text:
    The Farmers’ Loan and Trust Company, as Substituted Trustee under a Deed of Trust Made by Edward S. White, Respondent, v. Angele I. Callan, Appellant, and Anna M. Purcell, as Administratrix of the Estate of Bridget White, Deceased, Impleaded with Others.
    Trust — deed —■ decedent’s estate — construction of deed of trust — clear intent of grantor may not be defeated by technical rules of construction —■ deed of trust directing that remainder be divided between persons who would be entitled thereto had grantor died possessed thereof — erroneous holding that class became fixed at date of grantor’s death — class determined at date life estate ended where intent that property should go to next of kin then living is manifest.
    1. When the courts are called upon to determine the intention of a testator where expression of intention is obscure, or where the testator may have failed to envisage a contingency which has arisen and to formulate in his own mind any intention of how such contingency should be met, canons of construction are useful guides through the maze of uncertainty and conjecture which obstructs any definite conclusion as to the testator’s probable intention. Inference may be based upon presumptions where a sounder foundation is lacking. But no technical rules of construction, no artificial analysis of language used, may defeat intention where that intention is manifest in the language of the instrument itself. Where a grantor or testator clearly discloses the sense in which he intended the words he has used should be understood, the courts construe them in no other sense, though such use be inartificial or even inaccurate.
    2. Where, under the terms of a trust deed for the benefit of his wife, the grantor provided that upon the death of the wife the remainder should be paid to his children, or their descendants, and if none be living, to such descendant or descendants of the grantor’s father as his wife might by her will have designated, and in default of such appointment to “ the same persons who would have been entitled thereto had the party of the first part died possessed thereof a resident of the State,” and in an action asking for a judicial construction of the trust deed it appears that the grantor died intestate many years before his wife; that their only son also died intestate and unmarried before the death of his mother leaving her his only heir at law and next of kin, and that the wife died intestate, so that the power of disposition conferred upon her was never executed, it must be held that the words “ the same persons who would have been entitled thereto had the party of the first part died possessed thereof ” mean those persons who would have been entitled to the property if the grantor had died possessed thereof at the date when the life estate came to an end. Under this construction the property must be distributed among the group of the grantor’s relatives from which alone the wife might have chosen a beneficiary and the intent of the grantor that the property should go to descendants of his father is manifest.
    3. It was, therefore, error to hold that the class of persons who would have been entitled to the property had the grantor “ died possessed thereof ” became fixed at the actual date of the grantor’s death, so that at the death of the wife, intestate and without children, her relatives, strangers to the blood of the grantor, succeeded to any remainder. The grantor indicated unmistakably that if no descendants of his own survived, he intended that his father’s descendants, his nearest blood relatives, should be preferred to the strangers who might be the personal representatives or legatees of his wife and of his descendants living at his death.

      Farmers’ Loan & Trust Co. v. Callan, 218 App. Div. 832, reversed.
    (Argued October 13, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1926, unanimously affirming an interlocutory judgment settling the accounts of the trustee herein and construing the deed of trust, entered upon a decision of the court on trial at Special Term.

      John T. Loughran and Charles A. Buckley for appellant.
    The deed of trust itself demonstrates the clear intent of the settlor, in the present situation, to transmit the trust principal to his own blood, to the exclusion of collaterals of his wife. (Matter of Parsons, 242 N. Y. 246; Robinson v. Martin, 200 N. Y. 159; Matter of Union Trust Co., 179 N. Y. 261; United States Trust Co. v. Nathan, 112 Misc. Rep. 502; 196 App. Div. 126; 233 N. Y. 505; Wright v. Miller, 8 N. Y. 9; Knowlton v. Atkins, 134 N. Y. 313; Williams v. Jones, 166 N. Y. 522.) The text of the provision for ultimate distribution of the trust principal confirms the intent of the settlor to prefer his own blood over that of his wife. (Robinson v. Martin, 200 N. Y. 159; May v. May, 209 App. Div. 19; Salter v. Drowne, 205 N. Y. 104.)

      George C. Austin for respondents.
    Any estate or interest in property as to which one dies intestate passes to his next of kin or heirs at law, who are to be determined at the date of his death. (Clark v. Camman, 160 N. Y. 315; Doane v. Mercantile Trust Co., 160 N. Y. 494; Matter of Wilcox, 194 N. Y. 288; Matter of King, 217 N. Y. 358.) The language of the deed of trust clearly shows the intention of the settlor that the persons to take the principal of the trust estate are to be ascertained at the date of his death. (Matter of Buechner, 226 N. Y. 440; United States Trust Co. v. Taylor, 193 App. Div. 153; 232 N. Y. 609.)
   Lehman, J.

Edward Stephen White executed a trust deed on or about March 29th, 1882, whereby he transferred to trustees named in the deed an undivided one-half part of all his share and interest in the estate, property and effects of his father, Lewis J. White, who had died in the year 1875. The deed recites that the grantor had intermarried with Bridget Hurley and has one child, fruit of said marriage, now living and is desirous of making provision for the support of his said wife and child and of any child or children hereafter to be borne to him.” To carry out this purpose the grantor provided that the trustees should hold the trust fund during the lifetime of his wife, Bridget, and should apply to the use of or pay to the said Bridget the whole of the net income of said trust estate. He further provided in the trust deed that upon the death of the said Bridget leaving any descendant or descendants of the grantor her surviving, the trustees should pay over and distribute the capital of said trust estate to and amongst the children of the said party of the first part [the grantor] and any child or children of a child of said party of the first part who may have died in the lifetime of the said Bridget, in equal shares, per stirpes and not per capita.” Bridget, the wife, died on November 4th, 1923. The grantor had died intestate long before. His son and only child died in 1917 intestate and unmarried, leaving as his only heir at law and next of kin his mother, Bridget White. The plaintiff as substituted trustee under the trust deed has brought this action to account for its proceedings as trustee, and it asks for a judicial construction of the trust deeds and for a definition of the rights, shares and interests of the parties defendant in the trust fund remaining in the plaintiff’s hands.

The purpose of the grantor to provide for his descendants after the death of his wife has been thwarted by the circumstance that no descendant survived his wife. He provided for such contingency by a clause in the trust deed:

And in the event of the decease of the said Bridget without leaving any child or descendant of a deceased child of the said party of the first part her surviving, then, upon the death of the said Bridget, to pay over and distribute the capital of said trust estate and all net income thereon accrued, to such person or persons, being a descendant or descendants of the said Lewis J. White, the father of the said party of the first part, and in such shares as the said Bridget may, by her last will and testament, or instrument in the nature of a last will and testament executed in the presence of at least two subscribing witnesses, designate and appoint. And in default of such appointment, then, upon the death of the said Bridget without leaving any child or descendant of a deceased child of the said party of the first part her surviving, to pay and distribute the said trust estate, and all accrued net income thereof, to and amongst the same persons who would have been entitled thereto had the said party of the first part died possessed thereof a resident of the State of New York, and in the same proportions in which they would have been so entitled thereto.”

Angele Irene Callan, a sister of the grantor, survived his wife. She, together with her children and grandchildren, are the only living descendants of the grantor's father, Lewis J. White. By unambiguous language the grantor has expressed his intention that if no descendants of his own survived at the time the life estate came to an end, the trust fund should be paid over to or distributed among the descendants of his father, from whom the grantor had received the property. He gave to his wife the power to choose the person or persons within the designated group who might share in the distribution of the estate, and to determine the portion which each should receive. He gave her no power to choose a beneficiary from outside that group. Bridget, the wife, died intestate. The power conferred upon her under the trust deed was never executed. The grantor’s property must now under the terms of the trust deed be divided among the same persons who would have been entitled thereto had the said party of the first part died possessed thereof a resident of the State of New York and in the same proportions in which they would have been so entitled.”

If the words among the same persons who would have been entitled thereto had the said party of the first part died possessed thereof ” mean those persons who would have been entitled to the property if the grantor had died possessed thereof at the date when the life estate came to an end, then the purpose of the testator that the property should go to the descendants of his father, from whom he received the property, will be carried out. In default of surviving descendants of his own, the descendants of his father would constitute his heirs at law and next of kin.

The courts below have given the words of the trust deed a different construction. They have held that the class of persons who would have been entitled to the property had the grantor “ died possessed thereof ” became fixed at the actual date of the grantor’s death. At that time the grantor’s wife and son survived. They were entitled to any property which the grantor possessed. At the death of the son, unmarried and intestate, the wife succeeded to any remainder or interest the son might have had in the trust estate. At the death of the wife, intestate and without children, her relatives, strangers to the blood of the grantor, succeeded to any remainder or interest she may have had in the same property. Under the construction placed upon the language of the trust deed by the courts below, the failure of the wife to exercise her limited power to determine how the trust property should be divided among the members of the group selected as beneficiaries by the grantor, has deprived the whole group of any share in the trust fund and has placed the whole fund in the wife’s estate.

The grantor has described the class who should take at the death of the life tenant, if at that time no descendants of his own survived, and his wife failed to exercise her power of appointment of beneficiaries from the group constituting the grantor’s nearest surviving blood relatives. We must give to the grantor’s intent as expressed in that description full effect. Under accepted canons of construction, the courts, in the absence of evidence of contrary intention, have in many cases construed wills which contained a similar description, of the class who should take after the death of a life tenant, as designating a class composed of the persons who answer the description at the time of the death of the testator and not at the time of distribution. (Matter of Bump, 234 N. Y. 60; Matter of White, 213 App. Div. 82.) Doubtless when the courts are called upon to determine the intention of a testator where expression of intention is obscure, or where the testator may indeed have failed to envisage a contingency which has arisen and to formulate in his own mind any intention of how such contingency should be met, canons of construction are useful guides through the maze of uncertainty and conjecture which obstructs any definite conclusion as to the testator’s probable intention. Inference may be based upon presumptions where a sounder foundation is lacking. No technical rules of construction, no artificial analysis of language used, may defeat intention where that intention is manifest in the language of the instrument itself. Where a grantor or testator clearly discloses the sense in which he intended the -words he has used should be understood, the courts construe them in no other sense, though such use be inartificial or even inaccurate according to the dictionary. Here we find that the grantor has clearly disclosed that he intended by the use of the words persons who would have been entitled ” to the property had the grantor died possessed thereof,” to indicate those persons and those persons only who would have been entitled thereto had the grantor died possessed thereof at the time the life estate came to an end.

