text:
    The People of the State of New York, Respondent, v. John F. Miller, Appellant.
    Argued March 4, 1952;
    decided April 23, 1952.

      jDennis M. Breen, Jr., for appellant.
    I. If before the zoning-ordinance was adopted the property was used for a lawful purpose which is prohibited thereby, the owner has acquired a vested right to such use, and he may not be deprived thereof by the ordinance. (Matter of Great South Bay Marine Corp. v. Norton, 272 App. Div. 1069; Sokol v. Village of Hempstead, 85 N. Y. S. 2d 619; Village of Mill Neck v. Nolan, 233 App. Div. 248, 259 N. Y. 596; Matter of Collins v. Moore, 125 Misc. 777; Hinman v. Clarke, 193 N. Y. 640; Willerup v. Village of Hempstead, 120 Misc. 485.) II. This case is not governed by the case of Barkmann v. Town of Hempstead (268 App. Div. 785, affd. 294 N. Y. 805). (Matter of Hoffman v. Murdock, 185 Misc. 486; Kraushaar v. Zion, 188 Misc. 851; Matter of Romig v. Weld, 194 Misc. 783, 276 App. Div. 514.)

      Frank A. Gulotta, District Attorney (Philip Huntington of counsel), for respondent.
    Defendant was properly convicted.

      (Barkmann v. Town of Hempstead, 268 App. Div. 785, 294 N. Y. 805.)
   Fuld, J.

Defendant keeps pigeons as a hobby, and since 1945 has harbored them on his property, located in a residential area of the Town of North Hempstead. In 1947, the town’s Building-Zone Ordinance was amended to outlaw such a use of property in a residential, business or commercial zone: In any use district ”, Article XV, section 155.5, provides, “ no premises may be used or occupied and no structure may be erected or maintained for the harboring of pigeons, swine, goats, rabbits or foxes, minks, skunks or other similar furbearing animals, except,when authorized by the Board of Appeals ” under the provisions of another section. The prototype of that regulation, enacted by a neighboring town, had previously been upheld by us as proper and reasonable zoning, a valid exercise of the police power. (See Barkmann v. Town of Hempstead, 294 N. Y. 805, affg. 268 App. Div. 785.)

Defendant was convicted in 1951 of a violation of the ordinance, and he appeals, urging that his pre-existing use of the premises for harboring pigeons rendered the regulation unenforcible against him. The argument lacks force; conviction was proper. While enforcement may perhaps be sustained on the ground that the ordinance is in truth a nuisance regulation, aimed at noxious and offensive uses of property (see, e.g., Hadacheck v. Los Angeles, 239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Adamec v. Post, 273 N. Y. 250; Matter of McIntosh v. Johnson, 211 N. Y. 265; Barkmann v. Town of Hempstead, supra, 268 App. Div. 785, affd. 294 N. Y. 805; see, also, Jones v. City of Los Angeles, 211 Cal. 304, 316), we need not concern ourselves with that possibility, since, putting aside the element of nuisance, defendant’s nonconforming use was not of such a character as to protect it from the application of a zoning measure.

It is the law of this state that nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance. (See People ex rel. Ortenberg v. Bales, 250 N. Y. 598; Matter of Caponi v. Walsh, 228 App. Div. 86; New York State Investing Co. v. Brady, 214 App. Div. 592; Matter of Pelham View Apts. v. Switzer, 130 Misc. 545; People v. Stanton, 125 Misc. 215; cf. City of Buffalo v. Chadeayne, 134 N. Y. 163; see, also, Jones v. City of Los Angeles, supra, 211 Cal. 304; Amereihn v. Kotras, 194 Md. 591; Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261; Rathkopf, The Law of Zoning and Planning [2d ed., 1949], § 26, p. 296 et seq.) The decisions are sometimes put on the ground that the owner has secured a “vested right” in the particular use — which is but another way of saying that the property interest affected by the particular ordinance is too substantial to justify its deprivation in light of the objectives to be achieved by enforcement of the provision. (Cf. Note, 41 Harv. L. Rev. 667; Note, 39 Yale L. J. 735, 740.) Every zoning regulation, because it affects property already owned by individuals at the time of its enactment, effects some curtailment of “ vested ” rights, either by restricting prospective uses or by prohibiting the continuation of existing uses. A regulation of the latter variety, however, almost always imposes substantial loss and hardship upon the individual property owner — a loss much greater than that sustained by reason of a prospective use restriction only — and that factor underlies the rule that we are discussing. The destruction of substantial businesses or structures developed or built prior to the adoption of a zoning ordinance is not deemed to be balanced or justified by the advantage to the public, in terms of more complete and effective zoning, accruing from the cessation of such uses. (Cf. Noel, Retroactive Zoning and Nuisances, 41 Col. L. Rev. 457, 458-459; Bassett, Zoning [1940], p. 112.)

