text:
    The People of the State of New York, Respondent, v. Philip Geffin, Appellant.
    (Submitted March 28, 1927;
    decided April 5, 1927.)
    Crimes — appeal — practice — application for leave to appeal to Court of Appeals in criminal case must be made within thirty days — if certificate granted after expiration of thirty days appeal must be taken forthwith.
    An application for a certificate permitting an appeal to the Court of Appeals in a criminal case must be made within thirty days after the judgment was rendered or the order entered. If the judge to whom the application is made does not decide the matter within the thirty days, the appeal must be taken after the certificate is granted, forthwith.
    People v. Geffin, 218 App. Div. 755, appeal dismissed.
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 5, 1926, which affirmed a judgment of the Court of General Sessions in the county of New York, rendered upon a verdict convicting the defendant of the crime of criminally receiving stolen property in the first degree.

      Joab H. Banton, District Attorney (Robert Daru of counsel), for motion.

      Vincent T. Follmar and John J. Curtin opposed.
   Per Curiam.

On March 12, 1926, the defendant was convicted of criminally receiving stolen property in the first degree and sentenced to not less than two and one-half years nor more than five years in State's prison, and a fine of $500. Thereafter an appeal was taken to the Appellate Division of the Supreme Court, first department, which made an order on November 5, 1926, unanimously affirming the order of conviction. On February 18, 1927, one of the judges of this court granted a certificate permitting an appeal pursuant to section 521 of the Code of Criminal Procedure. A motion has now been made by the district attorney to dismiss the appeal upon the ground that the application for the certificate was not made in time. This motion was made at the suggestion of the judge granting the certificate in order that this court may settle the practice regarding these applications.

Under the amendments to section 520 made by the Laws of 1926, chapter 465, taking effect July 1, 1926, but one appeal is allowed in a criminal case as matter of right. An appeal must be taken within thirty days after the judgment is entered. A further appeal may be taken to the Court of Appeals where a judge of that court or a justice of the Appellate Division of the department in which such conviction was had certifies that a question of law is involved which ought to be reviewed by the Court of Appeals. The Legislature, however, has failed to prescribe any time within which the application for such a certificate shall be made.

By section 521 an appeal must be taken within thirty days after the judgment was rendered or the order entered. The word “ order ” evidently refers to the order of the Appellate Division. As the appeal must be taken within thirty days after the entry of such an order it necessarily follows that the application for the certificate permitting such an appeal must also be applied for within those thirty days.

The application for the certificate in this case was made more than three months after the affirmance by the Appellate Division. It was too late. The motion to dismiss the appeal should be granted and appeal dismissed.

It may happen that the judge to whom the application is made may not be able to decide the matter within the thirty days. In such case, the appeal must be taken after the certificate is granted, forthwith.

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

. Appeal dismissed.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    Miriam Isaacs, Appellant, v. J. Carl Schmuck, Respondent.
    (Argued March 28, 1927;
    decided May 3, 1927.)
    Vendor and purchaser — real property — contract of sale — reformation — covenants — discovery by search of undisclosed restrictive covenants running with land — action to recover down payment — counterclaim for reformation of contract — insufficiency of allegations to sustain claim for reformation — covenant that no wine, malt or spirituous liquor shall be sold on premises an incumbrance affecting title — covenant not narrowed by adoption of Eighteenth Amendment and statutes thereunder — court may not require purchaser to accept less than complete dominion.
    1. In an action to recover the down payment made by plaintiff on entering into a contract for the purchase of land from defendant, upon the ground that search had disclosed restrictive covenants running with the land not enumerated in the schedule of exceptions, no ease for reformation of the contract can be found in the mere fact that the counsel for the buyer, who was to draw the contract, had received from the seller a deed from the latter’s grantor containing a reference to the restriction, when the preliminary agreement to be reduced to written form was for a title free from all incumbrances except those specifically enumerated.
    2. A covenant, which formed one branch of the restriction, that no “ wine or malt or spirituous liquor ” shall “ be sold upon the premises,” is an incumbrance sufficiently substantial to affect the quality of the title. The range of (he covenant is broader than that of the Eighteenth Amendment of the Constitution, since the covenant includes sales by wholesalers and pharmacists permitted by the law. By the acceptance of this title, the buyer will be subject to a covenant whereby a business, otherwise lawful, is to be kept from off her land. She bargained for complete dominion and the court may not require her to be satisfied with less.
    3. Qucere,' whether a covenant against noxious forms of business would constitute an incumbrance in view of provisions of the zoning law, and the remoteness of so great a change in the character of the neighborhood.

      Isaacs v. Schmuck, 218 App. Div. 516, reversed.

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1926, which reversed an order of Special Term granting a motion for summary judgment, under Civil Practice rule 113 and denied said motion.
    The following questions were certified:

      “1st. Does paragraph ‘Forty-first’ of the amended answer state a defense to plaintiff’s cause of action?

      “2nd. Do paragraphs ‘ Forty-second ’ and ‘ Forty-third ’ of the amended answer state sufficient facts to constitute a cause of action?

      “3rd. Does the restrictive covenant contained in the deed of Newbold Lawrence as executor to J. Carl Schmuck dated April 13th, 1895, render the title to the premises described in the complaint unmarketable under the terms of the contract between the parties, set up in the complaint?

      “4th. On this record was the Special Term justified in granting plaintiff’s motion for summary judgment? ”

      Emanuel S. Cahn for appellant.
    Paragraph forty-first of the amended answer does not state a defense to plaintiff’s cause of action and paragraphs forty-second and forty-third do not state sufficient facts to constitute a cause of action. (Metzger v. Ætna Life Ins. Co., 227 N. Y. 411; Nevins v. Dunlap, 33. N. Y. 676; Curtis v. Albee, 167 N. Y. 360; Christopher & Tenth St. R. R. Co. v. Twenty-third St. Ry. Co., 149 N. Y. 51; Allison Brothers Co. v. Allison, 144 N. Y. 21; City of New York v. Matthews, 156 App. Div. 490; Moffet v. Jaffe, 132 App. Div. 7; Sweet v. Marsh, 133 App. Div. 315; Drachler v. Foote, 88 App. Div. 270; Stout v. Smith, 98 N. Y. 25.) Defendant’s title is unmarketable. Defendant contracted to convey the premises free of all incumbrances except zoning restrictions. This defendant could not do and plaintiff is entitled to the return of her deposit. (Bull v. Burton.
      227 N. Y. 101; Dieterlen v. Miller, 114 App. Div. 40; Heim v. Schwoerer, 115 App. Div. 295; 187 N. Y. 542; Foster v. Scott, 136 N. Y. 577; Wetmore v. Bruce, 118 N. Y. 319; Warner v. Doscher, 213 App. Div. 117; 241 N. Y. 605; Yokshas v. Damcovich, 214 App. Div. 640; Groden v. Jacobson, 129 App. Div. 508; Oppenheimer v. Humphreys, 9 N. Y. Supp. 840; 125 N. Y. 733.)

      Charles S. Noyes for respondent.
    The respondent is entitled to a reformation of the contract by the insertion of a reference to the alleged restrictive covenant. (Albany City Savings Inst. v. Burdick, 87 N. Y. 40; Frankenburg v. Perlman, 180 App. Div. 174; 223 N. Y. 673; International Ferry Co. v. American Fid. Co., 207 N. Y. 350; Gotthelf v. Shapiro, 136 App. Div. 1; Kilmer v. Smith, 77 N. Y. 226; Friedman Marble & Slate Works v. Whitcomb, 186 App. Div. 509; Lenton v. Unexcelled Fire Works Co., 128 N. Y. 672; Born v. Schrenkeisen, 110 N. Y. 55; Metzger v. Ætna Life Ins. Co., 227 N. Y. 411.) The covenant contained in the deed of Lawrence to Schmuck of April 13, 1895, does not render the title unmarketable, even if a reference to this is not inserted in the contract. (Clement v. Burtis, 121 N. Y. 708; Lincoln Trust Co. v. Williams Building Corp., 229N. Y. 313; Postley v. Kafka, 213 App. Div. 595; Bull v. Burton, 227 N. Y. 101; McLean v. Woolworth Co., 204 App. Div. 118; Schoonmaker v. Heckscher, 171 App. Div. 148; 218 N. Y. 722; Schurman v. Schechter, 215 App. Div. 291; Duryea v. Mayor, etc., of N. Y., 62 N. Y. 59 ; Kitching v. Brown, 180 N. Y. 414; Munro v. Syracus , etc., R. Co., 200 N. Y. 224.)
   Cardozo, Ch. J.

