faith, but for the purpose of defrauding plaintiffs of their right to remain in possession under the Commercial Rent Law. Plaintiffs allege that they believed defendant’s statements and relied and acted on them, in giving up possession of the space, all to their damage as aforesaid.

Defendant’s motion to dismiss the complaint for insufficiency was granted at Special Term, on the authority of Joanette Juniors, Inc., v. Board of Home Missions of Cong. & Christian Churches (273 App. Div. 999) which was affirmed in this court (298 N. Y. 826) after the Special Term decision hereof. The Appellate Division, however, reversed the Special Term order and granted defendant leave to appeal to this court.

Plaintiffs say that their first cause of action is expressly authorized by subdivision (d) of section 8 of the Commercial Rent Law (L. 1945, ch. 3, as amd.; also McKinney’s Unconsol. Laws, § 8528, subd. [d]) and that the second cause of action in this complaint states a case in common-law fraud, independent of that statute. Special Term held that plaintiffs had only the rights expressly granted by the statute, and that such rights did not include a right to damages, on the facts shown by this complaint. We agree with that holding.

The statute (first paragraph of section 8 of the Commercial Bent Law) says that, a tenant, situated as were plaintiffs, shall not, so long as he continues to pay his rent, and notwithstanding lease expiration, be removed from any commercial space, ‘ ‘ by action or proceeding to evict or to recover possession, by exclusion from possession, or otherwise ”. Subdivision (d) of the same section (L. 1945, ch. 3, as amd. by L. 1946, ch. 272; also McKinney’s Unconsol. Laws, § 8528, subd. [d]) states one of the exceptions to the tenant’s statutory right to stay in possession: he is not to he removed unless 11 the landlord * * * seeks in good faith to recover possession of the commercial space for his immediate and personal use But, says another sentence of subdivision (d), if the landlord shall fail, aftjer thirty days subsequent to dispossessing a tenant under the provisions of this subdivision, to occupy such space and actively to conduct such business therein, or if such landlord * * * shall lease or rent such space to or permit occupancy thereof by a third person within a period of one year after such dispossession, he shall be liable to the tenant for all damages sustained on account of such removal.” Plaintiffs, as their pleading shows, were not removed by any of the means forbidden to the landlord by the statute, and so the landlord is not liable to them, under the requirements of the statute as above quoted.

In Sno-Wite, Inc., v. Gerald Operating Corp. (297 N. Y. 1007) we decided a suit brought under this same subdivision (d) of section 8 of the Commercial Bent Law, but there the tenant had removed from the rented premises only after the landlord had actually commenced an eviction proceeding on the ground of his intention, himself to use the premises. Agreeing with the Appellate Division in the Sno-Wite case (supra), we held that that was no voluntary withdrawal by the tenant, but that “ the serving of the precept and verified petition * * * gave the tenant the option to treat the landlord’s action as an eviction with all the effects of a technical dispossession (see 271 App. Div. 314, 318; also Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 41). The Sno-Wite complaint was, therefore, upheld. Then came the Joanette case (273 App. Div. 999, affd. 298 N. Y. 826, supra) where, according to the complaint, defendant landlord had brought no eviction proceedings but had served, on plaintiff, notices and demands similar to the one in the present case, and the tenant Joanette had, like plaintiffs here, moved out in compliance with that demand. In the Joanette case, the Appellate Division, reversing Special Term “ on questions of law ” granted summary judgment dismissing the complaint, and we affirmed. The Joanette case is, therefore, binding precedent for a determination of insufficiency of the first cause of action in the complaint now before us.

Plaintiffs argue, however, that regardless of the sufficiency of their first, or statutory, cause of action, they have pleaded, in their second count, a good common-law fraud case. The decisions are to the contrary. David v. Fayman (298 N. Y. 669) and Rosenbluth v. Sackadorf (298 N. Y. 761) necessarily mean that no action for fraud arises from such facts. Both those cases involved residential, not commercial, space, and, since those cases arose before the enactment, in 1948 (L. 1948, ch. 213), of section 1444-a of the Civil Practice Act, residential tenants had no such right to sue as was, and is, given tenants of commercial property by the above-quoted subdivision (d) of section 8 of the Commercial Rent Law. Both plaintiff David and plaintiff Rosenbluth had been evicted from their statutory tenancies, on petitions containing knowingly false statements, by their respective landlords (defendants), that the landlord intended (in the David case, supra) himself to occupy the premises, or (in the Rosenbluth case, supra) to make alterations and improvements to the rented apartment. The holding in each case was that a tenant, evicted as the result of such false allegations had, in the absence of express statutory grant, no right of action at all.

Schwartz v. Sterling Drug Inc. (300 N. Y. 493) is not directly in point here, since it involves a somewhat different situation, but it confirms the view that a tenant who, by reason of threats or demands only, gives up a statutory tenancy, has no basis for suing his landlord.

The order of the Appellate Division should be reversed and the judgment of Special Term affirmed, with costs in this court and in the Appellate Division. Both certified questions are answered in the negative.

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

Ordered accordingly.


author: Loughran, Ch. J.

text:
    In the Matter of Louis Baker et al., Appellants, against Macfadden Publications, Inc., Respondent. Louis Baker et al., Suing on Behalf of Themselves and All Stockholders of Macfadden Publications, Inc., Similarly Situated, Appellants, v. John H. Boord et al., Defendants, and Macfadden Publications, Inc., Respondent.
    Argued January 3, 1950;
    decided March 2, 1950.

      Abraham Marcus and Israel Beckhardt for appellants.
    I. TAN sixth certified question should be answered in the affirmative. II. The peremptory order granted by Special Term was properly granted; the Appellate Division’s reversal of such order should be reversed. (Stock Corporation Law, § 10; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; Matter of Steinway, 159 N. Y. 250.)

      Thomas H. Pinney and John J. Jansen for respondent.
    I. Defendant’s right to security under section 61-b of the General Corporation Law may not be defeated by the joinder of additional plaintiffs. (Noel Associates v. Merrill, 184 Misc. 646; Weinstein v. Behn, 68 N. Y. S. 2d 199, 272 App. Div. 1045.) II. Plaintiffs are not entitled to an examination of defendant corporation’s stock books. (Matter of Latimer v. Herzog Teleseme Co., 75 App. Div. 522; Matter of Newman v. Smith, 263 App. Div. 85, 289 N. Y. 545.)
   Loughran, Ch. J.

In the above-entitled action of Baker v. Boord, stockholders of Macfadden Publications, Inc., a domestic corporation, assert derivatively a cause of action on its behalf for claimed misapplication of its funds and waste of its property by past directors and officers and other defendants. Judgment for an accounting and for damages is demanded. Upon appropriate allegations, Maefadden Publications, Inc., has been joined as a nominal defendant. (See Brady v. Meenan, 204 App. Div. 390.) We shall refer to that defendant as the corporation.