That being the rationale of our decisions, it follows, and the cases so hold, that the enforcement of a zoning regulation against a prior nonconforming use will be sustained where the resulting loss to the owner is relatively slight and insubstantial. (See People v. Kesbec, Inc., 281 N. Y. 785, motion for reargument denied 282 N. Y. 676; People v. Wolfe, 272 N. Y. 608, motion for reargument denied 273 N. Y. 498; Rice v. Van Vranken, 255 N. Y. 541, affg. 225 App. Div. 179; Matter of Fox Lane Corp. v. Mann, 243 N. Y. 550, affg. 216 App. Div. 813; People ex rel. Rosevale Realty Co. v. Kleinert, 237 N. Y. 580; Matter of Caponi v. Walsh, supra, 228 App. Div. 86.) This rule has been invoked, for example, in cases where work upon a building has been begun, pursuant to a valid building permit, prior to adoption of a zoning provision barring use of the property for a structure of that sort. In the Fox Lane case (supra, 216 App. Div. 813), we affirmed a holding that the particular “ expenditures made and obligations incurred by the respondent in reliance upon the permit in question were insufficient to give it a vested right to erect the building in question in violation of the amendment [of the zoning ordinance].” Only “when work of a substantial character had been commenced prior to such amendment ’ ’, and enforcement would, therefore, cause serious loss to the owner, will the regulation be declared inoperative as affecting “ vested rights.” (Matter of Caponi v. Walsh, supra, 228 App. Div. 86, 89; see, also, People ex rel. Ortenberg v. Bales, supra, 250 N. Y. 598.) The Wolfe (272 N. Y. 608) and Kesbec (281 N. Y. 785) cases illustrate another application of the rule. An amendment to the New York City Building Zone Besolution prohibited the use of buildings or premises in business districts for the parking of more than five vehicles. Two property owners were convicted of violating this regulation, although their parking lots had been in operation before its adoption. The court, sustaining the convictions, upheld the applicability of the regulation as to defendants on the ground that they had made little or no investment in improving their properties prior to its passage. (See, also, Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494, 498; cf. Bazinsky v. Kesbec, Inc., 259 App. Div. 467, affd. on other grounds 286 N. Y. 655.)

In this state, then, existing nonconforming uses will be permitted to continue, despite the enactment of a prohibitory zoning ordinance, if, and only if, enforcement of the ordinance would, by rendering valueless substantial improvements or businesses built up over the years, cause serious financial harm to the property owner. This rule, with its emphasis upon pecuniary and economic loss, is clearly inapplicable to a purely incidental use of property for recreational or amusement purposes only. Such an inconsequential use as that here involved — the harboring of pigeons as a hobby — does not amount to a “ vested right ”, and “ Depriving [defendant] of this pastime does not affect substantially [his] property rights * * * in the use of the premises, which are otherwise undisturbed and unimpaired.” (Barkmann v. Town of Hempstead, supra, 268 App. Div. 785, affd. 294 N. Y. 805.)

The judgment should be affirmed.

Lottghran, Ch. J., Lewis, Conway, Desmond, Dye and Froe&sel, JJ., concur.

Judgment affirmed.

      . By that other section (Art. XVII, § 174.2), the Board is empowered to issue “ temporary and conditional permits for a period not to exceed two (2) years for structures, buildings and uses in undeveloped sections of the Town, as determined by the Board, in contravention of the requirements of this Ordinance.”


source: Caselaw Access Project

author: Conway, J.

license: Public Domain

text:
    In the Matter of the Appointment of an Ancillary Successor Trustee under the Will of Brent Good, Deceased, and for Construction of Said Will. Henry H. Hoyt, Jr., et al., Appellants; Henry H. Hoyt et al., Respondents.
    Argued January 22, 1952;
    decided April 23, 1952.

