author: Conway, J. Lewis, J.

text:
    The People of the State of New York, Respondent, v. Edward H. Kelly, Appellant.
    Argued April 12, 1951;
    decided June 1, 1951.

      Whitman Knapp, Jack B. Weinstein and Guido J. Napoletano for appellant.
    The trial court in its charge incorrectly set forth the rule of law as to the responsibility of defendant in the event that he did not know the nature and quality of the act or did not know that the act was wrong. (People v. Becker, 210 N. Y. 274; People v. Fanning, 131 N. Y. 659; People v. Corey, 157 N. Y. 332; People v. Spitzer, 294 N. Y. 5; People v. Intersimone, 266 App. Div. 280.)

      Louis G. Bruhn, District Attorney (Vincent G. Connelly of counsel), for respondent.
    The charge was fair and proper. (People v. Tobin, 176 N. Y. 278.)
   Conway, J.

On Main Street in the center of the city of Kingston at nine o’clock of a bright, clear Monday morning, the defendant shot and killed one Elouise McHugh with a hunting rifle with which he then shot himself in the head. The acts were committed in the presence of a number of persons. The defendant, who testified in his own behalf, did not deny the killing. He testified that he had no recollection of what had happened from three o’clock Sunday afternoon until after he shot himself the following morning.

The sole defense was that defendant was insane at the time of the homicide and excused from criminal liability under section 1120 of the Penal Law. The defendant introduced opinion evidence, which we need not detail, since it was for the jury to assess and evaluate it, to the effect that his mental condition was such that, at the time of the commission of the homicide, he did not know the nature and quality of his act and he did not know that the act was wrong. That opinion evidence, if believed by the jury, was sufficient to warrant a verdict of acquittal. No contrary opinion evidence was introduced by the People.

When the defense of insanity is raised under section 1120 of the Penal Law, the People must establish on the whole case beyond a reasonable doubt both that the defendant knew the nature and quality of his act and that he knew the act was wrong. To put it in another and converse manner, the defendant is entitled to acquittal if the jury find either that he did not know the nature and quality of his act or that the act was wrong. We are not satisfied that this rule of law was properly and clearly presented to the jury, despite the evident desire of the learned Trial Judge to do so.

The distinction embodied in the statute, between knowledge of the nature and quality of the act and knowledge that the act was wrong, is not artificial, as the records of this court attest. Very recently, in People v. Samuels (302 N. Y. 163) we had before us a defendant of such a mentality that the two psychiatrists designated by the director of division of psychiatry" of Bellevue Hospital, department of hospitals of the city of New York, pursuant to an order of the Court of General Sessions of the County of New York and who testified on his behalf differed in their diagnoses. One was of the opinion that defendant ‘£ would know the nature and quality of his act, but would not know that it was wrong ”, while the other was of the opinion that defendant would ££ know an act was wrong, without understanding the nature or quality of it.” (supra, pp. 169, 170.)

In People v. Sherwood (271 N. Y. 427 [Crouch, J.]), we noted that it was " of the utmost importance ” that the law as respects criminal responsibility under section 1120 of the Penal Law be made clear to the jury, and we there reversed because " * * * it was not made clear that a defect of reason which inhibited a knowledge either of the nature and quality of the act or that the act was wrong, excused a person from criminal liability.” (Emphasis in original; pp. 432-433.) We felt that the wording of the charge left doubt as to <£ whether the jury had a clear conception of when a person is or is not criminally liable under section 1120.” (P. 433.) We appreciated then, and do now, that it is not easy to make the distinction between the two subdivisions of section 1120 clear to a juror who is a layman and neither a judge nor a psychiatrist. There is danger that a layman, in the case of a killing under the circumstances here presented, may become impatient with the distinction, although, as noted, its reality has many times been determined. The impatience of the layman and the seeming ruthlessness of the killing here placed an added burden on the' trial court to make the applicable rule of law clear to the jurors.

In the case at bar the Trial Judge did not make clear the meaning of section 1120, for after reading that section verbatim to the jury, he proceeded to construe it contrary to its plain meaning. Thus, he said: “ I charge you that, if, on this evidence and on all the facts and circumstances, included in it, both the evidence of the defendant and the evidence of the People, you come to the conclusion beyond a reasonable doubt that the defendant fired the shot that killed Elouise McHugh and that he knew the nature and quality of the act OR that he knew that it was wrong, then he is responsible in law for the act which he did and it is a jury’s duty to so declare.” (Emphasis supplied.)

It is apparent therefore that, contrary to the statute, the court incorrectly told the jury that defendant could be convicted upon a finding either that he knew the nature and quality of his act or that he knew it was wrong, whereas in truth the defendant, under the statute, was not criminally responsible for his act unless the jury found both.

Immediately thereafter, the Trial Judge repeated the error, saying: “If you find that he did know the nature and quality of his act OR that the act was wrong and the People have proved beyond a reasonable doubt all the essential elements of the crime, then it is your duty to determine what crime the defendant is guilty of, starting with the degrees of that crime as I have heretofore outlined them to you in my charge.” (Emphasis supplied.)

Again, the court was incorrect for if the jury merely found one or the other of the statutory elements, and not both, it could not properly have gone on to consideration of the degrees of homicide.

Error was thus committed, and it was substantial error, since it went to the heart of the sole defense interposed by the defendant. It is urged upon us, however, that since the court in earlier parts of the charge quoted the language of section 1120 and properly noted with reference to the two subdivisions thereof that “ one or the other of those two things is all that can excuse ”, we should assume that the jurors — each of the twelve of them — followed the court when it was correct and disregarded the charge when it was incorrect. In other words, we are asked to assume that the jurors, faced with two opposite and mutually exclusive charges as to the rule, had the wit and ability, with unanimity, to adopt the right one and reject the wrong one. We think the statement of the thought contains its refutation. The courts may frequently indulge in assumptions that jurors “ are capable of and do perform extraordinary intellectual feats ” in civil cases in order to achieve an approximate justice, but rarely, if ever, when the stake is the life of a person conceivably innocent ”. . (People v. Sherwood, supra, p. 434.)

Nor can we overlook the error as technical and not affecting a substantial right of the defendant under section 542 of the Code of Criminal Procedure. (See People v. Marendi, 213 N. Y. 600, 618-620.) The question of defendant’s sanity at the time of the commi ssion of the homicide, which depended in turn upon the proof by the People beyond a reasonable doubt that defendant both knew the nature and quality of his act and knew that it was wrong, was the only real issue in the case and the only one on which the jury, as a practical matter, could have had any serious discussion. Above all else on this record, the charge on the law concerning that subject should have been clear and unambiguous. Instead, it was contradictory and must have been perplexing and confusing to an attentive juror. Despite the fact that it was inadvertent, such a mistake in charging the law on the sole defense interposed, necessitates a reversal of the judgment of conviction.

Since there must be a new trial, we note that the court’s charge was inadequate in another particular. There was evidence by the People’s witnesses that some weeks before the homicide the defendant, a businessman in Kingston, had driven slowly down Main Street of that city in an automobile in the early part of the afternoon following the deceased and her daughter and grandchild who were walking on the sidewalk; that he then used foul and abusive language and threatened “to get you all”; that when deceased smiled, defendant shouted: “You can laugh all you want to, tomorrow is the day, I am going to kill you ”; and that, weeks later, on the morning of the homicide and immediately preceding it, the defendant was parked in an automobile on the same Main Street, at nine o ’clock in the morning, wearing a hunting cap, carrying a rifle, and with an alarm clock, which he used when hunting, in the back seat of the automobile. At the trial, the People relied upon that evidence to establish premeditation and deliberation on the part of defendant. The court in its charge specifically quoted that evidence three several times treating it solely as proof to support a finding of guilt through premeditation and deliberation. That evidence, however, also had a real bearing upon the question of defendant’s mental state, but the court did not specifically charge its relevancy on the subject of insanity. Prom the court’s instructions, the jurors might well have been led to conclude that that evidence offered by the People could properly be considered only as proof, on behalf of the prosecution, to point to defendant’s guilt and support a conviction. They were not adequately apprised of the fact that the evidence adduced by the People may, by its very nature, have within it proof that defendant was not responsible for his actions.

In a case such as this, where so much depended upon the jurors’ proper understanding of the relevancy and value of the evidence with respect to the defense of insanity, the court was under a duty to take particular pains to clarify the matter by instructing that the People’s proof might also be examined and weighed in reaching a decision on the question of criminal responsibility under section 1120 of the Penal Law.

The judgment of conviction should be reversed and a new trial ordered.

Lewis, J.

(dissenting). In formulating procedural rules by which criminal law is administered in this State, the Legislature has made it mandatory that “ After hearing the appeal, the court must give judgment, without regard to technical errors or defects * * * which do not affect the substantial rights of the parties.” (Code Crim. Pro., § 542; and see People v. Sprague, 217 N. Y. 373, 379.) In the circumstances of record in this case, we regard as innocuous to the defendant’s rights the error which prompts a majority of the court to favor reversal of the judgment of conviction and a new trial.

The record makes it clear that the sole defense interposed by the defendant was that at the time of the homicide his insanity excused him from criminal liability — under section 1120 of the Penal Law — for the death of Elouise McHugh.

The court is divided upon the question whether the charge by the Trial Judge left with the jury a presentation of the defendant’s defense of insanity which met the requirements of section 1120 id. In view of that disagreement the quotation in full of that statute may contribute to an understanding of the point on which our views diverge:

“ § 1120. Irresponsibility op idiot or lunatic.

An act done by a person who is an idiot, imbecile, lunatic or insane is not a crime. A person can not be tried, sentenced to any punishment or punished for a crime while he is in a state of idiocy, imbecility, lunacy, or insanity so as to be incapable of understanding the proceeding or making his defense.

A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as:

“1. Not to know the nature and quality of the act he was doing; or,

“2. Not to know that the act was wrong.”

Our views differ upon the point made by the defendant that his rights were prejudiced when the Trial Judge — after repeatedly applying correctly section 1120 to the evidence of record —'misapplied the disjunctive “ or ” as it appears in the last sentence of that statute, quoted {supra).