Section 61-b of the General Corporation Law was enacted in 1944. It makes in substance the following provision: In a stockholder’s derivative action, the plaintiffs — unless they represent at .least 5% of the corporation’s shares or an aggregate of its shares having a value in excess of $50',000 — must give security for the reasonable litigation expenses, including attorneys’ fees, of all parties joined as defendants in the action. (See, too,' §§ 64-68 of the same statute.) In the present case, the plaintiffs own approximately 4/1000ths of 1% of the stock of the corporation — an interest which at the commencement of this action had a market value of about $350. Hence the corporation was entitled to apply for the security authorized by section 61-b.

Upon such an application by the corporation, Special Term made an order which (1) fixed security in the sum of $40,000 and directed a bond therefor to be filed within sixty days; and (2) gave leave to the plaintiffs to move for a vacating of the order if within that time additional stockholders should join them in number sufficient to meet the requirements of section 61-b.

From that security order both the plaintiffs and the corporation appealed to the Appellate Division where the plaintiffs challenged the constitutionality of section 61-b, while the corporation made an attack upon the provision respecting the joinder of additional stockholders as parties plaintiff in the action. The corporation also appealed to the Appellate Division from an order made by Special Term in the above-entitled special proceeding of Matter of Baker v. Macfadden Publications. In that article 78 proceeding, the Special Term, upon a petition of the plaintiffs, had directed the corporation to allow them to inspect and copy its stock book and stockholders’ list.

The Appellate Division (1) upheld section 61-b as a constitutional enactment; (2) modified on the law the security order by deleting the provision respecting the joinder of additional stockholders of the corporation as parties plaintiff in the action and affirmed that order as so modified; and (3) reversed on the law the order permitting the plaintiffs to inspect the corporation’s stock book and stockholders’ list and denied the petition for such inspection.

By permission of the Appellate Division, the plaintiffs — upon six questions certified — have appealed to us from the modification by that court of the security order. Besides, they have appealed here as of right from the order of that court denying their petition for inspection of the corporation’s stock book and stockholders’ list.

The first five of the six questions certified present issues in respect of the constitutionality of section 61-b which are now academic, since the validity of that section has already been finally adjudicated by us. (Lapchak v. Baker, 298 N. Y. 89. See Cohen v. Beneficial Ind. Loan Corp., 337 U. S. 541.) The sixth question certified asks us to say whether Special Term was right in making the following provision a part of its security order: “ Further ordered that, in the event that joinder in the action is effected by the plaintiffs of stockholders holding 5% of the outstanding shares of any class of stock of said Macfadden Publications, Inc., or shares of said Macfadden Publications, Inc. having a market value in excess of $50,000, plaintiffs may make application to vacate this order ”.

The Appellate Division struck out that provision for reasons clearly stated in its opinion as follows: “ The time for determining the right of the corporation to security is when the action is instituted or when the motion for security is made. When the corporation’s right to security is once determined and an order granted, the right is fixed and is not subject to defeasance by a change in the amount of stock that may subsequently be joined in the action. It is subject only to an increase or decrease in the amount of the security as it may subsequently prove to be inadequate or excessive in relation to the expenses of the corporation to be secured.” (270 App. Div. 440, 443.)

The construction thus put upon section 61-b fails to take proper account of a long-recognized rule of practice which for present purposes may be stated in this manner: The New York Supreme Court, so long as an action is pending before it, has power, for sufficient cause, to modify or vacate an order made in the course of the action. (Barry v. Mutual Life Ins. Co. of N. Y., 53 N. Y. 536, 539; Ladd v. Stevenson, 112 N. Y. 325, 332; Bannon v. Bannon, 270 N. Y. 484, 488-489; Civ. Prac. Act, § 192; 1 Carmody on New York Practice [2d ed], pp. 562-569, and Yol. 7, at pp. 20-21. See, too, Civ. Prac. Act, § 131.) Section 61-b was not intended to declare an exception to that general rule. Hence, in our judgment, the Appellate Division was wrong in modifying the security order made by the Special Term.

We pass now to the appeal of the plaintiffs in the special proceeding from the order denying their petition for an examination of the corporation’s stock book and stockholders’ list. The plaintiffs sought that relief for the express purpose of inviting other stockholders to come into the derivative action as additional plaintiffs, in the hope of avoiding thereby the necessity of posting security. In denying that relief as matter of law, the Appellate Division said: “ As the order for an examination of the stock book was sought and granted only in aid of the invalid provision of the security order, it must also be vacated.” (270 App. Div. 440, 443.)

This conclusion of the Appellate Division, of course, cannot here be accepted, since, as we now hold, the security order is entirely valid. The special proceeding, however, should be remitted to that court for decision of the questions of discretion that are involved therein. (See Matter of Davids v. Sillcox, 297 N. Y. 355.)

In Matter of Baker v. Macfadden Publications, the order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to that court for determination, as it may be advised, of the questions of discretion that are therein involved.

In Baker v. Boord, the order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the order of Special Term affirmed. The sixth question certified is answered in the affirmative. The other questions certified are not answered.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.. concur.

Ordered accordingly.


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Brooklyn-Battery Tunnel Plaza, etc., in the Borough of Manhattan. 890 Broadway Corporation, Respondent.
    Argued January 4, 1950;
    decided March 2, 1950.

      John P. McGrath, Corporation Counsel (Bernard H. Friedman, Harry E. O’Donnell and Reuben Levy of counsel), for appellant.

      Nathan L. Goldstein for respondent.
   Loughran, Ch. J.

In this condemnation proceeding, the City of New York has appealed from an order of the Appellate Division which modified on the law and the facts an order whereby Special Term awarded damages for two parcels of land therein designated as Damage Parcels Nos. 84 and 87. These parcels are contiguously situated in lower Manhattan and were taken by the city for use as part of the Brooklyn-Battery Tunnel Plaza.

Special Term in its decision made after trial fixed the damages in respect of both parcels as follows: Land $193,985, improvements $30,000; total $223,985.

Claimant appealed to the Appellate Division. In the recitals of its order, that court referred to the land and building valuations as Special Term had separately stated them but in the decretal portion of its order, without referring to such separate valuations, gave only these directions:

“ Ordered and adjudged that the final decree so appealed from be and the same hereby is modified, on the facts and the law, by increasing the amount of the award * * * to the sum of $290,000, and as so modified, the final decree be and the same is hereby affirmed * * * and it is further unanimously Ordered that the finding of fact contained in the decision of the Court at Special Term * * * awarding the total sum of $223,985 for Damage Parcels Nos. 84 and 87, be and the same hereby is reversed; and in lieu thereof, this Court hereby finds and awards the total sum of $290,000 for Damage' Parcels Nos. 84 and 87.”