      Joseph M. Proskauer, Albert R. Jube and Charles Looker for appellants.
    I. The New York courts should follow the determination of the Supreme Court of New Jersey that “ issue ” means “ descendants per capita ”. (Matter of Krooss, 302 N. Y. 424; Monypeny v. Monypeny, 202 N. Y. 90; Hawley v. James, 7 Paige Ch. 213; Lowe v. Plainfield Trust Co., 216 App. Div. 72; White v. Howard, 46 N. Y. 144; Roessle v. Roessle, 163 App. Div. 344; Minot v. Minot, 17 App. Div. 521; Greenwood v. Page, 138 F. 2d 921; Matter of Battell, 286 N. Y. 97; Matter of Neill, 195 Misc. 690; Cary v. Carman, 116 Misc. 463; Matter of Barker, 230 N. Y. 364; Matter of Dialogue, 159 Misc. 18.) II. The New York per capita presumption has not been overcome. (Soper v. Brown, 136 N. Y. 244; Matter of Lawrence, 238 N. Y. 116; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168.) III. The doctrine of equitable conversion is applicable. (Dodge v. Pond, 23 N. Y. 69; Power v. Cassidy, 79 N. Y. 602; Salisbury v. Slade, 160 N. Y. 278.)

      Harold L. Smith and L. Edwin Smart, Jr., for Brent G. Orcutt, respondent.
    I. The question whether Kate’s issue take the New York real property per stirpes or per capita is governed by New York law. (Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168; Matter of Durant, 231 N. Y. 41; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354; Dennis v. Dennis, 86 N. J. Eq. 423; Inglis v. McCook, 68 N. J. Eq. 27; De Vaughn v. Hutchinson, 165 U. S. 566; Lowe v. Plainfield Trust Co., 216 App. Div. 72; Petry v. Petry, 186 App. Div. 738, 227 N. Y. 621; Soper v. Brown, 136 N. Y. 244; Freeman v. Parsley, 3 Ves. Jr. 421; Whitehead v. Ginsburg, 197 App. Div. 266; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; McCartney v. Osburn, 118 Ill. 403; Roessle v. Roessle, 163 App. Div. 344; Fidelity Union Trust Co. v. Ackerman, 123 N. J. Eq. 556; Clarke v. Clarke, 70 Conn. 195, 483, 178 U. S. 186; Minot v. Minot, 17 App. Div. 521.) II. Under New York law, Kate’s issue take per stirpes. (Matter of Lawrence, 238 N. Y. 116; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354; Matter of Durant, 231 N. Y. 41; Matter of Smith, 254 N. Y. 283; Matter of Union Trust Co. [Detmold], 170 App. Div. 176, 219 N. Y. 537.) III. The New York real property was not made distributable as personal property under New Jersey law by equitable conversion. (Clarke v. Clarke, 178 U. S. 186; White v. Howard, 46 N. Y. 144; Matter of Tatum, 169 N. Y. 514; Hobson v. Hale, 95 N. Y. 588; Thompson v. Hart, 58 App. Div. 439; Story v. Palmer, 46 N. J. Eq. 1; Kahn v. Tierney, 135 App. Div. 897, 201 N. Y. 516.)
   Conway, J.

This is an appeal pursuant to leave granted by this court, from an order of the Appellate Division, First Department, which unanimously affirmed so much of a decree of the Surrogate’s Court, New York County, as construed a remainder to the “ issue ” of the life beneficiary of a trust, to pass to her descendants per stirpes, rather than to her descendants per capita. All of the real property situated in New York has been administered by the ancillary trustees under the supervision of the New York Surrogate’s Court. Property having a situs in New Jersey has been administered there. The life beneficiary of the trust, who is now dead, was Kate Good Orcutt, a daughter of the testator and hereinafter referred to as Kate. If distribution of the principal of the trust is to be made per stirpes, the remainder will be divided equally between the two children of Kate, Brent and Anna. If distribution be per capita, the remainder will be divided into five equal parts: one part will go to the son of Kate, one to her daughter Anna, and three to her grandchildren, the children of Anna.

