author: Desmond, J. Van Voorhis, J.

text:
    In the Matter of the Claim of Albert J. Meszaros, Respondent, against Max Goldman et al., Appellants, and Louis Efros Plumbing and Heating Co. et al., Respondents. Workmen’s Compensation Board, Respondent. In the Matter of the Claim of Emanuel Braunstein, Respondent, against General Marine Repair et al., Respondents, and Independent Scrap Iron et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 21, 1954;
    decided July 14, 1954.

      Ralph 8. Stowell and Joseph D. Edwards for appellants in first above-entitled proceeding.
    The award here appealed from is in error and contrary to the provisions of subdivision 6 of section 15 of the Workmen’s Compensation Law. (Matter of Fusco v. City of New York, 256 App. Div. 862, 280 N. Y. 826; Matter of Zuk v. McGuire Bros., 277 App. Div. 956, 301 N. Y. 817.)

      Arthur B. Erenstoft for appellants in second above-entitled proceeding.
    The award appealed from is in error. (Matter of Zuk v. McGuire Bros., 277 App. Div. 956, 301 N. Y. 817; Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146.)

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent in first above-entitled proceeding.
    The award appealed from was proper and did not contravene the provisions of subdivision 6 of section 15 of the Workmen’s Compensation Law. (Matter of Zuk v. McGuire Bros., 277 App. Div. 956, 301 N. Y. 817; Matter of Berzin v. E. J. Elec. Installation Co., 262 App. Div. 980; Matter of McCann v. McCormack’s Garage, 203 App. Div. 387; Birkel v. Thompson-Starrett Co., 206 App. Div. 640; Matter of Lipco v. White Wrecking Co., 224 App. Div. 801; Matter of Kaminsky v. Socony-Vacuum Oil Co., 275 App. Div. 1013, 301 N. Y. 528; Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146.)

      Ralph 8. 8towell and Joseph D. Edwards for Friendly Service Station and another, respondents in second above-entitled proceeding.
    The Workmen’s Compensation Board has properly found the provisions of subdivision 6 of section 15 of the Workmen’s Compensation Law applicable herein. (Matter of Foyt v. Daigler, 236 App. Div. 420; Matter of Kerchik v. La Fontaine Novelty Co., 225 App. Div. 437; Matter of Fusco v. City of New York, 256 App. Div. 862, 280 N. Y. 826; Matter of Zuk v. McGuire Bros., 277 App. Div. 956, 301 N. Y. 817; Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146.)
   Desmond, J.

The question of law common to both these appeals is this: when a worker suffers two or more separate accidental injuries with resulting temporary partial ” disabilities, both compensable under the Workmen’s Compensation Law, and the board finds that the ultimate disability was caused in part by one or more of the earlier accidents, but the earnings of the claimant, after, and as decreased by, the latest accident, are nonetheless higher than they were at the time of the earlier contributing accident or accidents, is the latest award to be paid by the employer and carrier as of the time of that latest accident or is it to be charged in part against the earlier employer and carrier (or earlier employers and carriers) although, as against claimant’s earnings prior to the time (or times) of the earlier contributing accident (of accidents), his earnings subsequent to the latest accident show no diminution? That question seems to have had contradictory answers, by the Appellate Division, in these two cases. We think that, the statutory language and the apparent plan of the statute, and a fair reading thereof, call for the second of those alternative answers.

There is no need for a close analysis of the facts in the two cases before ns. Claimant Meszaros had two compensable disablements, one in 1942 and the other in 1945. The board, on adequate proof, held that one third of his disability, after 1945, was due to the 1942 accident, and two thirds to the 1945 accident. Claimant’s earnings were found to have been: $19.23 per week before the first mishap, $59.90 weekly just before the second one; and (we will refer to this item again at a later point in this opinion) after the 1945 accident, it was found, his average wages were “ reduced to a sum which would entitle him to a compensation rate of $12 [per week] ”. The board, therefore, ordered the 1942 employer and carrier to pay Meszaro $4 per week, and ordered their 1945 opposite numbers to contribute $8 per week.

Braunstein, claimant in the second of our cases, had seven different compensable accidental injuries: three in 1946 and 1947 while he worked for respondent Friendly with respondent Century as insurance carrier; one in early 1947 (respondent General was then the employer and respondent Bankers the carrier) and three more in 1947, while Braunstein was working for appellant Independent (appellant Public Service was Independent’s carrier). Here the finding (not disputed) was that the first of those seven accidents caused 25% of the final disability, and each of the other six accidents caused 12%% thereof. Just before the first series of three injuries, Braunstein’s wages were $65 per week; between that time and the fourth occurrence, he earned $55.20 per week, and while working for the latest employer (Independent) before the latest disablement, his pay was $100 per week. Thus he lost (as the immediate result of the seventh injury), the difference between $100 and $65.57 per week (the amount he earned after the last accident) or $34.43, and so his award, being two thirds of that latter amount (Workmen’s Compensation Law, § 15, subd. 7) was $22.95 per week. Although the board made a finding (as we read it) that Braunstein’s disablement after the latest (September 5, 1947) accident was caused by all seven accidents, it made the $22.95 award against the latest employer and carrier, only, apparently because claimant’s earnings of $65.57 after September 5, 1947, were higher than they had been at or before any of the six earlier accidents.

It is settled law (Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146, 149) that an award should be apportioned when the accidental injury which is the occasion for that award is in part caused by an earlier compensable accident. Subdivision 5 of section 15 of the act says that ‘ ‘ In case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be two-thirds of the difference between the injured employee’s average weekly wages before the accident and his wage earning capacity after the accident ”. Subdivision 6 of that same section, fixing maxima and minima for awards, imposes a condition that In no event shall compensation when combined with decreased earnings * * * exceed the amount of wages which the employee was receiving at the time the injury occurred.” Beading together those rules of law, we conclude that, in circumstances like those of the two cases presently on appeal, the latest awards should be charged proportionately against all the employers-carriers. Only thus can fairness be accomplished. We read the word injury ” in subdivision 6 (supra) as referring, necessarily, to the latest injury ” when there have been two or more. So read, the above-quoted language of subdivision 6 means no more than this: total compensation, for disability caused by several compensable accidental injuries, plus earnings after the latest injury, cannot exceed earnings just before the latest injury. If any other interpretation be made of subdivision 6, the anomalous result will follow that the employer-carriers, as of the time of earlier contributing accidents, will be relieved of all money contributions, simply because the claimant’s wages have been on the rise. Such a construction can be, and should be, avoided (see, illustratively, Matter of Anderson v. Babcock & Wilcox Co., supra; and Matter of Zuk v. McGuire Bros., 277 App. Div. 956, motion for leave to appeal denied 301 N. Y. 817),

In Matter of Meszaros, there is another possible answer, also, to appellant’s contentions, and another basis for affirming the award. That claimant’s earnings, of about $35 per week, after the second of his injuries, came from his business, or self-employed occupation, of vending soap. It is conceded that the Meszaros case record does not show how much of this $35 represents earnings from his own efforts, and how much is in the nature of business profits or investment income. Thus the Meszaros record does not show that the $12 weekly award plus present wage earning capacity exceeds the wages earned at the time of either the first or the second accident (see Matter of Kaminsky v. Socony-Vacuum Oil Co., 275 App. Div. 1013, affd. 301 N. Y. 528).

In the Meszaros case, the order should be affirmed, with costs

In the Braunstein case, the order should be reversed, without costs, and the matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with this opinion.

Van Voorhis, J.

(dissenting). These cases involve a single question of law, viz., in event of successive industrial accidents ' each contributing to the temporary partial disability of a claimant, are prior employers liable if the decreased earnings after the latest accident exceed the full wages paid by the prior employers at the times of the earlier accidents ? In the Meszaros case the claimant sustained two industrial accidents while employed by different employers, one in 1942 and the other in 1945. Both are alleged to have resulted in back strain. After the second accident, claimant earned more in his disabled condition than the amount of his full weekly wages at the time of his first industrial accident. In the Braunstein case the claimant sustained seven industrial accidents, also alleged to have resulted in back strain. He earned more in his disabled condition after the seventh accident than the full amount of his weekly wages at each of his first four accidents. In both cases, the Workmen’s Compensation Board found that every accident contributed to some extent to the partial disability from which the claimant was found to have suffered after the last industrial accident.

Subdivision 6 of section 15 of the Workmen’s Compensation Law, defining Maximum and minimum compensation for disability ”, states: In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred. ’ ’

In both of these cases an employer and carrier at the time of an earlier accident contend that by reason of this statute no liability attaches to them due to the circumstance that the employee in his partially disabled condition after the last accident, nevertheless earned more than his total wages at the time of the earlier accident. The later employers and carriers insist that the amount of wages which the employee was receiving at the time the injury occurred ”, as used in this statute, refers to the time of the latest injury, notwithstanding that the injured employee was not then working for the employer sought to be held liable. Under such a construction this limitation would seldom apply, inasmuch as the measure of the compensation payable for a temporary partial disability would be taken at two thirds of the wages which the employee was receiving at the time of the latest accident (Workmen’s Compensation Law, § 15, subd. 5).