Plaintiff and defendant made a contract for the purchase and sale of real property located at Lawrence, Nassau county, New York. The sale was to be subject to the restrictions of a zoning ordinance, and to building encroachments, if any, upon street or highway. With those exceptions the title was to be free of all incumbrances. The buyer, searching the title, found restrictive covenants, running with the land, and limiting its use. The seller had acquired title from one Lawrence in April, 1895, by a deed which provided in the habendum that the title of the grantee, his heirs and assigns should be forever subject to the same covenants and restrictions in respect of the use of the premises as were contained in a recorded deed, covering neighboring property, made by Lawrence to one Murray in June, 1891. The covenants thus incorporated by reference are the following:

“And the said party of the second part for herself, her heirs and assigns does hereby and by the acceptance of these presents covenant and agree to and with the said party of the first part his successors and assigns that neither the said party of the second part nor her heirs or assigns shall at any time hereafter permit or suffer any wine or malt or spirituous liquor to be sold upon the said premises or any part thereof or erect suffer or permit on the premises hereby granted or in any part thereof any building for the carrying on of any noxious trade or business or permit any noxious trade or business to be carried on upon said premises nor suffer any nuisances to be placed thereon. And it is understood and agreed between the parties hereto that this covenant is attached to and shall run with the land and it shall be lawful not only for the said party of the first part and his successors but also for the owner or owners of any lot or lots of land adjoining or in the neighborhoot of the premises hereby conveyed deriving title through he said Newbold Lawrence, deceased or his devisees tc institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate the same, it being understood however that this covenant shall not be enforced personally for damages against the said party of the second part her heirs or assigns unless she or they be the- owners of that portion of the said premises upon which the violation of this covenant is done at the time of such violation.”

The plaintiff, having rejected title because of these restrictions, has sued to recover the down payment, $20,000, and $800 for services of counsel. The defendant has counterclaimed for the reformation of the contract so as to provide for the acceptance of title subject to restrictive covenants, and for specific performance of the contract as reformed. On plaintiff’s motion for summary judgment under Civil Practice rule 113, the court severed the action (there being a contest as to the value of the services of counsel), and ordered judgment for the amount of the deposit, with interest and costs. The Appellate Division held by a divided court that the counterclaim though loosely pleaded, might be held, if liberally construed, to state a case for reformation. The reversal of the judgment was followed by the allowance of an appeal to this court with questions duly certified.

We find no case for reformation in the allegations of the answer and the supporting affidavits. In substance they amount to this: The seller was not represented by counsel at the making of the contract. The terms having been settled, the contract was drawn by counsel for the buyer. Before this was done, there was handed to counsel the deed from Lawrence to defendant which contained a description of the land to be conveyed. The fact that there was a restrictive covenant in this deed had gone out of defendant’s mind. Defendant did remember that there was a like restriction in a deed of his own to one Holmes, and stated to the buyer that this restriction would be canceled. If he had remembered the earlier deed, he would have asked that the contract be made subject to its covenants. Counsel, having possession of the deed, had notice thereby that a restriction of some kind had been imposed. His failure to mention it is said to charge the buyer with a duty to accept the burden of the restriction whatever it may be.

We find nothing in this recital to sustain the claim for reformation. At • no time was there any agreement between buyer and seller that the land should be conveyed with the incumbrance of restrictive covenants. On the contrary, the understanding was that the only restriction then outstanding was the one in the later deed to Holmes, and that this would be extinguished. Even if the buyer’s counsel, examining the defendant’s deed, had observed a reference to some earlier restriction in the. deed from Lawrence to Murray, he would have failed in his duty to his client if he had written into the contract a covenant to assume it. He did not know what it was, its extent, its duration, or anything else about it. The defendant is not asldng for the cancellation of the contract on the basis of unilateral mistake. What he seeks is reformation. For this his own mistake will not avail unless shared in by the buyer or induced by the buyer’s fraud. There is no charge of fraud. There is none of mutual mistake, or of discrepancy between the terms as settled by prehminary treaty and those embodied in the writing (Born v. Schrenkeisen, 110 N. Y. 55, 59; Pitcher v. Hennessey, 48 N. Y. 415, 423, 424). Neither in pleading nor in affidavit is there support for the conclusion that by the true agreement of the parties the land was to be subject to an incumbrance not enumerated in the schedule of exceptions.

The question remains whether the restriction is of such a nature as to rank as an incumbrance, or one sufficiently substantial to affect the quality of the title. By one branch of the restriction the land is subjected to a covenant that no “ wine or malt or spirituous liquor ” shall “ be sold upon the premises.” The Eighteenth Amendment and the National Prohibition Act forbid the sale of intoxicating liquors for beverage purposes. If the covenant did no more, its existence would not serve to make the title to the land unmarketable (Clement v. Burtis, 121 N. Y. 708; Bull v. Burton, 227 N. Y. 101, 111). The difficulty is, however, that the covenant does more. Under the Constitution and the act of Congress, wine and liquor may still be sold when an appropriate license is obtained. There may be sales by pharmacists in limited quantities upon the prescription of physicians (41 Stat. 305, §§ 16, 17). There may be sales by wholesale dealers to buyers to whom permits have been issued (§§ 12,16). Such sales, though lawful under the statute, would violate the restrictions to which the defendant’s land has been subjected. We are not at liberty to construe the covenant as containing an implied exception of sales for sacramental uses or for medicine, in wholesale or in retail quantities. The meaning of the restriction is to be ascertained in the light of the conditions existing at the time of its creation (Kitching v. Brown, 180 N. Y. 414). At that time the sale of intoxicating liquors was regulated in the main by Laws of 1857, chapter 628, as amended by Laws of 1870, chapter 175 (see People v. Smith, 69 N. Y. 175). Licenses might be granted to the proprietors of inns, taverns and hotels for the sale of liquor to be drunk upon the premises. Licenses might be granted to other persons for the sale of liquor in quantities less than five gallons, but not to be drunk upon the premises (People v. Smith, supra). This was the form of license appropriate for pharmacists or grocers. There were other provisions for sales in excess of five gallons (L. 1870, ch. 175, as amended by L. 1887, ch. 679; People v. Vosburgh, 76 Hun, 562). The covenant in these deeds was not restricted to sales at inns, taverns or hotels. It covered sales for any purpose, in any amount, at any place (Plumb v. Tubbs, 41 N. Y. 442, 446, 447). Pharmacists were subject to its prohibition as much as innkeepers or grocers (cf. L. 1845, ch. 300, § 5). Of necessity this was so, or the restriction would have been reduced to mere futility. In the conditions then existing, there was no way of discriminating between sales for beverage and for medicine. Prescriptions were unnecessary and,, therefore, must have been rarely given. If given, they would have meant little, for they could have been issued without limit in amount or without check upon the good faith of the physician or the patient. The pharmacist was on the same plane as any other storekeeper when trafficking in liquor.

Later legislation, nearly, though not quite, contemporaneous with the covenant; preserves a like conception of the nature of the traffic. By the Liquor Tax Law of 1896 (L. 1896, ch. 112; Cons. Laws, ch. 34), excise taxes are divided into four grades. One tax is upon the business of trafficking in liquors to be drunk upon the premises where sold. A second is upon the business of trafficking in liquors in quantities less than five gallons, no part of which shall be drunk upon the premises where sold. Such a certificate may be issued to a duly licensed pharmacist as well as to other storekeepers (§ 11, subd. 3). A third is upon the business of trafficking in liquors by a duly licensed pharmacist, subject to the additional restriction that the liquor shall not be sold except upon the written prescription of a duly licensed physician, to be preserved by the vendor. The same statute makes provision for a system of local option, and prescribes the form of questions to be submitted to the electors (§ 16). One of the questions is this: Shall any corporation, association, copartnership or person be authorized to traffic in liquor under subdivision three of section eleven of the Liquor Tax Law, which provides for the sale of liquor as a pharmacist on a physician’s prescription? Even a sale for medicine was thus recognized as a form of traffic to be excluded altogether at the will of the electors (cf. L. 1909, ch. 39). It was so recognized long before in the act of 1845 (L. 1845, ch. 300, § 5).