The testator made and executed his will in New Jersey, where he was domiciled, in 1913. When he died in 1915, still domiciled there, he was the owner of real property in New York, New Jersey and Colorado. The will was admitted to probate in New Jersey and ancillary letters testamentary were issued by the Surrogate’s Court of New York County. At the time of his death, testator’s family consisted of (1) his second wife Prances, (2) his son Harry and his daughter Kate who were children of his first wife who had died in 1894, and (3) two grandchildren named Brent and Anna who were children of his daughter. Brent and Anna were fourteen and twelve years of age respectively. We are concerned also with the three great-grandchildren of testator who are children of his granddaughter Anna but who were born, long after the testator’s death, in 1927, 1929 and 1934.

After providing gifts of personalty to his wife and daughter, the testator provided in his will that his residuary estate be divided into three equal shares or parts and that there be added to them from time to time, proportionately, the net proceeds of the sale of real or personal property, or other property suitable for division, as though such property had been originally included. One of those shares was to be set aside for his wife Prances from which she was to receive $10,000 of income each year for life with the balance of the income payable to his daughter Kate until the death of his wife, “ but should my said daughter predecease me or my said wife, then, in either event, to the surviving issue of my said daughter, for his, her and their use and benefit.” Upon the death of his wife that share of his estate, with accumulations, was to go to his daughter Kate absolutely but in the event that his daughter predeceased him or died before the decease of his wife, the share was to go to the “ surviving issue of my daughter as and for his, her and their absolute property.”

Another share was set apart for testator’s son Harry who was to receive $5,000 of income each year with the balance of the income payable to the daughter Kate during Harry’s lifetime with the proviso that “ should my said daughter predecease my said son, then to the surviving issue of my said daughter, for his, her and their own use and benefit.” Upon the death of the son Harry that share of the estate, with accumulations thereon, was to be transferred and delivered to the daughter Kate absolutely but if she died prior to the testator or before the decease of Harry then that share was to go to “ the surviving issue of my said daughter, as and for his, her and their absolute property.”

The third part or share, and it is only as to that that we are concerned here, was to go to the daughter Kate with income for life and upon her death, or should she predecease the testator, that share was to be transferred and delivered to “ the surviving issue of my said daughter.”

There is no claim of res judicata urged here since the New Jersey Chancery Court expressly excluded from its consideration the real property in New York and Colorado, saying: that matter is governed by the law of the States in which the property is situated. Fidelity Union Trust Company v. Ackerman, 123 N. J. Eq. 556". (59 A. 2d 17, 22-23.)

The common-law rule, as to which there appears to have been no exceptions, was that the validity of a devise of real property, and all questions relating to the title to the property, were to be determined by the laws and courts of New York regardless of the domicile of the testator. (White v. Howard, 46 N. Y. 144, 159; Peck v. Cary, 27 N. Y. 9, 11.) Subsequently we codified the law in what is now section 47 of the Decedent Estate Law. The section as applicable here at the time of testator’s death read: “ § 47. Validity and effect of testamentary dispositions. The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, without regard to the residence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property situated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.”

The general rule throughout the country was the same as our common-law rule. (Clarke v. Clarke, 70 Conn. 195, 483, affd. 178 U. S. 186.) There the Supreme Court quoted with approval from De Vaughn v. Hutchinson (165 U. S. 566, 570) in holding to the contrary of a contention which it posed as follows (p. 191): “ The proposition relied on, therefore, is this, although the court of last resort of Connecticut (declaring the law of that State) has held that the real estate in question had not become personal property by virtue of the will of Mrs. Clarke, nevertheless it should have decided to the contrary, because a court of South Carolina had so decreed. This, however, is but to argue that the law declared by the South Carolina Court should control the passage by will of land in Connecticut, and therefore is equivalent to denying the correctness of the elementary proposition that the law of Connecticut where the real estate is situated governed in such a case.”

The quotation from De Vaughn v. Hutchinson (supra, p. 570), was as follows: It is a principle firmly established that to the law of the State in which the land is situated we must look for the rules which govern its descent, alienation and transfer, and for the effect and construction of wills and other conveyances.”

To the same effect are: Fidelity Union Trust Co. v. Ackerman (123 N. J. Eq. 556); Olmsted v. Olmsted (216 U. S. 386); McCartney v. Osburn (118 Ill. 403); Beale’s Conflict of Laws (Vol. 2, §§ 251.3, 251.4, pp. 974-975).