The intent of the grantor that the property received from his father should go to the descendants of his father is manifest. It pervades all the provisions for the disposition of the property. The wife might appoint a beneficiary, but only from the group the grantor intended to prefer. Provision is made for distribution of the property in case of default in the exercise of that power of appointment. Under one construction of the language of that provision the property must be distributed among the group of the grantor’s relatives from which alone the wife might have chosen a beneficiary. Under the other construction the grantor’s blood relatives could not share in the property, unless the wife chose to make a disposition in their favor. Canons of construction rigidly applied may lead to the latter construction. Nevertheless that must be discarded, for it defeats the clearly apparent intention of the grantor which colors and gives new significance to his words.

The administratrix of the deceased wife relies for authority for the construction in her favor of the trust deed upon the case of Matter of White (supra). In that case the court was called upon to construe the will of Lewis J. White, Jr., a brother of Edward S. White, the grantor under the trust deed which we are construing. Lewis J. White, Jr., under his will bequeathed one-half of his residuary estate in trust for Bridget, the wife of his brother Edward S. White. He bequeathed the remainder upon her death to the issue her surviving of her marriage with his brother. In default of such issue, he bequeathed the remainder to his brother if he survived. In the event that the said Bridget survived her husband and their issue, he provided that “ I give, devise and bequeath the said share to the same persons who would have been entitled thereto and in the same proportions in which they would have been so entitled under the laws of the State of New York had I died seized and possessed thereof and intestate.” At the death of the life tenant he left surviving two brothers and his sister, Angele I. Callan. At the death of the life tenant only Angele I. Callan survived. The courts were called upon to determine whether under the language of the will the trust fund should be divided among the testator’s heirs and next of tin living at his death, or should go in whole to Angele I. Callan, who alone survived at the death of the life tenant. In construing the will the court held that the trust fund must be distributed among the heirs and next of tin of the testator living at his death. In construing the trust deed we hold, despite apparent similarity in language, that the trust fund must be distributed among the group who would have been the grantor’s heirs and next of tin if he had died at the time the life estate came to an end.

The language of the will imports, under technical rules of construction, a present gift to the remaindermen. The language of the trust deed under similar rules of construction creates a future gift. Since the remaindermen, under the will, were the heirs and next of tin of the testator, of necessity his death must have occurred before the courts could be called upon to determine the class who would take the remainder. Since the remaindermen under the deed were the heirs and next of tin of a living grantor who might survive the life tenant, the court might be called upon to determine the class who would take the remainder while the grantor was still living. Perhaps distinction might be based upon such considerations. We prefer to base decision upon the fact that in the trust deed the grantor indicated clearly an intension that would be frustrated through a construction based on technical canons, and in the will the testator indicated no such intention. The testator was childless. H; expressed an intention to prefer his brother or his brother’! children, if any survived the life tenant. Death before the life tenant alone prevented them from enjoying the intended preference. Whether on the happening of that contingency the testator would have preferred that the remainder should go to his heirs and next of kin living at his death or to such persons as would have occupied that relation to him if his death had been postponed till the moment of distribution, must rest largely on conjecture. It may well be that he was entirely indifferent. In such case the courts must construe the words in accordance with their primary meaning, using established technical rules of construction, for the testator has furnished the court with no other guide to his intention.

When the trust deed was executed, those who would have been entitled to the grantor’s property if he at that time died intestate were his wife and son. To his wife he gave the life estate; to such descendants as might survive his wife he gave the remainder. He indicated unmistakably that if no descendants of his own survived, he intended that his father’s descendants, his nearest blood relatives, should be preferred to the strangers who might be the personal representatives or legatees of his wife and of his descendants living at his death. Read in the light of that intention, the words he has used lose all obscurity.

The judgment of the Appellate Division and that of the Special Term as far as appealed from should be reversed, and judgment ordered in accordance with this opinion, with costs to appellants in this court and the Appellate Division payable out of the fund.

Cardozo, Ch. J., Pound, Crane, Andrews and O’Brien, JJ., concur; Kellogg, J., not sitting.

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Ruth Snyder and Henry J. Gray, Appellants.
    Crimes — murder in first degree — trial — sufficiency of evidence to warrant conviction — separate trials of defendants jointly indicted in sound discretion of trial court — attempted exercise may be reviewed on appeal — test for determination whether defendants jointly indicted shall be separately tried — confession by one defendant, admissible against himself but not against codefendant, not decisive —• possibility of injury disappears where own confession shows guilt and codefendant testified at trial to same facts.
    1. Upon review of the record of the trial of an indictment charging the defendants with the crime of murder in the first degree, held the evidence to be sufficient to sustain a verdict of conviction.
    2. Under section 391 of the Code of Criminal Procedure, providing that defendants jointly indicted may be tried separately or jointly in the discretion of the court, it may be assumed that the Legislature did not intend to leave arbitrary choice to the court. Discretion involves the exercise of a sound judgment and its attempted exercise may be reviewed by an appellate court having jurisdiction to pass upon questions of fact.
    3. In determining whether defendants, jointly indicted, shall be separately tried, the courts should apply but one test: Will a separate trial impede or assist the proper administration of justice in a particular case and secure to the accused the right of a fair trial?
    4. The fact that one defendant has made a confession which will be admissible against himself but not against a codefendant may be a circumstance which enters into the court’s consideration of whether a joint trial would be fair, but that circumstance alone is not decisive. It depends upon the circumstances of the particular ease whether a jury can weigh properly the testimony produced upon the various issues that may arise in a joint trial. Possibility of injury to one defendant arising from the presentation to the jury of the confession of the other which accused her, though it might not be properly considered by the jury against her, is not substantial when her own confession shows her guilt. Possibility of such injury disappears when her codefendant at the trial takes the stand and gives testimony of the same allegations which she claimed should not be disclosed to the jury.
    (Argued October 24, 1927;
    decided November 22, 1927.)

      Appeal from a judgment of the Supreme Court rendered May 13, 1927, at a Trial Term for the county of Queens, upon a verdict convicting the defendants of the crime of murder in the first degree.

      Edgar F. Hazleton, Joseph Lonardo and Dana Wallace for Ruth Snyder, appellant.
    The denial of defendant Snyder’s motion for a separate trial was an abuse of discretion, and vitiates the verdict and judgment. (People v. Creasy, 236 N. Y. 205; People v. Marwig, 227 N. Y. 382; U. S. v. Marchant, 12 Wheat. [25 U. S.] 480; U. S. v. Ball, 163 U. S. 672; People v. Vermilyea, 7 Cow. 108; People v. Williams, 19 Wend. 377; Beazell v. Ohio, 296 U. S. 167; Code Crim. Pro. § 962; People ex rel. Weeks v. Platt, 173 App. Div. 451; People v. Palmer, 109 N. Y. 110; People v. Wilson, 151 N. Y. 403.) A severance is warranted in case a confession is only admissible against one defendant and tends to prejudice the jury against the other, or the confessions incriminate one another, or the defenses will be antagonistic, or both. (People v. Klein, 116 Atl. Rep. 596; People v. Castelli, 101 Atl. Rep. 476.)

      Samuel L. Miller, William J. Millard and Maurice S. Feingold for Henry J. Gray, appellant.
    The People failed to establish premeditation and deliberation against the defendant Gray. (Aszman v. State, 103 Ind. 347; Atkins v. State, 110 Tenn. 458; Stokes v. People, 53 N. Y. 164; People v. Conroy, 97 N. Y. 62; People v. Breen, 181 N. Y. 483; People v. Clark, 7 N. Y. 385; People v. Sanducci, 195 N. Y. 361; People v. Kennedy, 159 N. Y. 346; People v. Mangano, 29 Hun, 259; Stokes v. People, 53 N. Y. 164; People v. Walworth, 4 N. Y. Crim. 355; People v. Barberi, 149 N. Y. 256.) The failure to establish premeditation and deliberation by the prosecution as against the defendant Gray renders the verdict arrived at by the jury contrary to the law and the weight of the evidence. (People v. Barberi, 149 N. Y. 256; People v. Clark, 7 N. Y. 385.) The prosecution failed to prove intent, malice or design, against the defendant Gray. (People v. Cain, 206 N. Y. 202; People v. Sermarco, 202 N. Y. 225; People v. Barnes, 202 N. Y. 77; People v. Green, 201 N. Y. 172; People v. Chiaro, 200 N. Y. 316; People v. Morse, 196 N. Y. 306; People v. Schmidt, 168 N. Y. 568; People v. Egner, 175 N. Y. 419; People v. Ferraro, 161 N. Y. 365; People v. Cain, 200 N. Y. 202.) Motive was not proved against the defendant Gray and, therefore, intent on his part was not established. (People v. Fitzgerald, 156 N. Y. 253; People v. Kelly, 11 App. Div. 495; People v. Harris, 136 N. Y. 423; People v. Ledwin, 153 N. Y. 10; People v. Seppi, 221 N. Y. 62; People v. Chiaro, 200 N. Y. 316; People v. Johnson, 139 N. Y. 388; People v. Sanducci, 195 N. Y. 361; People v. Bennett, 49 N. Y. 137; People v. Cassata, 6 App. Div. 386.)