It seems to me that the Workmen’s Compensation Board and the Appellate Division correctly decided the Braunstein case. It should be noted that the determination of this question does not affect the amount of compensation payable to the claimant. The controversy is between the different employers and their insurance carriers. Braunstein earned $100 per week at the time of his seventh back strain, and $65.57 afterward. That resulted in a compensation award of two thirds of that difference of $34.43, or a total of $22.95 a week to the injured man which was payable entirely by the employer (and insurance carrier) for whom he worked at the time of the last three of his accidents. This result is claimed to be inconsistent by the appellants in the Braunstein case, in view of the circumstance that the board held that the back strain which resulted in this reduction of $34.43 per week in Braunstein’s earnings was caused 25% by his first accident and 12%% by each of the other six accidents. Consequently it is sought to apportion the entire workmen’s compensation payable in consequence of his last accident as the precipating cause, upon the prior employers and their carriers in proportion to the extent to which it was thus thought that the prior accidents contributed to his final condition. Such a procedure would be indicated by Matter of Anderson v. Babcock & Wilcox Co. (256 N. Y. 146); Matter of Chiodo v. Newhall Co. (254 N. Y. 534); Matter of Thomas v. Royal Dairy (270 App. Div. 688), and Matter of Zuk v. McGuire Bros. (277 App. Div. 956) were it not for the limitation contained in the paragraph which has been quoted from subdivision 6 of section 15. The mere circumstance that the accident which is the precipitating cause of claimant’s temporary partial disability would not have had this effect unless claimant had previously had a weak back, is not regarded by the courts as a ground ©n which to defeat or reduce the amount awarded against an employer (Matter of Jordan v. Decorative Co., 230 N. Y. 522; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Caulkins v. General Motors Acceptance Corp., 254 App. Div. 789; cf. Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81). The Legislature found no difficulty in discovering words to express its intent when subdivision 8 of section 15 was enacted, concerning “ Disability following previous permanent physical impairment.” The existence of liability for compensation under such circumstances had been well established, when subdivision 8 was adopted to enable an employer who was compelled to pay compensation in the full amount in the first instance to recover a part of it from a special disability fund created by this subdivision. Unless the employee’s predisposition to injury be of the nature defined in subdivision 8, however, the entire consequences are visited upon the employer at the time when the industrial accident occurs, and this is true notwithstanding that subdivision 7, relating to “ Previous disability ”, expressly provides that The fact that an employee has suffered previous disability or received compensation therefor shall not preclude him from compensation for a later injury nor preclude compensation for death resulting therefrom; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury, provided, however, that an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability except as hereinafter provided in subdivision eight of this section.” Inasmuch as “ disability ” here refers to impairment of earnings or earning capacity, and does not refer to mere residual weakness consequent upon some previous injury, it follows that subdivision 7 of section 15, in an instance such as this, calls for primary payment of the entire award for temporary partial disability by the later employer and insurance carrier. The case law has made it possible to prorate the compensation among the various employers for whom a claimant has worked while sustaining successive industrial accidents that have contributed to an ultimate disability, but nothing in the statute or the case law prevents a claimant from recovering the entire amount of an award from the final employer if, for any reason, earlier employers are unable to contribute or are prevented by statute from contributing. Thus, it may be assumed that, if an earlier employer had become insolvent or died, the recovery of an award for the final injury would not be prevented or diminished by reason of the circumstance that it had been rendered impossible to collect any portion from an earlier employer.

In the instant situation, there is no inconsistency, as has been stated, in exempting the employers of Braunstein at the times of his first four industrial accidents from payment of contribution, due to the circumstance that subdivision 6 of section 15 precludes it.

The effect of subdivisions 6, 7 and 8 of section 15 is to visit the consequences of a subsequent accident to which the employee is predisposed by his physical condition upon the employer in whose hire he has been working at the time when the industrial accident occurred, notwithstanding any physical weakness which may have contributed to the injury, unless the employee was actually suffering from a previous disability (meaning impairment of earnings or earning capacity) at that time. If the employee suffered from such previous impairment of earnings or earning capacity at the time of the later accident, then subdivision 7 prevents the then employer from being rendered hable *1 in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability ”, unless it be a case where a contribution may be had from the special fund. In the latter instance, the employer is rendered hable in the first place for the entire compensation, but is entitled to be reimbursed from the special fund to the extent permitted by subdivision 8.

This statutory scheme contemplates that, where an employee is not suffering from previous disability, i.e., impairment of earnings or earning capacity, the employer in whose employment the accident occurs shall pay the entire award. If impairment of health or physique was caused by a prior industrial accident, even without residual disability, the courts have engrafted an exception upon this rule in the interest of justice requiring that prior employers shall contribute in proportion to the extent to which the final disability arising from the last accident may be traced to these earlier accidents. The Legislature has placed a limitation upon such contributions, however, by the sentence which has been quoted from subdivision 6 that In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.”

It may well be that this sentence was conceived in the thought that .it would refer to the condition existing in the case of a single industrial accident where the claimant had been working but for one employer. If that was the policy of the Legislature in connection with a single accident, the reasons for maintaining it appear to be greater in event of successive industrial accidents. The language would certainly appear to refer to the time of the injury in the employment of the employer against whom liability is being asserted. The object was to limit the contingent liabilities of employers. It would fail of that effect if the words “ at the time the injury occurred ” be construed to refer to any subsequent injury which an employee might later sustain in his lifetime. The liability imposed by such decisions as Matter of Anderson v. Babcock & Wilcox Co. (supra) may be very far-reaching. It is possible to trace the causes of a later industrial accident back over a long interval of time to some injury that occurred in a prior employment, when a different wage scale prevailed. It is established, and the Legislature is presumed to have understood, that such a remote and contingent liability is incurred by every person, firm or corporation that employs anyone in a covered employment. If the intention of the Legislature in enacting this limitation in subdivision 6 of section 15 was, as it appears to have been, that in event of a single industrial accident the employer shall not be charged with the consequences if the reduced earnings or earning capacity exceeds the amount of wages which the employee was receiving at the time the injury occurred, then it is not less likely to have been the legislative intention to preclude such a consequence if in after years the claimant, while working for somebody else in an era when prevailing wage rates are disproportionate to those existing when he was in the former employ, sustains an aggravation of the previous condition while working for another.

In accordance with this reasoning, the Appellate Division in the Braunstein case correctly said: “ We think the board was bound to follow subdivision 6 of section 15, and that it was within its province to make the award here questioned.” (281 App. Div. 1059, 1060.)

Several other sections of the Workmen’s Compensation Law support this conclusion. Where the word “ injury ’ ’ is employed in the language of this act, it is ordinarily in the context of an “ injury arising out of and in the course of the employment ” (§ 10). Section 14 directs that “ the average weekly wages of ' the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows: ” The formulae for computing the amount of workmen’s compensation are thereupon defined in phraseology commencing in this manner: “If the injured employee shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding ” (italics supplied). The words “ injury ” and “ accident ” are used indiscriminately throughout the Workmen’s Compensation Law, in fact subdivision 7 of section 2 defines injury as including “ only accidental injuries ”. It is evident that when the Legislature employed the language limiting liability for disability, which appears in subdivision 6 of section 15, that “ In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred ”, it referred to the injury resulting from an accident that arose out of and during the course of the employment for the employer against whom liability is asserted. The reasoning of the Appellate Division in the Meszaros case (differing from its reasoning in the Braunstein case) finds little support in the statute that In a pragmatical sense therefore his injury, as the term is used in the statute, occurred at the time of the second accident.” The Legislature, as it seems to me, was thinking of no such thing. It clearly intended, and expressed the intention, that employers should not be subjected to contingent liabilities for the payment of workmen’s compensation by reason of industrial accidents which they might sustain in later years, in amounts exceeding their entire earnings when the earlier accident or accidents occurred, and that in event of partial disability there should be no contingent liability if the reduced earnings exceeded the wages received at the time of the earlier accident. This accords with the established rule that in determining the amount of compensation which a claimant shall receive, the basis is the average weekly wage of the employee at the time of the injury (Matter of Lerner v. Jakwall Embroidery Co., 203 App. Div. 381; Matter of Kerchik v. La Fontaine Novelty Co., 225 App. Div. 437, and Schwartz v. Ebenstein, 236 App. Div. 420).

The order of the Appellate Division affirming the decision and award of the Workmen’s Compensation Board in the Braunstein case should be affirmed, with costs, and its order affirming the award of the Workmen’s Compensation Board in the Meszaros case should be modified so as to render the claim payable exclusively by the second employer, with costs to the appellants.

In the Meszaros case:

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

Order affirmed.