Immediately following that portion of the charge relating to the statutory presumption that a person is responsible for his acts (Penal Law, § 815), the Trial Judge read to the jury verbatim section 1120 of the Penal Law. In doing so the record shows that the disjunctive “ or. ”, as it appears in the text quoted (supra), was read. Thereafter, following a statement of circumstances in which it becomes a defendant’s duty to go forward with evidence designed to rebut the statutory presumption of legal responsibility for the act for which he is on trial — the Trial Judge laid emphasis upon the application of section 1120 id. In doing so, as will be seen, he employed correctly four successive times the. statutory disjunctive or ”:

* * * the law, says that no person shall take the life of a human being and seek to escape responsibility for it on the plea or on the ground that he is odd or peculiar or that he has a loss of memory or amnesia, unless there is proof that tends to show that the person committing the act at the time of committing it had such a defect of reason as not to know the nature and quality of the act that he was committing or not to know that the act was wrong. One OR the other of these two things is all that can ever be the basis of excusing anybody for the commission of a crime or the committing of a criminal act.

In considering the question of this defendant’s alleged insanity, as defined by the law, it will not be for you to ask, ‘ Was he like other people? Was he normal or abnormal? ’ because that will not answer the question that you have to decide at all. The thing that you have to find out is whether he, at the time he committed the alleged act, [had] such a defect of reasoning as not to know the nature and quality of the act that he was doing or not to know that the act was wrong.

Now, those, ladies and gentlemen of the jury, are the only two things; one OR the other of those two things is all that can excuse, if it be the basis of excusing anybody for the commission of a crime or the doing of a criminal act.”

Again, in the course of his reference to testimony which related to the defendant’s defense of insanity, the Trial Judge instructed the jury as to the application of section 1120 and in doing so the disjunctive “ or ” was correctly used. “ If, after hearing and fully considering the testimony of the defendant herein and the testimony of Dr. Davidoff and the other witnesses produced by the defendant, there is reasonable doubt of whether the defendant knew the nature and quality of the act he was doing or knew that the act was wrong, then you must resolve that doubt in favor of the defendant becap.se the People have not proved him guilty beyond a reasonable doubt and therefore your verdict must be not guilty.”

Immediately thereafter — for the seventh time — the jury was correctly instructed as follows: I charge you that mere weakness of mind or impairment of mental strength or lapse or loss of memory or amnesia are not sufficient to excuse the defendant for the commission of a criminal act unless such weakness or impairment of mental condition or loss of memory or amnesia resulted in such a defect of reasoning as prevented him from knowing the nature and quality of the act he did or knowing that it was wrong.”

Then followed the portion of the charge, to which the opinion of Judge Conway refers, wherein the Trial Judge — in an attempt to rephrase section 1120 in the affirmative rather than in the negative form as it appears in the text — neglected to substitute the conjunctive “ and ” for the disjunctive “ or ”:

“ I charge you that, if, on this evidence and on all the facts and circumstances, included in it, both the. evidence of the defendant and the evidence of the People, you come to the conclusion beyond a reasonable doubt that the defendant fired the shot that killed Elouise McHugh and that he knew the nature and quality of the act or that he knew that it was wrong, then he is responsible in law for the act which he did and it is a jury’s duty to so declare.

‘ If you find that he did know the nature and quality of his act or that the act was wrong and the People have proved beyond a reasonable doubt all the essential elements of the crime, then it is your duty to determine what crime the defendant is guilty of, starting with the degrees of that crime as I have heretofore outlined them to you in my charge.”

We cannot believe that, after being instructed correctly seven times as to the proper application of section 1120, the misapplication of the disjunctive “ or ” — in the portion of the charge last quoted above — misled the jury or was such an error as adversely affected the defendant’s substantial rights. Our conclusion in that regard is confirmed when we consider the following incident which occurred when, at the close of the charge, the Trial Judge afforded counsel for the defendant the usual opportunity to suggest further instructions to the jury; “ Mr. Napoletano [counsel for the defendant]: The defendant requests the Court to charge the jury in order to find that the defendant knew that the act was wrong, the jury must find beyond a reasonable doubt that the defendant knew that the act was forbidden by law and also knew that according to the accepted standards of mankind, it was also condemned as an offense against good morals.

“ The Court: I so charge.”

In People v. Sherwood (271 N. Y. 427), upon which the majority opinion relies, a reversal of a judgment of conviction was based upon a number of errors of which one involved a repetitive misstatement of section 1120 as defining the mental state of a defendant which will excuse him from criminal liability. In that case, however, the error, according to the opinion per Crouch, J., was “ * * * complicated with a reference to ‘ some mental disease, ’ i.e., some pathological condition, instead of a defect of reason,’ as the statute reads.” That such complication had an important bearing upon that decision is indicated by the further statement in the opinion (p. 433) — No disease, no pathological condition, existed or was claimed to exist.”

Before the responsibility is assumed for reversing a judgment of conviction there must be found legal error of substance, sufficient to justify the belief that by such error the defendant was deprived of a fair trial. (People v. Dixon, 231 N. Y. 111, 121.) Finding in the record before us no error so substantial in its effect upon the defendant’s rights as to warrant a reversal of the judgment of conviction and a new trial, we dissent and vote for affirmance.

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

Judgment of conviction reversed, etc.

       Wherever in this opinion the word “ or ” is italicized or capitalized the italics or capitals are supplied £or the purpose of emphasis.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Sally Meltzer et al., Appellants, v. Anna Koenigsberg, Respondent.
    Argued May 16, 1951;
    decided June 1, 1951.

      Myron Perla Gordon and Hyman M. Chapnich for appellants.
    The statute which makes void an oral agreement, the performance of which is not to be completed before the end of a lifetime, was intended to apply only to the lifetime of a promisor. Since performance of the agreement alleged in the complaint could have been completed before the end of the lifetime of the promisor (defendant), that statute is not here a bar. (Matter of Douglas, 169. Misc. 716, 170 Misc. 155; Matter of Block, 258 App. Div. 342; Bayreuther v. La Guardia, 176 Misc. 547; Bayreuther v. Reinisch, 264 App. Div. 138, 290 N. Y. 553; People v. Ryan, 274 N. Y. 149; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201.)

      Louis Koenigsberg for respondent.
    The Statute of Frauds declares void and unenforcible a contract, the performance of which cannot be completed before the end of a lifetime, unless it is in writing. (Bayreuther v. Reinisch, 264 App. Div. 138, 290 N. Y. 553; Weiss v. Weiss, 268 App. Div. 1058, 1059; Tinto
      v. Howard, 52 N. Y. S. 2d 245, 269 App. Div. 990; Matter of Douglas, 169 Misc. 716, 256 App. Div. 1070; Tyler v. Windels, 186 App. Div. 698, 227 N. Y. 589; Matter of Ditson, 177 Misc. 648; Galvin v. Prentice, 45 N. Y. 162.)
   Per Curiam.

The Statute of Frauds requires that an agreement be in writing if by its terms performance is “ not to be completed before the end of a lifetime ” (Personal Property Law, § 31, subd. 1). Had the Legislature intended the lifetime ” referred to to be the lifetime of the promisor, the party to be charged, or the lifetime of any particular person, it could easily and readily have so provided. (See 4 Ariz. Code Ann. [Official ed.], § 58-101, subd. 8; Cal. Code Civ. Pro., § 1973, subd. 6.) The language found in the statute is clear and unambiguous, and, as this court long ago declared, and frequently repeated, in the construction of statutes, the intent of the framers “ is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. 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. * * * Courts cannot correct supposed errors, omissions or defects in legislation * * * . The office of interpretation is to bring sense out of the words used, and not bring a sense into them.” (McCluskey v. Cromwell, 11 N. Y. 593, 601-602; see, also, Matter of Rathscheck, 300 N. Y. 346, 350.)

The judgment appealed from should be affirmed, with costs.

Loughbax, Ch. J., Lewis, Coxway, Desmoxd, Dye, Fuld and Fboessel, JJ., concur.

Judgment affirmed.


author: Loughraít, Ch. J.

text:
    The People of the State of New York, Respondent, v. Anthony Bertram, Appellant.
    Argued March 9, 1951;
    Decided July 11, 1951.

      Ward B. Whipple for appellant.
    I. Because the information was defective, Special Sessions had no jurisdiction and the warrant of arrest, arraignment, trial and conviction were void. An information placed before a justice of the peace is the foundation on which his jurisdiction rests and performs the function of an indictment in a court of record. (Code Crim. Pro., §§ 145-151; People v. Sas, 172 Misc. 845; People ex rel. Brown v. Tighe, 146 App. Div. 491; Tanzer v. Morgan, 139 App. Div. 10, 203 N. Y. 614.) II. The information was defective because it was based on hearsay and because no depositions were taken in support of it. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People v. Taylor, 159 Misc. 536; People v. Gade, 6 N. Y. S. 2d 1018.) III. The State Constitution (art. I, § 12) and Civil Rights Law (§8), both of which provide that “ no warrants shall (can) issue, but upon probable cause, supported by oath or affirmation ”, prevent an information being based on hearsay. (Matter of Blum, 9 Misc. 571.) IV. This is a case of complete lack of jurisdiction of the court. It is more than 1 technical error's or defects which have not prejudiced the substantial rights of the defendants ’ ’ which the County Court was entitled to disregard on appeal under section 764 of the Code of Criminal Procedure. (People v. Williams, 135 Misc. 564.) V. The words “ unnecessarily interferes ” and “unnecessarily endangers ” in the first paragraph of section 45 of the Navigation Law are too vague and indefinite to inform citizens what acts are made a crime and therefore this statute violates the due process clauses of both the United States and New York Constitutions. (People v. Grogan, 260 N. Y. 138.)

      George D. Newton, District Attorney, for respondent.
    I. The information was sufficient. (People v. Stepski, 174 Misc. 1080; People v. Resciniti, 191 Misc. 719.) II. Section 45 of the Navigation Law is constitutional.
   Loughraít, Ch. J.

By leave of a Judge of this court, the defendant appeals from an order of the County Court of Livingston County which affirmed a decision of a Justice of the Peace of the Town of Geneseo whereby the defendant was found guilty of failure to navigate a vessel in a careful and prudent manner contrary to paragraph one of section 45 of the Navigation Law. A fine of $50 was imposed.