      Richard S. Newcombe, District Attorney (Charles W. Froessel and James J. Conroy of counsel), for respondent.
    The discretion of the trial court in denying defendant Snyder’s motion for a separate trial was soundly exercised, was not abused and was in the interest of substantial justice. (Marchant v. U. S., 12 Wheat. [25 U. S.] 480; Beazell v. Ohio, 269 U. S. 167; State v. Klein, 116 Atl. Rep. 596; State v. Brinte, 20 Del. 551; State v. Duplechain, 136 La. Ann. 389; State v. Johnson, 116 La. Ann. 856; Commonwealth v. Place, 153 Penn. St. 314; Akely v. Kennicutt, 238 N. Y. 466.) Premeditation, deliberation, motive and intent on the part of both defendants was conclusively proven beyond every reasonable doubt. (People v. Sutherland, 153 N. Y. 345; People v. Feigenbaum, 148 N. Y. 636; People v. Chiaro, 200 N. Y. 316.) The verdict is overwhelmingly supported by the proof, and the jury could have arrived at no other determination. (People v. Becker, 215 N. Y. 126.)
   Lehman, J.

On March 20th, 1927, Albert Snyder was killed while lying in bed at his home at Queens Village near Jamaica, New York. His wife, the defendant Ruth Snyder, and their young daughter were in the house at the time. The child’s sleep was unbroken till Ruth Snyder awoke her some hours after Snyder was killed. Mrs. Snyder had been tied hand and foot, so she claimed, by robbers, and had become unconscious from fright and shock. The disturbed condition of the house seemed to corroborate her story that her husband had been killed by men who entered the house to steal. Nevertheless, the police suspected the story. After questioning, she broke down and confessed that Henry Judd Gray had killed her husband, and that after the murder he had, with her acquiescence, tied her hands and feet in order to divert suspicion from themselves. Though in the confession she attempted to place the larger part of the blame upon Henry Judd Gray, yet she admitted acts on her part from which the conclusion of her own guilty participation might be drawn with confidence. Henry Judd Gray was thereafter apprehended in Syracuse. He claimed, at first, that he had been in his room in a Syracuse hotel at the time of the murder. After questioning he, too, confessed. According to that confession he had gone to Queens Village from Syracuse the evening before the murder and returned to Syracuse the next morning. He had, in advance, arranged with Mrs. Snyder that they should kill her husband that night. Preparation was complete, and he believed that he had successfully manufactured evidence which would show, if he were accused of the murder, that he was at the time in Syracuse. According to his confession Mrs. Snyder played a greater part in the murder than she admitted, but each confession if accepted as true would be sufficient to establish the guilt of the person making it for the crime of murder of Albert Snyder. Additional proof, which in this case was incontrovertible that the crime charged had been committed, was of course available as required by section 395 of the Code of Criminal Procedure, before the confessions would warrant conviction.

The defendants were jointly indicted. Mrs. Snyder moved for a separate trial. The defendant Henry Judd Gray joined with the State in opposing the motion. It was denied by the trial judge, and the defendants were thereafter tried together and both have been convicted of the crime of murder in the first degree.

Extended analysis of the testimony produced at the trial would serve no serious purpose. Both defendants testified in their own behalf. Each attempted personal exculpation by throwing as much of the blame as possible upon the other. Mrs. Snyder testified that her confession was not voluntary, but was obtained by pressure which in her nervous condition she could not withstand. She attempted, according to her story, to dissuade the defendant Gray from carrying out his plan of murder. She tried to stop him while he was actually committing the murder, and only fear induced her to join with him thereafter in the attempt to cover up all possible traces which might lead to suspicion against them. Henry Judd Gray’s testimony was intended to show that he was only a blind tool, with mind and will so weakened by indulgence in intoxicating liquors and other excesses that he was incapable of resistance to a stronger personality, incapable in his then state of mind of deliberation or premeditation. A mass of circumstances belied the claim of exculpation of either. The jury might well find that each defendant by testimony in open court has established the guilt of both.

Throughout the trial and in his charge, the trial justice with scrupulous care protected the rights of both defendants. He pointed out to the jury that they might not consider the confession of either as evidence against the other. • He allowed the jury to pass upon every contention of innocence presented by either defendant, though for some of these contentions there is little, if any, basis in the testimony. Wherever at the trial there was possible room for doubt as to a ruling to be made or charge to be given, he resolved that doubt in favor of the defendants. They have been found guilty upon evidence which is clearly sufficient, after a trial in which no rulings have been made of which they may reasonably complain. The only question which remains for consideration is whether the denial of Mrs. Snyder’s preliminary motion for a separate trial resulted in depriving them or either of them of a fair trial.

Section 391 of the Code of Criminal Procedure as recently amended (L. 1926, ch. 461) provides that defendants jointly indicted may be tried separately or jointly in the discretion of the court. It may be assumed that the Legislature did not intend to leave arbitrary choice to the court. Discretion involves the exercise of a sound judgment, and its attempted exercise may be reviewed by an appellate court, at least where the appellate court has jurisdiction to pass upon questions of fact. The statute has merely restored the common-law rule that a separate trial of defendants who were jointly indicted might not be demanded as a matter of right by the accused but might be ordered in its discretion by the court. (People v. Howell, 4 Johns. 296; People v. Vermilyea, 7 Cow. 108.) That rule prevailed not only in England but in this State until changed in this State in 1829 by statute. (See People v. Doran, 246 N. Y. 409.) In U. S. v. Marchant (4 Mason, 258; affd., 25 U. S. 480) Mr. Justice Story has reviewed the history of the exercise of the power of the court to grant a separate trial to persons jointly indicted. He pointed out that at common law as developed in England, persons jointly indicted might be jointly tried unless the court in its discretion ordered that each defendant should be tried separately; though the difficulty of obtaining a jury at a joint trial, if each defendant insisted upon the exercise of his right to interpose the full number of peremptory challenges accorded to him under the law of England, gave rise to a general custom of ordering separate trials unless the defendants agreed to join in all peremptory challenges.

Since that case all jurisdictions in this country have accepted the rule that defendants jointly indicted are not entitled to separate trials unless the court in the exercise of its discretion so orders. Appellate courts in various jurisdictions have at times reviewed such orders. No general rule limiting or governing the exercise of the court’s discretion can be deduced from these decisions. The Legislature has not seen fit to set fixed bounds to the exercise of the discretion it has restored to the courts. The courts should apply but one test. Will a separate trial impede or assist the proper administration of justice in a particular case and secure to the accused the right of a fair trial? The decision of the trial court rendered before the trial is dictated by a reasonable anticipation based on the facts then disclosed. The decision of this court rendered upon a review of the trial itself rests upon determination of whether the prophesy has been realized.

In the present case the trial judge upon the motion for a separate trial was informed only that the State had secured from each defendant admissions which the State would claim constituted confessions, and that the defendant Snyder would disclaim guilt arid the defendant Gray might try to relieve himself in some measure from criminal responsibility by casting blame upon Mrs. Snyder. The fact that one defendant has made a confession which will be admissible against himself but not against a codefendant may be a circumstance which enters into the court’s consideration of whether a joint trial would be fair (Commonwealth v. James, 99 Mass. 438), but that circumstance alone is not always decisive. (Commonwealth v. Borasky, 214 Mass. 313; United States v. Ball, 163 U. S. 662.) It is not uncommon for one defendant to admit participation in a felony and to deny that such participation was with guilty intent. It depends upon the circumstances of the particular case whether a jury can weigh properly the testimony produced upon the various issues that may arise in a joint trial. Possibility of injury to Mrs. Snyder arising from the presentation to the jury of Gray’s confession which accused her, though it might not be properly considered by the jury against her, is not substantial when her own confession shows her guilt. Possibility of such injury disappears when Gray at the trial takes the stand and gives testimony of the same allegations which Mrs. Snyder claimed should not be disclosed to the jury. There is no possible basis upon the record for any claim that a joint trial deprived either defendant of the right to a fair trial before an impartial jury which reaches decision by weighing competent evidence.

The judgment of conviction as to each defendant should be affirmed.

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

Judgments affirmed.


author: Cardozo, Ch. J.

text:
    In the Matter of the Transfer Tax upon the Estate of John Kane, Deceased. Security Trust Company of Rochester, as Administrator with the Will Annexed, et al., Appellants; State Tax Commission, Respondent.
    Tax — transfer tax — stock transferred by husband to himself and wife — subsequent promise by wife to leave half to children of husband not binding— on death'of husband right of ownership as survivor accrued to wife to all shares standing in their joint names not disposed of by husband during life — transfer tax properly assessed upon all stock transferred to them jointly after May 20, 1915 — waiver of defect in notice of appeal from pro forma order of surrogate fixing tax.
    1. Where transfer by a husband of corporate stock to the joint names of himself and his wife was made without conditions, a subsequent promise by the wife that if she was the survivor she would give half of the shares upon her death to children of her husband by an earlier marriage was merely a statement of. an intention then existing.

      2. Where in the year 1908 a husband received certain shares of corporate stock in payment of his interest in a partnership and caused a portion thereof to be issued in his own name and a portion in the joint names of himself and his wife, thereafter in 1920 additional shares were issued to himself and his wife, and, finally, in 1923 he surrendered all the certificates of stock, individual and joint, and caused a new certificate to be issued in the names of himself and his wife, at the same time telling her, in effect, that he had put the shares in their joint names to the end that at his death they might pass to her as his survivor without will or other formalities, on the death of the husband there accrued to the wife a right of ownership as survivor in all the shares then standing in the joint names, unless otherwise disposed of by the husband during life.
    3. A transfer tax was, therefore, properly assessed, under subdivision 7 of section 220 of the Tax Law, as to the shares formerly in the name of the. husband individually and as to those issued in 1920 to the husband and wife jointly, but the shares issued in 1908, in the joint names of the husband and wife, are taxable only to the extent of one-half thereof. The statute is inapplicable to joint tenancies created before May 20, 1915, and the presumption is that the husband caused the shares, paid for by himself, to be issued in the names of himself and wife with the intention that upon his death the title thereto if still in their joint names should pass to the survivor. No other or greater title was established when the new certificate was issued in 1923.
    4. Where the surrogate as taxing officer made a pro forma order fixing the tax and the executor, within the time limited, filed a notice of appeal but failed to state the grounds upon which the appeal was taken, as required by section 232 of the Tax Law, and the Tax Commission did not return the notice or move to dismiss the appeal but appeared before the surrogate and, without objection to the form of the notice of appeal, joined with the executor in preparing and submitting an agreed statement of the evidence, at a time when a new or amended notice of appeal would still have been timely, the effect was a waiver by the Commission of any objection to the notice* and the surrogate was at liberty to treat it as amended and proceed to a decision on the merits.