In the Braunstein case:

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

Order reversed, etc.

       At least the Workmen’s Compensation Board so assumed in rendering its decision which is under review. This circumstance is not questioned by respondent.


source: Caselaw Access Project

author: Fuld, J. Desmond, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Fellie Cherry, Appellant.
    Argued May 24, 1954;
    decided July 14, 1954.

      Samuel Korb for appellant.
    Defendant was unlawfully arrested and assaulted, and had the right to resist with force sufficient to prevent these offenses against his person. (People v. O’Connor, 257 N. Y. 473; People v. Defore, 242 N. Y. 13; Stearns v. Titus, 193 N. Y. 272; Snead v. Bonnoil, 166 N. Y. 325.)

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
    I. In the Appellate Division respondents conceded that the conviction was improper on the facts and in law. (People v. O’Connor, 257 N. Y. 473; People v. McCarthy, 188 Misc. 132; People v. Hill, 131 Misc. 521; People v. Richter, 265 App. Div. 767.) II. Nevertheless in this court we urge that the order of the Appellate Division should be affirmed. The Appellate Division’s opinion is a finding and decision on the facts that appellant was not entitled to the protection of the Penal Law (§ 246, subd. 3) in that he had used more force than sufficient to prevent an offense against his person. This court may not review the order. (People v. Boas, 92 N. Y. 560; People v. Ledwon, 153 N. Y. 10; People v. Helmer, 154 N. Y. 596; People v. Sherlock, 166 N. Y. 180; People v. McCarthy, 250 N. Y. 358; People v. Bearden, 290 N. Y. 478; People v. Wrieden, 299 N. Y. 425.)
   Fuld, J.

Defendant, a plumber by trade, doing absolutely nothing improper, doing nothing, indeed, even to excite suspicion, was accosted and seized by two strangers, in ordinary street attire, claiming to be police officers, late at night as he was about to enter his home. "What citizen would do less, if resistance, concededly permissible, was to be effective, than defendant did in this case? He used no artificial or man-made weapon of any sort, relying solely on those supplied by nature, his hands and his teeth.

The police officers were, as everyone acknowledges, guilty of an illegal arrest and an unlawful assault. ' (Code Crim. Pro., § 177; see, e.g., People v. O’Connor, 257 N. Y. 473; Snead v. Bonnoil, 166 N. Y. 325.) Defendant had the privilege, therefore, of resisting and using “ force or violence ” against his assailants, even though they were police officers, to prevent an offense against his person * * * if the force or violence * * * [was] not more than sufficient to prevent such offense ” (Penal Law, § 246, subd. 3).

From the quiet vantage of a library, and after the event, one might look back and figure that defendant should not have done more than remonstrate with his captors or even that he should have submitted to the illegal arrest and the attendant assault. But defendant was not accorded time for calm thought or reflection; he was faced with a fact, not a hypothesis, in the form of two men, not in uniform but in ordinary garb who appeared out of the night on a deserted street in Brooklyn. It was not he who started the fight; according to the record, he tried to get away, and it was only after one of the officers (and this is the latter’s testimony) lunged from the rear and got him around the shoulders ” that he fought back. And he reacted as any reasonable and quick-witted person might under the circumstances: having no weapon, he grabbed his assailant by the wrist and bit his thumb.

The consequences were, we have no doubt, painful to the officer, but we do not see how a court may say that defendant employed more force than was reasonable under the very frightening circumstances that suddenly confronted him. If defendant had any right to prevent his arrest, he was privileged to take effective steps toward that end and was not confined to words or pushes or other futile gestures. Once the right to resist is acknowledged, it is impossible to conclude that this defendant used more force than — in the language of the statute — was sufficient to prevent ” his arrest, u [the] offense against his person,” when, as we know, his efforts never even approached the point of success.

Whether or not the police officers exhibited their badges to defendant is completely beside the point. A badge may not substitute for a warrant of arrest, nor excuse its absence, when one is required. Lacking the essential warrant, having abused the authority which was their trust, the officers stood bereft of their usual prerogatives. And whether or not defendant believed that they were police officers, he had a right to resist, and that quite apart from any fear or threat of physical harm and injury. For most people, an illegal arrest is an outrageous affront and intrusion — the more offensive because under color of law — to be resisted as energetically as a violent assault. In plain and unmistakable language, the legislature has recognized their right to do so.

The standard by which defendant must be judged is phrased solely in terms of the physical necessities of the situation presented. If force is necessary to prevent an unlawful arrest, then force may be employed, the one limitation on its exercise being that the victim may not pursue his counterattack merely for the sake of revenge or the infliction of needless injury. That, this defendant did not do.

The investigation of crime does not require and, certainly, does not justify a disregard of basic rights on the part of law enforcement officials. The legislature has deliberately and carefully enacted legislation authorizing an arrest without a warrant in limited fact situations, and police officers may not ignore the law’s demands because they believe that effective policing or the end in view calls for such conduct. It may well have been misguided zeal, not deliberate violation of law, that underlay and accounted for what the officers here did. But, whichever it was, it would be a travesty to adjudge the very victim of the illegal arrest and the unprovoked attack guilty of the crime of assaulting his captors and assailants. The administration of justice would be ill served by such a result.

The judgment of the Appellate Division and that of the Court of Special Sessions should be reversed and the information dismissed.

Desmond, J.

(dissenting). Defendant, after a trial before a three-Justice Court of Special Sessions in Brooklyn, was convicted of assault in the third degree and given a (suspended) sentence of sixty days in the workhouse, which judgment was unanimously affirmed by the Appellate Division, Second Department, without opinion. Later, defendant was granted a reargument by the Appellate Division, and, on reargument, the court, while adhering to its original decision, wrote a brief memorandum in which it, in effect, affirmed the finding below that defendant committed an assault by using more force than resistance required.

The information on which defendant was tried accused him of third degree assault in that, on December 4, 1952, in Kings County, he “ assaulted Patrick Gilchrist by unlawfully and wilfully striking, beating, wounding and ill-treating the said Patrick Gilchrist ”. It is conceded that defendant bit the thumb of Gilchrist, a police officer. The witnesses against defendant were Gilchrist and another police officer named Pizzimenti. For the defense, Gilchrist was recalled, defendant testified in his own behalf, and his wife testified for him, as did a woman named Jordan and two character witnesses. Gilchrist testified that he is a city patrolman and that, about ten o’clock on the night of December 4, 1952, he was at- the corner of Franklin Avenue and Madison Street in Brooklyn, on foot and not in uniform. He had defendant under observation for about a half hour. Beginning at about 9:30 p.m., he and officer Pizzimenti had been seated in an automobile in the middle of the block on Madison Street, keeping a certain building under observation, and they observed defendant loitering about those premises. The witness saw two unknown men and a woman approach defendant and engage in a conversation, and then saw defendant enter a building which they were watching. Very shortly thereafter, defendant came out, according to Gilchrist, and walked to the corner, where Gilchrist approached defendant, told him that he (Gilchrist) was a police officer and asked defendant to show some identification. Patrolman Pizzimenti was with Gilchrist and Pizzimenti also announced to defendant that he was a police officer. He said that defendant looked at the officers, walked away a few steps and stopped, and said that he did not believe they were cops ”, and asked them to show him their police shields again. Then he started to run, brushing against Officer Pizzimenti, whereupon Patrolman Gilchrist, from the rear, grabbed defendant around the shoulders and defendant took Gilchrist’s left hand by the wrist, put Gilchrist’s thumb in his mouth and bit. Gilchrist testified that he received medical attentian at a hospital and, as a result, was “ out sick ” for several days. In his cross-examination he said that he afterwards learned that defendant lived in the basement of 110 Madison Street, which was apparently the building the policemen were watching, that after they, from their automobile, had watched defendant for some time, they got out of the automobile, crossed over to defendant’s side of the street, and then stopped him at the street corner. Gilchrist said that at first he put his hand on defendant’s elbow, at the same time stating that he was a police officer and showing his badge. The other officer was standing nearby. Neither officer knew defendant. Gilchrist testified that at that first encounter he was not arresting defendant. He testified that the officers were taking defendant over to a building so that they could talk to him out of the stream of traffic since there were quite a few people passing by. He said that when defendant started to run away, which was just before the biting, Gilchrist then grabbed defendant and put him under arrest. When asked whether defendant had committed any crime, Gilchrist testified: He bolted past my brother officer ”. He said that, after this, defendant was dragging Gilchrist along the street with Gilchrist’s thumb in defendant’s mouth, and that when Gilchrist freed his thumb defendant fell to the ground.