We think the conclusion is inevitable that the sale of liquor for any purpose was within the range of this covenant at the time of its creation. There was no exception in favor of wholesale dealers or of pharmacists or physicians. If this is, so, we may not say that the range of the covenant has been narrowed by the adoption of the Eighteenth Amendment and the statutes passed thereunder. No doubt the primary object of the covenant was to prevent the unrestricted sale of liquor as a beverage. Such a restriction might be useful in tending to reduce intemperance and in improving the quality of the neighborhood and hence the value of the property (cf. Plumb v. Tubbs, supra). On the other hand, the opportunity for evasion is at hand so long as sales are made at all, even by wholesalers or pharmacists, a fact notorious to-day and sufficiently attested by the exaction of a license. Judicial notice of these conditions has been taken by our highest court. “ The opportunity to manufacture, sell and prescribe intoxicating malt liquors for ' medicinal purposes,’ opens many doors to clandestine traffic in them as beverages under the guise of medicines,” and “ facilitates many frauds, subterfuges and artifices ” (Everard’s Breweries v. Day, 265 U. S. 545, 561; Lambert v. Yellowley, 272 U. S. 581). The framers of the covenant were not taking any chances. They knew that the prohibited traffic was conducted by pharmacists and grocers as well as at saloons and inns and restaurants. Very likely they might wisely have excepted pharmacists just as they might also have excepted grocers. They chose not to do so. They prohibited the sale of wine and liquor absolutely and always. Changes in the law, and in the business now conducted by wholesalers and pharmacists, may have made the enforcement of the covenant less important than in the days when it was framed. They are not so great that its object has been ended altogether (Knight v. Simmonds, 1896, 2 Ch. 294, 298). It is still an additional safeguard, though a slight one, against intemperance and disorder. “ We cannot say that prohibiting traffic in intoxicating malt liquors for medicinal purposes has no real or substantial relation to the enforcement of the Eighteenth Amendment, and is not adapted to accomplish that end and make the constitutional prohibition effective.” These are the words of the Supreme Court in upholding the National Prohibition Act (Everard’s Breweries v. Day, supra). For like reasons we cannot say that a kindred prohibition has no real or substantial relation to the enforcement of a servitude.

The plaintiff, if coerced into the acceptance of this title, will thus be subject to a covenant whereby a business otherwise lawful is to be kept from off her land. This is clearly an incumbrance (Bull v. Burton, 227 N. Y. 101, 111), and the contract is that the conveyance shall be subject to no incumbrance unless specifically excepted. The day may come when the plaintiff will find a purchaser who will wish to use the land for the prohibited purpose and no other. Should that day arrive, the covenant may defeat the sale. At best there will be exposure to the risk of litigation for an injunction, or, if an injunction be refused (Forstmann v. Joray Holding Co., Inc., 244 N. Y. 22), for the recovery of damages (Trustees v. Lynch, 70 N. Y. 440, 453; McClure v. Leaycraft, 183 N. Y. 36). These are improbable contingencies. They are not so improbable that they may be disregarded altogether. We may suppose the case of a covenant stating in so many words that wine or liquor shall not be sold upon the premises even at times or for purposes permitted by an act of Congress. No one would say that the incumbrance would be a very serious one, yet no one would say that it would be anything less than an incumbrance. It would be the same in its effect as the prohibition of any other single business, e. g., a restaurant or a bakery. The buyer bargained for complete dominion, and the court may not require her to be satisfied with less (Bull v. Burton, supra; Cato v. Thompson, 9 Q. B. D. 616, 618; Weinberg v. Sanders, 204 App. Div. 409; Peck v. Conway, 119 Mass. 546, 550).

The conclusion thus reached makes it unnecessary to determine the effect of the restriction against noxious forms of business. Such a covenant approaches closely to a covenant against nuisances, even if somewhat broader (McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40; Bull v. Burton, supra). A covenant similar, but not identical, was held in Bull v. Burton (supra) to constitute an incumbrance, though the property affected was located on Fifth Avenue in the city of New York with the result that the use for any prohibited purpose was violently improbable. The decision in that case was reached by a closely divided court before the passage of the zoning laws. The effect, of the covenant was to impose a present limitation upon the dominion of the owner, if moved by whim or fancy to dedicate his lots to a bizarre or freakish use. Here there are no present hmitations beyond those imposed by law, and no prospect of any hereafter, unless prospect is extended to include a distant possibility. A possibility may be so distant that the clearness of a title will not be clouded by its presence. For this also Bull v. Burton may be cited as authority. One of the covenants in that case was against the erection of any building not made of brick or stone. A statute or ordinance contained a like restriction. The court dismissed as negligible the possibility of legislation whereby the provisions of the law would become less stringent than the provisions of the covenant (pp. 106, 107). By the zoning ordinance of the village of Lawrence the property in question, described in the answer as located in a high-class residential neighborhood, has been placed in a residence district. To make a noxious use permissible, the land would have to be taken out of a residence district, and even out of a business one, and put into a district wholly unrestricted. Some changes of the ordinance, e. g., from a residence to a business district, are within the bounds of reasonable probability (Kimball Co. v. Fox, 120 Misc. Rep. 701; 209 App. Div. 812; 239 N. Y. 554). We leave the question open whether changes wholly revolutionary, transformations so remote and speculative as to be little more than theoretical possibilities, may be disregarded as negligible in determining the quality of the title (Bull v. Burton, supra, 106, 107; Cambrelleng v. Purton, 125 N. Y. 610, 616).

The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in the Appellate Division and in this court. The first and second questions are answered in the negative and the third and fourth in the affirmative.

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

Ordered accordingly.


author: Per Curiam.

text:
    In the Matter of Julia T. Dick et al., as Executrices of the Estate of William Dick, Deceased, Appellants, against Vincent B. Murphy, as Comptroller of the State of New York, et al., Respondents.
    (Argued March 28, 1927;
    decided May 3, 1927.)
    Tax — decedent’s estate — transfer tax — interest — order assessing transfer tax — authority of Comptroller to deposit tax at interest to credit of estate — Comptroller may not be compelled by mandamus to pay interest on fund never placed at interest.
    The order assessing a transfer tax herein should have boon framed in compliance with section 241 of the Tax Law (Cons. Laws, eh. GO). Until it was so framed, the Comptroller was without authority to deposit any part of the tax in a trust company or savings bank to the credit of the estate and a successor Comptroller may not be compelled by mandamus to pay interest upon the fund which was never placed by his predecessor with a depositary where interest would be earned.

      Matter of Dick v. Murphy, 219 App. Div. 141, affirmed.

      Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 7, 1927, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the State Comptroller and Tax Commissioners to refund a portion of the amount paid as transfer tax upon the estate of William Dick, deceased, with interest.

      Henry F. Cochrane for appellants.
    Sections 230 and 241 of the Tax Law control this application and the payment of interest on refunds of this character is mandatory thereunder. (Matter of Parker, 226 N. Y. 260, 264; L. 1911, ch. 800; Tax Law, §§ 230, 231; L. 1921, ch. 476; L. 1925, ch. 144; People ex rel. Metropolitan Trust Co. v. Travis, 191 App. Div. 129; Matter of Bryan, 126 Misc. Rep. 695; Matter of Brez, 172 N. Y. 609; Matter of O’Berry, 179 N. Y. 293.) The order originally entered temporarily fixing the tax was in compliance with the law, and furnished the taxing authorities of the State with all needed information as to the proper disposition of the tax under section 241 of the Tax Law. (Matter of Bryan, 126 Misc. Rep. 695.) The policy of the law is to pay interest on payments of this character responsive to the best principle of equity and justice. (Matter of O’Berry, 179 N. Y. 285; Matter of Parker, 226 N. Y. 260; Matter of Brez, 172 N. Y. 609; Matter of DeCordova, 199 App. Div. 492; 234 N. Y. 514; B. & S. C. Co. v. City of Boston, 45 Mass. 181; Boston & Maine R. R. Co. v. State, 63 N. H. 571; Amoskeag Manfg. Co. v. Manchester, 70 N. H. 336; City of Grand Rapids v. Blakely, 40 Mich. 367; County of Galveston v. Galveston Gas Co., 72 Tex. 509.)

      Albert Ottinger, Attorney-General (Henry S. Manley and Seth T. Cole of counsel), for respondents.
    The method of taxing future interests under section 241, as amended by chapter 800 of the Laws of 1911, is not exclusive. This fact has been recognized by practical construction from 1911 to the present time. (Matter of Lueff, 1 St. Dept. Rep. 567; Matter of Billingsley, 1 St. Dept. Rep. 569; Matter of Everett, 3 St. Dept. Rep. 450; Nat. Lead Co. v. United States, 252 U. S. 140; Mayer v. Jones & Co., 270 Fed. Rep. 121; Grimmer v. Tenement House Dept. 105 N. Y. 549.) The estate is estopped from claiming the benefit of section 241. (Matter of Spingarn, 96 Misc. Rep. 141; 175 App. Div. 806; Matter of Valentine, 88 Misc. Rep. 397; Matter of De Cordova, 199 App. Div. 492; 234 N. Y. 514.) The estate is not entitled to interest under any statute. (Matter of Hoople, 179 N. Y. 308; Metropolitan Trust Co. v. Travis, 191 App. Div. 129.)
   Per Curiam.