      Matter of Kane, 218 App. Div. 278, reversed.
    (Argued November 22, 1927;
    decided December 6, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 9, 1926, which modified and affirmed as modified an order of the Monroe County Surrogate’s Court assessing a transfer tax upon the estate of John Kane, deceased.

      Glenn L. Buck for appellants.
    John and Zetta Kane were tenants in common and not joint tenants of all stock of the American Laundry Machinery Company. (Matter of Blumenthal, 236 N. Y. 448; Matter of Kimberly, 150 N. Y. 90; Wetherow v. Lord, 41 App. Div. 413; Matter of Fonda, 206 App. Div. 61; Hayes v. Claessens, 189 App. Div. 449.) A transfer tax cannot be assessed on personal property standing in the names of two or more persons unless there is a right of survivorship. (Matter of Blumenthal, 236 N. Y. 448.) There is no theory upon which the one hundred and fifty shares standing in the names of both prior to 1915 can be taxed, either in whole or in part. (Matter of Cossitt, 204 App. Div. 545; 236 N. Y. 524.)

      Seth T. Cole and Milton E. Gibbs for respondent.
    Because the notice of appeal to the surrogate from the pro forma taxing order specified no grounds of appeal, this court has no jurisdiction. (Matter of Davis, 149 N. Y. 539; Matter of Kennedy, 93 App. Div. 27; Matter of Wormser, 51 App. Div. 441; Matter of Manning, 169 N, Y. 449; Matter of Westurn, 152 N. Y. 93; Lavelle v. Skelly, 90 N. Y. 546; Waldo v. Schmidt, 200 N. Y. 199; Avery v. Woodbeck, 62 Barb. 557; Piper v. Van Buren, 27 Hun, 384; Matter of Stone, 56 Misc. Rep. 247; Stevens v. Stevens, 52 Atl. Rep. 1020; Deuch v. Seaside Lodge, 26 Ore. 385.) A transfer of all of the stock of the American Laundry Machinery Company was made to Zetta Kane pursuant to the agreement between her and John Kane in January, 1923, and such transfer is taxable under subdivision 7 of section 220 of the Tax Law. (Matter of Cossitt, 204 App. Div. 545; 236 N. Y. 524.)
   Cardozo, Ch. J.

John Kane was a partner in the firm of A. M. Hagen & Company, engaged in the manufacture of laundry machinery at Rochester. In February, 1908, the firm sold out to a New Jersey corporation, American Laundry Machinery Company. For his share of the partnership assets, Kane received 775 shares of common stock, of which 625 were issued in his own name and 150 in the joint names of John Kane and Zetta Kane, his wife. The shares were exchanged in 1909 for a like number of shares in a corporation of the same name organized in Ohio.

From then till 1920 the stock ownership remained the same. In that year 75 additional shares were issued to John and Zetta Kane. Eighteen shares of preferred stock were acquired in the same form. In December, 1922, the par value of the common shares was changed from $100 to $25 per share, and in January, 1923, a stock dividend upon the common shares was declared at the rate of 50% per share. By force of these changes the equivalent of the 625 shares then held in the name of John Kane became 3,750 shares, the equivalent of the 150 shares then held in the joint names became 900, and the equivalent of the 75 shares became 450, a total of 5,100 shares. John Kane thereupon in January, 1923, surrendered all the outstanding certificates of common stock, individual and joint, and caused a new certificate to be issued in the names of himself and Zetta Kane in exchange for the certificates surrendered. He reported to his wife the change thus made. He told her in effect that he had put the shares in the joint names to the end that upon his death they might pass to her as his survivor without will or other formalities. There is evidence that she expressed her approval of the arrangement and her understanding of the fact that if she did not survive him, the shares would belong to him alone. There is evidence also of a promise on her part that if she happened to be the survivor, she would give half of the shares upon her death to the children of John Kane by an earlier marriage. If this promise was made, it was merely a voluntary statement of an intention then existing. The transfer to the joint names had already been made. It was made without conditions. No promise limiting the wife’s dominion in the event of her survivorship was exacted in return.

John Kane, the husband, died in 1924, leaving a will by which he gave his property to his wife for life, with remainder to his children. The wife, Zetta Kane, surviving him, died in 1925. The question to be determined in this proceeding to fix the transfer tax upon the estate of the husband, is whether husband and wife held the shares of stock as tenants in common on the one hand, or as joint tenants, or with a right of survivorship analogous to that of joint tenants, on the other. If the title was of the latter order, there is a subsidiary question as to the date of its creation.

Section 220, subdivision 7, of the Tax Law as it existed at the death of John Kane provided as follows:

Whenever property is held in the joint names of two or more persons, or as tenants by the entirety, or is deposited in banks or other institutions or depositaries in the joint names of two or more persons and payable to either or the survivor, upon the death of one of such persons the right of the surviving tenant by the entirety, joint tenant or joint tenants, person or persons, to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable under the provisions of this chapter in the same maimer as though the whole property to which such transfer relates belonged absolutely to the deceased tenant by the entirety, joint tenant or joint depositor and had been bequeathed to the surviving tenant by the entirety, joint tenant or joint tenants, person or persons, by such deceased tenant by the entirety, joint tenant or joint depositor by will; except that in the case of tenancies by the entirety the surviving tenant shall be taxable only on one-half of the value of the property so transferred.”

We see no escape from the conclusion that in January, 1923, if not before, there accrued to Zetta Kane, in the event of her survivorship, a right of succession to all the shares of stock then standing in the joint names, unless otherwise disposed of by the husband during life. We shall consider in a moment to what extent title by survivorship might be established by force of a presumption from the form of the certificates. At this point it is enough to say that without recourse to presumption, the existence of such a title in January, 1923, is made out, at least for the future, by declarations of intention. The wife took the whole upon the death of the husband with the shares still in the joint names.

The question is yet to be answered whether the right of survivorship, confirmed in 1923, had any earlier existence. We have held that section 220, subdivision 7, of the Tax Law is inapplicable to joint tenancies or analogous rights existing before May 20, 1915, the date of its enactment (Matter of McKelway, 221 N. Y. 15; Matter of Dolbeer, 226 N. Y. 623; Matter of Cossitt, 204 App. Div. 545; 236 N. Y. 524). We must, therefore, inquire whether at that date some of the 5,100 shares, subject to the right of survivorship since January, 1923, were- already held by a like tenure. As to the 3,750 shares in the name of John Kane individually, there is no room for debate. The right of survivorship came into being as to these when the joint certificate was issued in 1923. As to the 450 shares acquired in the joint names in 1920, there is again no room for debate. Even though the title as to these was joint from the beginning, it was a title acquired after May 20, 1915, and hence subject to the statute (Matter of Cossitt, supra). Different considerations apply, however, to the remaining 900 shares, the equivalent of the 150 shares issued to husband and wife jointly in 1908. Payment for these shares was made solely by the husband. They were part of a total of 775 shares issued in return for his interest in the assets of a partnership. He caused a part of this total, i. e., 625 shares, to be made out in his own name. He caused 150 shares to be issued in the names of John and Zetta Kane. The presumption is that he did this with the intention that upon his death, the title to the shares, if still in the joint names, should pass to the survivor (West v. McCullough, 123 App. Div. 846; 194 N. Y. 518; Matter of Kaupper, 141 App. Div. 54, 57; 201 N. Y. 534; Sandford v. Sandford, 45 N. Y. 723). The presumption would not exist in the absence of the relation of husband and wife. It would not exist even then in the absence of evidence that the shares had been paid for by the husband solely (Matter of Blumenthal, 236 N. Y. 448). None of the required conditions is lacldng in the case before us. The certificate for 150 shares (now 900) must be held to have been taken out with the intention that the wife should succeed to a title by survivorship.

We think as to these shares that no other or greater title was established when the new certificate was issued in 1923. The cases hold, it is true, that a husband who puts the title to a chose in action in the name of himself and his wife jointly does not create a joint tenancy in the strict sense. The right of survivorship attaches if title is retained till his death, but he may defeat it altogether if he disposes of the property by conveyance taking effect during his life (Matter of Albrecht, 136 N. Y. 91, 95; Wetherow v. Lord, 41 App. Div. 413, 417). We think this husband had no thought in January, 1923, to diminish his own rights in that regard or to add anything in that regard to the rights belonging to his wife. What he said to her was nothing more than a statement, put in a layman’s loose way, of the intention inferred by law from the form of the investment. The surrogate, the trier of the facts, held the intention as stated to be merely the equivalent of the intention as presumed. We reach the same conclusion. The certificates standing up to that time in the name of the husband were consolidated with those standing in the names of both. No other change was wrought, and no other was intended.