The next witness was Patrolman Pizzimenti, who, too, swore that the police officers twice showed their badges to defendant. Pizzimenti said that he secured the release of Gilchrist’s thumb by punching defendant in the eye, that Pizzimenti then told defendant to get in the car but that defendant threw himself on the ground and the officers had to pick him up and put him in the car by force. He said that, after they got to the police station, he (Pizzimenti) told defendant that the latter was foolish since he had been told that the men were police officers, and that defendant replied that he knew he was wrong and that he was sorry. On cross-examination Pizzimenti said that both officers approached defendant from the side and rear, that defendant walked along with them for a few steps on the sidewalk, whereupon defendant stated that he did not believe they were police officers and they, for a second time, showed him their shields and then defendant attempted to brush past them. Then, according to Pizzimenti, Gilchrist threw his arms around defendant’s arms or shoulders. Nowhere in the record is there any explanation of why the officers were watching the particular building or watching defendant.

On defendant’s case, defendant recalled Patrolman Gilchrist but his testimony at that point does not seem to have been of much importance. The next witness was defendant himself who testified that, with his wife and four children, he lived in the basement and parlor floor at 110 Madison Street, that he had lived there about eight years, that he was a plumber by trade, that he had been convicted of petty larceny in 1946, but had never since been convicted of any crime. He said that on the evening in question he had come home from work about seven o’clock and had gone out again about 8:30 p.m. to make some collections, that he had collected some money for some jobs he had done, and that he had arrived home about a quarter of ten. He said that he had parked his car in a garage around the corner from his home and then, carrying some packages, went directly into the basement of his premises without making any stops or meeting anybody on the street. He said that at his home were his wife and two visitors and that, at his wife’s request, he went out, a few minutes after he had arrived home, to buy some ice cream, that he walked along Madison Street, and, just before he got to Franklin Avenue, two men coming from behind grabbed hold of his arm and told him to get into a doorway. He had not seen them before. He tried to pull away from them. He saw no police badges. He was frightened because he had the money on his person and thought they were stick-up men. While he was pulling away from them, he testified, he was hit in the eye and began to yell for help. In the course of the struggle one man’s hand “ slipped past my face and I grabbed ahold of his thumb with my mouth ”, After that the men stopped trying to get him into the doorway and then tried to load him into a car. Then, he says, he was hit on the ear and went down and one of the men was over him. While he was lying there someone told him to get up because the men were policemen. Then a uniformed policeman came along, helped defendant up, got him into a car and told him that the others were police officers. The next witness was Mrs. Cherry, wife of defendant, who testified that her husband came home about a quarter of ten, then went out almost immediately .to get the ice cream. Mrs. Jordan, who was a visitor at defendant’s home that night, gave similar testimony. Then two character witnesses gave testimony for defendant.

The argument of defendant is based on section 177 of the Code of Criminal Procedure and subdivision 3 of section 246 of the Penal Law. Section 177 permits a peace officer without a warrant (there was, of course, no warrant here) to arrest a person for a crime committed or attempted in his presence, or when the person arrested has committed a felony although not in the peace officer’s presence, or when a felony has, in fact, been committed and the officer has reasonable cause for believing the person arrested to have committed it. There is no showing that any of these conditions were present here. Subdivision 3 of section 246 of the Penal Law says that it is not unlawful to use force or violence on the person of another when the violence is done by a party about to be injured, in preventing or attempting to prevent an offense against his person ‘1 if the force or violence used is not more than sufficient to prevent such offense ”. In its memorandum opinion after reargument here, the Appellate Division said that, assuming that the detention of defendant was a false arrest, which he might resist, he nevertheless had no right to use more force than such resistance required Noting that the trial court had believed the testimony of the police officers, the Appellate Division said that, that being so, ‘ ‘ there was no cause for appellant to apprehend bodily harm, and his violent conduct in biting a police officer supports the conclusion that thereby he committed an assault ’ ’. In other words, the Appellate Division, assuming for the sake . of argument that the conduct of the police officers amounted to an unlawful arrest, nevertheless, taking the facts, as found, that defendant had been informed that the two men were police officers and had been shown their police badges, held that there was no necessity for him to commit mayhem. In other words, we now have a finding by Special Sessions, affirmed by the Appellate Division (eight Justices authorized, unlike us, to pass on facts, unanimously so voting), that defendant did use more force than was sufficient to prevent the offense which was being committed on him. Whether or not we believe the testimony of the police officers, we are bound by the findings of fact below and so we must start from that factual premise. Of course, we must assume, too, as the Appellate Division did, that the arrest or detention of this man was unlawful, since there was no showing of any of the elements required by the Code of Criminal Procedure for an arrest. However, the fact that the arrest or detention was illegal does no more than put the situation under the coverage of section 246 of the Penal Law (supra) and leaves us with the question of whether defendant used more than sufficient force, which is a question of fact. In most of the cases in which subdivision 3 of section "246 is discussed, the difficulty arises because of instructions to a jury, said to be erroneous. We do not have that situation here, but here we have a trial by court without a jury, a fact finding as to what occurred, and a finding that more than sufficient force was thereby used.

The “ not more than sufficient ” force idea must be applied reasonably and not literally. If that were not so, anyone, no matter how slight the trespass against him, might resist to the death. In Magar v. Hammond (183 N. Y. 387, 390), a civil case, Chief Judge Cullen wrote: “ though the plaintiff and his associates were engaged in the commission of a crime, that crime was only a misdemeanor and it did not authorize the use against them of a deadly weapon or the infliction upon them of serious bodily harm.” A case quite similar to ours is People v. Murray (54 Hun 406), decided by the First Department in 1889, where a defendant had been seen by a police officer to be running through the streets with a knife in his hand, whereupon the officer asked complainant to help him, secure defendant and complainant reached to grab defendant, whereupon defendant attempted to stab complainant, resulting in a conviction of defendant of assault in the second degree. The court wrote this (pp. 408-409): “That assault cannot be justified, even upon the theory of an illegal arrest. Holahan had, apparently, no weapon. He had not then drawn his club. He simply attempted, with open hands, to seize Murray’s person. If he thus erred in doing what he supposed to be his duty, Murray had no right to use greater force than was essential to maintain his freedom. He was certainly responsible, on the facts stated, for the unnecessary attempt to stab, and for that wrongful and willful act he was justly convicted. ’ ’ That decision is quite close here, since there, as here, there was no showing that defendant was committing any crime when the police officers attempted to restrain him.

Although I have found no direct New York authority on the question, it seems obvious to me that the force “ not more than sufficient ” which a citizen may use in his own defense means not more than the amount of force that would have been deemed necessary by a reasonable person in a similar situation (see People v. Semikoff, 137 Cal. App. 373, 376). The amount of force reasonably to be deemed necessary depends on the existing conditions (see 4 Am. Jur., p. 153, § 51), and one of those conditions here would be the fact, as found and affirmed below, that defendant knew these two men were policemen because he had been shown their official badges.

The whole of our law as to self-defense is limited to the use of “ such force as might be reasonably necessary (see People v. Lumsden, 201 N. Y. 264, 269; Penal Law, § 42). Once an assault is prima facie proven, it is a matter of defense that the force used was reasonably necessary under the circumstances. It can hardly be said that such a defense was here established' as matter of law and beyond dispute.

The judgment should be affirmed.

Lewis, Ch. J., Dye and Van Voorhis, JJ., concur with Fuld, J.; Desmond, J., dissents in opinion in which Froessel, J., concurs ; Conway, J., taking no part.

Judgments reversed, etc.

      . In the Appellate Division, the district attorney actually suggested, with high-minded objectivity, that the judgment of conviction should be reversed.


author: Fuld, J.

text:
    In the Matter of Boykin C. Wright, Respondent, against Charles E. Ransom et al., Constituting the Town Board of the Town of Oyster Bay, Nassau County, New York, Appellants.
    Argued June 3, 1954;
    decided July 14, 1954.

      Michael J. Sullivan and Theodore Summers for appellants.
    I. The town board may consider objections to the petition even in the absence of written objections by others. II. The town board properly refused its consent to the petition, since it was not signed by a majority of the persons residing within the territory to be annexed qualified to vote for town officers. III. It is the intent of the Legislature to guard the right of resident electors to be heard on the question of annexation. IV. The objection of the town board related to the form and content of the petition and was proper.

      George W. Foley and Ghauncey B. Garver for respondent.
    The signing of the petition by the owners of a majority in value" of the assessed property complied with the statute. It is immaterial that it was not signed by a majority of the qualified voters. (Matter of Repper v. Patterson, 306 N. Y. 683; Jarl Co. v. Village of Croton-on-Hudson, 258 N. Y. 303.)
   Fuld, J.

In April of 1952, a petition for the annexation of territory to the Village of Muttontown was filed, pursuant to section 348 of the Village Law, for submission to the town board of the Town of Oyster Bay for its consent. The petition was signed by the owners of a majority in value of the property sought to be annexed. The town board refused its consent to the petition for annexation setting forth several “ reasons ”, one of them being that “ it does not appear that the persons signing the petition constitute a majority of the persons residing within such territory qualified to vote for Town officers.”