In other words, the Appellate Division reversed only the finding of total valuation made by Special Term and substituted one new finding which' increased that valuation to $290,000. The order of the Appellate Division, however, does not specify whether such increase had relation to the land value or to the value of the improvements or to both.

Section 602 of the Civil Practice Act requires the Appellate Division to specify the grounds upon which a reversal or modification is made and, so far as material here, provides: “ 2. If the determination is stated to be upon the facts, or upon the law and the facts, the order shall also (a) specify the findings of fact which are reversed or modified, and (b) set forth any new findings of fact made by the appellate division with such particularity as was employed for the statement of the findings of fact in the court of original instance * * #. If the order of the appellate division does not comply with the requirements of this section, the court of appeals shall presume that the questions of fact were not considered by the appellate division.”

Thus section 602 requires us here to presume that the questions of fact were not considered by the Appellate Division (People ex rel. Sheffield Farms Co. v. Lilly, 295 N. Y. 354). The award must, therefore, be taken to have been increased as matter of law, although the only issue before the Appellate Division was one of fact as to value. Of course, the record contains some evidence which supports the award as made by Special Term and consequently we are bound to reverse the order appealed from and to remit the case to the Appellate Division for disposition of the questions of fact raised in that court. (Civ. Prac. Act, § 606.)

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for determination, as it may be advised, of the questions of fact involved herein.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Order reversed, etc.


author: Fuld, J.

text:
    Nathan B. Fogelson et al., on Behalf of Themselves and Others Similarly Situated, Respondents, v. Rackfay Construction Co., Inc., et al., Appellants.
    Argued January 10, 1950;
    decided March 2, 1950.

      Henry Epstein, H. Leonard King, Jules H. Enrich and Sidney Rhodes for appellants.
    I. It was error for Special Term to issue a mandatory injunction enforcing defendants ’ alleged oral agreement, not included in the written leases, .to provide bus service. (Halloran v. N. & C. Contr. Co., 249 N. Y. 381; Mitchill v. Lath, 247 N. Y. 377; Thomas v. Scutt, 127 N. Y. 133; Wilson v. Deen, 74 N. Y. 531; Woods v. Forest Hills South, Inc., 172 F. 2d 147; Absar Realty Co. v. Bowles, 149 F. 2d 654; Johnson v. Bowles, 145 F. 2d 166; Lenox Hill Apts. v. Goldstein, 182 Misc. 605; Lenox Hill Apts. v. Coogan, 52 N. Y. S. 2d 40; Eidelsberg v. Borchard Affiliations, Inc., 190 Misc. 157.) ID Even if there were an enforcible agreement by defendants to furnish bus service, it was error to decree specific performance. The court has directed defendants to perform ultra vires and illegal acts expressly prohibited by statute. (Surface Transp. Corp. v. Reservoir Bus Lines, 271 App. Div. 556; Public Service Comm. v. Fox, 96 Misc. 283, 99 Misc. 43; De Matteis v. McGoldrick Realty Co., 259 N. Y. 452; Public Service Comm. v. Rogers Co., 184 App. Div. 705; Thomas v. West Jersey R. R. Co., 101 U. S. 71; Pennsylvania R. R. Co. v. St. Louis, A. & T. H. R. R. Co., 118 U. S. 290; Palombi v. Volpe, 249 N. Y. 194; Bronk v. Riley, 50 Hun 489; Napa Valley Elec. Co. v. Calistoga Elec. Co., 38 Cal. App. 477.)

      Karl Propper and Nathan B. Fogelson for respondents.
    I. Defendants have contracted, and breached their contract, to furnish bus service to the tenants of premises 1535 and 1571 Undercliff Avenue. II. The members of 260 families (about 1,000 persons) suffered complete disorganization of their daily living routine when they were arbitrarily left without bus transportation. III. The reduction of rents by the Federal Housing Expediter, if any, is no adequate remedy for the loss of the necessary transportation. IY. Operation of busses without hire for the exclusive convenience and necessities of plaintiffs and the other tenants of the apartment buildings is not forbidden. (Olive Kent Park v. Moshassuck Transp. Co., 189 Misc. 864; Aronimink Transp. Co. v. Public Service Comm., 111 Pa. Superior Ct. 414; Meisner v. Detroit, etc., Ferry Co., 154 Mich. 545; Dover, S. & R. St. Ry. Co. v. Wentworth, 84 N. H. 258; Illinois Highway Transp. Co. v. Hantel, 323 Ill. App. 364; Utica-Clayville Bus Co. v. Waite, 233 App. Div. 297.) Y. The oral agreement to provide bus service is not barred by a provision in the written lease stating that the lease “ contains all the agreements and conditions made between the parties hereto ”, nor by the paroi evidence rule. (Mitchill v. Lath, 247 N. Y. 377; Ball v. Grady, 267 H. Y. 470; Ragette v. Maxwell Co., 188 App. Div. 715; Spota v. Hayes, 36 Misc. 532; Van Ness v. Pacard, 2 Pet. [Ü. S.] 137; Norlil Realty Corp. v. Tolchinsky, 181 Misc. 301, 267 App. Div. 948, 975.)
   Fuld, J.

Plaintiffs are tenants, defendants landlords, of two large apartment houses situated in the westerly reaches .of the Borough and County of The Bronx, not far from Washington Bridge. Distant three blocks, four or five minutes by foot,- is Bridge Plaza, from which point public bus lines run to intersections within a block of two public schools (Orders of Hew York City Police Commissioner, Hew York City Eecord, Hov. 1,1947, p. 5894, and April 23,1948, p. 2085), to the subway station at Jerome Avenue and to various other sections of the city.

All of the tenants, prior to the commencement of their initial tenancies, executed leases, and, at their expiration, either renewed them or continued in possession as statutory tenants. They testified that, before they signed for the first time, the buildings’ then manager — dead at the time of the trial — orally promised that they would be furnished free bus service to the subway, a mile away, and to the public schools, a half mile away; had it not been for that promise, they further declared, they would not have moved into the premises. The landlords, denying that free bus service was promised, rely upon the terms of the leases actually executed. While each lease, full and detailed, included among its twenty-five separate paragraphs a provision that the landlords furnish heat and hot water, the writing not only made no reference to busses or to bus service but contained a clause reciting that the instrument embodied the entire agreement between the parties

In any event, promised or not, transportation by private bus was supplied from 1930 until May, 1949; on the latter date, the bus company, which had been hired by the landlords to furnish such service, removed the vehicles because it needed them for its regular franchise runs. The landlords thereupon, in conformity with Federal rent regulations, sought and obtained a “ tentative order ” from the Federal housing expediter providing for a reduction in rent to compensate the tenants for the diminution in service. The tenants, however, claiming that it would be a hardship to deprive them of private bus service, sued for a mandatory injunction to require its restoration. Following a trial, the court at Special Term granted an injunction ordering the landlords to run at least one bus daily to the subway station at twenty-minute intervals from seven o’clock in the morning until twelve o’clock midnight, and to and from the schools at specified hours six times a day — and the Appellate Division affirmed.