The order assessing the tax should have been framed in compliance with section 241 of the Tax Law (Cons. Laws, ch. 60). Until it was so framed, the Comptroller was without authority to deposit any part of the tax in a trust company or savings bank to the credit of the estate. We do not now determine whether the appellant has a remedy by proceedings in the Court of Claims or whether additional legislation is necessary to make that remedy available. It is enough for present purposes to decide, as we do, that a successor Comptroller, the respondent in this proceeding, may not be compelled by mandamus to pay interest upon a fund which was never placed by his predecessor with a depositary where interest would be earned.

Upon the ground that mandamus will not he, the order should be affirmed, without costs to either party.

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

Order affirmed, etc.


author: Kellogg, J.

text:
    Pauline Raolaslovic, as Administratrix of the Estate of Martin Raolaslovic, Deceased, Appellant, v. The New York Central Railroad Company, Respondent.
    (Argued April 4, 1927;
    decided May 3, 1927.)
    Negligence — ships and shipping — drowning of deckhand through alleged negligence of captain of tug — question for jury whether accident was caused by bad seamanship of captain or by mere error of judgment in emergency — act of captain creating peril not excused because done while engaged in rescue.
    1. In. an action to recover for the drowning of plaintiff’s intestate, a deckhand employed on one of defendant’s steam tugs, through the alleged negligence of the captain thereof, where there is evidence from which the jury was entitled to believe that, intestate having fallen overboard, the captain backed the tug toward where he was swimming strongly, ten or fifteen feet from the stern, causing intestate to be drawn under the tug by the suction of the propeller, .and it is undisputed that backing a tug, where a man is overboard astern of the vessel within fifteen feet of the propeller, is bad seamanship, a dismissal of the complaint was error.
    2. A contention that the captain of the tug, flurried by an emergency, merely made an error of judgment in choosing the course which he pursued, and, therefore, as matter of law, was not negligent, cannot be sustained where the captain himself repudiated the idea that in a moment of excitement he did the wrong thing and asserted that it was proper to reverse the engines for a moment, as he did to stop the boat and that he did not commit the error of backing towards intestate. In any event, even though it be true that the engines were reversed without reversing the motion of the boat, it was a question for the jury to decide whether the captain was negligent or merely committed an error of judgment in an emergency.
    3. Nor can a contention that the captain of the tug was engaged in making a rescue and should not be held liable for a mistake made in an effort to perform a benevolent act, be sustained. He was not charged with a mere omission to save life by means adequate to that end nor with failure to remove the peril in which intestate found himself, but with a positive act creating the very peril which caused the man to drown.

      Raolaslovic v. N. Y. C. R. R. Co., 218 App. Div. 693, reversed.

      Appeal from a judgment, entered December 28, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      Harold R. Medina, Joseph Levy and Edward Gluck for appellant.
    Whatever emergency may have existed at the moment the deceased fell overboard, had entirely passed. The death of the intestate has been found by the jury, upon sufficient evidence, to be due to the culpable negligence of the captain in suddenly reversing the. engines and sucking .the deceased under the water. (Lewis v. Long Island R. R. Co., 162 N. Y. 52; Bittner v. Crosstown Ry. Co., 153 N. Y. 76.) If the evidence warrants an inference that the captain possibly exercised an error of judgment in a moment of emergency, this question was properly submitted to the jury. (Bittner v. Crosstown Ry. Co., 153 N. Y. 76; Lewis v. Long Island R. R. Co., 162 N. Y. 52; Lemay v. Springfield Street R. Co., 210 Mass. 63.) The mere fact that the captain was attempting to rescue the plaintiff’s intestate does not exempt the defendant from liability as a matter of law; it was still a question of fact for the jury, whether the act of backing the vessel and creating .the suction which killed the decedent constituted rashness or negligence taking into consideration the situation calling for the rescue. (Schoenfeld v. Metropolitan St. Ry. Co., 40 Misc. Rep. 201; Matter of Briggs, 135 N. C. 118; Perpich v. Leetonia Mining Co., 118 Minn. 508; Eckert v. Long Island R. R. Co., 43 N. Y. 502; Laufer v. Shapiro, 210 App. Div. 436; Wagner v. International Ry. Co., 232 N. Y. 176.)

      William Mann and Alexander S. Lyman for respondent.
    The undisputed evidence shows that the captain of the tug was confronted with a sudden emergency when decedent fell overboard, and if he did not use his best judgment under the circumstances it was a mistake or error of judgment and not negligence for which the defendant is liable. (Maguire v. Barrett, 223 N. Y. 49; Lewis v. Long Island R. R. Co., 162 N. Y. 52; Bittner v. Crosstown Ry. Co., 153 N. Y. 76; Brown v. French, 104 Penn. St. 604; Southern Ry. Co. v. Gray, 241 U. S. 333.)
   Kellogg, J.

This action was brought by the administratrix of the estate of Martin Raolaslovic to recover damages for his death. Raolaslovic came to his death through drowning in the waters of New York harbor. It is claimed that he was drowned through the negligence of his employer, the defendant, the New York Central Railroad Company, or its agents and servants. After a trial of the issues before a jury a verdict awarding damages to the plaintiff was returned. The judgment entered upon the verdict was reversed by the Appellate Division and the complaint dismissed. From the judgment of reversal and dismissal this appeal was taken.

Martin Raolaslovic was first deckhand upon a steam tug known as New York Central Tug No. 3. The tug was making a trip from Weehawken, New Jersey, down river to pier 38, New York city. The tug was 105 feet long. To its port side there was strapped a barge 100 feet long. The bow of the barge projected forward of the bow of the tug, while the stern of the tug projected aft of the rear of the barge. Fenders eighteen inches in diameter hung from the opposing gunwales of the two boats. The space separating the two vessels was, therefore, at least eighteen inches amidships, while forward and aft, owing to the sheering sides of the tug, the separation was greater, increasing to four or five feet. The tug steamed across and down river in a strong ebb tide until it came to a point opposite pier 38 and within two hundred feet thereof. At this point Captain Ripley, the captain and skipper of the tug, put his wheel to starboard to swing the tug upstream and against the tide in order to bring the barge alongside the pier on the south. Raolaslovic was then stationed in the pilot house of the tug. It was a part of his job to handle the hawsers of the barge so that she might be drawn to the pier and made fast. He ran down the stairs to the forward deck, called to an employee, named Nikoletich, that it was time to go to work and passed down the port side of the tug with the intention of crossing over to the barge. Nikoletich saw him as he passed, and soon after heard him scream. Looking up he saw that Raolaslovic had disappeared. He hollered to the captain, “ Martin overboard,” ran to the port side of the tug, and saw Raolaslovic in the water between the barge and the tug, about two feet from the end of the barge. The witness Rudman ran up from the kitchen and the two busied themselves with Unes to throw to Raolaslovic, but the lines were so heavy that they dared not throw them. Nikoletich then saw Raolaslovic from ten to fifteen feet astern of the tug, a little upriver, swimming strong ” against the tide in water that was not rough. He was swimming toward the barge and appeared to be in no kind of trouble. About this time the captain, who had stopped the engine of the tug, rang two bells to reverse, and, according to Nikoletich, backed the tug to the rear. According to the captain’s story the tug made no sternway but merely came to a stop. However this may have been, there is no dispute of the fact that the propeller of the tug in reverse kicked up “ quick waters ” under her stern, or that it set up a strong suction toward the tug of the afterwaters. Nikoletich saw Raolaslovic go down and pass under the stern of the tug. The undisputed proof, therefore, justified an inference that Raolaslovic was drawn under the tug by the suction thus created. Moreover, when the dead body of Raolaslovic was finally recovered, a wound appeared upon his head. The nature of the wound justified an inference that Raolaslovic had been struck upon the head by the blades of the propeller toward which he had been drawn.