At the hearing held by the town board, no qualified voter in the territory appeared in opposition to the petition, no written objections were filed and no objections were raised by the board. Indeed, no evidence or testimony was taken, the only items before the board being the petition and petitioners’ affidavits and maps. Following the board’s action refusing its consent, one of the petitioners brought this article 78 proceeding to review the determination. The Appellate Division, which entertained the application in the first instance, unanimously annulled the determination and directed the board to execute its consent to the petition for annexation.

The question presented by appellant board — whether it properly refused its consent for the reason that the petition was not signed by a majority of the qualified voters residing in the territory to be annexed — has already been answered in Matter of Repper v. Patterson (306 N. Y. 683); the court there explicitly noted “ that it is no longer necessary that a petition for annexation of a territory contain signatures both of owners of a majority in value of the assessed property therein, and of a majority of the persons residing therein qualified to vote for town officers ” (pp. 685-686).

Despite that statement, the town hoard urges that the statute does not provide two equally balanced alternative procedures but requires that the signatures of a majority of the inhabitants qualified to vote * * * must be affixed to the petition.” The board’s point, shortly stated, is that a petition signed by the owners of a majority in value of the property is effective only if there are no persons residing in the territory sought to be annexed who are qualified to vote for town officers.

This precise argument was not made in Repper (supra, 303 N. Y. 683); it was not necessary to advance it, since the petition in that case was actually signed by residents of the territory in question. The reasoning and rationale, however, that there underlay our decision lead to the conclusion that the statute permits a petition by those owning a majority in value of the assessed property, whether or no there are any qualified voters residing in the territory.

The words if any” that appear in subdivision 1 of section 348 — upon which the town board grounds its argument— are merely a carry-over from the time when the statute required that the petition be made and signed by both residents and landowners. This is the way the pertinent sentences read before the statute was amended to read as it does today (in the respect with which we are concerned) (L. 1915, ch. 257): A petition for such annexation, describing the territory, stating the number of inhabitants thereof, and signed by a majority of the persons residing therein, if any, qualified to vote for town officers, [and also] by the owners of a majority in value of the property therein, assessed upon the last preceding town assessment-roll, may be presented to the board of trustees of such village. * * * Such petition must be verified by at least three persons signing the same to the effect that the petitioners constitute a majority of the qualified electors, if any, of such territory, [and] that the petition represents a majority in value of the property as above described.” In 1927, the provision was changed — concededly to provide for annexation upon the petition of either majority (see, e.g., Jarl Co. v. Village of Croton-on-Hudson, 258 N. Y. 303, 306) —to substitute “ or ” for the bracketed and also ” in the first sentence and and ” in the second. A regard for precision should have dictated elimination of the phrase 11 if any ’ ’ in the two places where it appeared, but nothing may be made to turn upon the failure of the draftsman to delete it. The purpose of the amendment was to sanction alternative procedures, and that was deemed effected by the substitution of the word “ or ” for the word and The ‘ ‘ if any ’ ’ remained only as an overlooked and unnecessary vestige.

In sum, section 348 of the Village Law enumerates the objections that may be taken to a petition for annexation. The town board merely performs the ministerial function of determining whether the petition complies with the statute. Since no one of the four specified statutory objections were here advanced or proved, the board had no alternative but to grant the requested annexation.

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

Lewis, Ch. J., Conway, Desmond, Dye, Fboessel and Van Vooehis, JJ., concur.

Order affirmed.


author: Desmond, J. Conway, J.

text:
    Hyman Wank, Public Administrator of the County of Kings, as Administrator of the Estate of Alexander Kosur, Deceased, Appellant, v. Nicholas Ambrosino et al., Respondents.
    Argued April 14, 1954;
    decided July 14, 1954.

      Ralph Stout and Daniel G. Connolly for appellant.
    I. Upon the evidence the question of defendants’ negligence was one of fact for the jury. (Osipoff v. City of New York, 286 N. Y. 422; Noseworthy v. City of New York, 298 N. Y. 76; Eder v. Cashin, 281 App. Div. 456.) II. It is presumed that a person, once shown to be living, is still alive; and it is incumbent upon a party who asserts the death to prove it. (O’Gara v. Eisenlohr, 38 N. Y. 296; Dworsky v. Arndtstein, 29 App. Div. 274; Bracy v. Bracy, 167 Misc. 253; Matter of Dieudonne, 186 Misc. 642; Matter of Schoonmaker, 160 Misc. 810; Matter of Board of Educ. of City of N. Y., 173 N. Y. 321.)

      Bernard Meyerson and Richards W. Hannah for respondents.
    I. There is no proof or inference in the record that the deceased was hit by defendants’ car and, even if same were to be conceded, there still is no proof or inference of any act of negligence on the part of defendants’ driver; therefore, plaintiff failed to make out a prima facie case. (Kokofsky v. City of New York, 297 N. Y. 553; Lifton v. Title Guar. & Trust Co., 263 App. Div. 3; Noseworthy v. City of New York, 298 N. Y. 76; Matter of Case, 214 N. Y. 199; Auerbach v. Commercial Capital Corp., 276 App. Div. 911.) II. Plaintiff failed to prove that any loss was sustained. (Mitchell v. New York Central & H. R. R. R. Co., 2 Hun 535, 64 N. Y. 655; Wagner v. Clausen & Son Brewery Co., 146 App. Div. 70; Quin v. Moore, 15 N. Y. 432; Josephson v. Schwartz, 225 App. Div. 675.)
   Desmond, J.

In this suit for negligently causing the death of plaintiff’s intestate, the affirmance, by the Appellate Division, of a dismissal of the complaint at the close of plaintiff’s case, requires us to say whether or not plaintiff made out a sufficient case for presentation to the jury. We hold, with the courts below, that he did not.

At about 6:00 p.m. on a January evening, an automobile owned by one of the defendants and driven by the other, stopped for a traffic light, at an intersection, then turned the corner. It had traveled, at slow speed, not more than fifty feet in the intersecting street when the driver felt a bump, looked at the tires to see if one of them had gone flat, then started the car up again but, hearing more noise, again stopped the automobile and saw that, underneath it, was the body of plaintiff’s intestate, the feet pointing toward the car’s rear, the head being nearer the front of the vehicle. The man died soon afterwards. Night had fallen at the time, but there were street lights nearby. The driver heard no outcry and had not seen plaintiff’s intestate before. No one knew how he had gotten underneath the car. There were “ drag marks ”, said one witness, on the pavement starting about 170 feet away in the direction from which the car had come and ending at the body. The driver had a defect in the vision of his left eye, but there is nothing to show that it interfered with his safe operation of an automobile. Such is a fair summary of all the proof (except as to damages) presented by plaintiff.

An inference could be justified that defendants’ car hit the man, but, since there is nothing at all to show how that came about, there is nothing on which to base a finding of negligent causation. True it is that “ in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence ” (Noseworthy v. City of New York, 298 N. Y. 76, 80) but before that rule comes into play there must be some showing of negligence, however slight. Noseworthy, and similar cases, describe a method of, or approach to, weighing evidence, but there must be a showing of facts from which negligence may be inferred. Here there was none. The statement by one witness that there were “ drag marks ” on the street was denied by another of plaintiff’s witnesses who was equally positive that they were tire marks ”. Only by a process of pure conjecture could such testimony be a basis for a verdict of negligence.

The judgment should be affirmed, with costs.

Conway, J.

(dissenting). At about 6:00 p.m. on an evening toward the end of January, the defendant Felice Ambrosino was driving his defendant brother’s automobile. He had left a drugstore in Manhattan Avenue at Bedford Avenue and proceeded north along Manhattan Avenue toward Norman Avenue. At the intersection, the light was red and he stopped. When it changed to green he made a right turn going east into Norman Avenue. He said he saw no one crossing the intersection when he made the turn. The light supplied by the corner stores was good and he noticed cars parked on Norman Avenue in front of a liquor store. While he was driving on Norman Avenue he felt a bump and he stopped his car. He thought he had a flat tire. He got out, looked and found nothing. He then continued driving, heard some noise and stopped near Norman Avenue and Leonard Street, the next block to Manhattan Avenue. Again looking for a flat tire, he found a man underneath his car. He said that, although he did not wear glasses, there was a defect in vision in his left eye due to a cyst on the eyeball which he was waiting to become “ fully ripe ”, pursuant to his doctor’s orders, so that an operation might be performed. That was substantially the driver-defendant’s story on examination before trial.

A police officer testified that, when he was summoned to the scene, the body of the deceased was approximately under the center of the automobile. He said the deceased “ was caught by the chest ’ ’ and that the car had to be raised by the emergency squad in order that the deceased might be removed. The officer found drag marks ” on the roadway which commenced about twenty-five feet east of the Manhattan Avenue curb and about twelve feet from the south curb of Norman Avenue and continued on Norman Avenue for a distance of 170 feet ending at the body of decedent underneath the car. He defined “ drag marks ” as ones made “ where the dirt would be swept away from something dragging along the ground ” leaving a mark on the surface.