A point is made that by reason of a defect of practice there is nothing here to be reviewed. The surrogate as taxing officer made a pro forma order fixing the tax at $8,622.78, a figure reached by including the full 5,100 shares as subject to assessment. The executor, if dissatisfied with the pro forma order, should have filed with the surrogate within sixty days a notice of appeal stating the grounds upon which the appeal was taken (Tax Law, § 232). A notice of appeal was filed within the prescribed time, but without a statement of the grounds. The Tax Commission did not return this notice, nor move to dismiss the appeal. Instead of doing either of these things, it appeared before the surrogate, and without objection to the form of the notice of appeal, joined with the executor in preparing and submitting an agreed statement of the evidence as to the merits of the controversy. At that time a new or amended notice of appeal would still have been timely. We think the composite effect of all these acts and omissions was a waiver by the Commission of any objection to the notice. We think also that since objection, if timely, might have been followed by amendment, the surrogate was at liberty to treat the notice as amended, and that since it was so treated by him, it will be so treated on appeal by us (cf. Civ. Prac. Act, § 107; Surrogate’s Court Act, § 297). A different question would be here if the surrogate had declined to act upon the notice, or even, it may be, if the time had gone by, at the date of the hearing upon the merits, when a new notice would be possible (cf. Matter of Davis, 149 N. Y. 539; Matter of Manning, 169 N. Y. 449). The latter situation must be left to be dealt with when it arises. So far as the record shows, objection to the form of the notice was not made by the Tax Commission at any time or in any form. Counsel stated on the argument that it was made in a brief submitted to the surrogate after the hearing had been closed. If this be so, there is no suggestion that it was brought to the notice of the executor. We think the surrogate did not err in such a situation when he disregarded the defect. He proceeded to a decision of the merits, and by order made September 22, 1925, modified his pro forma order by holding that the 150 shares, and the substitutes therefor, were taxable only to the extent of one-half thereof, since the right of survivorship as to them had come into existence before the adoption of the statute.

The Appellate Division, though concurring with the surrogate in his holding that the merits of the assessment were properly before him, held that the pro forma order was correct, and the modification erroneous. It, therefore, modified the latter order to conform to the order as first made. For the reasons already stated, we are in agreement with the surrogate.

The order of the Appellate Division in so far as it modifies the order of the Surrogate’s Court of Monroe county, dated September 22, 1925, should be reversed and the last-mentioned order affirmed, without costs.

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

Ordered accordingly.


author: Crane, J.

text:
    Joseph B. Giblyn, Appellant, v. Downey Shipbuilding Corporation, Respondent.
    Insurance — contract — action to recover premiums — insurance placed with foreign insurance companies by New York brokers through London brokers — payment of premiums by London brokers, at request of New York brokers, payment by latter — statement in letter from defendant that insurance was subject to confirmation by another — failure to obtain such consent no bar to recovery, where defendants knowing consent could not be obtained, kept the policies and the insurance.
    1. Where defendant, a shipbuilding corporation, under contract to build certain vessels, insured some of them in English insurance companies through a New York insurance broker which placed the insurance through London brokers, who thereby became liable, under the English law, directly to the English companies for the amount of the premiums, defendant being informed of that fact, and who, at the request of the New York brokers, paid the premiums and charged the amount to the account of the New York brokers, which was paid by mutual credits and debits, payment by the London brokers was payment by the New York brokers, so far as defendant was concerned, and where the policies were thereafter delivered to it and it kept the same and received the benefit of the insurance, it is liable in an action to recover the premiums.
    2. The facts that a letter from defendant to its New York brokers contained a statement that the insurance was to be subject to confirmation of the United States Shipping Board Emergency Fleet Corporation and that such consent had not been procured are not a bar to recovery of the premiums, where the condition was not insisted upon and, in the course of the negotiation going to make up the completed contract, was dropped. The defendant was the party to obtain the consent, if necessary, of the Shipping Board and where it did not do so nor return the policies nor notify the agents or companies to that effect, but, with knowledge that, by reason of its own act, it could not obtain the consent of the Shipping Board, it kept the policies and the insurance, it is in no position to plead its own default as a bar to payment of the premiums.

      Giblyn v. Downey Shipbuilding Corp., 219 App. Div. 709, reversed.
    (Argued November 22, 1927;
    decided December 6, 1927.)

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 31, 1927, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury.

      Frank I. Tierney and Wendell P. Barker for appellant.
    By its acceptance and retention of the policies of insurance the defendant became obligated to pay therefor and waived the requirement of the approval of the Fleet Corporation. (Reed v. Randall, 29 N. Y. 358; Coplay Iron Co. v. Pope, 108 N. Y. 232; Brown v. Foster, 108 N. Y. 387; Pierson v. Crooks, 115 N. Y. 539; Dunn v. Steubing, 120 N. Y. 232; Gentilli v. Starace, 133 N. Y. 140; Mississippi Shipbuilding Corp. v. Lever Bros. Co., 237 N. Y. 1; Clark v. West, 193 N. Y. 349; Federal Sanitary Clearing & Refining Co. v. Loeb, 147 App. Div. 737; Darley v. Kendall Products Corp., 205 App. Div. 29.)

      F. A. W. Ireland, Edgar R. Mead and Henry C. Hunter for respondent.
    The plaintiff failed to prove the cause of action alleged in the complaint. (Kavanaugh v. Commonwealth Trust Co., 223 N. Y. 103; Wallach v. Riverside Bank, 206 N. Y. 434; Mannheim v. Hollander, 112 Fed. Rep. 549; Lamphere v. Lang, 213 N. Y. 585; Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220.)
   Crane, J.

Willcox, Peck & Hughes was a domestic corporation engaged in transacting business as insurance broker and agent in the city of New York. At the times herein mentioned the Downey Shipbuilding Corporation was engaged in the business of constructing steamships at its shipyards at Arlington, Staten Island, New York. On July 3, 1917, it was under contract with the United States Shipping Board Emergency Fleet Corporation for the construction of ten steel cargo ships. One of the provisions of the contract was that the builder agreed “ to insure and keep insured at its own expense for the benefit of the owner, in insurance companies satisfactory to the owner, said vessels and all the materials and supplies for and to be used in construction under this contract against any and all damage by fire and marine risks, lightning, settling of staging, breakage of ways, and risks of launching during such construction and until final completion and delivery.”

The ships were built in groups of four as there were only four shipbuilding ways. .

In March of 1918 the owner, the Shipping Board, at the request of the Downey Shipbuilding Corporation, placed insurance on the ten vessels to be built under this contract. The builder considered the rate of premium charged on this insurance to be excessive, and on July 8, 1918, wrote to Willcox, Peck & Hughes asking for a quotation on the group of vessels to be built. The letter in part reads as follows:

About six months ago one of our representatives discussed with you the subject of builders’ risk insurance for group of ten 7,500-ton steel Standardized Steamships ’ which we are building for the U. S. Shipping Board Emergency Fleet Corporation. * * *

Builders’ risk insurance is placed upon the first four of our group of ten steamships. * * * Will you please

write us your best quotations to cover builders’ risk on our ships Nos. 5, 6, 7 and 8. Price of each ship $1,162,500. Each to be covered for one year from date of laying keel, subject to monthly pro rata rebate of premium on any ship finished within twelve months.”

The builder evidently did not realize that the owner at its request had placed insurance not upon four ships, but to cover all ten, as they would be constructed in the course of time.

Willcox, Peck & Hughes replied on the 12th giving rate, followed by personal interviews with the officers, and on July 30, 1918, sent the following letter:

“ Since our last conversation, we had an interview with Mr. Pessano going over the situation generally with him. At his suggestion we cabled London to arrange for $1,160,500 each on six steamers to be built in your yards to attach from time of laying keels, as it seemed advisable to take advantage of the low quotation made by them.”

Other letters followed, one of September 13, 1918, reading as follows:

“ Referring to insurance placed for you on August 10th — builders’ risk on 6 steamers for twelve months from date of laying keel, steamers valued at $1,160,500 each, we wish to ask you if it is not possible for you to give us the confirmation on this risk.
“You can appreciate that this insurance has been placed in London under firm orders as far as the London Underwriters are concerned and failure on our part to confirm this insurance or cancel it will involve us in earned premium. We, therefore, ask you to give this matter your prompt attention.”

The Downey Shipbuilding Corporation on September 17, 1918, answered these communications in a letter which has caused the trouble in this case.

“ Gentlemen.— We are in receipt of your letter of September 13th, referring to insurance placed by you for our account on August 10th, 1918, to cover builders’ risk on (6) duplicate steel steamships, our numbers five to ten inclusive which we are building for the U. S. S. B. Emergency Fleet Corporation.

“ Subject to confirmation of our Board of Directors and the U. S. S. B. Emergency Fleet Corporation the undersigned is pleased to confirm the negotiations and agreements between our Mr. A. C. Pessano and your good selves on this subject.

“ Personally I prefer to place this business with you and will bring the matter up for confirmation at our Directors Meeting, the 19th instant.

The original contract value on the ships referred to is $1,162,500 each, but subject to fluctuation in value pro rata as the cost of materials and labor differs from the cost of materials and labor specified in our original shipbuilding contract.

Very truly yours,
“ DOWNEY SHIPBUILDING CORPORATION
Wallace Downey G.
“ President.”

On September 19,1918, the president, Wallace Downey, for his company again wrote Willcox, Peck & Hughes as follows:

I am pleased to confirm to you that our Directors have approved closing Builders Insurance Risk with you. I hope and no doubt it will be entirely satisfactory to the United States Shipping Board Emergency Fleet Corporation.”

To this the insurance brokers replied on the 20th as follows:

We thank you for yours of the 19th, advising that your Directors have approved the closings of the Builders Risk insurance which we arranged.”