Experts testified to the manifest truth that a propeller, driving a vessel forward, sucks the waters passing aft along the sides of the vessel and throws them astern; that a propeller in reverse sucks waters from astern and drives them forward against the stern of the vessel, creating “ quick waters,” a high wave, and serious eddies. One expert stated that the suction set up by a reversed propeller extends its influence to the waters fifteen to twenty feet astern, in an arc of 120 degrees, or about one-third of a circle. Within this area a floating body is subjected to a greater or lesser pull from the suction, accordingly as it is nearer to or more remote from the propeller. The experts agreed that it was bad seamanship in the case of a man overboard astern of a vessel, within fifteen feet of the propeller, to reverse engines and move a tug, such as the one in question, to the rear. Therefore, if the evidence here was such as to justify the jury in believing that the tug in question was actually moved astern, then, according to the undisputed proof, a case of bad seamanship and negligence was made out. We would then have Captain Ripley’s own judgment upon his own case that he was guilty of bad seamanship. He was asked and answered as follows: “ Q. I am asking you whether it is proper or improper to back down on the man? A. It is improper to back down on him, but — Q. Yes, it isn’t good seamanship, is it? A. No, sir; nobody would do it.”

That nautical men in their speech frequently confound the backing of a vessel with a reversal of its engines, stating that a boat is backed when meaning merely that its engines are reversed, is a fact which must be borne in mind when the proof is examined. Captain Ripley testified that when he first heard Nikoletich cry, Martin overboard,” he swung bis wheel to starboard in order to turn the tug’s stern to starboard away from Raolaslovic; that the tug was moving about three miles an hour; that he saw Raolaslovic about twelve or fourteen feet from the stern of the tug and to the north; that he gave one bell to stop; that five seconds later he gave two bells to reverse the engines; that three seconds later he gave one bell to stop; that the tug came to a full stop; that it made no sternway; that he last saw Raolaslovic fifteen feet from the tug’s stem up river. However, on cross-examination, he was shown a paper, upon which, in language of his own composition, he had written to the local board of inspectors as follows: “ I immediately backed my tug and tow. While doing this, I saw Martin Raolaslovic come to the surface about fifteen feet astern of the barge Canton. He remained there for a fraction of a minute, and then went down and passed under the stern of my tug.” It will be observed that Captain Ripley did not say merely that he backed his tug, but that he backed the tug “ and tow.” He could hardly have meant merely that he reversed the engines of the tug. That he meant that he actually moved the tug and tow to the rear is shown by his answer to a question put by an inspector before whom he was examined. The inspector asked: “Did you see him after he got overboard? ” and he answered: “ Just for a second, just for a minute, just came up, you know, as I backed down to get him.”

•The witness Nikoletich gave definite testimony that the tug was moved astern. He was asked: “ Well, when you wanted to throw him the fine from the barge, did the tug keep going ahead, did it stop or did it go back? ” He answered: “It went back.” He said of Raolaslovic: “ I said he turned himself over. He was going to get away from the barge when they started to back up. He see the barge was coming on top of him, and he was going to get away, to swing himself over.” Again he said: “And I see he was trying to get away from the barge when he backed the tug, when he see the barge was coming on him — on top of Martin — then he turned over on the quick side, and I jumped down in the tug in the stern, and George Rudman hollered to the captain: 'He is gone, he is gone.’ ' Well,’ I said: 1 He is gone.’ ” Again he said: “ Then, when he was backing, when he (Rudman) see that Martin went down, then he was holler to captain again, stop it, stop it, stop.’ ” The testimony of the witness presents a clear picture of a man overboard, fifteen feet astern of a tug, with the tug backing down upon him while he is swimming strongly, striving to get away from the tug and its tow, that they might not come on top of him, and of two excited sailors crying out to the captain stop the tug, stop it, stop it,” in a vain effort to prevent the swimmer from going under the stern. The jury was entitled to believe that the picture thus drawn was the true picture of the accident; that the captain actually backed his tug to the rear toward Raolaslovic; that in so doing he was guilty of negligence.

It is said that the captain of the tug, flurried by an emergency, merely made an error of judgment in choosing the course which he pursued, and, therefore, as a matter of law, was not negligent. The answer is that the captain himself repudiated the idea that in a moment of excitement he did the wrong thing. He asserted that he was guilty of no error whatsoever; that it was proper to reverse the engines for a moment; that it would have been highly improper to back the tug to the rear; that nobody would do it; ” and he stoutly maintained that he did not commit that gross error of seamanship. Notwithstanding his testimony, upon the other proof given, the jury was entitled to believe, as we have said, that he did back the tug down upon or toward Raolaslovic. In this view of the case, the doctrine that one acting in an emergency is not to blame for an error of judgment could have no application. The captain would stand self-condemned, guilty of unseamanlike conduct, of an act which “ nobody would do,” and, therefore, of actionable negligence.

The respondent also asserts that the captain of the tug was engaged in making a rescue and should not be held liable for a mistake made in an effort to perform a benevolent act. The respondent loses sight of the fact that the captain was not charged with a mere omission to save life by means adequate to that end. He was charged, not with a failure to remove the peril in which Raolaslovic found himself, but with a positive act creating the very peril which caused the man to drown. Raolaslovic was swimming strong; ” he was within two hundred feet from shore; he appeared to be in no difficulty. In this situation the captain backed the tug and barge toward him, thereby bringing nearer to Mm the perilous suction of the tug’s propeller, if not actually engulfing him in the waves set up under the stern of the tug. Here is no well-intentioned rescuer failing to save. Rather have we a seasoned mariner, an experienced sea captain, bacldng down Ms vessel upon a man overboard, a thing “ nobody would do,” not saving, but actually drowmng a strong swimmer not far from shore.

Several experts testified that, regardless of whether the tug itself was backed, a reversal of its propeller, with a man overboard withm fifteen feet of the tug’s- stern, constituted bad seamanship. Thus the witness, Captain Milliken, said: “It is well known amongst seafarers generally that if a man is astern of a vessel, if the wheel is moved he would be drawn toward or under the vessel, - and I would consider it very poor seamanship in any event to reverse the engines of any sMp, unless there was sometMng ahead that you might run into, if a man fell overboard.” Obviously, a suction is set up toward a vessel’s stern by a reversed propeller, regardless of whether the vessel moves back or still goes forward. The suction in the former instance creates a greater pull than m the latter, upon a man overboard, merely because the propeller is brought nearer. If, however, the man is sufficiently near he will be drawn under whether the boat itself is backed or otherwise. Captain Ripley was at all times conscious of the danger to Raolaslovic from the propeller. He was asked, “You knew that a man overboard, if -you come near him with your stern and your propeller is turning, that the suction created by the turning of the propeller would suck the person in the water under the stern; is that right? ” and he answered: “ Yes, sir; it would have a tendency to do it.” The captain first saw Baolaslovic in the water about twelve feet from the stern of the tug. Instead of stopping the engine of the boat and ending the suction, which he knew to be dangerous, he reversed the engines, an act which, under the testimony, inevitably set up a pull upon the waters within fifteen feet of the vessel’s stem, or upon the very waters in which Baolaslovic was swimming. Captain Bipley said: “ As soon as he showed up I reversed, and stopped the way of my boat.” He said that he did this in order that the tug might not continue to move away from the man overboard. Yet the tug was moving forward at no more than three miles an hour. With the engines stopped, the tug, with its deep draft of fourteen feet, would soon have been brought to a standstill. Meanwhile, Baolaslovic, who was swimming strongly, could doubtless have kept near the slowly drifting tug. However, if it be true that Captain Bipley reversed his engines without reversing the motion of the boat, then there may have been presented the case of an emergency in which he was guilty of a mere error of judgment. He may have chosen wrongly. The event may have proven that he should have stopped his engines rather than have reversed them. That would -not necessarily have established negligence. Nevertheless, it would still have been a question of fact for a jury to decide, whether Captain Bipley was negligent or merely committed an error of judgment in an emergency.