Another witness testified to slightly longer “ drag marks He said they went back from the automobile a little over three quarters of the block, which he estimated to be anywhere from 175 to 200 feet long. He said they commenced about twenty feet from the intersection of Manhattan Avenue and Norman Avenue going toward Leonard Street.

Still a third witness, who had a shop about eighty feet east of the corner of Manhattan Avenue and Norman Avenue, had his attention attracted by the hollering ” of people on the street in an attempt to stop the car that was passing. He looked and saw something underneath the car. The people were running after the car which was in motion. They were running toward Leonard Street. He saw marks which extended for 175 feet before the car came to a stop. He was then asked: 1 ‘ And can you tell us what those marks looked like? ” He answered: Well, tire marks, as if there was pressure on the car and it was dragged along.” (Emphasis supplied.)

These were, of course, the marks made by the body of the deceased for the hospital records show that he had a craniocerebral injury, fractures of the 5th, 6th, 7th, 8th, and 9th ribs of the left side — those of the 7th and 8th being multiple — and a fracture of the ascending ramus of the left pubis. The injured man lived until the evening of February 1st, four days after the occurrence.

That was the case for the plaintiff and on that the court dismissed the complaint. “ In view of the dismissal we must take the facts in a light most favorable to the plaintiff and, in determining whether the facts proved constitute a cause of action, give him the benefit of every favorable inference which may reasonably be drawn. (Faber v. City of New York, 213 N. Y. 411, 414; Shuman v. Hall, 246 N. Y. 51, 57.) ” (Osipoff v. City of New York, 286 N. Y. 422, 425.)

Here there was evidence of contact by the automobile and the deceased and in addition proof through the driver and witnesses that the position of the body and the marks on the street were such that a jury could properly infer that the plaintiff’s intestate was struck by the automobile, knocked to the ground and then caught by the chest under the front portion of the automobile, and dragged for 170 feet. Contact was the determining factor in the cases of Klein v. Long Is. R. R. Co. (199 Misc. 532, affd. 278 App. Div. 980, affd. 303 N. Y. 807) and Scantlebury v. Lehman (305 N. Y. 713) where we held in each that a prima facie case had been established. Had the deceased been tossed aside by the contact in the face of the denial by the driver that he saw him, we would clearly have a prima facie case under our decision in the Scantlebury case (supra) for a man may not drive on a public thoroughfare, strike a pedestrian and, admitting the contact, pass on his way and be exculpated by his statement that the pedestrian had not been seen. It is even less permissible to say that a prima facie case has not been established here when, instead of being cast to one side, the pedestrian is caught beneath the car and dragged for a distance and then, after inadequate inspection, is dragged for a much further distance.

The plaintiff’s intestate is dead, and, therefore, the plaintiff is not held to the high degree of proof required where an injured person may give his own story of the accident (Noseworthy v. City of New York, 298 N. Y. 76, 80). A man has been brought to his death by the operation of an automobile in the hands of defendant-driver Ambrosino. He was in sole control of the instrument of death. That is a serious occurrence in a body politic. A driver must have his car under complete and attentive control, otherwise he is negligent in the operation of it. A jury is not required to believe all of the testimony of a defendant given in an examination before trial — it may believe part and disbelieve part. It would have had the right here, if the ease had been submitted to it, to believe the testimony of the three disinterested witnesses, one a policeman, in preference to the testimony of a defendant who could see so little that he could not discern when he got out of his car the body of a man caught beneath it and therefore climbed back and dragged the man. further until stopped by persons on the sidewalk who ran and shouted to him to stop because they could see the body caught beneath the car.

The police officer testified that the drag marks commenced about twenty-five feet east of the east curb of Manhattan Avenue on Norman Avenue and about twelve feet out from the south curb of Norman Avenue. The sidewalk of Manhattan Avenue and Norman Avenue is about eighteen feet wide. Deducting that sidewalk width from the twenty-five feet from the east curb of Manhattan Avenue would bring the point where the drag marks started, and where the jury could find the defendant struck, just about in the crosswalk in Norman Avenue at Manhattan Avenue. Jablonowski, the second of the disinterested witnesses, placed the commencement of the drag marks from fifteen to eighteen feet from the southeast corner of Manhattan Avenue at Norman Avenue. Even Santoro, the third disinterested witness, testified that when he first heard the hollering ” of the people on the street and looked out, defendants’ automobile was only forty feet east of the corner of Manhattan and Norman Avenues.

A jury could have properly found that defendant Felice should not have been driving an automobile at all in view of his demonstrated inability to see. As the dissenting Justices in the Appellate Division said: ‘1 An adequate inspection at that time [when defendant got out to see if he had a flat tire] would have disclosed the presence of plaintiff’s intestate underneath the car, and would have prevented such further injury as may have resulted from his being dragged a considerable distance further.” (282 App. Div. 957, 958.)

We have been discussing direct testimony which makes this case much stronger than the cases of Klein v. Long Is. R. R. Co. (199 Misc. 532, affd. 278 App. Div. 980, affd. 303 N. Y. 807, supra) and Scantlebury v, Lehman (305 N. Y. 713, supra) where plaintiffs recovered. We have said: The existence of remote possibilities that factors other than the negligence of the defendant may have caused the accident, does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he show facts and conditions from which the negligence of the defendant * * * may be reasonably inferred. (Stubbs v. City of Rochester, 226 N. Y. 516.) ” (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, 7.)

All we are concerned with here is whether plaintiff made out a prima facie case and was entitled to go to the jury. We are not concerned with the weight of evidence for defendants put in no case.

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

Lewis, Ch. J., Dye, Fuld and Yah Yooehis, JJ., concur with Desmohd, J.; Cohway, J., dissents in opinion in which Fboessel, J., concurs.

Judgment affirmed.


author: Desmond, J.

text:
    Joseph L. Phillips, Appellant, v. Sun Oil Company, Respondent.
    Argued May 26, 1954;
    decided July 14, 1954.

      Henry Hirschberg and Ernest M. Levinson for appellant.
    I. The gasoline in plaintiff’s well and water system came from the leak in defendant’s gasoline pipe and equipment. (Scudero v. Campbell, 288 N. Y. 328; Citron v. Kapner, 271 App. Div. 932; Slattery v. Marra Bros., 186 F. 2d 134; Masten v. Texas Co., 194 N. C. 540; Van Alstyne v. Rochester Tel. Corp., 163 Misc. 258.) II. Plaintiff established a prima facie case of trespass. (Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; Forbell v. City of New York, 164 N. Y. 522; Davis v. Niagara Falls Tower Co., 171 N. Y. 336; Mairs v. Manhattan Real Estate Assn., 89 N. Y. 498; Jutte v. Hughes, 67 N. Y. 267; Sullivan v. Dunham, 161 N. Y. 290; Wheeler v. Norton, 92 App. Div. 368; McCahill v. Parker Co., 49 Misc. 258; Schwab v. Cleveland, 28 Hun 458.)

      Donald H. McCann for respondent.
    I. Plaintiff has failed to produce proof sufficient to justify the conclusion that the gasoline found in the well came from the station where defendant’s gasoline products were sold. (Dillon v. Acme Oil Co., 49 Hun 565; Bloodgood v. Ayers, 108 N. Y. 400; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Matter of Case, 214 N. Y. 199; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; People v. Harris, 136 N. Y. 423; Scharff v. Jackson, 216 N. Y. 598; Wolfson v. Metropolitan Life Ins. Co., 262 App. Div. 886; Grawunder v. Beth Israel Hosp. Assn., 242 App. Div. 56; Galbraith v. Busch,
      267 N. Y. 230; Digelormo v. Weil, 260 N. Y. 192; Lamb v. Union Ry. Co., 195 N. Y. 260.) II. As a matter of law, defendant, Sun Oil Company, is not liable under the evidence herein presented. (Dillon v. Acme Oil Co., 49 Hun 565; Elsey v. Adirondack & St. Lawrence R. R. Co., 97 Misc. 273; Thompson v. Board of Educ. of Union Free School Dist. No. 2, 124 Misc. 840; Robb v. State of New York, 262 App. Div. 37; Bloodgood v. Ayers, 108 N. Y. 400; Vanderbilt v. State of New York, 159 Misc. 586; Huey v. State of New York, 170 Misc. 677.)
   Desmond, J.