The information filed against the defendant reads as follows:

State of New York,
County of Livingston, ss: Anthony Bertram town of Geneseo,
Be It Remembered that I, Richard Schwan a peace officer of the State of New York, to wit: a Deputy Sheriff of Livingston County at Dansville, N. Y., now come before Mark P. Welch, Esq., a Justice of the Peace of Geneseo, in the County of Livingston, N. Y., and give information under oath as follows: and upon information and belief, said belief deriving from statement made by Ernest Day and Frederick Dale.
That one Anthony Bertram, on the 12t,h day of August 1950, at Conesus Lake, in the town of Geneseo, County of Livingston, N. Y., at about Eleven o’clock in the afternoon of said day, did commit the crime of reckless navigation of a vessel in violation of Article 4 Section 45 Paragraph 1 of the Navigation Law of the State of New York by wrongfully, unlawfully, and knowingly operating a vessel in a manner which unnecessarily interfered with the free and proper use of the navigable waters of the state and unnecessarily endangered the life and limb of Ernest Day and Frederick Dale, in that the said Anthony Bertram at the aforesaid time and place operated a speed boat at a rate of speed in excess of 25 m.p.h. in the immediate proximity of several row boats and struck the boat occupied by Frederick M. Dale and Ernest M. Day.
Wherefore your informant prays that the depositions of Frederick Dale and Ernest Day witnesses, may be reduced to writing and duly subscribed, and that a warrant issue for the arrest of said accused, and that he be dealt with pursuant to the provisions of the Code of Criminal Procedure.
RICHARD SCHWAN
Informant
Sworn to before me, this
14th day of August 1950
Mark F. Welch
Justice of the Peace.”

Annexed to the foregoing information was a written statement by Frederick M. Dale to which Ernest Day had added these words: ‘ I, Ernest Day, .have also read the above statement of Frederick M. Dale, and it is all true to the best of my knowledge and belief.” Two other persons then affixed their names to the same writing in this fashion. “ Roy A. Carlson, Deputy Sheriff ”. “ Richard Schwan, Deputy Sheriff”.

In short, the foregoing information was sworn to by Deputy Sheriff Richard Schwan, but it was based solely upon a written statement of Dale and Day and that statement was not sworn to by either of them or by anybody else. Nor was there any examination of either Dale or Day by the police justice who issued the warrant upon which the defendant was arrested. When he was arraigned, his counsel said: “ I move to dismiss the information on the ground that the information is on information and belief, and the belief is derived from a statement made by Ernest Day and Frederick Dale, and attached to the information signed by Richard Schwan is a typewritten statement signed by Frederick M. Dale and Ernest M. Day but the typewritten statement is not sworn to but is witnessed by Boy A. Carlson, Deputy Sheriff, and Bichard Schwan, Deputy Sheriff. Mr. Schwan is present in the courtroom and has told me informally that he is not a Notary Public nor a Commissioner of Deeds and that he signed, as did Boy A. Carlson, as witnesses and it is my understanding that Mr. Schwan said that the statement was not sworn to before him. I move to dismiss the information because it is not sworn to of personal knowledge.”

Again at the close of the case, counsel for the defendant said: I move to dismiss the information because it is based on hearsay and based on an unsworn to statement of Frederick M. Dale and Ernest M. Day.” Both motions were denied and exceptions to the denial thereof were taken. These exceptions, we think, are valid (see People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Perkins v. Moss, 187 N. Y. 410; Blodgett v. Race, 18 Hun 132; People ex rel. Brown v. Tighe, 146 App. Div. 491; People ex rel. Travis v. Knott, 204 App. Div. 379, 383; Matter of Bennett, 258 App. Div. 368). As the cited cases show, our Code of Criminal Procedure required something more than mere hearsay as the basis for issuance of the warrant of arrest herein. (Cf. People v. Belcher, 302 N. Y. 529, decided herewith.)

Hence the judgments should be reversed and the information dismissed.

Lewis, Conway, Desmond, Dye, Ftjld and Fboessel, JJ., concur.

Judgments reversed, etc.


author: Fuld, J.

text:
    The People of the State of New York, Appellant, v. Wilbur L. Belcher, Respondent.
    Argued April 11, 1951;
    decided July 11, 1951.

      Frank A. Gulotta, District Attorney (Philip Huntington and Henry P. De Vine of counsel), for appellant.
    I. The evidence is sufficient to establish the guilt of defendant as a matter of law. II. The information was sufficient and the court had jurisdiction both of defendant and the crime charged. (People v. Smith, 86 Hun 485; People v. Costello, 182 App. Div. 341; People v. Markowitz, 119 App. Div. 841; People v. Ostrosky, 95 Misc. 104; People v. Giordano, 114 Misc. 62, 231 N. Y. 633; People v. Shaver, 37 App. Div. 21; People v. Cuatt, 70 Misc. 453.) III. The arrest of defendant was actually legal under subdivision 5-c of section 70 of the Vehicle and Traffic Law; the information being on its face valid and sufficient and the record showing that the police officer in fact had “ reasonable cause to believe that the violation was committed ” by defendant, there was no valid ground or basis for defendant’s objection to proceeding with the trial, and the objection was properly overruled. (People v. Cuatt, 70 Misc. 453; People v. Mullen, 66 Misc. 476; People v. Costello, 182 App. Div. 341.) IV. The constitutional and legal provisions which preclude the prosecution of a defendant upon an indictment which is based on hearsay evidence do not apply to the prosecution of a defendant for a misdemeanor in a court of special sessions which has original jurisdiction to hear and determine. (People v. Bellinger, 269 N. Y. 265; People v. Peterson, 145 Misc. 324.) V. Such procedure does not violate any other legal right of defendant. (City of Buffalo v. Murphy, 228 App. Div. 279; People v. Carter, 88 Hun 304; People v. Park, 92 Misc. 369; People v. Grogan, 260 N. Y. 138; People v. Fitzgerald, 101 Misc. 695; People v. Nitzberg, 289 N. Y. 523.)

      David B. Siegel and Thomas B. Fay for respondent.
    The information was fatally defective, and the reversal, as a matter of law, of the judgment of conviction and dismissal of the informotion by the Nassau County Court were in all respects proper. (People v. Taylor, 159 Misc. 536; People v. Menzel, 148 Misc. 916; People v. Dobbertin, 19 N. Y. S. 2d 333; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Brown v. Tighe, 146 App. Div. 491; Matter of Bennett, 258 App. Div. 368; People v. Angel, 96 N. Y. S. 2d 384; Bookman v. Stegman, 105 N. Y. 621; Alber v. Harris, 126 App. Div. 504.)
   Fuld, J.

In People v. Bertram (302 N. Y. 526), also decided today, we passed upon the sufficiency of an information, filed in a court of special sessions outside of the city of New York, charging the commission of a misdemeanor, where the information served as a predicate for a warrant of arrest as well as a pleading for the trial. We held such an information defective when alleged to be on information and belief and when actually founded upon mere hearsay, if supporting depositions under oath are not furnished. The present case, on the other hand, involves the sufficiency of an information employed solely as a basis for trial on a misdemeanor charge in such a court, the defendant having previously been lawfully arrested without a warrant.

On the evening of December 10,1949, defendant’s automobile, which was proceeding in a westerly direction on a public highway in Nassau County, veered and swung over into the eastbound traffic lane and collided head on with a car proceeding east. Patrolman George Kohler and another police officer arrived at the scene some ten minutes later and found both cars badly damaged in the eastbound lane. Defendant stood a few feet from his own automobile. Officer Kohler spoke to him and to the driver of the other car. On the strength of his conclusions, based upon defendant’s admission that he had been driving his car and upon the smell of alcohol on his breath, his thick and incoherent speech and his unsteady and staggering gait, Kohler placed defendant under arrest, charging him with driving while intoxicated. At the police station, defendant acknowledged that he had been drinking beer since early that afternoon.

On the following morning, December 11, the officer signed and swore to the information charging that defendant on December 10, 1949, violated the provisions of subdivision 5 of section 70 of the Vehicle and Traffic Law, in that he “did operate a 1941 Plymouth sedan * * * in a westerly direction along Atlantic Avenue, Oceanside, Town of Hempstead, a public highway * * * while in an intoxicated condition and unfit to operate a motor vehicle.” No warrant of arrest was sought or requested, and none was necessary in view of defendant’s unquestionably lawful arrest on the previous evening. (Vehicle and Traffic Law, § 70, subd. 5-c.) The trial was held in Nassau County before a district judge, sitting as a court of special sessions, and a jury. Following the arraignment, the case was adjourned for several months, and, upon the adjourned date, after a jury had been impaneled but before any testimony had been taken, defendant moved to dismiss the information. It was urged that the facts recited were not within the personal knowledge of the informant officer and that, by reason thereof, the information failed to meet the demands of sections 148 and 149 of the Code of Criminal Procedure. The motion was denied, and the trial, proceeding to a conclusion, resulted in a verdict of guilt.

Upon appeal to the County Court of Nassau County, the findings of fact implicit in the verdict were affirmed, but the conviction was reversed on the law and the information dismissed as defective upon the ground that it rested “ upon information and belief ’ ’. The appeal by the People is here by permission of a judge of this court.

In misdemeanor cases prosecuted in courts of special sessions outside of New York City, the same information often serves both as the basis for the issuance of the warrant upon which the defendant is arrested and as the pleading on which the defendant is thereafter tried. Where an information is employed to obtain a warrant of arrest, it may not rest on hearsay, but must set forth — or be supported by one or more depositions setting forth — facts, stated under oath by a person competent to testify about them, or other proper evidence, tending to show the commission of a crime and the defendant’s probable guilt. (See Code Crim. Pro., §§ 148-150; see, also, People ex rel. Perkins v. Moss, 187 N. Y. 410; People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 390-391.) If, in such a case, the information is based solely on inadmissible hearsay, the defendant is entitled to a dismissal of the proceeding. (See People v. Bertram, supra, 302 N. Y. 526; People v. Smith, 266 App. Div. 57; Matter of Bennett, 258 App. Div. 368.) The situation is different, however, where, as here, the trial court acquired jurisdiction of the person of the defendant by a valid arrest, lawfully made without a warrant. The information then serves only the function of a pleading — at least where no question is raised as to the authority of the court to commit the defendant pending trial on the basis of the information. (Cf. People ex rel. Farley v. Crane, 94 App. Div. 397.)