In support of the dismissal the respondent cites Wynn v. Central Park, N. & E. River R. R. Co. (133 N. Y. 575); Bittner v. Crosstown Street Railway Co. (153 N. Y. 76); Stabenau v. Atlantic Avenue R. R. Co. (155 N. Y. 511), and Lewis v. Long Island R. R. Co. (162 N. Y. 52). In none of these cases was it held or stated that a dismissal should have been granted for the reason that an error of judgment rather than a fault of omission or commission was the cause of the damage complained of. In all of them reversals were granted and new trials ordered. _A failure, on the part of the trial judge, to give proper and sufficient instructions to the jury in respect to non-liability for a mere error of judgment was the common cause of the reversals. In the Leíais case it was said: “ Still, when an emergency presents itself, and a person is under great excitement from the presence of an impending peril, he may not act with that perfect judgment that he would under other and different circumstances and still not be negligent. * * * Where an employee of a railroad company is confronted with a sudden emergency the failure on his part to exercise the best judgment the case renders possible does not establish lack of care and skill upon his part, which renders the company liable.” There might be cases of so clear a character that it would be possible to say as a matter of law that a mere error of judgment in an emergency was committed rather than a negligent fault. Ordinarily, - however, the question presented, as in all negligence cases, is one of fact for a jury. The standard of the man of ordinary prudence and skill must be applied. Of that standard and its application the twelve men of the jury are ordinarily the most competent judges. In our case was there an emergency? Was Captain Ripley “ under great excitement from the presence of an impending peril? ” Did he fail to act with “ that perfect judgment ” he would have employed under different circumstances? These were questions of fact necessary to be decided by a jury before the doctrine of " mere error of judgment ” could be applied. There was room for them to believe that Captain Ripley was not excited; that there was no emergency; that what he decided to do is what he would have decided upon after mature reflection. Was it bad seamanship for Captain Ripley to reverse the engines? It was not enough that he should act prudently, in view of the knowledge which he actually had. He is responsible for his ignorance of that which he ought to have known.” (Shearman & Redfield [5th ed.], § 87.) If, among seafaring men it is universally regarded as bad seamanship to back a vessel’s engines, when there is a man overboard astern, though he may not have known it, Captain Ripley, unless guilty of a mere error in decision, committed an unseamanlike and negligent act. Nor would the fact that his fault involved an error of judgment necessarily absolve him from blame. Error of judgment there may have been, but error is not inconsistent with fault. The standard of diligence exacted is that of the typical prudent man. The individual must answer for the consequences when he falls below that norm.” (Per Cardozo, J., in Pellegrino v. Smith Company, 226 N. Y. 165.) In short, even if it be true that Captain Ripley merely reversed his engines without making sternway, it was a question for the jury whether, applying the standard of the ordinarily prudent and skillful seaman, he was guilty merely of an erroneous judgment, rendered hastily in an emergency, or, on the other hand, committed an act of negligence. We think that in either aspect of the case the evidence presented a question of fact for the jury.

The Appellate Division reversed the judgment on the law and facts and granted a dismissal. We cannot, therefore, reinstate the verdict, but must order a new trial. (Maguire v. Barrett, 223 N. Y. 49.)

The judgment of the Appellate Division in so far as it dismisses the complaint should be reversed and a new trial granted, with costs to abide the event.

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

Judgment reversed, etc.


author: O’Brien, J.

text:
    Employers’ Fire Insurance Company, Appellant, v. Mattie Cotten, Respondent, Impleaded with Another.
    (Argued March 31, 1927;
    decided May 3, 1927.)
    Replevin — demand — action to replevin stolen chattel — demand from innocent purchaser unnecessary where she had knowledge of theft and of plaintiff’s title before commencement of action.
    Demand need not be made previous to the institution of an action to replevy a stolen chattel upon one in possession who originally was an innocent purchaser for value but who before .the institution of the action had acquired knowledge of the theft and of plaintiff’s title, yet assumed to exercise dominion over the chattel and to make a counterclaim of title to it. {Ely v. Ehle, 3 N. Y. 506; Barrett v. Warren, 3 Hill, 348; Twinam v. Swart, 4 Lans. 263; Goodwin v. Wertheimer, 99 N. Y. 149; Southwick v. First Nat.- Bank, 84 N. Y. 420, 430; Converse v. Sickles, 146 N. Y. 200, distinguished.)

      Employers’ Fire Ins. Co. v. Cotten, 218 App. Div. 818, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 11, 1926, unanimously affirming a judgment in favor of defendant entered upon an order of the court at a Trial Term granting a motion to set aside a verdict in favor of plaintiff and for a dismissal of the complaint.

      Walter L. Glenney for appellant.
    A demand was not a necessary prerequisite to the present action, having been waived by defendant by retaking the car after notice that, it was a stolen car. (Brown v. Poland, 54 Conn. 313; Udell v. Slocum, 56 Ill. App. 216; Cobbey on Replevin [2d ed.], § 448; Burrier v. Cunningham Piano Co., 108 Atl. Rep. 492; Nixon & Wright v. Robinson, 89 S. E. Rep. 320; Jordan v. Jordan, 136 N. E. Rep. 866; First Guaranty Bank v. Rex Theatre Co., 195 N. W. Rep. 564; Carroll v. Anderson, 218 Pac. Rep. 1038; World Finance Co. v. West Lake Garage Co., 196 Pac. Rep. 586; Studebaker Bros. Co. of Utah v. Witcher, 199 Pac. Rep. 477; Lind
      v. Boulin, 190 Pac. Rep. 1103; Whitting v. Hooks, 242 S. W. Rep. 817.) The rebonding of the automobile and renting the car out by the defendant waived the necessity of any demand. (Farrar v. Chauffette, 5 Den. 527.)

      Henry Ginnane, Benjamin Shalleck and Joseph Shalleck for respondent.
    The defendant’s possession being lawful, replevin would not lie against her until demand for the return of the automobile had been made and a refusal to deliver to the person legally entitled to possession. (Goodwin v. Wertheimer, 99 N. Y. 149; Converse v. Sickles, 146 N. Y. 200; Pease v. Smith, 61 N. Y. 477; Moran v. Abbott, 28 App. Div. 570; Frischman v. Mandel, 26 Misc. Rep. 820; Henrich v. Van Wrickler, 80 App. Div. 250; Hall v. Bassler, 96 App. Div. 88; Gillet v. Roberts, 57 N. Y. 28.) The rights of the plaintiff and defendant became fixed upon the execution of the writ of replevin, and rebonding the car by the defendant waived none of her rights. (Goodwin v. Wertheimer, 99 N. Y. 149.)
   O’Brien, J.

The sole question on this appeal is whether, previous to the institution of an action to replevy a stolen chattel, demand must be made upon one in possession who originally was an innocent purchaser for value but who before the institution of the action had acquired knowledge of the theft and of plaintiff’s title, yet assumed to exercise dominion over the chattel and to make a counterclaim of title to it.

All the facts are conceded. A motor ear was stolen from its owner and plaintiff as insurer paid him for his loss and succeeded to his rights. Police officers found it in the garage of defendant’s husband who without knowledge of the theft had purchased it in her name. They informed him in the clearest manner of the owner’s name and address and of the theft and removed it to the police garage. Defendant regained possession of the car and after this action was begun she gave a bond, counterreplevied the car, used it as her own and at the time of the trial had it in her husband’s garage. Her knowledge of its theft and her exercise of dominion over it both before and since this action was begun became complete. In her answer she denies that she wrongfully detains the car from plaintiff and that plaintiff is its owner and entitled to its immediate possession. At the trial her counsel referred to her as the true owner.” Of course, under such circumstances, formal demand would have constituted a futile ceremony. Upon such facts, does the law of this State require plaintiff solemnly to indulge in the formality of a demand before it can maintain this action? No other question is involved in the case.

No precedent imposes such a useless procedure upon one whose property has been stolen and is in the possession of another who, before the institution of the action acquired knowledge that it had been stolen yet claimed to be “ the true owner ” and continued to assert dominion over it. Outside our jurisdiction, the rule generally prevails that where the circumstances are such as to show that a demand would have been unavailing, no demand is necessary. This rule applies in other jurisdictions to a bona fide purchaser of one who has no right to sell, for such purchaser has no lawful possession as against the owner. Some of the early decisions in this State, however, are thought by some to indicate on the surface a contrary doctrine. (Ely v. Ehle, 3 N. Y. 506; Barrett v. Warren, 3 Hill, 348; Twinam v. Swart, 4 Lans. 263.) In none of those early cases were the persons who were in possession clearly informed prior to the institution of action that their title was wholly defective. Those cases were cited in Gillet v. Roberts (57 N. Y. 28, 30, 31), which is claimed by respondent to be authority for the proposition that a bona fide purchaser of personal property from a wrongdoer is not liable for a conversion without a demand and refusal. This somewhat general requirement, if such it is, would amount to no more than a mere technical obstruction except for the reason which is said to underlie. That reason is explained in the Gillet case in these words: The rule is a reasonable and just one, that an innocent purchaser of personal property from a wrongdoer shall first he informed of the defect in his title, and have an opportunity to deliver the property to the true owner, before he shall be made hable as a tort feasor for a wrongful conversion.” Pease v. Smith (61 N. Y. 477, 480, 481), an action for conversion in which defendants had in good faith purchased chattels from a thief, applied the rule that when conversion occurs no demand is necessary, because the sole object of a demand is to supply evidence of a conversion. By demand and refusal a possession otherwise lawful is turned into an unlawful one. Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights. (Laverty v. Snethen, 68 N. Y. 522, 524.) As a general rule, whenever the action of trover or other equivalent action could be maintained without demand, replevin will lie without demand. (Purves v. Moltz, 32 How. 478.) A very slight interference with the ownership is sufficient to constitute a conversion. (Farrar v. Chauffetete, 5 Denio,527; Spraights v. Hawley, 39 N. Y. 441.) Goodwin v. Wertheimer (99 N. Y. 149) does not control the facts in this case, for there the defendant in possession was not cognizant of the fraud committed by his assignors. In Southwick v. First National Bank of Memphis (84 N. Y. 420, 430) no proof existed that defendant had any information of the circumstances relating to mistake in payment, improper diversion of the proceeds of the draft or any claim by any one that money should be refunded. Neither does knowledge of fraud appear against the defendant in Converse v. Sickles (146 N. Y. 200). Here, defendant had been notified in the most explicit manner concerning the theft, yet she used the car as her own and claimed title to it.