In McCartney v. Osburn (supra) the Pennsylvania courts had determined that the division of property under a devise of realty should be per stirpes. The Illinois court, as to realty there, refused to follow and said (p. 411).: “ it becomes necessary to examine the will for ourselves, and give it that construction* which, in the light of the authorities, we believe will best effectuate the testator’s intentions in disposing of his property.” In Illinois there was a rule of presumption giving a devise a per capita effect in the absence of a contrary intention. Finding on its independent investigation no evidence of contrary intent, the Illinois court held that the division was to be per capita. In the course of its opinion, the court aptly said (p. 411): “Where a testator, by a single will, devises lands in two or more States, the courts of such States will respectively construe it as to the lands situated in them, respectively, in the same manner as if they had been devised by separate wills.” (See, also, Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166, 182, 183; Monypeny v. Monypeny, 202 N. Y. 90, 92; Roessle v. Roessle, 163 App. Div. 344; Lowe v. Plainfield Trust Co., 216 App. Div. 72, 75; 32 Cyc. 674.)

Up until 1921, both in New York and New Jersey, the presumption was that the word “ issue ” when used, as it was here, as a word of purchase, included descendants in any degree unless some other meaning was given to it by the context, and there were no indications that it was used in any other than its legal sense. (Soper v. Brown, 136 N. Y. 244; Schmidt v. Jewett, 195 N. Y. 486; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168.) In New Jersey the testator was required to evidence his intention clearly before the courts read his use of the word “ issue ” as meaning descendants per stirpes. In New York State it was sufficient to cause the common-law per capita presumption to yield that there be “ ‘ a very faint glimpse of a different intention.’ ” (Ferrer v. Pyne, 81 N. Y. 281, 284; Matter of Farmers’ Loan & Trust Co., supra, pp. 173, 174.)

In satisfying himself that he had found more than a faint glimpse of an intent on the part of the testator to have his real property pass per stirpes, the learned Surrogate examined the wording used in setting up the trusts for Frances, the widow, and Harry, the son, and determined that in each there was a substitutional devise to the issue of Kate, his daughter. The Surrogate held that such substitutional devise indicated an intention that the issue were to take by representation per stirpes rather than per capita. (See Matter of Farmers’ Loan & Trust Co., supra; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354; Matter of Lawrence, 238 N. Y. 116; Matter of Durant, 231 N. Y. 41.) He wrote succintly: “ We shall consider first the trusts for the wife and the son. In those trusts it is clear that the issue of the daughter take as her representatives. If the daughter survived (as in fact she did) she was to take all the excess income in both trusts and the entire corpus. If she had died during the trust term, her surviving issue would have been substituted for her with respect to excess income and principal. ‘ The inference seems inevitable that [issue] were thought of as the parents’ representatives, succeeding either by representation or by substitution to the enjoyment of the parents’ share. Such a scheme of distribution is inconsistent with a gift per capita ’ (Cardozo, J., Matter of Lawrence, 238 N. Y., 116, 120).”

Having reached the conclusion that the language in those two trusts for the widow and son permitted the inference of an intent to devise per stirpes and since he found that the similarity of the language in all three trusts indicated an identity of purpose and intent, the Surrogate determined that the identical term “ issue ” did not lose its meaning in the disposition of the remainder of the daughter’s trust and that therefore in all the trusts the issue were to take by representation. With that we agree.

The New Jersey Supreme Court in a unanimous opinion decided that under New Jersey law there was nothing in the will “ from which it could be inferred that the testator intended a distribution contrary to the natural effect of the words used, which it is conceded have a well defined meaning in our law ”. (1 N. J. 454, 458.)

There is, indeed, no doubt of the fact that the common-law presumption today in New Jersey, and in New York up to 1921, was as we have indicated (supra, p. 116). Since 1921, the contrary presumption has existed in our State because we then added section 47-a to the Decedent Estate Law. That section was passed long after testator’s death and has no application here. It reads as follows: u 47-a. Issue to take per stirpes. If a person dying after this section takes effect shall devise or bequeath any present or future interest in real or personal property to the 1 issue ’ of himself or another, such issue shall. if in equal degree of consanguinity to their common ancestor, take per capita, hut if in unequal degree, per stirpes, unless a contrary intent is expressed in the will.”