There is no explicit constitutional or statutory requirement that the information, when so utilized, be sworn to by a person competent to testify to the facts recited. Whether such a requirement is nevertheless to be enforced, by analogy, upon considerations of policy (cf. People ex rel. de Martini v. McLaughlin, 243 N. Y. 417, 419), or by reference to the English common law governing informations (see Clark, Handbook of Criminal Procedure [1895], pp. 128-129; Bishop, New Criminal Procedure [4th ed., 1895], p. 427; cf. Albrecht v. United States, 273 U. S. 1, 5-8; Weeks v. United States, 216 F. 292, 297, certiorari denied 235 U. S. 697), or whether, on the other hand, the requisites for an information as a pleading are to be no more stringent than those for an indictment as a pleading, is an open quesion in this court. It was not presented in People v. Brous (296 N. Y. 1028) —the objection to the information in that case having been waived — and we find it unnecessary to decide it here, since the information is not one based upon inadmissible hearsay or otherwise incompetent evidence.

The crime charged was that defendant was driving an automobile while intoxicated. The police officer arrived at the scene of the accident shortly after it had occurred. That defendant’s car had been involved in an accident and that he had operated it brooked of no doubt, for the car was there to be seen and defendant acknowledged that he had been driving it. Defendant was standing by the vehicle and his demeanor and actions were of such character as to establish that he was intoxicated and not in any fit condition to drive. Quite clearly, the facts stated by the officer in the information, founded as they were in part upon his personal observations and in part upon defendant’s own admission to Mm, represented, not inadmissible hearsay, but evidence which he was competent to give as a witness upon the trial (see People v. Bretagna, 298 N. Y. 323), sufficient in and of itself to establish prima facie each of the essential elements of the crime charged against defendant and to support Ms conviction. That being so, it would be highly unreasonable and illogical to say that he was one whit less competent to rely upon those facts in signing the information. Since, then, the information was based upon requisite legal evidence ”, pointing the commission of the crime and defendant’s probable guilt (People ex rel. Perkins v. Moss, supra, 187 N. Y. 410, 418), no further deposition was called for and the officer was not required to particularize the evidence on which he relied or to indicate that one item consisted of an admission from defendant. (Cf. Commonwealth v. Mallini, 214 Pa. 50.)

The order of the County Court should be reversed and the judgment of the Court of Special Sessions convicting defendant of a violation of subdivision 5 of section 70 of the Vehicle and Traffic Law should be affirmed.

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

Order reversed, etc.


author: Dye, J. Desmond, J.

text:
    In the Matter of the Accounting of Herman Levin, as an Executor of Morris Levin, Deceased. Herman Levin, Individually and as an Executor of Morris Levin, Deceased, Appellant and Respondent; Belle L. Burrill et al., Respondents and Appellants.
    Argued April 2, 1951;
    decided July 11, 1951.

      Max Zucker and Stanley Zucker for accountant, appellant and respondent.
    I. Where parent and child live apart, and the services rendered are not of a domestic or personal nature and are not in the ordinary course of services from child to parent in the household duties of the parent and where the services are not prompted by mutual obligations and benefits and the parent has ample means, there is no presumption that the services are gratuitous. (Wilsey v. Franklin, 57 Hun 382; Marion v. Farnan, 68 Hun 383; Matter of Strickland, 10 Misc. 486; Matter of Mulderig, 196 Misc. 527 ; Matter of Parker, 69 Misc. 136; Matter of Burton, 143 Misc. 440; Matter, of Hughes, 229 App. Div. 614; Williams v. Hutchinson, 3 N. Y. 312; Matter of Lannon, 75 Misc. 66; Matter of Grogan, 82 Misc. 555.) II. In construing a contract, the court will not excise a material portion thereof or insert additional words so as to make a new contract for the parties. (Friedman v. Handelman, 300 N. Y. 188; Friedman & Co. v. Newman, 255 N. Y. 340; Heller v. Pope, 250 N. Y. 132; Cream of Wheat Co. v. Crist Co., 222 N. Y. 487.) III. The failure to plead the Statute of Frauds or specifically to refer to the Statute of Frauds in connection with the objections made upon the trial does not constitute a waiver of the claim by the accountant that the agreement in writing produced by the objectants is not a valid one under the statute. (Williamsburg City Fire Ins. Co. v. Lichtenstein, 181 App. Div. 681; Merritt v. Seaman, 6 N. Y. 168; Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305; Friedman & Co. v. Newman, 255 N. Y. 340; Matter of Burnham, 234 N. Y. 475.) IV. The agreement produced by the objectants in support of their claim does not satisfy the requirements of subdivisions 1 and 7 of section 31 of the Personal Property Law. (Bayreuther v. Reinisch, 264 App. Div. 138, 290 N. Y. 553; Matter of Douglas, 169 Misc. 716, 256 App. Div. 1070; Matter of Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Matter of Cooley v. Lobdell, 153 N. Y. 596.) V. The promise of Morris not to revoke his will if Yetta should predecease him, and, at time of her death, should not have revoked her will is .a unilateral contract. There must be compíete performance on the part of one to make the offer of the other a binding promise. The agreement is nudum pactum and nnenforcible at law. (Petterson v. Pattberg, 248 N. Y. 86; Coletti v. Knox Hat Co., 252 N. Y. 468; Matter of Byrnes, 260 N. Y. 465; Matter of Epstein, 176 Misc. 494.)

      George A. Spiegelberg and Leon Silverman for objectants, respondents and appellants.
    I. The letter from Morris to Yetta is a sufficient memorandum of a prior oral agreement to satisfy the Statute of Frauds. II. Assuming that the first paragraph of the letter was inadequate to satisfy the Statute of Frauds, the second paragraph admittedly was sufficient for that purpose and the doctrine of falsa demonstrate non nocet will operate to excise the unnecessary paragraph. (Patch v. White, 117 U. S. 210; Burr v. Broadway Ins. Co., 16 N. Y. 267; Mansfield v. New York Central & H. R. R. R. Co., 102 N. Y. 205; Duncan v. Wohl, South & Co., 201 App. Div. 737.) III. Parol evidence is admissible to identify the wills of Yetta and Morris and to prove the oral agreement between them confirmed by the letter from Morris to Yetta dated September 16,1942. (Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305; Stulsaft v. Mercer Tube & Mfg. Co., 288 N. Y. 255; Koch v. Regan, 272 App. Div. 920; Bibb v. Allen, 149 U. S. 581; Friedman & Co. v. Newman, 255 N. Y. 340; Tioga Co. Gen. Hosp. v. Tidd, 164 Misc. 273.) IV. The agreement between Morris and Yetta cannot be frustrated by the unilateral action of Morris after Yetta’s death. There was sufficient consideration to support Morris’ promise not to revoke his will. (Hamer v. Sidway, 124 N. Y. 538; Osborn v. Curtis, 209 App. Div. 100; Ga Nun v. Palmer, 216 N. Y. 603.) V. The Statute of Frauds will not be permitted to be the instrument of fraud. (Goldsmith v. Goldsmith, 145 N. Y. 313; Wood v. Rabe, 96 N. Y. 414; Wahl v. Seyfried, 285 N. Y. 820; Monica Realty Corp. v. Bleecker, 229 App. Div. 184.)
   Dye, J.

The parties to this proceeding in the nature of an intermediate accounting are the executors of the will of the deceased father, Morris Levin. Herman is the son of the decedent by his first marriage. He files a voluntary account to which the others, Belle Burrill and Max Levin, children by decedent’s second marriage, have filed objections, consisting of several specifications, the principal of which and the one decisive of this appeal, is whether the testator in his lifetime agreed with his wife, Yetta, to bequeath his entire estate to their children in equal shares.

It appears that on September 14, 1942, the wife, Yetta, executed her will by which she bequeathed to the children, Belle and Max, in equal shares, money she had on deposit in a savings bank, and the balance of her estate in trust for the life use of her husband after payment of premiums on his life insurance, the remainder to her children or the survivor of them. Two days later, on September 16, 1942, the husband, Morris, executed his will by which he bequeathed his entire estate to his wife, Yetta, or if predeceased then to their children Belle and Max in equal shares, expressly stating that no provision was being made for his son, Herman. Coincident with the execution of the will he also signed the following letter:

“ September 16th, 1942.
Dear Yetta:
This is to confirm our agreement, as follows:
You have under date of September 14, 1942, made a Will whereby you have bequeathed and devised to me the entire net income of your estate after the payment of certain premiums, if any, on life insurance carried by me. You have done so in the knowledge that if you should predecease me I will leave my entire estate to our children Max Levin and Belle Burrill. I have this day made a Will in which I have devised and bequeathed my entire residuary estate to our children Max and Belle in the event that you should predecease me.
This letter is to confirm my agreement that in the event that you should predecease me, and that at the time of your death you should not have revoked your said Will made on September 14, 1942, I will not revoke or alter my said will made today.
Affectionately,
Morris Levin ”

Thereafter in April, 1944, Yetta died. Her will mentioned above was admitted to probate, her husband qualifying as executor. Two years later and on May 4, 1946, the husband, Morris, executed the within will by which he bequeathed his entire estate to his three children, Herman, Belle and Max in equal shares.