While the record establishes the lack of any justification for injunctive relief, our decision must perforce rest upon the more basic ground that the paroi evidence rule prevents proof or enforcement of the oral agreement. And that view renders unnecessary consideration of the further question whether operation of busses by a landlord or by an omnibus company hired by him is illegal, absent compliance with the Transportation Corporations Law and the Public Service Law.

We assume that defendants promised their tenants bus service, but that is not a controlling factor, for — as this court observed in a somewhat similar situation (Mitchill v. Lath, 247 N. Y. 377, 379) — “ The question before us is whether their oral agreement may be enforced in a court of equity.” (See, also, Ball v. Grady, 267 N. Y. 470, 472; Higgs v. de Maziroff, 263 N. Y. 473, 478; see, also, 3 Williston on Contracts [1936 ed.], § 638, p. 1834.) And whether or not it may be enforced depends in turn upon whether the paroi evidence rule is applicable. An important principle of substantive law (see Higgs v. de Maziroff, supra, 263 N. Y. 473, 477; Mitchill v. Lath, supra, 247 N. Y. 377, 379; see, also, 9 Wigmore on Evidence [1940 ed.], § 2400, p. 3), it was designed to permit a party to a written contract to protect himself against perjury, infirmity of memory or the death of witnesses ” (Thomas v. Scutt, 127 N. Y. 133,142), and, while its application may on occasion seem to work injustice, on the whole it works for good.” (Mitchill v. Lath, supra, 247 N. Y. 377, 380.)

The rule, defining, the limits of the contract to be construed, forbids proof of an oral agreement to add to or vary the writing. It does not, however, apply Avhere the written contract was not intended to embody the entire agreement between the parties. In general, an oral agreement may be proved only if it is “ not * # * so clearly connected with the principal transaction as to be part and parcel of it.” (Mitchill v. Lath, supra, 247 N. Y. 377, 381; see, also, Ball v. Grady, supra, 267 N. Y. 470; Halloran v. N. & C. Contr. Co., 249 N. Y. 381; Thomas v. Scutt, supra, 127 N. Y. 133; Eighmie v. Taylor, 98 N. Y. 288; Wilson v. Deen, 74 N. Y. 531; Stoner v. Stehm, 200 Iowa 809; O’Malley v. Grady, 222 Mass. 202; Farr v. Wasatch Chemical Co., 105 Utah 272.) Decision in each case must, of course, turn upon the type of transaction involved, the scope of the written contract and the content of the oral • agreement asserted. As this court expressed it, “ in the end, the court must find the limits of the integration as best it may by reading the writing in the light of surrounding circumstances, and by determining whether or not the agreement was one which the parties would ordinarily be expected to embody in the writing.” (Ball v. Grady, supra, 267 N. Y. 470, 472.)

Where landlord and tenant enter into a lease, it is reasonable to expect that it contain the engagements of the parties, and * * * define the object and measure the extent of such engagement ”. (Eighmie v. Taylor, supra, 98 N. Y. 288, 294-295.) Certainly, where the promise relates to a matter so closely touching upon the landlord-tenant relationship as the landlord’s obligation to supply an assertedly essential service — at least, where, as here, it is rendered off the premises — the promise must he embodied and contained in the lease itself.

While analogies are not overly helpful, a glance at a few cases illumines the problem and confirms our conclusion. In Ball v. Grady, supra, 267 N. Y. 470, an oral agreement by the vendor of a house to repair a cellar and make it watertight was held not enforcible, since it was one “ which the parties would ordinarily be expected to embody in the writing ” (p. 472). In Mitchill v. Lath, supra, 247 N. Y. 377, an oral agreement by the vendors of certain property to remove an unsightly icehouse located across the road from the subject property was ruled unenforcible; though collateral in form, said the court, it was ‘1 closely related to the subject dealt with in the written agreement — so closely that we hold it may not be proved ” (p. 382). And in O’Malley v. Grady, supra, 222 Mass. 202, cited with approval in the Mitchill case (247 N. Y., at p. 379), proof of an oral agreement by a landlord to permit his tenant to withdraw from the lease and recover a deposit if he failed to get a license to operate a liquor shop in the store rented, was held unenforcible because it modified the written lease and was not “ collateral ” to it (p. 203). And, finally, in Halloran v. N. & C. Contr. Co., supra, 249 N. Y. 381, a landlord’s agreement to grant its tenant, an iceman, who had rented space for the carrying on of his business, the exclusive privilege to sell ice to the other tenants on the premises was held unenforcible, upon the ground that it was “ part and parcel of the lease ” (p. 384). In the course of its opinion, the court wrote (p. 384): “ The alleged contract to grant the exclusive privilege to solicit customers in the apartment houses was not a contract separate and distinct from the lease; it was part and parcel of the lease. * * * The lease contains no reference to the privilege and yet the testimony is that the lease would not have been made if the privilege had not been given; that the oral contract was part of the consideration. A covenant of a lessor to furnish heat or elevator service, or to make repairs, is no more a part of the lease than would be his covenant to permit a lessee an exclusive privilege in the premises. All would form part and parcel of one transaction, and part of the consideration. To prove such a contract by oral testimony comes within the condemnation of Mitchill v. Lath (247 N. Y. 377).”

From the tenants themselves in the case before us comes indisputable acknowledgment that the transaction was single and that the oral agreement not only was part of the consideration but was the inducing cause for the execution of the lease itself. In so many words, they said that they would not have signed the leases had the landlords not promised to furnish bus service.

What reason and principle and precedent make clear is rendered virtually conclusive by one of the provisions in the lease itself. The parties solemnly stipulated not only that the written lease contains the entire agreement between the parties ”, not only that “ All prior negotiations and agreements are merged herein ”, but also that “ Any additions [to] * * * or alterations or changes in this contract * * * to be binding, must be in writing signed by both parties ”. In a very real sense, that merger clause announces and demonstrates the all-inclusive nature of the written lease and furnishes still additional reason ” for applying the paroi evidence rule. (See 3 Williston, op. cit., § 811A, p. 2282.) In truth, if the lease before us — complete on its face and drafted designedly and explicitly to prevent reliance upon any promise or agreement not included — could be varied and undermined by paroi evidence, few written instruments would be safe or secure.

From what has been written, it follows that the promise to furnish bus service ‘ ‘ was merely a voluntary concession, granted as a favor to one who was an actual or prospective tenant, and thus subject to recall ” (Halloran v. N. & C. Contr. Co., supra, 249 N. Y. 381, 386 [per Cardozo, Oh. J., concurring)), and the circumstance that the landlords supplied that service for many years neither creates a duty nor imposes an obligation upon them to continue doing so in perpetuity. (Cf. Brainard v. New York Central R. R. Co., 242 N. Y. 125, 134; Aronimink Transp. Co. v. Public Service Comm., 111 Pa. Super. Ct. 414, 417, 419.)