On each of three properties, two of them owned by plaintiff and defendant, respectively, at the intersection of two highways in a rural section of Orange County, there were gasoline tanks and pumps. At plaintiff’s establishment there was a kerosene pump and tank, also. Noticing a peculiar taste, and an odor like gasoline or kerosene, in the water pumped into his building from his dug well nearby, plaintiff shut off the water supply and called in a chemist who found a heavy concentration of gasoline in the well. After tests, it was another chemist’s opinion that the gasoline in plaintiff’s well water was of the brand dispensed from defendant’s pumps and tank, which were some seventy-five feet from plaintiff’s well. For the damages resulting from contamination of his water supply, plaintiff sued defendant, pleading separate counts of alleged nuisance, negligence and trespass. On the trial, defendant moved, at the end of plaintiff’s proof, for dismissal of all three causes of action. Plaintiff then withdrew his charges of nuisance and negligence, and the Trial Justice dismissed, for failure of proof, the remaining count in trespass. The Appellate Division affirmed the judgment except for a slight modification not related to the merits, and plaintiff’s appeal is here by right, because of that modification.

We will (with some doubt) assume that the chemist’s opinion testimony proved, prima facie, that the polluting gasoline came from defendant’s tank across the highway. There was no showing on the trial as to how the fluid found its subterranean way from defendant’s to plaintiff’s premises, and there is nothing to show that defendant knew, or had been put on notice, that gasoline was escaping from its underground tank. There was no evidence of any leaky condition of defendant’s tank, except this slight and remote item: that at a meeting of the town board of health, held some weeks after plaintiff’s well had been polluted and closed up, a representative of defendant stated that, on the removal from the ground of defendant’s tank (time of removal not shown), a leak was found, “ but it did not amount to anything ”.

We hold, as did the courts below, that plaintiff did not make out a case in trespass. Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness (Tonawanda R. R. Co. v. Munger, 5 Denio 255; Rightmire v. Shepard, 59 Hun 620, opinion in 12 N. Y. S. 800; Guille v. Swan, 19 Johns. 381; Mairs v. Manhattan Real Estate Assn., 89 N. Y. 498; New York Steam Co. v. Foundation Co., 195 N. Y. 43, 52; Restatement, Torts, Vol. 1, §§ 158, 166). To constitute such a trespass, the act done must be such as “ will to a substantial certainty result in the entry of the foreign matter ” (Restatement, Torts, supra, § 158, comment h).

The application of the above-stated rule, in the few pertinent New York cases, to damage claims arising from the underground movements of noxious fluids, produces this conclusion: that, even when the polluting material has been deliberately put onto, or into, defendant’s land, he is not liable for his neighbor’s damage therefrom, unless he (defendant) had good reason to know or expect that subterranean and other conditions were such that there would be passage from defendant’s to plaintiff’s land (Dillon v. Acme Oil Co., 49 Hun 565; Elsey v. Adirondack & St. Lawrence R. R. Co., 97 Misc. 273; Thompson v. Board of Educ., 124 Misc. 840). The leading New York decision seems to be Dillon v. Acme Oil Co. (supra), where, in the absence of knowledge or notice, an oil refining company was held not liable for discharging, onto its own land, water containing chemicals which somehow soaked down into and through the soil, polluting a well on adjoining property. In the suit we have before us, plaintiff’s position is weaker than was Dillon’s, since Dillon’s defendant intentionally poured, on the ground, the substance which seeped and percolated into Dillon’s well.

Out of caution, we note that nothing herein said or held would prevent the granting of injunctive relief after a pollution has been traced to its source.

The judgment should be affirmed, with costs.

Lewis, Oh. J., Cowway, Dye, Fuld, Froessel and Yaw Yoorhis, JJ., concur.

Judgment affirmed.


text:
    Arthur F. Williams, Respondent, v. Aircooled Motors, Inc., Appellant.
    Argued May 26, 1954;
    decided July 14, 1954.

      Henry 8. Fraser for appellant.
    I. The predecessor of section 226 of the Election Law was originally enacted to remedy certain historical abuses and was never intended, either in its original or subsequent text, to require premium pay for unworked time. (People ex rel. Central Union Trust Co. v. Wendell, 197 App. Div. 131, 231 N. Y. 629; Matter of Frasch, 245 N. Y. 174; Wiley v. Solvay Process Co., 215 N. Y. 584; Overnight Motor Co. v. Missel, 316 U. S. 572; Matter of Cole, 235 N. Y. 48; Matter of Trosk v. Cohen, 262 N. Y. 430; Lee v. Ideal Roller & Mfg. Co., 197 Misc. 389.) II. Respondent is employed at the rate of $1.80 per hour, which is his “ usual wages ” within the meaning of the statute. III. If the statutory term ‘1 usual wages ’ ’ were construed so as to require the appellant to pay a premium heyond the respondent’s customary rate of pay for unworked time, the statute would exceed the police power. (People v. Ford Motor Co., 271 App. Div. 141; Illinois Central R. Co. v. Commonwealth, 305 Ky. 632; People v. Chicago, M. & St. P. R. Co., 306 Ill. 486; Day-Brite Lighting, Inc., v. Missouri, 342 U. S. 421; Brown v. O’Connor, 49 F. Supp. 973, 141 F. 2d 1019; Shelley v. Kraemer, 334 U. S. 1.) IV. The construction placed by the Appellate Division upon the term “ usual wages ” causes the statute to invade a field occupied by Congress and thus to be violative of the Constitution of the United States. (Automobile Workers v. O’Brien, 339 U. S. 454; Prigg v. Commonwealth of Pennsylvania, 16 Pet. [U. S.] 539; Southern Ry. Co. v. Railroad Comm., Indiana, 236 U. S. 439; Napier v. Atlantic Coast Line, 272 U. S. 605; Matter of Whish v. Public Service Comm., 205 App. Div. 756, 240 N. Y. 677.)

      Richard T. Mosher for respondent.
    I. Failure to pay time and a half for the ninth hour constitutes a prohibited deduction. (Lee v. Ideal Roller & Mfg. Co., 197 Misc. 389.) II. The contract and statute are so explicit as to obviate aids to construction. (Day-Brite Lighting, Inc., v. Missouri, 342 U. S. 421; People v. Ford Motor Co., 271 App. Div. 141.) III. The legislative history of the statute confirms respondent’s interpretation. IY. Appellant’s construction of “ usual wages ” would logically exclude hourly rated employees from the statute. Y. There is no constitutional inhibition against enforcing the statute according torts terms.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Broton and Ruth Kessler Toch of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. Section 226 of the Election Law has been held valid and constitutional, as have, statutes of other States having similar purpose and effect. (People v. Ford Motor Co., 271 App. Div. 141; Lee v. Ideal Roller & Mfg. Co., 197 Misc. 389; Day-Brite Lighting, Inc., v. Missouri, 342 U. S. 421; Ballarini v. Schlage Lock Co., 100 Cal. App. 2d 859.) II. “ Usual salary or wages ” which an employee must be paid without “ deduction ” or “ other penalty ” under section 226 of the Election Law means salary or wages usually received by an employee at the period within which the election day falls. What elements enter into arriving at the ‘1 usual ’ ’ wages are irrelevant and the statute is in no wise rendered unconstitutional by the fact that such ‘ ‘ usual ’ ’ wages include for some hours a rate of pay more than the straight hourly rate.
   Fuld, J.

This appeal involves the effect of overtime work rates upon the Election Law provision guaranteeing an employee the right to vote at an election without deduction being made from his “ usual salary or wages.”

In November of- 1952, plaintiff was employed by defendant as an inspector, in its factory. As a result of the operative collective bargaining agreement between the employer and the' union of which plaintiff was a member, he was entitled'to $1.80 an hour for straight time and.time and a half, $2.70 an hour, for' all work in excess of, eight hours a' day or forty hours a weekb On the week in question, which included Election Day, and- ever' since May of 1951, the established workday at defendant’s plant' was nine hours a day and five days a week • — ■ which meant that plaintiff earned $17.10 a day and $85.50 a week. Informed by plaintiff that he planned to absent himself on Election Day in order to vote at the polls, defendant designated, as it was privileged to do, the two hours immediately following plaintiff’s performance of seven hours of work.

Accordingly, plaintiff, after working seven hours, left the plant to cast his vote and did not return that day. He received as compensation $16.20, instead of the $17.10 which he ordinarily received for nine hours spent on the job. The smaller figure (of $16.20) was arrived at by paying him at the rate of $1.80 an hour, not only for the seven hours actually worked, but for the two additional voting hours as well.

It is plaintiff’s claim that he should have received an additional ninety cents, representing time and a half for the hour in excess of eight, and it was for that amount, ninety cents, that he brought suit in the Municipal Court of the City of Syracuse. Upon defendant’s motion, that court granted summary judgment dismissing the complaint. The County Court of Onondaga County affirmed, but, on a further appeal, the Appellate Division reversed and granted summary judgment in favor of plaintiff and thereafter granted defendant’s motion for leave to appeal to us.