Since the rule, regarded in mahy jurisdictions as unduly technical, requiring demand and refusal prior to the institution of a replevin action is based, according to the observations of judges in this State, upon the reason that one in lawful possession shall not have such possession changed into an unlawful one until he “be informed of the defect of his title and have an opportunity to deliver the property to the true owner,” the rule does not apply, even within our jurisdiction, when the facts are that prior to the institution of the action, defendant had full information relating to her own defect in title and the identity of the true owner.

The judgment of the Appellate Division and that of the Trial Term should be reversed and judgment ordered upon the verdict in favor of plaintiff for the return of the chattel replevied, or for the sum of $1,750 in case possession thereof cannot be had, together with damages of $1,200 for the detention of the chattel, and costs in all courts.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment accordingly.


author: Andrews, J.

text:
    In the Matter of Cornelia A. Moses et al., Respondents, against The Board of Education of the City of Syracuse, Appellant.
    Education Law — Syracuse (city of) — teachers — statutory provision forbidding discrimination in pay of teachers based on sex — not intended to equalize pay of all teachers doing similar work — not intended to interfere with existing schedules or contracts — provision in schedule of salaries, as a result of which some men receive more pay than equally qualified women, not invalid when based on other considerations than sex.
    1. Chapter 614 of the Laws of 1924, amending the Education Law so as to provide that after September, 1924, there should be nondiscrimination in the amount to be paid or the payments to be made to teachers in any city based on sex, was designed not to equalize the pay of all teachers doing similar work, but to prohibit future schedules or contracts' where inequality was based on the ground of sex. By the phrase “ or the payments to be made,” the Legislature did not intend to interfere with existing schedules or contracts. Schedules legally adopted prior to the enactment of the statute remained in force.
    (Argued March 31, 1927;
    decided May 3, 1927.)
    2. Where, therefore, upon the adoption of a new schedule in 1925, by the board of education of the city of Syracuse, it was found that a number of teachers, principally men, were already receiving larger salaries than provided, which salaries might not be reduced nor the teachers discharged except for cause, it was lawful for the board to provide in its general schedule, applicable to men and women alike, that “ no salary paid to any present teacher under the new schedule shall be less than that teacher would have received on September 1, 1925, under the salary schedule adopted by the board of education on July 19, 1920.” Though the practical result of this provision is that some men actually receive more pay than equally qualified women, the discrimination is not “ based on sex ” but arises solely from other conditions. The courts, therefore, may not interfere.

      Matter of Moses v. Board of Education, 218 App. Div. 811, reversed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 9, 1926, which unanimously affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel the Board of Education of the City of Syracuse to fix the salaries of respondents, women teachers in the public schools of the city of Syracuse, on an equality with that paid to male teachers of similar grade.

      Clarence E. Hancock, Corporation Counsel (H. Duane Bruce of counsel), for appellant.
    No discrimination based on sex has been made under the salary schedule of June 1, 1925. (Buckbee v. Board of Education, 115 App. Div. 356; 187 N. Y. 544; Matter of Emerson v. Buck, 230 N. Y. 380; Matter of Rockwell v. Board of Education, 214 App. Div. 431.)

      James J. Barrett for respondents.
    In the adoption of the schedules of June, 1925, appellant discriminated against respondents in the determination of the amounts to be paid and the payments to be made them as salaries and such discrimination was based on sex. (Matter of Teece v. Board of Education, 27 St. Dept. Rep. 652; Matter of Rockwell v. Board of Education, 214 App. Div. 431; Farmers Bank v. Hale, 59 N. Y. 53; People v. Glynn, 128 App. Div. 257; Brooklyn, etc., Board of Education v. New York City Board of Education, 157 N. Y. 566; Tonnele v. Hall, 4 N. Y. 140; Buckbee v. Board of Education, 115 App. Div. 366; 187 N. Y. 544.)
   Andrews, J.

On July 19, 1920, under the authority of the Education Law (Cons. Laws, ch. 16), the board of education of Syracuse adopted a schedule of teachers' salaries, with an annual increment. Frankly, because of their sex, more was to be paid to men than to women of similar length of service and doing the like work. As a result by 1925 some forty-four male teachers were receiving $2,650 annually; eight, various sums from $2,250 to $2,600 and one woman $2,250. To these salaries such teachers were entitled. They might not be reduced. Nor might the teachers be discharged except for cause.

The Education Law was amended by chapter 614 of the Laws of 1924. This act was designed not to equalize the pay of all teachers doing similar work, but to prohibit future schedules or contracts where inequality was based on the ground of sex. On and after September, 1924, it stated there shall be no discrimination in the amount to be paid or the payments to be made to teachers in any city based on sex, and it prohibited such discrimination in contracts thereafter made or in schedules adopted by boards of education.

It has been held that by the phrase “ or the payments to be made " the Legislature did not intend to interfere with existing schedules or contracts. (Matter of Rockwell v. Board of Education, 214 App. Div. 431.) For the reasons stated by the Appellate Division we agree with this conclusion. We assume, therefore, that the schedule of 1920, legal when adopted, remained in force. Only when a change came the new schedule must contain no discrimination as to salaries “ based on sex.”

Between 1920 and 1925 Syracuse had become in fact what was then known as a city of the first class. On June 1 of the latter year, the board of education reciting the financial difficulties caused by the act of 1924 and stating that Syracuse should provide for its teachers’ salaries equal to those paid in Rochester and Buffalo, adopted a new schedule. There were 930 teachers employed in the schools, 849 women and 81 men. Under its provisions the salaries of 622 women teachers were increased. New teachers, men and women, were to receive the same amount. And again irrespective of sex, the salary of teachers doing the like work and having the like experience as substantially all the relators was fixed at $2,400 less such a percentage as lack of funds required. For 1925 this percentage was to be 10%, making the salary $2,160.

The board, however, found itself in a dilemma. Fifty-two men and one woman were, as has been said, already entitled to more than that amount. Forty-four men, not because of longer service or greater ability, but because of their original contract, had a claim of $2,650 annually. Must the salary of every woman of equal capacity be raised to $2,650? Must the salary of every like man be so raised? Could the first provision be made and not the second? The board attempted to answer the problem by a provision in its general schedule, applicable to men and women .alike, that no salary paid to any present teacher under the new schedule shall be less than that teacher would have received on Sept. 1, 1925, under the salary schedule adopted by the board of education on July 19, 1920.” The courts below have held that this solution is forbidden by the statute and that the board should be compelled by mandamus to raise the salaries of the women teachers to $2,650.

The question before us is whether because the practical result of this schedule is that some men actually receive more than some equally qualified women, it makes a discrimination “ based on sex.”

We deal with the situation as it existed in 1925. It was not then necessary to adopt a new schedule. If it was thought wise, however, to do so the otherwise wide discretion of the board was limited in one particular. The new rules might not provide greater pay for one because he was a man than for a woman equally qualified. Doubtless, too, if a man and a woman teacher are required to possess the same qualifications and teach the same subjects or perform the same duties, they must be paid alike ” or prima facie there will have been done what the law forbids. We do not think, however, that the mere difference in salaries is conclusive.