The judgments should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc. [See 301 N. Y. 552.]


text:
    Lillian I. Dunning, Respondent, v. Frank E. Dunning, Appellant.
    Argued January 11, 1950;
    decided March 2, 1950.

      R. Waldron Hemberg and R. Monell Herzberg for appellant.
    I. Plaintiff’s claims are barred by the Statute of Limitations. (Civ. Prac. Act, § 47; Chapin v. Posner, 299 N. Y. 31; Clayburgh v. Clayburgh, 261 N. Y. 464.) II. Plaintiff wife was under no disability to sue her husband and it was not against public policy for her to dó so. (Fowler v. Wood, 78 Hun 304,150 N. Y. 584; Wright v. Wright, 54 N. Y. 437; Acker v. Acker, 81 N. Y. 143.) III. No explanation was given to show why the notes were not presented within the time provided by statute. (Greenwich Bank v. Hartford Fire Ins. Co., 250 N. Y. 116; Commercial

      Nat. Bank v. Zimmerman, 185 N. Y. 210; McNee v. Ring, 159 Misc. 698.) IV. Both the Statute of Limitations and the presentation for payment were sufficiently raised by the pleadings.

      William E. J. Connor and Morris Millman for respondent.
    I. Since the Statute of Limitations is an affirmative defense which must be both specifically pleaded and proven, and since said statute was at no time pleaded, it is no bar to this action. (Richardson v. Gregory, 219 App. Div. 211; Schenck v. State Line Tel. Co. 238 N. Y. 308; Hayden v. Pierce, 144 N. Y. 512; Titus v. Poole, 145 N. Y. 414; Hamilton v. Royal Ins. Co., 156 N. Y. 327; Dunkum v. Maceck Bldg. Corp., 227 App. Div. 230; City of Buffalo v. County of Erie, 88 Misc. 591, 171 App. Div. 973, 220 N. Y. 620; People ex rel. City of Tonawanda v. Fitzhenry, 170 App. Div. 227; Minzesheimer v. Bruns, 1 App. Div. 324.) II. Plaintiff presented the notes for payment within a reasonable time. (Commercial Nat. Bank v. Zimmerman, 185 N. Y. 210; McNee v. Ring, 159 Misc. 698; Zaloom v. Ganim, 72 Misc. 36, 148 App. Div. 892; Matter of Taylor, 174 Misc. 457.) III. In view of the fact that the State of New York tas adopted the Uniform Negotiable Instruments Law as its own, the public policy of this State should conform with the public policy of all other States adopting the Negotiable Instruments Law that the Statute of Limitations does not apply between husband and wife with respect to negotiable instruments. (Morrish v. Morrish, 262 Pa. 192; Bennett v. Finnegan, 72 N. J. Eq. 155; Gray v. Gray, 39 N. J. Eq. 511; Metlar v. Williams, 86 N. J. Eq. 330; Fawcett v. Fawcett, 85 Wis. 332; Campbell v. Mickelson, 279 N. W. 73; Stockwell v. Stockwell’s Estate, 92 Vt. 489; Matter of Bonfield, 299 P. 323.)
   Desmond, J.

The suit is on twelve promissory notes, all

payable on demand, given by defendant, to plaintiff, his wife, on various dates in 1929, 1931 and 1932, the complaint further alleging that payment of all the notes was demanded in June, 1947, but that no payment was ever made. It appears by a stipulation, hereafter referred to, that the parties separated in May, 1947. The answer admits the making and delivery of the instruments, and, besides that admission and an alleged defense later abandoned, contains only this: “ III. That presentment for payment of each of said twelve promissory notes payable on demand was not made within a reasonable time after issue as the said notes were issued between November 18, 1929, and March 26, 1932, and demand for payment of each of said twelve promissory notes was not made until June 3, 1947.”

The record on appeal, presented to the Appellate Division and to this court, omits the testimony taken on the trial, but does contain an oral motion to dismiss made at the trial, some colloquy thereon, and a stipulation of facts, entered into after there had been a decision and judgment in favor of plaintiff, and after defendant had appealed therefrom to the Appellate Division. Since the record thus certified to us contains neither a pleading of the Statute of Limitations nor a motion to dismiss on that ground (see Civ. Prac. Act, §§ 242, 261; Rules Civ. Prac., rule 107; and Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290, 295), nor a waiver by plaintiff of defendant’s failure to raise such a defense, we agree with the Appellate Division that, on this record, no such defense was available to defendant.

Since the Statute of Limitations could thus play no part in the decision, it is unnecessary, strictly speaking, for us to comment on the statement in one of the opinions below (citing cases in other States) that the Statute of Limitations does not run in favor of one spouse as against the other while they are living together. However, we point out that no such exception is found in article 2 of the Civil Practice Act, or elsewhere in our statutes, and the creation thereof is beyond the power of any court (see Mack v. Mendels, 249 N. Y. 356, 359, citing Ruggies v. Keeler, 3 Johns. 263; Taylor v. New York Central R. R. Co., 294 N. Y. 397, 402, certiorari denied 326 U. S. 786; Gregoire v. G. P. Putnam’s Sons, 298 N. Y. 119, 125; Arnold v. Mayal Realty Co., 299 N. Y. 57, 60; Chapin v. Posner, 299 N. Y. 31, 41). Quite obviously, too, a refusal to apply time limitation statutes between husband and wife would be inconsistent with the New York Married Women’s Property Act (see Civ. Prac, Act, § 200; Domestic Relations Law, §§ 50, 51; Winter v. Winter, 191 N. Y. 462, 467).

The answer, as quoted above, pleads as a defense, that presentment for payment of these notes was not made within a reasonable time, and there is some discussion in one of the opinions below as to whether or not more than a reasonable time elapsed, in this situation, between issue and presentment. So that our affirmance here will not be misunderstood, we point out that presentment for payment is not necessary to charge a person who, like defendant here, is primarily' liable on the instrument (Negotiable Instruments Law, §§ 3,110, 130; Locklin v. Moore, 57 N. Y. 360, 362; Baldwin’s Bank v. Smith, 215 N. Y. 76, 79).

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. William Wurzler, Appellant.
    Argued January 11, 1950;
    decided March 2, 1950.

      N. Jansen Fowler for appellant.

      Robert O. Brink, District Attorney (Samuel W. Bernstein- oí counsel), for respondent.
   Per Curiam.