The situation thus presented poses the question as to which law is to control the disposition of the New York realty. Is it the law of the situs or the law of testator’s domicile? Much of what has been said above is not disputed by appellants but they urge that many of the cases discussed may be distinguished because either (1) the situs of the realty and the domicile of the particular testator were identical, or (2) rules of property, such as (a) the Rule against Perpetuities, (b) the validity of a devise to charities, (3) a statute protecting an afterborn child from disinheritance, (4) a widow’s dower, etc., were involved and the testator’s intent was thus immaterial. They further urge that here the intention of the testator is to be obtained by interpreting the meaning of words used by him and that at the tipie of the execution of the will and “ at the time of his death ‘ issue ’ was a technical word of art meaning descendants per capita ’ that the question is not one of legal effect but of ascertainment of intent and that the determination of the court of the State of testator’s domicile on the meaning of the devise is controlling.

But we have written that in following the per capita presumption we had little reason to believe that we were giving effect “to a purpose genuinely willed. What we did was to enforce a rule of property which from the use of certain words imputed to the testator a particular intention, whether present in his mind or not, unless, indeed, a contrary intention was in some other way disclosed.” (Emphasis supplied.) (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 109.) It has been written that the per capita presumption is a result of legal history and is followed despite a testator’s probable intention to the contrary. (Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354, 358, supra; Petry v. Petry, 186 App. Div. 738, 741, 742, affd. 227 N. Y. 621; Freeman v. Parsley, 3 Ves. Jr. 421; Dexter v. Inches, 147 Mass. 324.) At any rate it is a rule of property and ‘ ‘ one not of intention in the proper sense, but of the legal implications of one formula or another ” (New York Life Ins. & Trust Co. v. Winthrop, supra, p. 109). Moreover, there is no doubt of the meaning of issue ”. It means descendants in every degree. As long ago as 1797 it was defined by the Chan-cellar as follows: “In the common use of language as well as the application of the word ‘ issue ’ in wills and settlements it means all indefinitely.” (Freeman v. Parsley, supra, p. 423.) The word “ issue ” is neutral, connoting neither a division per capita nor per stirpes. It is the common-law rule of presumption which gives a per capita effect to it. It is a contextual use of it that gives it a per stirpes effect. If “ issue ” is written in the will and there is nothing more, the rule of presumption gives the writing a per capita operating effect in each State — the rule of presumption breathes a per capita legal effect into the language as used. If ‘ ‘ issue ’ ’ is written but in addition there is evidence of stirpital intent, the rule of presumption yields — more readily in New York than in New Jersey— and again a legal effect, this time a per stirpes effect, is given to the language of the testator. As to real estate in New York that effect is regulated by statute in our State. (Decedent Estate Law, § 47.) We have said under the predecessor statute (Code Civ. Pro., § 2694; see, also, § 1866) that our courts determine interpretation and effect. Thus in Monypeny v. Monypeny (202 N. Y. 90, 92, Cullen, Ch. J., supra), we wrote: “ There can be no question that, though the will was made in Ohio [by one domiciled there], its interpretation and effect, so far as it relates to the real property within this State, is to be determined by the courts of this State and that their decision is conclusive.” So we made our own independent investigation of the intent of an Ohio testator in Putnam v. Lincoln Safe Deposit Co. (191 N. Y. 166, 182-183, supra). Again, in Roessle v. Roessle (163 App. Div. 344, 347, supra), New York determined that there was no intention that a devise be “in lieu of dower ” although a statute of testator’s domicile in the District of Columbia provided that such a devise should be “ construed to be intended in bar of her dower * * * unless it be otherwise expressed in the will ” and it was conceded that the widow’s dower was there barred.

Thus we must say that if the word “ issue ” were used and nothing more appeared, it is clear that the New York courts would determine the effect as a result of statutory provision. If, in addition to the use of the word “ issue ”, it appears from the words used by the testator in his will and the circumstances known to him when the will was made (Matter of Neil, 238 N. Y. 138; Matter of Smith, 254 N. Y. 283, 289) that his intention was that the property should pass per stirpes, the effect would still be determined by our courts pursuant to the command of the same statute — section 47 of the Decedent Estate Law.

We agree with the courts below that we are dealing here with real property and that there was no equitable conversion requiring distribution of personalty. The will conferred on the trustees a discretionary power of sale. In the absence of an imperative direction to sell, there is no equitable conversion. (Matter of Tatum, 169 N. Y. 514, 518; 4 Pomeroy’s Equity Jurisprudence [5th ed.], § 1160.)