A lawyer, related to both the testator and his wife, Tetta, and who represented them both at the time they made their wills, was allowed to testify over objection to the circumstances under which Morris had signed the letter. This was for the purpose of establishing that Morris knew and understood that Tetta was not leaving him her entire estate as stated in the letter but that a substantial part of the cash was being given to'Belle and Max. The Surrogate ruled in favor of the objectants and made a decree directing distribution to them to the exclusion of the son, Herman. On appeal, the Appellate Division, First Department, found the alleged agreement to be invalid and unenforcible for noncompliance with the Statute of Frauds (Personal Property Law, § 31, subd. 7), which question was argued in that court for the first time (although it had been raised in the trial court by timely objection to the admission of paroi testimony) and accordingly modified the Surrogate’s decree by directing distribution to all three children, in accordance with the will, and as so modified otherwise affirmed. The modification was on the law alone — it having ruled that paroi testimony was inadmissible to explain the variance between the terms of the will made by Tetta and the letter signed by Morris — for without such testimony the difference could not be reconciled. We agree with this view. The letter evidencing the oral agreement uses clear and unambiguous language. It must be read as a whole. It first makes reference to the will executed under date of September 14th and expresses an understanding on the part of Morris that ‘1 you have bequeathed and devised to me the entire net income of your estate ’ ’ — but which in fact did no such thing. By her will, Tetta had made an outright gift of a substantial cash deposit to the children, Belle and Max. The second paragraph, when considered alone might be deemed sufficient compliance for then paroi testimony could be limited to identification of the documents. The paroi testimony as used here went beyond a mere descriptive error (Patch v. White, 117 U. S. 210; Mansfield v. New York Central & H. R. R. R. Co., 102 N. Y. 205). It attempted to demonstrate that the knowledge and understanding of the party to be charged as expressed in clear and unambiguous language were otherwise. Upon familiar practice a memo of a contract required by statute to be in writing must be by and of itself a complete expression of the intention of the parties without reference to paroi evidence (Stulsaft v. Mercer Tube & Mfg. Co., 288 N. Y. 255). Without the attorney’s paroi testimony that Morris understood and accepted the terms of his wife’s will, there is no basis for a ruling that she performed in accordance with her agreed obligation and thus voided the statute. Here the paroi was utilized, not to explain an ambiguity, but to prove that one of the parties understood and ratified a departure from the expressed terms of the agreement, in the absence of which he could not be bound. The other objections, having to do with the disallowance of certain claims for services and moneys loaned by Herman to the testator in his lifetime, have been affirmed and need not detain us further.

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

Desmond, J.

(dissenting). Decedent’s will divided his estate equally among his three children. Objectants, two of those children, sought in this accounting proceeding (brought by the third child, Herman, their coexecutor) to compel performance by the executor of their father’s promise, made in the last two sentences of the letter quoted below, to leave all his property to the two objectants:

2712 Golden Avenue,
Bronx, New York.
September 16th, 1942.
Mrs. Yetta Levin,
2712 Golden Avenue,
Bronx, New York.
Dear Yetta:
This is to confirm our agreement, as follows:
You have under date of September 14, 1942, made a Will whereby you have bequeathed and devised .to me the entire net income of your estate after the payment of certain premiums, if any, on life insurance carried by me. You have done so in the knowledge that if you should predecease me I will leave my entire estate to our children Max Levin and Belle Burrill. I have this day made a Will in which I have devised and bequeathed my entire residuary estate to our children Max and Belle in the event that you should predecease me.
This letter is to confirm my agreement that in the event that you should predecease me, and that at the time of your death you should not have revoked your said Will made on September 14,1942,1 will not revoke or alter my said will made today.
Affectionately,
Morris Levin ’ ’

Yetta, to whom that letter was addressed and delivered, was decedent’s wife and "the mother of objectants (Herman was decedent’s child by an earlier marriage). Yetta had made a will, on the date described in the letter (September 14, 1942) — but that will was not quite as'described in the above letter. Actually, Yetta’s will had not, as per the letter, left to her husband a life interest in her whole estate, but had included in that will a provision, not recited in the above letter, bequeathing certain bank accounts to objectants. In other words, the description, in decedent’s letter to his wife,.of his wife’s previously made will, omitted all reference to the wife’s bequest of the bank accounts to objectants, her two children.

The Appellate Division ruled against objectants. It decided that decedent’s above-quoted letter to his wife did not comply with the Statute of Frauds (Personal Property Law, § 31, subds. 1, 7). The letter was, said the Appellate Division, unenforcible because, though it pertained to an agreement performance which was 11 not to be performed before the end of a lifetime ” and, additionally, an agreement “ to bequeath property ” (Personal Property Law, § 31, subds. 1, 7; 276 App. Div. 739, 741), it was, so held the Appellate Division, not a complete memorandum of that agreement. There was, pointed out the Appellate Division, a variance between it (the letter) and the actual agreement between the parties. The Appellate Division held inadmissible the uncontradicted proof put before the Surrogate that the parties had, in truth, orally agreed to the actual terms of Yetta’s will as written, and had orally agreed, at the same time, on decedent’s promise as later clearly written into the above-quoted letter. In other words, there was, at the trial, undisputed testimony by an attorney, who had represented both husband and wife at the time of the agreement, that the agreement was oral and that Tetta’s will, made before the letter passed, complied in all respects with that oral agreement. The inference, which the Surrogate drew from that proof, was that the omission, from the description of Tetta’s will in the first part of decedent’s letter, of the bank account legacies, was inadvertent. However, it was the Appellate Division’s view that such paroi evidence was not validly received to correct what the court considered the incompleteness of the letter as a memorandum to satisfy the Statute of Frauds.

We note first, that the proceeding was not tried on any Statute of Frauds theory. That law question was never mentioned by counsel before the Surrogate, nor is it alluded to in the Surrogate’s opinion. Herman Levin’s counsel defended against the objections on two grounds: first, that there was no consideration for decedent’s promise since his wife’s will gave him no more than he could obtain by an election under section 18 of the Decedent Estate Law; and, second, that any consideration, running from the wife for the husband’s promise in the letter, failed when it turned out that the wife’s will was not exactly as described in that letter. We will spend little time on either of those contentions. As to the first, the wife’s promise and her signing of a testament containing bequests to the husband, clearly made out consideration for his promise to her. The second argument, that is, that the wife breached her agreement, falls if the Surrogate was right in taking the proof as to what the oral agreement was. As we read this record, there never was any .objection to that testimony, any more than there ever was any pleading, statement or mention of the Statute of Frauds, in the Surrogate’s Court. However, to face up to the questions of law argued to us, we will assume that the evidence point and the Statute of Frauds point are in the case.

The Statute of Frauds requires only that there be a written “ memorandum ” of a promise of this kind. It is too well settled to need discussion, that the underlying agreement may be oral so long as there be a written memorandum of the promise sought to be enforced, signed by the party against whom enforcement is demanded. That this letter was a subsequent written memorandum of a previous oral pact appears on the letter’s face, indeed in its very first phrase. No one now disputes that the letter was properly in evidence, as was the wife’s will, made two days before. Thus we had in the record the letter containing the absolute promise which decedent later breached, and the wife’s will itself, plus a showing that the letter contained a misdescription of that will. The letter contained no promise by the wife. Her oral promise had already been carried out by her execution of her will. The Statute of Frauds required, for enforcibility of the husband’s oral promise, a written, signed memorandum of that promise, and surely we have that in his letter. The Statute of Frauds has nothing whatever to do with the wife’s oral engagement. Herman Levin could, of course, point to the terms of the wife’s will in an effort to prove that she had, in fact, by the provisions of that will, breached her earlier, oral agreement. But any such contention, by Herman, permitted, and indeed required, testimony as to what, in fact, Yetta had orally agreed to. That testimony came from the lawyer, and it was clear, undisputed and accepted by the Surrogate. It demonstrated (or at least justified the Surrogate’s finding) that, although the bank account bequests in Yetta’s will were not mentioned in the letter, such bequests, to be made by Yetta, had been a specific term of the prior oral agreement between husband and wife. We conclude, therefore, that the Surrogate, in requiring the husband’s estate to perform the promise memorialized in the letter, violated neither the Statute of Frauds nor any rule of evidence.

All the members of this court are in agreement as to the two other matters argued before us (Herman’s claims based on alleged services and loans) so we will not discuss them.

Since the Appellate Division modified on the facts as well as the law, there would have to be, in our view, a new trial as to objectants’ claim only. We think the decree should be modified accordingly, with costs to abide the event.

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

Order affirmed.


author: Loughran, Ch. J.

text:
    Western Union Telegraph Company, Appellant, v. Gladys E. Cochran, as Administratrix of the Estate of Alfred S. Cochran, Deceased, Respondent.
    Argued June 1, 1951;
    decided July 11, 1951.

      Frank L. Wiswall, John H. Waters and Dunton F. Tynan for appellant.
    I. The agreement between plaintiff and defendant’s intestate is valid. (Western Union Tel. Co. v. Tompa, 51 F. 2d 1032; Wells Fargo & Co. v. Taylor, 254 U. S. 175; Lindsay v. Chicago, B. & Q. R. R. Co., 226 F. 23; Robinson v. Baltimore & O. R. R. Co., 237 U. S. 84.) II. The agreement between plaintiff and defendant’s intestate binds this defendant. (Littlewood v. Mayor of City of N. Y., 89 N. Y. 24; Holmes v. City of New York, 269 App. Div. 95, 295 N. Y. 615; Kelliher v. New York Central & H. R. R. R. Co., 212 N. Y. 207; Barnhart v. American Concrete Steel Co., 227 N. Y. 531; Hodge v. Rutland R. R. Co., 112 App. Div. 142, 194 N. Y. 570; Anderson v. Erie R. R. Co., 223 N. Y. 277; Bissell v. New York Central R. R. Co., 25 N. Y. 442; Kwiatkowski v. John Lowry, Inc., 276 N. Y. 126; Dibble v. New York & E. R. R. Co., 25 Barb. 183.) III. The agreement between plaintiff and defendant’s intestate was supported by adequate consideration. (Western Union Tel. Co. v. Tompa, 51 F. 2d 1032; Wells Fargo & Co. v. Taylor, 254 U. S. 175; Lindsay v. Chicago, B. & Q. R. R. Co., 226 F. 23; Robinson v. Baltimore & O. R. R. Co., 237 U. S. 84.) IV. Plaintiff has no adequate remedy at law and will be irreparably injured unless the judgment is affirmed. (Bomeisler v. Forster, 154 N. Y. 229; Norfolk & New Brunswick Hosiery Co. v. Arnold, 143 N. Y. 265; Pond v. Harwood, 139 N. Y. 111; Pfohl v. Simpson, 74 N. Y. 137; Grammer v. Greenbaum, 146 App. Div. 3; Burke v. Burke, 212 N. Y. 303; Moers v. Moers, 229 N. Y. 294.)