Defendant was convicted in 1939, in the County Court of Broome County, upon a plea of guilty, of the crime of grand larceny in the first degree. Four years later he moved, by a coram nobis application in that court, to set aside the judgment of conviction. The county judge, disqualified from presiding because he had been district attorney when defendant was convicted, transferred the motion to the Supreme Court, and that court denied it. In 1947, defendant instituted another coram nobis proceeding and the county judge again transferred the matter to the Supreme Court. On this occasion, the Supreme Court justice, ascertaining that the facts asserted and that the ground relied upon were substantially the same as those previously alleged, dismissed the motion, and the Appellate Division unanimously affirmed.

The application should not have been transferred to the Supreme Court for, as we have repeatedly held, it is only the court where a defendant is tried and convicted that possesses the power to hear and decide a motion in the nature of a writ of error coram nobis. (See People v. McCullough, 300 N. Y. 107, 110; People v. Gersewitz, 294 N. Y. 163, 167; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 136, 140.) When the county judge found himself unable to pass upon it, he should have requested and obtained a county judge of another county to act in his place (Code Crim. Pro., § 44).

What we have said leads, without more, to a reversal. Since the motion for coram nobis has never been heard by the only tribunal having jurisdiction in the first instance to entertain it, consideration of its merits is, of course, beyond our power.

The orders should be reversed and the matter remitted to the County Court of Broome County for further proceedings not inconsistent with this opinion.

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

Orders reversed, etc.


author: Desmond, J. Fuld, J. Conway, J.

text:
    In the Matter of the Accounting of Elisabeth S. Rathscheck, as Administratrix of the Estate of Edgar R. Rathscheck, Deceased. J. Howard McGrath, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant. Elisabeth S. Rathscheck, Respondent.
    Argued January 12, 1950;
    decided March 2, 1950.

      Ralph 8. Spritzer and James L. Morrisson, Attorneys, Department of Justice, Irving H. Saypol, United States Attorney for the Southern District of New York, and Harold I. Boynton, Acting Director, Office of Alien Property, for appellant.
    I. The Mexican divorce decree was invalid under New York law. (Stevens v. Stevens, 273 N. Y. 157; Williams v. North Carolina, 325 U. S. 226; Caldwell v. Caldwell, 298 N. Y. 146; Querze v. Querze, 290 N. Y. 13; Vose v. Vose, 280 N. Y. 779.) II. Having procured the invalid Mexican decree, respondent is barred, by express provision of statute, from sharing in decedent’s estate. (Decedent Estate Law, § 87, subd. [b].) III. For purposes of subdivision (b) of section 87, no valid distinction can be drawn between the procurement of a ‘ ‘ mail-order ’ ’ divorce decree and the procurement of any other type of invalid divorce decree. (Caldwell v. Caldwell, 298 N. Y. 146; Querze v. Querze, 290 N. Y. 13; Vose v. Vose, 280 N. Y. 779; Senor v. Senor, 272 App. Div. 306; Starbuck v. Starbuck, 173 N. Y. 503; Monroe Co. Sav. Bank v. Yeoman, 119 Misc. 226; Matter of Adams, 182 Misc. 937, 267 App. Div. 985, 268 App. Div. 849, 324 U. S. 865.)

      Homer 1. Harris for respondent.
    I. Appellant’s brief is predicated upon the fallacious theory that there is no distinction between a Mexican “ mail-order ” divorce and a divorce obtained in a foreign State or country where there is a semblance of jurisdiction. (Caldwell v. Caldwell, 298 N. Y. 146; Matter of Moore, 165 Misc. 683, 254 App. Div. 856, 255 App Div. 774, 280 N. Y. 733; Matter of Goldsmith, 174 Misc. 270; Matter of Blumenstiel, 248 App. Div. 533; Close v. Farmers Loan & Trust Co., 195 N. Y. 92; Bell v. Little, 204 App. Div. 235; Hynes v. Title Guar, & Trust Co., 273 N. Y. 612; Brown v. Brown, 242 App. Div. 33; Krause v. Krause, 282 N. Y. 355.) II. The conduct of decedent estopped him and his distributees from denying the marital status. (Petit v. Petit, 45 Misc. 155; Matter of Rechtschaffen, 278 N. Y. 336.)
   Desmond, J.

Petitioner-respondent, Elisabeth S. Rathscheck,

married Edgar R. Rathscheck, decedent above named, in 1933. In 1944, while both were residents of New York City, petitioner brought a suit against her husband, in a Mexican court, for an absolute divorce. Neither party went to Mexico at any time, but both joined by mail in the arrangements for the Mexican proceedings. Mrs. Rathscheck’s petition was presented to the Mexican tribunal by an attorney representing her, and an answer, admitting the petition’s truth and joining in the prayer for a divorce, was filed on behalf of the husband. The Mexican court then handed down a decree, dated May 19, 1944, declaring that the marriage was “ in all its legal effects dissolved ”. It is conceded here that this ‘ ‘ mail-order ’ ’ judgment was totally void in New York (Vose v. Vose, 280 N. Y. 779; Querze v. Querze, 290 N. Y. 13). In 1946, respondent brought a second suit for divorce against her husband, on personal service, this time in Queens County, New York, and in that second suit she asked for and obtained, after her husband had defaulted in pleading, an interlocutory judgment which held the Mexican divorce void, and again decreed a dissolution of the marriage. Before that New York State divorce judgment could become final, however, the husband died, leaving no will. There is evidence that at some time between the Mexican proceedings and the New York divorce suit, the parties lived together in New York City.

Mr. and Mrs. Bathscheck never had children, so the net estate must go, under our Decedent Estate Law, either to petitioner, or to collateral relatives whose interests, since they are nonresident aliens, are now represented by the Attorney General of th,e United States under a “ Vesting Order ”, made a few days after the entry of the Surrogate’s decree, hereafter described. A special guardian, who acted for some of those collateral relatives, took the position, on this accounting in the Surrogate’s Court, that Elisabeth Bathscheck was, under the facts above summarized, barred from taking a distributive share of this estate, by subdivision (b) of section 87 of the Decedent Estate Law, which is as follows: “No distributive share of the estate of a decedent shall be allowed under the provisions of this article * * * to a spouse who has procured without the state of New York a final decree or judgment dissolving the marriage with the decedent, where such decree or judgment is not recognized as valid by the law of this state ”. The Surrogate concluded that the statutory language just quoted means what it says, and that it fixes the position of this petitioner who, according to the undisputed facts, had “ procured without the state of New York a final decree or judgment dissolving the marriage with the decedent ” which decree “ is not recognized as valid by the law of this state ”. The Surrogate therefore disallowed Mrs. Baths-check’s claim for a widow’s distributive share, and ordered the net estate turned over to the collateral relatives, or to the Alien Property Office for their benefit.

On appeal by petitioner, the Appellate Division took a different view, holding, on grounds we will state hereafter, that the words of subdivision (b) of section 87: “ decree or judgment * * * not recognized as valid by the law of this state ” did not include within their meaning a “ mail-order ” divorce obtained in a foreign country and that, accordingly, since Mrs. Bathscheck, at the time' of this decedent’s death, was still his wife, there was no impediment to the award to her of a widow’s share of his estate.