On that same day the Downey Shipbuilding Corporation notified the agents that keels of ships Nos. 5 and 6 were officially laid. This was necessary to initiate the risk. Other correspondence followed regarding these matters up to October 8, 1918, when the builder wrote the following letter:

“ Messrs. Willcox, Peck & Hughes,
3 South William Street,
“ New York City:
Gentlemen.— We have your letter of October 2nd, " confirming placing of builders’ risk insurance on six (6) of the ships which we are building, amounting to $1,160,520 each.
“ Thanking you for your attention, I am Very truly yours,
“ DOWNEY SHIPBUILDING CORPORATION
Wallace Downey “ G
President.”

and another of same date reading as follows:

“ Willcox, Peck & Hughes,
3 South William St.,
New York:
Subject: Insurance
Gentlemen.— Please send us insurance Policies covering Builders Risk Insurance in accordance with the arrangement made with our President, Mr. Wallace Downey. Address same to Secretary.
Yours very truly,
“ A. A. CANNON “ Secretary.”

In the course of time as the policies were received from London they were delivered to the Downey Shipbuilding Corporation. The total insurance approximated $7,000,000. The premiums amounted to £5,568, 10s., or $25,942.24, for which Willcox, Peck & Hughes were liable to their London agent. The Downey Shipbuilding Corporation had the benefit of this insurance. It kept the policies, raised no objection as to any terms or conditions, and was fully insured in the amount above mentioned on the six vessels which it built up to the end of the term of the insurance. It never paid the premiums. This action is brought to recover those premiums.

Willcox, Peck & Hughes procured the insurance through its London agent, C. T. Bowring & Co. Under section 53 of the English Marine Insurance Act of 1906, Bowring & Co. were directly hable for the premium and required to and did pay the same. Both Willcox, Peck & Hughes of New York, and Bowring & Co. of London carried on a very extensive insurance business. They were well-known brokers and agents. Their transactions' with each other amounted to many thousands of dollars each month. Balances due one to the other were remitted by cable periodically. The premiums which Bowring & Co. had paid for this insurance were charged to Willcox, Peck & Hughes, and paid by mutual credits and debits, the appropriate balance being remitted in the regular course of business. The treasurer of Willcox, Peck & Hughes testified: If the Bowring account on our books showed that we owed London, which was the Bowring account, 50,000 pounds, I would remit them, say 25,000 pounds either by cable or by sight draft. If, on the other hand, our books showed Bowring’s account was running in our favor, I would cable Bowring and ask him for a remittance.”

The book entries offered in evidence show these transactions, although the payments were made in lump sums covering many other transactions as well.

There is little dispute about the facts, which may be summarized as follows: The Downey Shipbuilding Corporation, under contract to build ten ships, insured six of them through Willcox, Peck & Hughes with English insurance companies. Bowring & Co. of London, the agent placing this insurance for the New York brokers, was liable directly to the English companies under the English law for the amount of the premiums. The builder was informed of this fact. Bowring & Co. paid the premiums at the request of Willcox, Peck & Hughes. In so doing it acted as the agent of that concern, and paid or advanced the premiums on its behalf. This was necessary in order to procure the insurance by the London companies. The amounts were charged to the New York brokers. Payment by Bowring was payment by Willcox, Peck & Hughes, so far as concerned the defendant, and the insurance which it obtained. We need not go as far, therefore, in this case as Ward v. Tucker (7 Wash. 399), which held that the actual payment of premiums by a marine insurance broker is not necessary before recovery from his principal. Here payment was made by the brokers through their London agent. Bowring & Co. was acting for Willcox, Peck & Hughes, not the defendant. The policies of insurance were delivered to the Downey Shipbuilding Corporation which for the period of the policies was insured for over $7,000,000. It has received the benefit of this insurance procured at its request and has failed and refused to pay the cost thereof. It is conceded that the premiums charged were very reasonable, and no fault whatever is found with the insurance or the work of the brokers.

How does it happen that the defendant has so far succeeded in this action? The statement in the letter of September 17, 1918, that the insurance was to be subject to the confirmation of the United States Shipping Board Emergency Fleet Corporation was held to be a bar to the plaintiff’s recovery because such consent had not been procured. We. do not so view the correspondence. This condition contained in the letter referred to was subsequently waived by the acts and statements of the parties. Perhaps waiver is an inappropriate term to use in connection with the situation. It would be more accurate to state that the proposed condition was not insisted upon, and that in the course of the negotiations going to make up the completed contract, was dropped. In all the letters, only a few of which have been quoted here, this condition was referred to but once or twice. The insurance was procured at the request of the defendant; the directors of the defendant approved the placing of the insurance. Nearly two months after this letter of September 17th, the defendant demanded the policies; it kept the policies for the full period of the insurance and received all the benefits which those policies could give. In other words, at its request it received twenty-five thousand dollars’ worth of insurance for which it has not paid. The defendant was the party to obtain the consent, if necessary, of the Shipping Board. It did not do so; neither did it return the policies upon failure to procure such consent or notify the agents or companies to that effect. It kept the policies and the insurance, and is, therefore, in no position to plead its own default as a bar to the payment of this claim. The defendant knew, or should have known, that the condition, if it be one, could not be fulfilled or carried out by reason of its own action. Almost six months before the insurance here referred to had been procured, the defendant insured the ten ships through the Shipping Board-. It thought it had only insured four ships, but even a casual reading of its correspondence would have revealed that the request had been made for insurance upon all the ships. The rate charged by the Shipping Board was too high, so the defendant opened negotiations with Willcox, Peck & Hughes for the insurance upon the remaining six ships. The Shipping Board refused to cancel its insurance, so that the defendant knew that it could not procure the consent of the Shipping Board to the plaintiff’s insurance. It may not have been conscious at the time it wrote the letter of September 17 of the fact that the Shipping Board at its request had already placed insurance on the six vessels; it should have known of its own previous correspondence. It did know this fact in the fall months of 1918, and yet continued its negotiations with the plaintiff’s assignor, procured and kept the London insuranee. The condition was not performed because the defendant itself had made the performance impossible.

For these reasons the judgment of the Appellate Division and that of the Trial Term should be reversed, and as there is no material or substantial dispute of facts, judgment ordered for the plaintiff for the amount demanded in the complaint, with costs in all courts.

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

„ Judgment accordingly.


author: Pound, J.

text:
    Daniel T. Francis et al., Individually and as Executors and Trustees under the Will of William Burrows, Deceased, Appellants, v. Joanna Ferguson, Individually and as Executrix of Edmond J. Curry, Deceased, Respondent, Impleaded with Another.
    Lease — covenants — assignment — decedent’s estate — executors and administrators — ordinary covenant against assignment not binding on executors of tenant —■ general provision that covenants are binding on legal representatives of parties not sufficient to prevent assignment.
    A clause at the end of a lease, “ that the covenants and agreements herein contained are binding on the parties hereto and their legal representatives,” expresses merely what the law presumes in the absence of such a clause and does not make binding on the executors of the tenant an ordinary covenant against assignment. If it had been the intention of the parties that the personal representatives of the tenant, in the event of his death, should not dispose of the lease as assets of his estate, the provision against assignment should have been directed to the particular fact. The covenant, therefore, does not prevent the assignment of the lease by executors of the tenant. Francis v. Ferguson, 218 App. Div. 840, reversed.
    (Argued November 28, 1927;
    decided December 13, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 5, 1926, unanimously affirming a judgment in favor of defendants entered upon an order of Special Term granting a motion for judgment on the pleadings dismissing the complaint on the merits.

      Bern Budd and Edwin K. Bertine for appellants.
    A covenant against assignment in a lease is construed with the utmost strictness against the lessor. (Riggs v. Pursell, 66 N. Y. 193.) A covenant against assignment does not bind a tenant’s executor. (Gazlay v. Williams, 210 U. S. 41; Doe v. Devan, 3 M. & S. 353; Weatherall v. Geering, 12 Ves. 504; Doe v. Smith, 5 Taunt. 795; Seers v. Hind, 1 Ves. Jr. 295.)

      Alexander Miller, Maxwell E. Topin and Charles V. Scanlon for respondent.
    The appellants are bound by the restriction. (Roe v. Harrison, 2 T. R. 425; Jackson v. Silvernail, 15 Johns. 279.)
   Pound, J.

The complaint alleges that the defendant Ferguson, on November 12, 1920, entered into a written lease with William Burrows whereby she demised to Burrows a garage property in New York city for the term of ten years, at a rental of $16,000 a year until September 1, 1926, and thereafter at a yearly rental of $18,000; that William Burrows died in November, 1925, leaving a last will, upon the probate of which letters testamentary were issued to these plaintiffs, as executors; that the plaintiffs as such executors entered into an agreement with the defendant Archer for the transfer of the lease to him; that Archer refused to complete the agreement on the ground that the lessor did not consent to the assignment. The complaint asks for a declaratory judgment that the plaintiffs may sell and give good title to the lease. The complaint was dismissed at Special Term upon a motion for judgment on the pleadings and a judgment of dismissal was granted. The Appellate Division unanimously affirmed the judgment.

The lease provides, among many other covenants, as follows:

“ That the Tenant, shall not assign this agreement, or underlet or underlease the premises or any part thereof, * * * without the Landlord’s consent in writing.”

At the end of the lease appears the following general clause:

“ And it is further understood and agreed, that the covenants and agreements herein contained are binding on the parties hereto and their legal representatives.”

The judgment below proceeds upon a misconception of the effect of the final clause of the lease. It expresses merely what the law presumes in the absence of such a clause. “It is a presumption of law, in the absence of express words, that the parties to a contract intend to bind not only themselves, but their personal representatives.” (Kernochan v. Murray, 111 N. Y. 306, 308.)

An ordinary covenant against assignment does not bind the executors of the tenant and is not broken by a transfer of the leased premises by operation of law. (Squire v. Learned, 196 Mass. 134; Gazlay v. Williams, 210 U. S. 41.) The covenant may, however, be so drawn as expressly to prohibit such a transfer. To accomplish such a prohibition in case of a devolution to executors, its language must be “ very special.” (Seers v. Hind, 1 Yes. Jr. 294.) Such covenants are construed “ with the utmost jealousy.” (Riggs v. Pursell, 66 N. Y. 193, 201.) The use of general language, not specially related to the covenant against assignment — language which the law would imply as a term of the lease — is not the “ very special ” prohibition which the cases require. In Roe v. Harrison (2 Term Rep. 425) the covenant was that neither the tenant nor his executors or administrators shall let. The restriction was explicit and no doubt could arise as to the meaning of the parties.