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the trust.

Loughban, Ch. J., Lewis, Desmond, Dye, Fuld and Fboessel, JJ., concur.

Order affirmed.


author: Conway, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. William R. Patrick Doyle, Appellant.
    Argued February 28, 1952;
    decided April 23, 1952.

      Edward J. Fontana and Vincent De Paul Starace for appellant.
    I. There is a reasonable doubt as to the guilt of defendant as a matter of law and, therefore, the trial court erred in denying defendant’s motion to dismiss the indictment, and in denying his motion to set the verdict aside. (People v. Rosenberg, 293 N. Y. 16; People v. Lewis, 271 App. Div. 1050.) II. Complainant was an accomplice and there was no corroboration of his testimony. The trial court should have charged as a matter of law that complainant was an accomplice. The court erred in instructing the jury that defendant had made certain admissions. (People v. Rosenthal, 289 N. Y. 482; People v. Katz, 209 N. Y. 311; People v. Downs, 236 N. Y. 306; People v. Page, 162 N. Y. 272.) III. There is a reasonable doubt that defendant committed an act of sodomy upon complainant at any time. (People v. Downs, 236 N. Y. 306; People v. Ledwon, 153 N. Y. 10; People v. Nixon, 248 N. Y. 182; People v. Galbo, 218 N. Y. 283; People v. Wrieden, 299 N. Y. 425.)

      Abraham Isseks, District Attorney (Angelo J. Ingrassia and Paul F. Murphy of counsel), for respondent.
    I. The People have sustained the burden of proof and have established the guilt of defendant beyond a reasonable doubt. II. The trial court did not err in failing to charge that the complaining witness was an accomplice as a matter of law. (People v. Jackson, 196 N. Y. 357; People v. Rosenthal, 289 N. Y. 482; People v. Levine, 297 N. Y. 144.)
   Conway, J.

The defendant is forty-nine years of age and has taught in schools for boys for twenty-five years. He was convicted of the crime of sodomy. There was no proof of the commission of the crime except as it came from the words of the complainant. The jury was charged by the County Judge that if it found that the complainant was an accomplice, it must find corroboration before it could convict him. That was the law of the case. We have recently pointed out that the corroborative evidence of the testimony of an accomplice must be evidence from an independent source of some material fact tending to show not only that the crime has been committed but that the defendant was implicated in its commission.” (People v. Mullens, 292 N. Y. 408, 414.) There were thus two problems left to the jury — the first, as to whether the complainant was an accomplice, and the second, as to whether, assuming that the jury found him to be an accomplice, the complainant was corroborated. It was implicit in the Judge’s charge, that if the complainant was a nonaccomplice, the jury might convict him since no corroboration would be necessary.

We cannot determine on this record what was the basis for the jury’s verdict of guilt: i.e., whether it found that the complainant was a nonaccomplice or. found that he was an accomplice. If it found that he was a nonaccomplice, the verdict would have been justified, since no • exception was taken to the charge and no request was made that the court charge in accordance with the requirements set out in People v. Mullens (supra). On the other hand, the jury may have concluded that the complainant was an accomplice, in which event the jury must have found that there was corroboration. The statement of the defendant to the State trooper may not be considered to be sufficient as the corroboration required under our authorities. Since we cannot determine on this record what was the basis for the verdict of guilt by the jury, the judgment of conviction must be reversed and a new trial ordered. In People v. Feolo (284 N. Y. 381, 385) we said: “ How this issue as to Funicello’s status as a witness was composed by the jury we cannot know. Hence, we are called upon to say whether on this record the verdict may be taken as a valid finding that Funicello’s testimony was sufficiently corroborated as against each of the three defendants. If as to any defendant the answer is in the negative, the judgment as against him cannot be upheld on the speculation that the jury found Funicello was not an accomplice. (See People v. Lazar, 271 N. Y. 27.) ”

The judgments should be reversed and a new trial ordered.

Desmond, J.