We agree with the Surrogate that subdivision (b) of section 87 is so plain and clear as not to need or permit any construction (see Matter of Hering v. Clement, 196 N. Y. 218; Matter of De Peyster, 210 N. Y. 216, 225; Matter of Tishman v. Sprague, 293 N. Y. 42, 50). It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning.” (McCluskey v. Cromwell, 11 N. Y. 593, 601.) Our Legislature has made it the law that one who has procured, outside this State, a divorce not recognized here as valid, may not have a distributive share of her spouse’s estate. No court may refuse to enforce the statutory penalty for that interdicted conduct.

The argument for petitioner is based on a statement in a note or report (see Combined Reports of Decedent Estate Comm., Reprint, p. 202; McKinney’s Cons. Laws of N. Y., Book 13 [1949 ed.], p. 482), made to the Legislature by the Commission to Investigate Defects in the Law of Estates at the time the commission recommended the enactment of subdivision (b) of section 87, and which recommendation the Legislature adopted in 1929. The note said that the whole of section 87 is new ” and that, without limitation as to effect, it [section 87] is intended to be a declaration of the existing law ”. Apparently to show what “ existing law ” was referred to, the note then cited Matter of Ensign (103 N. Y. 284); Matter of Albrecht (118 Misc. 737, 119 Misc. 554); Starbuck v. Starbuck (173 N. Y. 503); and Monroe Co. Sav. Bank v. Yeoman (119 Misc. 226). The Ensign and Albrecht cases (supra) deal -with the effects of valid divorces, so were, presumably, mentioned by the commission in connection with its recommendation of the adoption of the first subdivision (a) of proposed section 87, and have no relevance to our question here. Starbuck v. Starbuck (supra) and Monroe Co. Sav. Bank v. Yeoman (supra) were, however, decisions as to the rights of wives who went from New York into other States and obtained divorce decrees not valid here. Both eases denied dower to the wives, the Starbuck opinion putting it on the grdund of estoppel: that is, that the wife, after procuring the decree, could not be heard to question its effect. Monroe Co. Sav. Bank v. Yeoman, while citing the Starbuck holding, stated the rationale a little differently : that is, that the foreign divorce, while not binding on the husband, nevertheless brought it about that the marriage was completely dissolved as to the wife.

Petitioner’s argument here, from the commission’s note and its citation of those earlier cases, runs like this: those cases held to be estopped, from claiming the benefits of continued marital status, one who procured an invalid divorce in a sister State; however, the argument goes on, a totally void Mexican divorce is so entirely without effect in New York that it estops no one in any subsequent situation (citing Caldwell v. Caldwell, 298 N. Y. 146). So, says petitioner, the commission must have meant, by citing the Starbuck and Monroe Co. Sav. Bank cases (supra), to attach the penalty of disinheritance only to persons procuring invalid sister State decrees, and not similarly to punish those who, by mail, got themselves worthless papers styled “ divorces ”, but issued by a Mexican court without any jurisdiction over the marriage status or the parties.

Of course, all that reads into subdivision (b) of section 87 matter which is not there, and ascribes to the Legislature the making of a distinction between “invalid” and “void” divorces, a distinction not stated or suggested in the statute. We go further and say that there is nothing to show that the commission itself in writing the note above quoted from, had in mind any such distinction, or any difference between purported but ineffective divorces obtained in another State, and purported but ineffective divorces gotten from a court in a foreign country. The language of the statute as recommended and passed: “ not recognized as valid by the law of this state ” describes any or all of such decrees, and there is no showing that the commission or the Legislature proposed to make fish of one kind, and flesh of another.

If this statute were of doubtful meaning, we could, we assume, look for help to the commission’s “ petition ”, or report to the Legislature (see Furman v. Mayor of City of N. Y., 5 Sandf. 16, affd. 10 N. Y. 567), but even then no such help would be forthcoming. The distinction between invalid sister State divorce judgments, and void mail-order Mexican divorces, in that the former result in estoppels and the latter do not, was most recently and most definitely stated by this court in Caldwell v. Caldwell (298 N. Y. 146 [1948], supra) decided nineteen years after subdivision (b) of section 87 first saw the light of day in 1929. The total invalidity, for all purposes including estoppel, of divorces granted pursuant to Mexico’s peculiar laws, had been earlier determined by this court in 1939, in Vose v. Vose (280 N. Y. 779, supra) and in Querze v.Querze (290 N. Y. 13 [1943], supra). But, so far as we can find, the nullity of such Mexican divorces first became the subject of judicial decision in this State in 1930 in Matter of Alzmann v. Maker (231 App. Div. 139, 141) handed down in 1930, or, at least, that is the earliest of the decisions cited to this court in the Vose, Querze and Caldwell briefs on appeal. It is, therefore, a practical, if not an absolute impossibility, that the Legislature in 1929 had in mind or intended any differences between Mexican divorce decrees and other invalid divorce decrees.

We conclude that subdivision (b) of section 87 is a bar to any award to petitioner, by the Surrogate, of a share in this intestate’s property.

The decree of the Surrogate’s Court entered on the remittitur from the Appellate Division should be reversed and the original decree of the Surrogate’s Court, dated June 22,1948, reinstated, with costs to the appellant in this court and in the Appellate Division, payable out of the estate. The appeal from the Appellate Division order should be dismissed, without costs.

Fuld, J.

(concurring). I agree that the plain language of subdivision (b) of section 87 of the Decedent Estate Law permits us no choice but to reverse and to disallow the claim of petitioner wife. (See, also, Decedent Estate Law, § 18, subd. 3.) And, since that is so, the court can only remark the seeming injury to the sense and symmetry of the law. We have previously held that a wife who procures a “ mail-order ” decree of divorce in Mexico has nothing, so long as her mate lives, but a scrap of paper. (See, e.g., Caldwell v. Caldwell, 298 N. Y. 146; Querze v. Querze, 290 N. Y. 13.) By our present decision, we are holding that the “ husband’s ” death converts that scrap of paper into a decree of disinheritance.

To those who seek certainty and uniformity in the law, the result cannot help but be perplexing and disappointing, for no logic can account for the variant conclusions reached. The explanation, though, is to be found in the haphazard and piecemeal handling of a problem so ramified and complex as that of marriage and divorce. A different approach, a different method, is required if there is to be a solution. If the courts could wipe clean the slate and start afresh, they might evolve a coherent pattern in our law of domestic relations. That, however, is impossible and, accordingly, it is to the legislature that we must turn. (Cf. Williams v. North Carolina, 317 U. S. 287, 305, per Frankfurter, J., concurring.)