      William E. J. Connor, Harold A. Jerry, Clyde A. Lewis and Robert J. Femberg for respondent.
    I. The contract of employment is invalid for want of consideration. (Purdy v. Rome, W. & O. R. R. Co., 125 N. Y. 209.) II. The agreement of February 15, 1945, between Western Union Telegraph Company and respondent’s intestate is void as against public policy. (Kelly v. Central R. R. of N. J., 178 App. Div. 685; Fried v. New York, N. H. & H. R. R. Co., 183 App. Div. 115, 230 N. Y. 619; Mercante v. Hygrade Food Products Corp., 18 N. Y. S. 2d 271; Rosasco v. Ideal Opening Die Co., 79 Misc. 507; Blanton v. Dold, 109 Mo. 64.) III. Respondent’s intestate was without power to release appellant’s rights against the Delaware & Hudson Railroad Corporation and the agreement of February 15, 1945, by which he intended to do so was inoperative and ineffectual. (Matter of Brennan, 160 App. Div. 401; Stuber v. McEntee, 142 N. Y. 200.) IV. Had decedent lived he would have had a cause of action against the railroad company to recover for his injuries. (Decedent Estate Law, § 130; Haas v. New York Post Graduate Medical School & Hosp., 131 Misc. 395; Greco v. Kresge Co., 277 N. Y. 26.)
   Loughran, Ch. J.

This is an action in equity for an injunction against further prosecution of an action at law and for additional equitable relief.

In the law action: The plaintiff is Gladys Elizabeth Cochran. As administratrix of her deceased husband, she sues to recover damages for an asserted negligent act which allegedly caused him conscious pain and suffering and resulted in his death. The defendant is the Delaware and Hudson Railroad Corporation. We shall refer to it as the D. & H. railroad.

In this equity action: Western Union Telegraph Company is the plaintiff. We shall refer to it as the telegraph company. The above-named Gladys Elizabeth Cochran as administratrix of her deceased husband is the defendant. At the times here in question, her husband was an employee of the telegraph company. We shall refer to Mrs. Cochran as the administratrix and to her deceased husband as the intestate.

The intestate was fatally injured July 21, 1947. He was then handling a gasoline motor car in the course of his employment by the telegraph company. The motor car belonged to the .telegraph company but was being operated upon the tracks of the D. & H. railroad pursuant to permission granted by a 1938 contract which bound the telegraph company (among other things) to save the D. & H. railroad harmless from any liability for death of an employee of the telegraph company occasioned in such circumstances.

Before the intestate went to work for the telegraph company he had delivered to it an instrument in the following text: 11 Whereas, The Western Union ■ Telegraph Company has adopted and now has in effect a relief plan which, among other things, provides with respect to persons employed in the United States after December 31, 1936, for the payment of compensation to its employee's in the -event of their accidental injury; and whereas the workmen’s compensation laws of many of the States provide for the payment of compensation on account of accidental death occurring in the course of employment ; and whereas in the course of my duties as an employee of the above named company, it will be necessary for me from time to time to travel over lines of railroads which the above named company has contracted to indemnify against any liability for injury to or death of persons in its employ while traveling or being on the railroad companies’ premises or rights of way in connection with the telegraph company’s business, either on a pass or otherwise; now therefore it is agreed by me, in consideration of my employment by the company, and as a term or condition of such employment, that in the case of my accidental injury in the course of my employment for the company while traveling or being oh the premises or right of way of any such railroad, I will look for compensation solely "to The Western Union Telegraph Company’s relief plan, before referred to, of which I have been furnished a copy, and with which I am familiar, or to the Workmen’s Compensation Act, and that in case of my accidental death in the course of my employment for the company while traveling or being on the premises or right of way of any such railroad, my personal representatives will look for compensation solely to the Workmen’s Compensation Act, if any, which may apply in such case, and that no railroad company which the company may have agreed to indemnify against liability for my injury or death shall be liable to me or to my personal representatives for such injury or death, whether or not the same shall be caused by the negligence of such railroad company or its servants, except that in the event that my accidental death shall occur in a State where there is no Workmen’s Compensation Act which shall apply to such death, then and in that event only my personal representatives shall have the right to look to the railroad com,pony upon whose premises or right of way my accidental death shall occur for compensation therefor.

A. S. COCHRAN
Signature
2-15-45
Date
J. M. Weight
Witness ”

The telegraph company has long been and is now a self-insurer under the New York Workmen’s Compensation Law. Agreeably to an order made under that statute by the Workmen’s Compensation Board, the telegraph company since November 12, 1947, has paid and the administratrix of the intestate has accepted death benefits awarded to her and to her children. Even so, the administratrix brought the above-mentioned action at law against the D. & H. railroad, with the result that the railroad requested the telegraph company to defend that third-party death action and to save it from liability therein, pursuant to the 1938 indemnity agreement to which we have adverted. Then the telegraph company commenced this equity action to enjoin the administratrix of the intestate from further prosecution of her third-party action against the D. & H. railroad and to compel her to carry out the above-quoted agreement made by her intestate with the telegraph company.

The relief so demanded was granted by the court after a trial at Special Term, but upon appeal to the Appellate Division by the administratrix, the judgment of Special Term was reversed and the complaint dismissed and we now have the case upon an appeal by the telegraph company from the judgment that was entered upon the Appellate Division’s order of reversal.

The decisive question is whether the above-quoted agreement made by the intestate with the telegraph company on February 15,1945, can be given legal effect. In our judgment, the answer is supplied by section 29 of the Workmen’s Compensation Law. In substance, it is thereby provided: The right to compensation or benefits under the Workmen’s Compensation Law shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ (subd. 6). If, however, an employee entitled to compensation be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in the case of death, his dependents, need not elect whether to take compensation and medical benefits or to pursue his remedy against such third party, but may take such compensation and medical benefits and at any time prior thereto or within six months after the awarding of compensation pursue his remedy against the third party (subd. 1). In the event that the injured employee, or in the case of death, his dependents, commence a third-party action within the time limited, the insurance carrier shall have a hen on the proceeds of any net recovery to the extent of the total compensation and medical expenses (subd. 1). A compromise of any such third-party action by the employee or his dependents at an amount less than the allowable compensation shall be made only with the written approval of the insurance carrier (subd. 5). If the injured employee, or in case of death, his dependents, has taken compensation but has failed to commence a third-party action within the time hmited, such failure shall operate as an assignment of the cause of action against the third party to the insurance carrier (subd. 2). (Cf. L. 1951, ch. 527, eff. Sept. 1,1951.)

To our minds the meaning of the above provisions is not open to question. When, as in this case, a third party has negligently caused an employee’s death, ultimate liability to his dependents is cast by the statute upon that party. Here, as it happens, a self-insured employer has agreed to indemnify the negligent third party against its responsibility. But the statute does not allow the remedies of the intestate’s dependents to be diminished on that account. Hence the contract made between the intestate and the plaintiff telegraph company was wholly void and for that reason the Appellate Division was right in dismissing the complaint in this equity action.

The judgment should be affirmed, with costs.

Lewis, Conway, Desmond, Dye, Fold and» Froessel, JJ.. concur.

Judgment affirmed.


text:
    Alexander Matarazzo, Respondent, v. Schenectady Union Publishing Company, Appellant.
    Argued November 13, 1950;
    decided January 4, 1951.

      Charles J. Tobin, Jr., and Charles G. Fryer for appellant.

      Harry G. Coplon for respondent.
   Order affirmed, with costs. Questions certified answered in the affirmative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dyb, Fold and Froessel, JJ.


text:
    Alexander Matarazzo, Respondent, v. Daily Gazette Company, Appellant.
    Argued November 13, 1950;
    decided January 4, 1951.

      William W. Wemple for appellant.

      Harry G. Coplon for respondent.
   Order affirmed, with costs. Questions certified answered in the affirmative. No opinion.

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


text:
    Meerow Press, Inc., et al., Appellants, v. Consolidated Edison Company of New York, Inc., Respondent.
    Argued November 27, 1950;
    decided January 4, 1951.

      Benedict Ginsberg and Morway Picket for appellants.

      Jacob H. Goetz and Arthur L. Webber for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hazard L. Brown, Respondent, v. Cora I. Brown et al., Appellants.
    Argued November 13, 1950;
    decided January 4, 1951.

      George B. Grow and Michael J. Larkin for appellants.

      Gharles R. Bradbury for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Blum Paper Box Co., Appellant, v. Sam Kalner, Respondent.
    Submitted November 27, 1950;
    decided January 4, 1951.

      Solomon Kaufman for motion.

      Irving D. Neustein opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Louis Phillips, Appellant.
    Submitted November 13, 1950;
    decided January 4, 1951.
   Motion to amend the remittitur granted. Return of remittitur requested and, when returned, it will be amended to read as follows: Order affirmed. Upon this appeal there was presented and necessarily passed upon the following question: Whether the failure of the trial court to inform the defendant of his right to have counsel assigned to represent him constituted a denial of due process and thereby violated the Fourteenth Amendment of the Constitution of the United States. This court held that in the circumstances of this case, such failure so to inform defendant did not violate the Fourteenth Amendment of the Constitution of the United States. [See 301 N. Y. 733.]


text:
    Hartford Accident and Indemnity Company, Appellant, v. Pauline Casalino, Respondent.
    Submitted January 2, 1951;
    decided January 4, 1951.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended to read as. follows: Order affirmed, with costs, tlpon this appeal there.' was presented and necessarily passed upon a question under a. Federal statute, namely, whether the judgment secured by the; plaintiff was dischargeable in bankruptcy under the Bankruptcy Act (§ 57, subd. [j]; U. S. Code, tit. 11, § 93, subd. [j]). This; court held that the judgment of the plaintiff was dischargedl in bankruptcy. [See 301 N. Y. 715.]


text:
    Virginia P. G. Benjamin, Appellant, v. Henry R. Benjamin, Respondent.
    Argued November 21, 1950;
    decided January 11, 1951.

      Bruce Bromley and Maurice Rosenberg for appellant.