On the death of the tenant, his property was transferred to the executors of his will by operation of law. They had capacity to take and to dispose of it. If it had been the intention of the parties that the personal representatives of the tenant should not dispose of the lease as assets of the testator, the provision against assignment should have been directed to the particular fact. The duty of executors requires them to administer and settle the estate with due diligence. To interfere with the ordinary course of administration and compel them to hold the leased premises until the expiration of the term, something more than casual general words without meaning should appear.

The judgment of the Appellate Division and that of Special Term should be reversed and judgment on the pleadings directed in favor of the plaintiffs declaring that the covenant contained in the fourth paragraph of the lease does not prevent the assignment thereof by the plaintiffs, with ten dollars costs of motion and costs in all courts.

Cardozo, Ch. J., Crane, Andrews, Lehman and O’Brien, JJ., concur; Kellogg, J., not sitting.

Judgment accordingly.


text:
    William C. Atwater & Company, Inc., Appellant, v. Panama Railroad Company, Respondent.
    Contract — sale — rule for interpreting contracts — action to recover for breach of contract to purchase — provision that tonnage unshipped at expiration of agreement should be considered canceled — no bar to action where reading of entire contract shows no intention to release accrued claim for breach — rule that ambiguous clause is to be taken most strongly against party who prepared it does not justify interpretation of isolated clause without regard to rest of contract.
    1. In interpreting a contract the court should examine the entire agreement and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered,- not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought.

      2. An action to recover damages for breach of a contract to purchase coal may be maintained, notwithstanding a provision that “ any portion of the tonnage remaining unshipped at the expiration of this agreement shall be considered as canceled without notice,” where, from a reading of the clause, in connection with the entire contract, it is evident the plaintiff had no intention of releasing claims against defendant for breach of contract which had accrued at the date of the expiration of the agreement and that defendant could not reasonably have so understood the language used.
    3. The rule that in ease of ambiguity a clause in a contract is to be taken most strongly against the party who prepared it does not warrant the taking of an isolated clause in dispute and finding its meaning without regard to the surrounding circumstances or the apparent purpose which the parties sought to accomplish.

      Atwater & Co. v. Panama R. R. Co., 218 App. Div. 716, reversed.
    (Argued December 2, 1927;
    decided December 16, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 3, 1926, unanimously affirming a judgment in favor of defendant entered upon the report of a referee.

      Wilson W. Thompson and Edward M. Bassett for appellant.
    The referee erred in holding that the obligation to perform was canceled by the last sentence of paragraph 4 of the contract conditions. The effect of this ruling was to destroy the whole instrument as a contract and to render nugatory and meaningless all the important provisions therein by which the parties had sought to create or limit mutual obligations. The interpretation placed upon the contract by the referee is contrary to well-established canons of construction. (O’Brien v. Miller, 168 U. S. 287; City of New York v. Delli Paoli, 202 N. Y. 18; Fleishman v. Ferguson, 223 N. Y. 235; Sattler v. Hallock, 160 N. Y. 291; Clark v. DeVoe, 124 N. Y. 120; People v. Gluck, 188 N. Y. 167; GaNun v. Palmer, 216 N. Y. 603; Page v. Faure, 229 N. Y. 114; McCloskey v. Cromwell, 11 N. Y. 593; Atterbury v. Bank of Washington Heights, 241 N. Y. 231.)

      Richard Reid Rogers for respondent.
    The defendant, apart from the cancellation clause, received from the plaintiff and paid for a larger tonnage of coal than it was under any legal obligation to take under the terms of the contract. (Pope v. Porter, 102 N. Y. 366; Wolfert v. Caledonia Springs Ice Co., 195 N. Y. 118; Normandie Shirt Co. v. Eagle, 238 N. Y. 218; Hull Coal & Coke Co. v. Empire Coal & Coke Co., 113 Fed. Rep. 256; Maurer Co. v. Tubeless Tire Co., 272 Fed. Rep. 990; Jarnvagsstyrelsen v. Nat. City Bank, 20 Fed. Rep. [2d] 307; General Commercial Co. v. Butterworth, 198 App. Div. 799; Metropolitan Coal.Co. v. Billings, 202 Mass. 457; Delaware, Lackawanna & Western R. R. Co. v. Bowns, 58 N. Y. 573; Kellogg v. Boutwell Mining & Grain Co., 203 App. Div. 350.) The contract expressly stipulated that any portion of the tonnage remaining unshipped should be considered as canceled without notice. (Simon v. Etgen, 213 N. Y. 589; Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215; Strauss v. Ernstein, 232 N. Y. 187; Maurer Co. v. Tubeless Tire Co., 272 Fed. Rep. 990; Worcester Post Co. v. Parsons Co., 265 Fed. Rep. 591; Interstate Iron & Steel Co. v. Northwestern Bridge & Iron Co., 278 Fed. Rep. 50.)
   Pound, J.

The action is brought to recover damages for breach of a contract for the purchase of coal. The contract was made on July 28, 1920. Plaintiff agreed to sell and defendant to buy 36,000 tons of coal at an agreed price. The contract ran from August 1, 1920, to July 31, 1921. The coal was to be delivered in approximately equal monthly installments at the rate of 3,000 tons a month. Plaintiff’s contention is that defendant refused to accept some 12,500 tons which it was obligated to receive under its contract by July 31, 1921, and that it has been damaged thereby the difference between the contract price and the lesser market value of the coal.

The case was tried before a referee. He found that, by the terms of the contract, no recovery could be had for breach of contract for any portion of the tonnage remaining unshipped on July 31, 1921, and dismissed the complaint. The Appellate Division unanimously affirmed the judgment of dismissal.

Plaintiff operated a coal mine in West Virginia. It had many large contracts for future shipments. Under existing conditions, it was not disposed to bind itself absolutely to deliver the coal in regular monthly portions. It accordingly protected itself by carefully worded provisions in the contract against possible liability for undelivered tonnage. All deliveries were subject to war conditions, insurrections, mine disasters or breakdowns, fires, accidents, shortage of cars or interruptions of car service, strikes, labor agitations or disturbances, shortage of labor supply or any other causes beyond its control. If by reason of such causes the production of plaintiff’s collieries should be less than their normal maximum capacity, tonnage to be delivered under the contract might at the option of the seller be reduced without liability on the part of the seller for such reduction. In case of strikes or accidents unavoidably causing the stoppage of the works or the business of the purchaser, the purchaser might request deliveries to be suspended during such stoppage and the tonnage of deliveries so suspended would be canceled.

Then comes the following clause:

4. Unless otherwise specified, all coal sold under this contract must be ordered and taken by the purchaser regularly, in substantially equal monthly proportions; otherwise the seller shall without notice to the purchaser at any time during the contract period, have the right to cancel any tonnage of coal not taken by the purchaser up to that time. In such case the seller shall also have the right to reduce the tonnage of shipments during the remainder of the contract period to the basis of average monthly deliveries which have been previously taken by the purchaser. Any portion of the tonnage remaining unshipped at the date of expiration of this agreement shall he considered as canceled without notice.”

During August, September and November, 1920, plaintiff was unable to deliver the full 3,000 tons a month called for by the contract, but on January 31, 1921, it claims to have delivered in full both the current and the deferred tonnage. On March 7, 1921, defendant refused to take any coal for its account after that date and refused to order any future deliveries.

On July 31, 1921, the date of the expiration of the agreement, plaintiff claimed that a balance of upwards of 12,500 gross tons remained unaccepted and unpaid for by the defendant. The case was disposed of by the learned referee on his reading of the last clause of paragraph four of the contract quoted above which, he held, became self-operative at the termination of the contract and a bar to any cause of action by plaintiff for breach by defendant of its contract to order and receive coal.

Any portion of the tonnage remaining unshipped at the date of the expiration of this agreement shall be considered as canceled without notice.” When this clause is read in connection with the entire contract, and particularly with the other provisions of paragraph four, it is evident that the plaintiff had not the remotest intention of releasing any claims against defendant for damages for breach of contract which had accrued at the date of the expiration of the agreement and that the defendant could not reasonably have so understood the language thus used. The buyer’s rights were not the object of the seller’s solicitude. If the seller had failed, in the" exercise of its right to delay or defer shipments, to ship any portion of the tonnage, the buyer’s rights to demand further shipments were to cease with the expiration of the contract. The right of the seller to damages for the buyer’s breach of the contract remained unaffected. If this were not so, the buyer might breach its contract and refuse to order and receive coal with impunity. The general sense of the contract compels us to reject- this result. Reason, equity, fairness — all such lights on the probable intention of the parties — show what the real agreement was. The clause in question may have been inserted by way of greater precaution without adding to the contract anything of substance which the law did not imply, but it cannot, taken as the part of a whole, be read as meaning that any claim of the seller against the buyer for damages for failure to take deliveries of coal should at the expiration of the agreement be deemed canceled without notice. To give it such a meaning would attribute to plaintiff a generous purpose wholly inconsistent with its manifest sharpness in bargaining.

The learned referee says that this condition is plaintiff’s own and in case of ambiguity is to be taken most strongly against it as the party who prepared the contract. He, however, takes the isolated clause in dispute and finds its meaning plain. In this we think he disregarded the proper rule for the construction of contracts. “ Contracts are not to be interpreted by giving a strict and rigid meaning to general words or expressions without regard to the surrounding circumstances or the apparent purpose which the parties sought to accomplish.” (Robertson v. Ongley Electric Co., 146 N. Y. 20, 24; Gillet v. Bank of America, 160 N. Y. 549, 556.) The court should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought.