If so minded, the legislature may enact comprehensive legislation dealing broadly with the subject of ‘1 divisible divorce ’ ’ and its aftermath. Or, if it deems it sufficient merely to put an end to the “ mail-order ” decree of divorce — procured in Mexico or any other jurisdiction — it may enact laws more limited in scope. At any rate, whatever the ultimate solution, whether it is to be found in general or specific remedies, judicial correctives of the sort urged by Judge Conway in his opinion to affirm do not supply the answer; such correctives must of necessity deal with fragments of the problem and can only succeed in further complicating an already chaotic situation.

I am persuaded, in short, that subdivision (b) of section 87 of the Decedent Estate Law must be read as it was written; it cannot be subjected to any corrective gloss by this court.

Conway, J.

(dissenting). This is an accounting proceeding in which is sought a determination that by reason of a so-called Mexican mail-order divorce ” the accounting administratrix was not entitled to be a distributee of her deceased husband’s, estate and that as a result the decedent’s next of kin, all of whom are citizens and residents of Germany, are entitled to take his entire estate.

The statute which we must construe is subdivision (b) of section 87 of the Decedent Estate Law which provides as follows: No distributive share of the estate of a decedent shall be allowed under the provisions of this article * * * to a spouse who has procured without the state of New York a final decree or judgment dissolving the marriage with the decedent, where such decree or judgment is not recognized as valid by the law of this state; * * '

We are all agreed that at the time the statute was enacted in 1929, the Legislature did not have in mind Mexican mail-order divorces ”. That is borne out by the note of the commission which reads in part as follows: “ New. Without limitation as to effect, it is intended to be a declaration of the existing law. ’ ’ It is further borne out by the cases cited in the note of the commission, all of which involved divorce actions in sister States. The only cases cited affecting invalid divorce decrees were Starbuck v. Starbuck (173 N. Y. 503) and Monroe Co. Sav. Bank v. Yeoman (119 Misc. 226) which involved attempted divorces in Massachusetts and Ohio respectively. Prior to 1929, the law was settled that a wife, who had obtained a divorce decree in a sister State not recognized as valid by this State, was estopped to deny its validity and could assert no right of dower in the estate of her deceased spouse. (Starbuck v. Starbuck, supra; Monroe Co. Sav. Bank v. Yeoman, supra-, see, also, Matter of Morrison, 52 Hun 102, affd. 117 N. Y. 638; Matter of Swales, 60 App. Div. 599, affd. 172 N. Y. 651.)

In amending the Decedent Estate Law in 1929, the Legislature granted to a surviving spouse the right to a distributive share of the estate of the deceased spouse, but, in subdivision (b) of section 87, accompanied that right with the then existing common-law limitation that a spouse who had procured an invalid divorce decree in a sister State was estopped to deny its validity. The Legislature did not use the word estoppel ” but that is the obvious substance and purpose of subdivision (b) of section 87 as indicated by the quoted commission note.

The attempt here, therefore, by the Attorney General is to have subdivision (b) of section 87, a true estoppel statute, stretched so that it may cover a situation not intended to be covered therein and not within the contemplation of the Legislature when it was enacted, for it is only since the enactment of subdivision (b) of section 87, and since 1929, that we decided the cases of Vose v. Vose (280 N. Y. 779); Querze v. Querze (290 N. Y. 13), and Caldwell v. Caldwell (298 N. Y. 146) in which we held that a Mexican mail-order divorce estopped no one and was but a worthless piece of paper.

We had the same question presented to us in Caldwell v. Caldwell (supra). We posed that question in the first paragraph of our opinion as follows (p. 147): “ We have presented to us the question of whether any effect may be given by our courts to a divorce obtained by mail from a court of a foreign nation at the instance of one domiciled in this State.” We went on to answer it and determined for the reasons therein stated, that the mailing of a collusive agreement violating our declared public policy (Domestic Relations Law, § 51, forbidding any “ contract to alter or dissolve ” a marriage by a husband and wife) and obtaining in return in the mail a paper purporting to he a divorce'” might not be the foundation for the creation of any rights; that there was not the slightest semblance or color of jurisdiction justifying action by the Mexican court; that its purported decree was wholly valueless; that it was a nullity from which no rights of any kind might spring and that neither party was estopped in any manner. The same method used in Caldwell v. Caldwell, has again been used, except that here the parties: first, disregarded their ‘ ‘ mail-order divorce ’ ’ obtained in 1944, by continuing to live together as husband and wife until 1946, and, second, had our Supreme Court in Queens County declare it void and of no effect in a decree after personal service upon the deceased and a general appearance by him.

In our State, marriage, while a civil contract, confers a status upon those who enter into it, and the State is interested in the creation, continuance and dissolution of that status. Seventy-five years ago, we said: “ It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” (Wade v. Kalbfleisch, 58 N. Y. 282, 284.) As a result, the People through their legislative representatives have declared the applicable public policy of our State in section 51 of the Domestic Relations Law, and have forbidden any “ contract to alter or dissolve ” a marriage by a husband and wife.

Under our system of law, in the United States, judicial power to grant a divorce is based upon domicile. Without that, there is no jurisdiction to act. (Williams v. North Carolina, 317 U. S. 287, 325 U. S. 226; Caldwell v. Caldwell, 298 N. Y. 146,149, supra.) That does not mean, of course, that by comity and under circumstances which do not offend the public policy of this State, we may not recognize divorces granted in foreign countries to one residing there even though domiciled here. We have accorded such recognition but only when it was not contrary to our declared public policy. (Gould v. Gould, 235 N. Y. 14, 29 [1923].)

By reversing, we depart from the basic reasoning of the Querze and Caldwell cases (supra) — a departure limited to a narrow class of cases, but, nonetheless, a departure. We now say that a Mexican mail-order divorce, obtained pursuant to a collusive agreement violating the public policy of our State, nevertheless, may be the foundation for the exclusion of the surviving husband or wife from a distributive share in the estate of the deceased.

By reversing, we make it necessary for an attorney to advise a client (cf. Caldwell v. Caldwell, supra, p. 147; Matter of Anonymous, 274 App. Div. 89) in a contemplated application for a Mexican mail-order decree based solely upon a collusive contract violating our State public policy, that if both enter into such contract (since both must agree and sign) the client will insure the fact that if the marital partner survives, that partner will have no distributive share in the client’s estate. An attorney will be under the necessity of advising his client that if he or she disregards the public policy of this State and enters into such a collusive contract to dissolve the marriage and obtains a mail-order divorce upon it, while it will not affect the marriage obligation in this State, it will immediately put into operation and fix forever rights of descent and distribution of the survivor of the two spouses; that that will be true regardless of what either or both of them may do thereafter and regardless even of a decree of our Supreme Court declaring the Mexican mail-order divorce void and of no effect, upon direct attack with personal jurisdiction of both parties. There may be no repentance.

The order should, be affirmed, with costs.

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

Ordered accordingly.