      Edward J. Bennett and Harold H. Corbin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Theodore Haebler, Respondent. Louis M. Ebling, Appellant.
    Submitted November 28, 1950;
    decided January 11, 1951.

      George W. Scapolito and William F. Horan for appellant.

      Rudolf M. Littauer and Ludwig Mandel for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Alice Moore, as Committee of John F. Moore, an Incompetent Person, Respondent, against City of New York, Appellant.
    Argued November 29, 1950;
    decided January 11, 1951.

      John P. McGrath, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for appellant.

      Nathan S. Blum, Andrew W. Tully and Abraham Rubin for respondent.
   Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division (see Matter of Martin v. School Bd. [Long Beach], 301 N. Y. 233; Chavers v. City of Mount Vernon, 301 N. Y. 634). No opinion.

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


text:
    The People of the State of New York, Respondent, v. Gilberto C. Walker, Appellant.
    Argued November 15, 1950;
    decided January 11, 1951.

      Robert B. Brady, Harold O. N. Frankel and Morris Dickman for appellant.

      Frank 8. Hogan, District Attorney (Rickard G. Denser and William Hoppen of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Industrial Bank of Commerce, Respondent, v. Chester Shapiro, Appellant.
    Argued November 28, 1950;
    decided January 11, 1951.

      Morris M. Oppenheim for appellant.

      Henry W. Parker and John J. Dwyer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughrax, Ch. J., Lewis, Coxway, Desmoxd, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Walter Michalowski, Appellant. The People of the State of New York, Respondent, v. Anthony Dlugoleski, Appellant.
    Submitted November 30, 1950;
    decided January 11, 1951.

      Benjamin J. Jacobson and Paul Kelly for appellants.

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. William Cassell, Appellant.
    Argued November 15, 1950;
    decided January 11, 1951.

      Howard R. Lass for appellant.

      Nathaniel L. Goldstein, Attorney-General (Daniel M. Cohen, Wendell P. Brown, John J. Cakmese and Sidney Tartikoff of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Florence La Barbera, Respondent, v. Frank Ciotta et al., Appellants.
    Argued November 28, 1950;
    decided January 11, 1951.

      Francis X. Giaccone and Walter H. Pickett for appellants.

      Charles Lichtenstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessgl, JJ.


text:
    The People of the State of New York, Respondent, v. Richard John Joseph Power and John Joseph King, Appellants.
    Argued November 29, 1950;
    decided January 11, 1951.

      Joseph M. Loner gem and Joseph S. Moore for Richard J. J. Power, appellant.

      James D. C. Murray and Rudolph Stand for John J. King, appellant.

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 302 N. Y. 650.]


text:
    In the Matter of the Claim of Beatrice Blitz, Appellant. Edward Corsi, as Industrial Commissioner, Respondent.
    Argued November 30, 1950;
    decided, January 11, 1951.

      John T. De Graff, John E. Holt-Harris, Jr., and John J. Kelly, Jr., for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran and Wendell P. Brown of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Arthur P. Monk et al., Individually and on Behalf of Other Tenants Similarly Situated of the Park Royal Hotel, Respondents, against Maurice Finkelstein et al., Constituting the Temporary City Housing Rent Commission of the City of New York, Respondents, and Park Royal, Inc., Appellant.
    Argued November 20, 1950;
    decided January 11, 1951.

      Irving 8. Freedman and Howard L. Lilienthal for appellant.

      Henry Uselaner, Arthur N. Field and Louis N. Field for respondents,
   Order affirmed, and order absolute directed in favor of the respondents and against the appellant, with costs. No opinion.

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


text:
    Robert I. Buchholz, Respondent, v. United States Fire Insurance Company, Appellant.
    Argued November 21, 1950;
    decided January 11, 1951.

      David A. Ticktin, Abraham Kaplan and Robert Fishbein for appellant.

      Robert Nelson Shiverts and Frank A. Rossini for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Dye, Fold and Froessel, JJ.


text:
    Ida Condon, Respondent, v. Mae Arata et al., Defendants, and Dorothy I. Post, Appellant.
    Argued November 30, 1950;
    decided January 11, 1951.

      William L. Shumate and Chester E. Barrett for appellant.

      A. L. Sainer, Milton E. Haft and Harry B. Frank for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch.' J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    The People of the State of New York, Respondent, v. Jules B. St. Germain, Appellant.
    Argued November 27, 1950;
    decided January 11, 1951.

      Jules B. St. Germain, in person, and Harry Silver for appellant.

      Frank A. Gulotta, District Attorney (Henry P. De Vine of counsel), for respondent.
   Judgments reversed and information dismissed upon the ground that the evidence was not sufficient to establish guilt beyond a reasonable doubt. No opinion.

Concur: Loughran, Ch J., Lewis, Conway, Desmond, Dye, Feted and Froessel, JJ.


text:
    Augusta Tschumi, Respondent, v. Clarence Hayward et al., Defendants, and Jennie Powell, Appellant.
    Argued November 28, 1950;
    decided January 11, 1951.

      James Conboy for appellant.

      William JR. Murray for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alan D. Oppenheimer, Inc., Respondent, v. Hygrade Food Products Corporation, Appellant.
    Argued November 30, 1950;
    decided January 11, 1951.

      Edward H. Kavinoky and Michael M. Cohn for appellant.

      James A. Deckop for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Andrew Kramek, Deceased. State Tax Commission, Appellant; Anna Kramek, as Administratrix of the Estate of Andrew Kramek, Deceased, Respondent.
    Argued December 1, 1950;
    decided January 11, 1951.

      Mortimer M. Kassell and Francis Kelliher for appellant.

      Gilbert J. Pedersen and Walter W. Howitt for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


text:
    County of Broome, Appellant, v. Spencer E. Bates et al., Constituting the State Tax Commission, Respondents.
    Argued November 17, 1950;
    decided January 11, 1951.

      Charles P. O’Brien, County Attorney, for appellant.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Kent H. Brown of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    John M. Kelly, Appellant, v. City of New York et al., Defendants, and William F. Morgan, Jr., Respondent.
    Argued November 30, 1950;
    decided January 11, 1951.

      Edward F, X. Ryan for appellant.

      Nathaniel Phillips and B. Hoffman Miller for respondent-
   judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 302 N. Y. 770.]


text:
    In the Matter of Margaret M. Partridge, an Incompetent Person, Respondent. Arthur C. Parker, as Special Guardian, Appellant; Bank of New York and Fifth Avenue Bank, as Committee of the Property of Margaret M. Partridge, Respondent.
    Argued December 1, 1950;
    decided January 11, 1951.

      Arthur C. Parker, special guardian, appellant.

      Emil Morosini, Jr., and William L. Seibert for Margaret M. Partridge, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Morton N. Wekstein et al., Appellants, v. Herald Statesman, Inc., et al., Respondents.
    Argued November 15, 1950;
    decided January 11, 1951.

      Paul L. Bleahley, Morton N. Wehstein, in person, and Sol Friedman, in person, for appellants.

      Joseph Reebach for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fkoessel, JJ.


text:
    The People of the State of New York, Respondent, against Willie Winston Bunch and Alice Marie Staton, Appellants.
    Argued November 21, 1950;
    decided January 11, 1951.

      Paul Kelly and Benjamin J. Jacobson for Willie W. Bunch, appellant.

      Frank A. Gulotta. District Attorney (Philip Huntington and Henry P. De Vine of counsel), for respondent.
   As to defendant Bunch: Judgment of conviction affirmed. As to defendant Staton: Appeal dismissed. No opinion.

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


text:
    Louis F. Reed, Jr., Appellant, v. Marie H. Robertson, Respondent.
    Argued November 28, 1950;
    decided January 11, 1951.

      Mark F. Hughes, William Fits gibbon and Lawrence 8. Munson for appellant.

      Jackson A. Hykman and William K. Allison for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Grace F. Lack et al., Appellants, v. Argus Cab Corp. et al., Respondents.
    Argued December 1, 1950;
    decided January 11, 1951.

      Julius Diamond for appellants.

      James A. Doherty, Ilarry P. Rich, Marie E. Turro and Moses Katcher for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Henry Coger, Appellant.
    Submitted January 2, 1951;
    decided January 11, 1951.

      Henry Coyer, in person, for motion.

      Charles P. Sullivan, District Attorney, opposed.
   Motion denied on the ground that, since it does not appear that petitioner has obtained leave to appeal from a judge or justice, the attempted appeal which he has taken to this court as of right is not before us.


text:
    Walter N. Smith et al., Appellants, v. William O’Dwyer et al., Constituting the Board of Estimate of the City of New York, et al., Respondents.
    Submitted January 2, 1951;
    decided January 11, 1951.

      John P. McGrath, Corporation Counsel (W. Bernard Richland of counsel), for motion.

      Walter N. Smith, in person, opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Evelyn de Baillet-Latour, Respondent, v. Alexandre de Baillet-Latour, Appellant.
    Submitted January 2, 1951;
    decided January 11, 1951.
   Motion to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 301 N. Y. 428.]


text:
    In the Matter of Anthony Allen et al., Appellants, against William J. Kelley et al., Individually and Constituting the New York State Labor Relations Board, et al., Respondents.
    Submitted January 8, 1951;
    decided January 11, 1951.

      William E. Grady, Jr., for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    William Dobbs, Respondent, v. Dennis King, Appellant.
    Submitted January 3, 1951;
    decided January 18, 1951.

      G. Ellis Schiffmctcher for appellant.

      Walter Pick and Robert Lee Henry for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Dorothy Bloom, Appellant, against Ruth E. Collins, as Superintendent of Women’s House of Detention, Respondent.
    Argued January 3, 1951;
    decided January 18, 1951.

      Morris E. Packer for appellant.