Insofar as relevant, section 226 of the Election Law, after reciting that “ Any person entitled to vote at an election shall on # * * [Election Day] be entitled to absent himself ” from his employment for two successive hours while the polls are open, provides that “ no deduction shall be made from the usual salary or wages of such voter, and no other penalty shall be imposed upon him by his employer by reason of such absence. ’ ’

The purpose of such a provision is “ to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote.” (Day-Brite Lighting, Inc., v. Missouri, 342 U. S. 421, 424.) Section 226 simply guarantees the employee against any loss of compensation by reason of his taking time off to vote. And, relating it to this case, it assures him that, if he works for seven hours and takes off the two hours allowed him to vote, he will be paid the amount he would have received — his usual salary or wages” — had he not voted and had he remained at his employment for his accustomed full nine hours.

It is defendant’s contention, however, that the statute entitles plaintiff only to his usual hourly rate of wages — straight time as distinguished from overtime — for the hours taken off to vote. To read the statute in such a way would discriminate against all workers employed at an hourly rate rather than by the day or week and would penalize plaintiff the sum of ninety cents, the difference between straight time and overtime, because he chose to exercise his elective franchise. That could never have been the legislative intent or design, and we perceive no constitutional blight or infirmity if the statute be construed as we have here applied it. (Cf. Day-Brite Lighting, Inc., v. Missouri, supra, 342 U. S. 421; People v. Ford Motor Co., 271 App. Div. 141.)

The order should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Froessel and Van Voorhis, JJ., concur.

Judgment affirmed.


author: Fuld, J. Dye, J.

text:
    The People of the State of New York, Appellant, v. Ernest Easton, Respondent.
    Argued May 27, 1954;
    decided July 14, 1954.

      Robert E. Fischer, District Attorney (Franlt J. OndruseJc of counsel), for appellant.
    The Broome County Court erred in reversing the conviction and ordering the fine to be remitted and the information dismissed. (People v. Belcher, 302 N. Y. 529; People v. Van Every, 222 N. Y. 74.)

      Kenneth P. Whiting, Jr., for respondent.
    The information was fatally defective and the reversal of the judgment of conviction and the dismissal of the information by the County Court of Broome County was in all respects proper. (People v. Van Every, 222 N. Y. 74; People v. Guiley, 222 N. Y. 548; People v. Schweizer, 160 Misc. 23; People v. Nuzzo, 294 N. Y. 227; People ex rel. Livingston v. Wyatt, 186 N. Y. 383.)
   Fuld, J.

Defendant was arrested on December 17, 1952, charged with driving while intoxicated, and on the same day the arresting officer filed an information against him in the City Court of Binghamton. When the case came up for trial some time later — on February 9, 1953 — it was discovered that the information recited that the crime was committed on December 17, 1953, instead of December 17, 1952. The district attorney thereupon moved to amend in order to correct the misdating, and the court granted the motion over defendant’s objection that the information was “ defective as a matter of law.” After a trial, defendant was adjudged guilty, fined $100 and his license revoked. Upon appeal, however, the conviction was reversed, upon the ground that the information was invalid and not susceptible of amendment. The appeal is here by permission of a justice of the Appellate Division.

We will not uphold a conviction obtained illegally or without jurisdiction, even though the record evidence stamps defendant plainly guilty. But to here sustain the reversal of the conviction and hold impermissible an amendment made solely to correct an obvious typographical error in the information — a date not yet come — would be to exalt form over substance, to enthrone technicality purely for its own sake. The police officer who had made the arrest and signed the information was in court at the time the amendment was sought and actually testified against defendant. Had that officer then and there sworn to a new information — with the year correctly given as 1952 — no valid objection could have been raised, for defendant had ample notice of the crime charged, and, as his attorney acknowledged, the correction of the date occasioned him no surprise or prejudice. Under the circumstances of this ease, what could have been effected by the preparation of a new information was properly accomplished by amendment of the one already on file. There was neither reason nor necessity for another piece of paper.

Decisions dealing with indictments (People v. Van Every, 222 N. Y. 74; People v. Guiley, 222 N. Y. 548) are entirely inapposite, and defendant’s reliance upon them misplaced. Whatever the rule with respect to amending an indictment which charges a crime as having been committed subsequent to its presentment by the grand jury, the considerations there controlling, the considerations which there gave rise to the rule, are not present in the case of an information. An indictment requires the action and intervention of a grand jury. There is no substitute for that body, and a court may not, by seeking to effect an amendment of a substantial character, ‘ ‘ make good an invalid indictment and thus exercise the functions of the grand jury ”. (People v. Van Every, supra, 222 N. Y. 74, 78.)

The very reason for that rule, however, indicates the inappropriateness of applying it where the People seek to amend an information filed in the City Court of Binghamton. In such a case, there is no need for action by a grand jury and no requirement that any particular body or agency present or vote the information. Since there can, therefore, be no question of the court’s usurping the function of the grand jury, no reason exists for invoking the rule barring such a usurpation, and no purpose is to be served by so doing. Accordingly, as has elsewhere been held, a court has the power to amend an information even though the amendment may affect a matter of substance. (See, e.g., State v. Pritchard, 35 Conn. 319, 326; State v. Jensen, 83 Utah 452, 454-455; State v. Barrell, 75 Vt. 202, 204; see, also, 1 Wharton on Criminal Procedure [10th ed., 1918], §§ 128,132.) Illuminating is this statement from the old English case of Rex v. Wilkes (4 Burr. 2527, 2569) quoted with approval by the United States Supreme Court in Ex Parte Bain (121 U. S. 1, 6): “ There is a great difference between amending indictments, and amending informations. Indictments are found upon the oaths of a jury; and ought only to be amended by themselves: but informations are as declarations in the king’s suit. An officer of the Crown has the right of framing them originally; and may, with leave, amend, in like manner as any plaintiff may do.”

Since, then, there was power to permit the amendment, and no question being raised as to defendant’s guilt, the order of the county court should be reversed and the judgment of the city court reinstated.

Dye, J.

(dissenting). The People appeal by permission from an order of the County Court, Broome County (Brink, J.), which reversed the judgment of conviction of the City Court of the City of Binghamton entered on a jury verdict finding defendant guilty of the crime of driving while intoxicated (Vehicle and Traffic Law, § 70, subd. 5).

The sole question presented is whether the trial court erred in granting the People’s motion to amend the information by substituting December 17,1952, as the date of the commission of the crime for and instead of December 17, 1953, the date set forth in the written information. The amendment was granted over objection by defendant ’„s counsel and exception noted.

Apparently we have not previously considered this precise question, although it has long been our rule that an indictment charging the commission of the crime subsequent to the finding of the same by the Grand Jury may not be amended. The rationale is that a date charging the commission of the crime “ months subsequent to the finding of the same by the grand jury [is] an impossible date, and as matter of law cannot be regarded as charging a crime ”. Such omission ” — to charge the defendant with the commission of the crime prior to the finding of the indictment — is not one of form but of substance.” (People v. Van Every, 222 N. Y. 74, 77-78.) In other words, an amendment as to date of the commission of the crime from a date subsequent to the date of the indictment to a date prior thereto goes to the very substance of the charge by making valid that which was otherwise invalid as a matter of law. Such holding has been consistently followed (People v. Guiley, 222 N. Y. 548; People v. Schweizer, 160 Misc. 23).

When the converse situation arises an amendment is permitted to correct a wrong antecedent date for although it may be wrong, the charge designates a crime that could have been committed. In such a situation the date relates to form and not to substance unless time is a material ingredient in the crime ” (Code Crim. Pro., § 280; People v. Van Every, supra).

This distinction is equally applicable to the amendment of an information. True it is in its inception, an information is not attended by the same formalities as the finding of an indictment by a grand jury and is not subject to the disability occasioned by the discharge of the grand jury. Nonetheless, in point of law, there is no distinction between an indictment and an information as to the statement of facts sufficient to constitute a crime. When the alleged date of the commission of the crime is subsequent to the date of the information as a matter of law, no crime is charged. To grant an amendment thereof so- as to vitalize and make valid an otherwise sterile and legally invalid charge would deprive an accused of a very material and substantial right. He is entitled to make his plea and go to trial on the crime as charged in the information and if, as a matter of law, no crime be charged, he is entitled to a dismissal (cf. People v. Zambounis, 251 N. Y. 94).

There is a vast difference between allowing an amendment for purposes of particularization and clarification of the allegation of the crime charged and an amendment which has the effect of changing the charge which states no crime into one that does (People v. Van Every, supra). To disallow an amendment for such purpose is not exalting form over substance but rather is substance itself — affording as it does, an opportunity to an accused, which is his right — to be informed of the crime with which he is charged — not some other crime as to which he may be subsequently informed at the convenience of the People (People v. Jacoby, 304 N. Y. 33). To adopt any other rule would be to encourage laxity and carelessness on the part of persons representing the People, to the substantial prejudice of an accused.

The order of the County Court of Broome County reversing the judgment of conviction, dismissing the information and directing that the fine of $100 be remitted should be affirmed.

Lewis, Ch. J., Conway, Desmond and Van Voobhis, JJ., concur with Ftjld, J.; Dye, J., dissents in an opinion in which Fboessel, J., concurs.

Order reversed, etc.