Unquestionably the origin of the right of the men in 1925 to receive $2,650 in perpetuity was that they were men. In 1920 the board discriminated in their favor on that ground alone, as it then might do. Later it lost that power. Every man and every woman need not receive precisely the same salary. But any distinction drawn might no longer depend on the sex of the teacher. And good faith was requisite.

The record before us shows a difference in the salaries to be received. But this difference was not continued by the schedule of 1925 with the design of rewarding men as men and penalizing women as women. At that date it was not “ based on sex.” It was the result of entirely different considerations. There was no favoritism. An examination of the schedules shows a scrupulous attempt to follow the act of 1924. There was no design to thwart the act by indirection. But equality of salaries must be harmonized with existing rights. The salary of $2,650 for certain men teachers was preserved to them, just as the salary of $2,250 was preserved to Miss Moses, not because they were men but because the law prohibited interference with it. That the rights of the men originated in sex discrimination is immaterial. Disparity in salaries exists. Men receive a greater amount than women equally qualified. But unless this difference arising under the schedule of 1925 is “ based on sex; ” if it arises solely from other conditions existing at that time, the courts may not interfere. B’.owever important to the State is the need of qualified teachers; however inadequate, in view of their ability, training and devotion the payment now provided for the teaching staff, the one question before us is whether the particular schedule of 1925 violated the act of 1924. We hold that it did not.

If this be so, the other questions discussed in the briefs need not be considered. The order of the Appellate Division and that of the Special Term should be reversed and the application for mandamus denied, without costs in any court.

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

Ordered accordingly.


author: Crane, J.

text:
    Walter H. Underwood, Appellant, v. Globe Indemnity Company, Respondent.
    Insurance (indemnity) — stockbrokers — loss by stockbrokers through delivery of bonds by salesman at house of supposed customer in return for worthless check — covered by policy insuring against loss by theft while property is in transit in custody of employee — negligence in receiving check — transaction covered by provision insuring against loss through negligence of employee while in transit.
    1. A loss sustained by stockbrokers through the delivery by one of their salesmen, to a purchaser, at his house, of bonds in return for a supposedly certified but worthless check, is covered by a policy of indemnity insurance against loss “ through robbery, hold-up, or theft, by any person whomsoever, while the Property is in transit within twenty (20) miles of any of the offices covered hereunder, and in custody of any of the Insured’s partners, or any of the employees, or any messenger temporarily employed; or through negligence on the part of any such employee or messenger having custody of the Property while in transit as aforesaid.” The bonds were in transit within the meaning of this policy when they were taken out for delivery, and until delivery, in the legal sense of that word, to a customer. The bonds were taken from the salesman by a false token, constituting theft, while he was in the course of making delivery within twenty miles of the office. There had never been a delivery, therefore, to end the transit.
    (Argued April 1, 1927;
    decided May 3, 1927.)
    2. If the salesman was negligent in turning over the bonds without examining the check to see whether it was certified, the transaction would be covered by the clause insuring against loss through negligence on the part of an employee having custody of the property while in transit.

      Underwood v. Globe Indemnity Co., 217 App. Div. 63, reversed.
    Appeal from a judgment, entered July 16, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      Francis R. Holmes, Martin B. Faris and Julian S. Eaton for appellant.
    The property was obtained from the messenger employed to carry it while in transit. (Williston on Sales, § 526; Personal Property Law, § 139.)

      F. A. W. Ireland for respondent.
    There was no loss while the property was in transit. (Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 303.)
   Crane, J.

Paul D. Shields and Frederick F. Bach Were stockbrokers, carrying on business of copartnership at 27 Pine street, in the city of New York. On the 20th day of May, 1923, the Globe Indemnity Company issued a policy, called a brokers’ basic blanket bond for stockbrokers, wherein the defendant insured Shields & Company against loss as therein specified. By the bond, the defendants agreed to indemnify the insured, and hold them harmless from and against any loss to an amount not exceeding $50,000 of money, currency, bullion, bonds, debentures, scrip, certificates, warrants, transfers, coupons, bills of exchange, promissory notes, checks or other similar securities sustained by the insured, as follows:

“(A) Through any dishonest act of any of the employees wherever committed, and whether committed directly or by collusion with others.
“(B) Through larceny, whether common law or statutory, robbery, burglary, hold-up, theft, or other fraudulent means, or destruction, misplacement, or mysterious unexplainable disappearance while the Property is within any of the Insured’s Offices covered hereunder, or upon the premises of the Insured’s Bankers in the United States or in any recognized place of safe deposit in the United States, or lodged or deposited in the United States for exchange, conversion, registration, or transfer, not including, however, the in-transit-rislc.
“(C) Through robbery, hold-up, or theft, by any person whomsoever, while the Property is in transit within twenty (20) miles of any of the offices covered hereunder, and in the custody of any of the Insured’s partners, or any of the employees, or any messenger temporarily employed; or through negligence on the part of any such employee or messenger having custody of the Property while in transit as aforesaid.”

The insured sustained a loss, which the courts below have held not to be within the terms of the policy. It occurred in this way. Michael J. Del Re, a bond salesman of the insured, employed at its office in 27 Pine street, received a telephone call in April of 1924 from a man named Dunn, in reference to some bonds which he desired to purchase. Del Re called upon him at a house in West End avenue, near Eighty-eighth street, and received an order for $2,500 of Liberty bonds, together with one hundred shares of stock. Three days later Del Ee took the bonds to Dunn at the place mentioned, and delivered them to Dunn, receiving in return a check which he supposed to be certified, but which in fact was merely stamped as certified, being unsigned. It was a mere trick of Dunn’s, who was a thief, to get the bonds, as the check was valueless. Dunn skipped with the bonds, and has never been found. The face value of the bonds was $2,500. The amount of the check given was $4,500 or $4,700, being the price of the bonds and also the stock, which could not be delivered until paid for and transferred to Dunn’s name.

Does the policy cover this loss? Looking at the undertaking as a whole, Shields & Company were insured against the theft of bonds under certain named conditions. Clause “A” provided for a theft by an employee. This theft could occur in the office, or anywhere outside o the office. If Del Ee had stolen these bonds the policy would have covered the case. Clause “ B ” covered a theft by anybody from the insured’s offices or from a place of safe deposit. Clause “ C ” covered theft by any person while the property was in transit and in the custody of an employee, or through the negligence on the part of any such employee having custody of the property while in transit.

This latter clause would seem to cover this case. It must be given a fair and reasonable interpretation to cover the risks which the parties had reason to anticipate, and had reason to believe would be met by the policy. Theft by an employee was covered; theft from the offices and safe deposit places was covered; and clause C ” was intended to cover and did cover thefts from employees delivering securities within twenty miles of the office. “ In transit ” means, in this case, while going to make a delivery to a customer. The bonds were taken from Del Ee by a false token, false representations, constituting theft. Theft means larceny or stealing. Dunn stole the bonds from Del Ee by reason of false representations, and a false token. The bonds, while handed over to Dunn, were never delivered to a customer, as Dunn was not a customer, but a thief, posing as a customer in order to steal. He was no more a customer than he would have been if he had grabbed Del Re by the throat and taken the bonds from his custody, in which case he would have committed robbery. Having procured the goods, by trick and device, the crime was larceny; if they had been procured by force, the crime would have been robbery. The policy covered both these offenses; goods taken from a messenger by robbery or theft, while the messenger was in the course of making delivery, or carrying the bonds within twenty miles of the office.

To hold that transit means actual movement, and not a period of rést, is too narrow a construction to give to this undertaking, and is contrary to its full meaning and scope. The courts below have held that the securities would be in transit while Del Re was carrying them in his possession through West End avenue, and up the stairs of the house, but ceased to be in transit when the messenger had arrived at Dunn’s rooms or in Dunn’s presence to make delivery. The bonds were in transit within the meaning of this policy when they were taken out for delivery, and until delivery, in the legal sense of that word, to a customer. The bonds were in Del Re’s possession when they were obtained from him by a trick and false device; title never passed to Dunn; they were procured from Del Re by common-law larceny. Therefore, there had never been a delivery to end the transit. The bonds were still in transit in the process of being taken somewhere for delivery, or to be returned to the office when stolen from Del Re. It was a cash transaction. Delivery was to be made only for cash or a certified check. (People v. Miller, 169 N. Y. 339; People v. Noblett, 244 N. Y. 355.)

If Del Re were negligent in turning over these bonds to Dunn without examining the check to see whether it were certified, the transaction would come within another clause of section “ C,” as there would be a loss sustained by the insured through negligence on the part of an employee having custody of the property while in transit, or course of delivery.

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

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

Judgment accordingly.