      John P. McGrath, Corporation Counsel (Seymour B. Quel and Fred Iscol of counsel), and Frank 8. Hogan, District Attorney (Richard G. Denser of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughran, Gh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Ralph Bruzzano, Appellant. The People of the State of New York, Respondent, v. Frank A. Fiorita, Appellant. The People of the State of New York, Respondent, v. Louis Garibaldi, Appellant. The People of the State of New York, Respondent, v. Jack De Luca, Appellant. The People of the State of New York, Respondent, v. Vincent Aiello, Appellant. The People of the State of New York, Respondent, v. Anthony Fiore, Appellant. The People of the State of New York, Respondent, v. Nicholas Peracchio, Appellant. The People of the State of New York, Respondent, v. Fred Stabler, Appellant. The People of the State of New York, Respondent, v. John Furia, Appellant. The People of the State of New York, Respondent, v. Charles Donofrio, Appellant. The People of the State of New York, Respondent, v. Joseph Dr Napoli, Appellant. The People of the State of New York, Respondent, v. Frank Le Pore, Appellant.
    Argued January 4, 1951;
    decided January 18, 1951.

      Harry P. Bray for appellants.

      George M. Fanelli, District Attorney (George D. Burchell of counsel), for respondent.
   Judgments reversed and informations dismissed upon the ground that the evidence adduced by the People was not sufficient to establish a violation of section 43 of the Penal Law. No opinion.

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


text:
    Dae Mfg. Co., Inc., et al., Appellants, v. Frank A. Galante et al., Respondents.
    Argued January 11, 1951;
    decided January 18, 1951.

      Mathias Naphtali for appellants.

      Sigmund Moses for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 302 N. Y. 703.]


text:
    In the Matter of the Claim of Elizabeth Sullivan, Appellant, against Town of Babylon, Suffolk County, et al, Respondents.
    Argued January 3, 1951;
    decided January 18, 1951.

      John J. Haller on, Jr., for appellant.

      Charles J. Boettjer for respondents.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Carlo Corriera, Jr., an Infant, by Mary Corriera, His Guardian ad Litem, et al., Respondents, v. Third Avenue Transit Corporation, Appellant.
    Argued January 4, 1951;
    decided January 18, 1951.

      James M. Gilleran and John J. O’Connor for appellant.

      Isidor Enselman and Louis Solomon for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Manoel De Bono, Appellant, v. Joseph Lombardi, Respondent.
    Submitted January 2, 1951;
    decided January 18, 1951.

      Stanley Fowler and Milton E. Reuben for appellant.

      Eugene J. Blmmberg, Arthur M. Cromarty and Earry Ostrov for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hawkins, Delafield & Wood, Respondent, et al., Plaintiffs, v. New York Water Service Corporation, Appellant, et al., Defendants.
    Argued November 22, 1950;
    decided January 18, 1951.

      Milton S. Gould and George Trosh for appellant.

      John T. Cahill, Harold 8. Glendening and Thomas C. Mason for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Arthur J. Cilento, on Behalf of Salvatore Spitale, Appellant. The People of the State of New York, Respondent.
    Argued January 4, 1951;
    decided January 18, 1951.

      John T. Sullivan, Franklin P. Gavin and Arthur J. Cilento, in person, for appellant.

      Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden, Wendell P. Brown and Herman N. Harcourt of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    A. B. Magonigle Trucking Co., Inc., Appellant, v. Jennie Tambini et al., Respondents.
    Argued November 29, 1950;
    decided January 18, 1951.

      Louis Granat and James M. Fawcett for appellant.

      Frank P. Luongo and Antomo M. Luongo for respondents.
   Per Curiam.

The judgment of the Appellate Division should be affirmed insofar as it dismisses the first and second causes of action in the amended complaint as to defendants Laurence F. Tambini and Tambini Storage Warehouse, Inc., and modified, insofar as it dismisses the second cause of action as against Jennie Tambini, by denying the motion to dismiss said cause of action insofar as it charges her with fraud, without costs. Inasmuch as plaintiff’s first cause of action is sufficient as against defendant Jennie Tambini under subdivision (d) of section 8 of the Commercial Rent Law (L. 1945, ch. 3, as amd.; McKinney’s Unconsol. Laws, § 8528, subd. [d]), its second cause of action is likewise sufficient against her (Sno-Wite, Inc., v. Gerald Operating Corp., 297 N. Y. 1007; Rosner v. Textile Binding & Trimming Co., 300 N. Y. 319). Plaintiff has no cause of action against persons other than those defined as landlords in section 2 and persons in the nature of purchasers from the landlord as defined in subdivision (d) of section 8 of the Commercial Rent Law (Rosner v. Textile Binding & Trimming Co., supra; David v. Fayman, 298 N. Y. 669; Rosenbluth v. Sackadorf, 298 N. Y. 761).

The judgments should be modified in accordance with the opinion herein and, as so modified, affirmed, without costs.

Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Froessel, JJ., concur.

Judgment accordingly.


text:
    In the Matter of Harold J. Earle et al., Respondents, and Frank J. Hannigan et al., Appellants, against Andrew G. Clauson, Jr., et al., Constituting the Board of Education of the City of New York, Appellants and Respondents.
    Argued January 2, 1951;
    decided January 18, 1951.

      William F. Gassin and Edward J. Barry for petitioners, appellants and respondents.

      John P. McGrath, Corporation Counsel (Morris Weissberg, Seymour B. Quel and Michael A. Castaldi of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Harold O. Hansen et al., Respondents, and Joseph Keese et al., Appellants, against Andrew G. Clauson, Jr., et al., Constituting the Board of Education of the City of New York, Appellants and Respondents.
    Argued January 2, 1951;
    decided January 18, 1951.

      William F. Cassin and Edward J. Barry for petitioners, appellants and respondents.

      John P. McGrath, Corporation Counsel (Morris Weissbérg, Seymour B. Quel and Michael A. Castaldi of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    207-17 West 25th St. Co., Inc., Appellant, v. Blu-Strike Safety Razor Blade Co., Inc., Respondent.
    Argued January 4, 1951;
    decided January 18, 1951.

      Morton G. Rosenberg for appellant.

      Manuel Toncer and Jesse E. Barhin for respondent.
   Judgment of the Appellate Division reversed, with costs, and plaintiff’s motion for summary judgment as to the first cause of action granted, with $10 motion costs, the amount of damages to be determined by an assessment thereof, pursuant to rule 113 of the Rules of Civil Practice. Paragraph 23 of the lease between the parties imposes liability on defendant for the reasonable amount of plaintiff’s attorneys’ fees for effecting the removal of defendant from the premises. No opinion.

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


text:
    Murray H. Nekris, Respondent, v. Joseph W. Yellen et al., Individually and as Copartners Doing Business under the Name of West Side Iron Works, Appellants, and City of New York, Respondent.
    Argued January 9, 1951;
    decided January 18, 1951.

      William L. Shumate for appellants.

      Joseph H. Sand and Bernard Meyer son for Murray H. Nekris, respondent.

      John P. McGrath, Corporation Counsel (Joseph J. Lucchi and Seymour B. Quel of counsel), for City of New York, respondent.
   Appeal from that part of judgment which reverses the judgment against the defendant-respondent City of New York dismissed, with costs, and in all other respects judgment affirmed, with costs. No opinion.

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


text:
    Baumgold Bros., Inc., Respondent, v. Schwarzschild Brothers, Inc., Appellant.
    Argued January 11, 1951;
    decided January 18, 1951.

      Walter C. Lundgren, Le Roy R. Cohen, Jr., and Francis P. Kelly for appellant.

      J ohn M. Aherne and J ames M. Hughes for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Augusta H. Foley, a Former Incompetent, Appellant. Charles J. Foley, as Committee of the Person and the Property of Augusta H. Foley, Respondent.
    Submitted January 8, 1951;
    decided January 18, 1951.

      Patrick H. Murphy and Raymond M. White for motion.

      James E. Denning opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Accounting of Melville E. Regensburg et al., as Executors and Trustees under the Will of Carrie Ahrens, Deceased, Appellants. Sophy P. Regensburg, as Executrix of Melville E. Regensburg, Deceased Executor and Trustee, et al., Appellants; Ethel Ahrens, as Guardian of the Personal Estate of Jerome M. Ahrens, Jr., Respondent.
    Submitted January 2, 1951;
    decided January 18, 1951.
   Motion to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 301 N. Y. 701.]


text:
    Thomas Furlong, Appellant, v. National Transportation Co., Inc., et al., Respondents.
    Submitted January 2, 1951;
    decided January 18, 1951.

      Harry Leff for motion.

      Marie Turro opposed.
   Motion dismissed unless within fifteen days all papers required by rule 21 of this court are filed.


text:
    Aaron Travitzky, Appellant, v. Isidore A. Schamroth et al., Respondents.
    Submitted January 15, 1951;
    decided January 18, 1951.

      Francis A. Mahony and Robert J. Kelly for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Mildred McGuinn et al., Appellants, v. Knickerbocker Hospital, Respondent.
    Argued January 9, 1951;
    decided March 1, 1951.

      Benjamin FI. Siff and Herman Goldenberg for appellants.

      Walter L. Glenney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry Muller, Jr., Doing Business under the Name of Muller Brothers, Respondent, v. Sun Indemnity Company of New York et al., Defendants, and (American) Lumbermens Mutual Casualty Company of Illinois, Appellant.
    Argued January 10, 1951;
    decided March 1, 1951.

      Sidney A. Schwarts and Edward Ash for appellant.

      George Foster, Jr., and Arthur H. Priest for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Saiu, Appellant.
    Argued January 8, 1951;
    decided March 1, 1951.

      Noah L. Braunstein and A. Davis Rosen for appellant.

      George B. Le Luca, District Attorney (George Tilser, Herman J. Fliederblum, Edward F. Breslin and Nicholas F. Delagi of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Miles Canino, Appellant, v. J. C. Pierce, Doing Business under the Name of Western Auto Associate Store, Defendant, and May R. Schriber, Respondent.
    Argued January 10, 1951;
    decided March 1, 1951.

      Gustav P. Blaustein for appellant.

      J oseph Hawley Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, FuiiD and Froessel, JJ.


text:
    Lillian Hayes, as Administratrix of the Estate of Joseph Hayes, Deceased, Respondent, v. Isbrandtsen & Sons, Inc., Appellant, et al., Defendants.
    Argued January 9, 1951;
    decided March 1, 1951.

      Walter L. Glenney for appellant.

      George A. Garvey and James E. Kelliher for respondent.
   Judgment affirmed, with costs; no opinion.

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