By giving an eleemosynary rather than a business meaning to the words used in a cautiously drawn contract, the court below has placed the seller at the mercy of the buyer and the agreement to buy has become a mere option. This result is to be avoided if possible. (Russell v. Allerton, 108 N. Y. 288; Robertson v. Ongley Electric Co., supra.) A reading of the whole agreement makes it not only possible but unavoidable.

As the court below disposed of the plaintiff’s case solely on the question of the meaning of the clause quoted above, the case should be sent back for a new trial. Although plaintiff contends that the record establishes liability for the amount claimed, the defendant challenges this conclusion and claims performance.

The judgment of the Appellate Division and that entered on the referee’s report should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


text:
    In the Matter of Louis Wolff, Respondent, against Michael J. Cruise, City Clerk of the City of New York, et al., Appellants. William Chilvers et al., Interveners, Appellants.

      Elections — constitutional law — term of office of Municipal Court justice elected to fill vacancy occurring other than by expiration of term.

    (Argued October 3, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at New York County Special Term and entered September 9, 1927, which granted a motion for a peremptory order of mandamus directing the city clerk of the city of New York to certify to the board of elections of the city of New York that a justice of the Municipal Court of the city of New York to succeed William Chilvers is to be voted for at the election in 1927 and directing the board of elections to publish a notice that nominations are to be made for such office and to provide appropriate ballots for use at the primary election for said office.
    • George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      Leonard J. Obermeier for William Chilvers et al., intervenors, appellants.

      Maurice Block, Henry L. Sherman, Edward S. Dore and Frank Oliver for respondent.
   Order reversed and application denied, without costs, on opinion in Matter of Carey v. Cruise (246 N. Y. 237).

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


text:
    In the Matter of John A. O’Neill, Respondent, against Michael J. Cruise, City Clerk of the City of New York, et al., Appellants. Thomas J. Whalen et al., Interveners, Appellants.

      Elections — constitutional law — term of office of Municipal Court justice elected to fill vacancy occurring other than by expiration of term.

    (Argued October 3, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at New York County Special Term and entered September 10, 1927, which granted a motion for a peremptory order of mandamus directing the city clerk of the city of New York to certify to the board of elections of the city of New York that a justice of the Municipal Court of the city of New York to succeed Thomas J. Whalen is to be voted for at the election in 1927; and directing the board of elections to publish a notice that nominations are to be made for such office and to provide appropriate ballots for use at the primary election to said office.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      I. Maurice Wormser and John H. Conroy for intervenors, appellants.

      Maurice Block and Edward S. Dore for respondent.
   Order reversed and application denied, without costs, on opinion in Matter of Carey v. Cruise (246 N. Y. 237).

Concur: Cárdozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    In the Matter of Louis J. Capozolli, Respondent, against Michael J. Cruise, City Clerk of the City of New York, et al., Appellants. Joseph Raimo et al., Intervenors, Appellants.

      Elections — constitutional law — term of office of Municipal Court justice elected to fill vacancy occurring other than by expiration of term.

    (Argued October 4, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at New York County Special Term and entered September 14, 1927, which granted a motion for a peremptory order of mandamus directing the board of elections of the city of New York to provide appropriate ballots for use at primary election so that nominations may be made for justice of the Municipal Court in the second district of the borough of Manhattan.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      Maurice Block and Edward S. Dore for respondent.
   Order reversed and application denied, without costs, on opinion in Matter of Carey v. Cruise (246 N. Y. 237).

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


text:
    In the Matter of Richard E. Troy, Respondent, against Michael J. Cruise, City Clerk of the City of New York et al., Appellants. John G. McTigue et al., Intervenors, Appellants.

      Elections — constitutional law —■ term of office of Municipal Court justice elected to fill vacancy occurring other than by expiration of term.

    (Argued October 4, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at New York Special Term and entered September 10, 1927, which granted a motion for a peremptory order of mandamus directing the city clerk of the city of New York to certify to the board of elections of the city of New York that a justice of the Municipal Court of the city of New York to succeed John G. McTigue is to be voted for at the election in 1927 and directing the board of elections to publish a notice that nominations are to be made for such office and to provide appropriate ballots for use at the primary election to said office.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      John J. Barrett, Jr., for intervenors, appellants.

      Maurice Block and Edward S. Dore for respondent.
   Order reversed and application denied, without costs, on opinion in Matter of Carey v. Cruise (246 N. Y. 237).

Concur: Cakdozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    In the Matter of Thomas R. Minnick, Respondent, against Michael J. Cruise, City Clerk of the City of New York, et al., Appellants. Ely Neumann et al., Intervenors, Appellants.

      Elections — constitutional law — term of office of Municipal Court justice elected to fill vacancy occurring other than hy expiration of term..

    (Argued October 3, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at New York Special Term and entered September 12, 1927, which granted a motion for a peremptory order of mandamus directing the city clerk of the city of New York to certify to the board of elections of the city of New York that a justice of the Municipal Court of the city of New York to succeed Ely Neumann is to be voted for at the election in 1927, and directing the board of elections to publish a notice that nominations are to be made for such office and to provide appropriate ballots for use at the primary election to said office.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      William P. Thomas for intervenors, appellants.

      John B. Johnston and Frank Oliver for respondent.
   Order reversed and application denied, without costs, on opinion in Matter of Carey v. Cruise (246 N. Y. 237).

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


text:
    In the Matter of George H. Nugent, Respondent, against Michael J. Cruise, City Clerk of the City of New York, et al., Appellants. James J. Fitzgerald et al., Intervenors, Appellants.

      Elections — constitutional law — term of office of Municipal Court justice elected to fill vacancy occurring other than by expiration of term.

    (Argued October 3, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at New York Special Term and entered September 12, 1927, which granted a motion for a peremptory order of mandamus directing the city clerk of the city of New York to certify to the board of elections of the city of New York that a justice of the Municipal Court of the city of New York to succeed James J. Fitzgerald is to be voted for at the election in 1927, and directing the board of elections to publish a notice that nominations are to be made for such office and to provide appropriate ballots for use at the primary election to said office.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      William P. Thomas for intervenors, appellants.

      John B. Johnston and Frank P. Oliver for respondent.
   Order reversed and application denied, without costs, on opinion in Matter of Carey v. Cruise (246 N. Y. 237).

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


text:
    In the Matter of Walter A. Van Ness, Respondent, against Michael J. Cruise, City Clerk of the City of New York, et al., Appellants. Lewis A. Abrams et al., Intervenors, Appellants.

      Elections — constitutional law — term, of office of Municipal Court justice elected to fill vacancy occurring other than by expiration of term.

    (Argued October 3, 1927;
    decided October 7, 1927.)
    Appeal from a final order of the Supreme Court, made at New York Special Term and entered September 10, 1927, which granted a motion for a peremptory order of mandamus directing the city clerk of the city of New York to certify to the board of elections of the city of New York that a justice of the Municipal Court of the • city of New York to succeed Lewis A. Abrams is to be voted for at the election in 1927, and directing the board of elections to publish a notice that nominations are to be made for such office and to provide appropriate ballots for use at the primary election to such office.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for City Clerk et al., appellants.

      Samuel D. Lasky for intervenors, appellants.

      Maurice Block and Edward S. Dore for respondent.
   Order reversed and application denied, without costs, on opinion in Matter of Carey v. Cruise (246 N. Y. 237).

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


text:
    In the Matter of Frederick J. Knob, Appellant, against Thomas S. Cheshire, as Board of Elections of Nassau County, et al., Respondents.

      Elections — constitutional law — validity of provision of charter of city of Long Beach making term of office of supervisor four years.

      Matter of Knob v. Cheshire, 221 App. Div. 816, affirmed.
    (Argued October 3, 1927;
    decided October 7, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered September 16, 1927, which affirmed an order of Special Term, denying a motion for an order directing the board of elections of Nassau county to print the name of petitioner upon appropriate ballots for the office of supervisor of the city of Long Beach to be voted for at the primary election for the year 1927. The petitioner contended that the provisions of the charter of the city of Long Beach (L. 1922, ch. 625) making the term of supervisor four years are violative of section 18 of article 3 of the State Constitution and that the term of office is two years as prescribed in the General City Law.

      James C. Van Siclen for appellant.

      H. Stewart McKnight and Fred Ingraham, Jr., for respondent.

      Simon M. Sapensky, Corporation Counsel for city of Long Beach, respondent.

      Edgar J. Nathan, Jr., for Thomas J. Hogan, respondent.
   Order affirmed, without costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Andrews, Lehman and O’Brien, JJ. Dissenting: Crane and Kellogg, JJ.


text:
    Ross F. Brooks et al., Appellants, v. Walter B. Wyman et al., as Trustees of Central School District No. 3 of the Town of Crown Point, Respondents.

      Taxpayer's action — schools — action to restrain trustees of school district from selling bonds for erection of school building — school district not a municipal corporation.

      Brooks v. Wyman, 220 App. Div. 204, affirmed.
    (Argued October 5, 1927;
    decided October 11, 1927.)
    Appeal from a judgment, entered March 18, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of Special Term denying a motion for a dismissal of the complaint and granted said motion in a taxpayer’s action to restrain the defendants, trustees of a school district, from selling bonds and taking steps for the erection of a school building.

      Fred W. Dudley, Franklin A. Rowe and Roy Lockwood for appellants.

      Ralph E. Rogers for respondents.
   Judgment affirmed, with costs; held, that a school district is not a municipal corporation within the meaning of section 51 of the General Municipal Law. (See General Municipal Law, § 2; Hamilton v. Baker, 243 N. Y. 578.)

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


text:
    Courteen Seed Company, Appellant, v. Hong Kong and Shanghai Banking Corporation, Respondent.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 377.)