(dissenting). Since defendant entered no objection or exception to the County Judge’s charge concerning accomplice corroboration, and never in any manner or at any time during the trial raised any such question, the point is not open to him here (People v. Rosenthal, 289 N. Y. 482, 484). Even if the court’s instructions on this subject were to be examined by us, we would have to say that they were all too favorable to defendant, since they authorized the jury to come to the shocking conclusion that this twelve-year-old boarding school pupil was an “ accomplice ” of the teacher who commanded him to submit to a crime against nature. And the final answer to all of defendant’s arguments as to accomplice corroboration is this: there was in the admissions of defendant to the State policeman, ample corroboration of the boy’s testimony. While there was no confession of the fellatio, defendant admitted “ that he was fooling with the boy in that he pushed him down on the bed ” that the boy “ told him to stop this and it was done again ” and that he (defendant) told the boy “ to go downstairs easy ” so the school commandant would not hear the youth leave defendant ’s room, and finally, that on several occasions defendant gave money to the alleged pathic. Even if the complainant was found by the jury to be a willing victim, and so an “ accomplice ”, all that was needed to support his testimony was “ such other evidence as tends to connect the defendant with the commission of the crime ” (Code Crim. Pro., § 399). “It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. Nor need the corroborative evidence be wholly inconsistent with the theory of the defendant’s innocence ” (People v. Elliott, 106 N. Y. 288, 292). “ The corroborative evidence so required need not connect the defendant with the crime charged. If it have a fair tendency to connect him therewith and is found by the jury to be true, the statute is satisfied ” (People v. Henderson, 298 N. Y. 462, 467). Proof such as we have here, has been, in somewhat similar cases, held sufficiently corroborative (see People v. Bodenstein, 240 App. Div. 849, as described in People v. Masiano, 253 App. Div. 454, 456; People v. Pratchner, 9 Cal. App. 2d 451).

The judgment should be affirmed.

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

Judgments reversed, etc.


author: Desmond, J. Conway, J.

text:
    In the Matter of New York University, Respondent, against Temporary State Housing Rent Commission et al., Appellants, et al., Defendants.
    Argued April 7, 1952;
    decided April 23, 1952.

      Robert H. Schaffer for Temporary State Housing Bent Commission, appellant.
    I. The Emergency Housing Bent Control Law (L. 1951, ch. 443) gave the State Bent Commission power to impose conditions upon the granting of a landlord’s application to withdraw his property from the rental market. (Suppus v. Bradley, 278 App. Div. 337.) II. The State Bent Commission acted within the wise exercise of its discretion in requiring the University to relocate present tenants before eviction or, in the alternative, by restricting eviction to dwellings to be .occupied by members of the University’s faculty. (Loab Estates v. Druhe, 300 N. Y. 176.)

      David B. Tolins for Myra Coco and others, appellants.
    I. The substitution of foreign graduate students of petitioner’s law school for the present tenants of the housing accommodations on a rental basis is not a permanent withdrawal of occupied housing accommodations from all rental markets without any intent to rent them, within the meaning of the act and regulations. (Suppus v. Bradley, 278 App. Div. 337; Esposito v. Wetzel, 196 Misc. 246; Woods v. Cammett, 80 F. Supp. 636; Sinclair v. Byrne, 193 Misc. 1; Loab Estates v. Druhe, 300 N. Y. 176; Matter of Wallach v. Ross, 273 App. Div. 1021; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419.) II. In any event, petitioner has failed to meet the requirements of section 59 of the regulations as to immediate and compelling necessity, exceptional circumstances and undue hardship, or that the evictions would be consistent with the purposes of the act.

      J ohn Gerdes, W. Randolph Montgomery and Malcolm Monroe for respondent.
    I. The validation by the Legislature of the Rent and Eviction Regulations did not confer any powers upon the commission inconsistent with the provisions of the statute itself. II. The commission having found that the University intends in good faith to use the premises for purposes outside the scope of the emergency rent laws, the University has an absolute right to the certificates applied for under subdivision 4 of section 10 of the statute. (Woods v. Durr, 176 F. 2d 273; Bowles v. Willingham, 321 U. S. 503; Wilson v. Brown, 137 F. 2d 348; Taylor v. Bowles, 145 F. 2d 833; Loab Estates v. Druhe, 300 N. Y. 176.) III. A change in the use of premises from housing accommodations offered to the general public at rentals calculated to yield a profit to dormitory and dwelling facilities offered to the University’s students and faculty on a nonprofit basis constitutes a withdrawal from the rental market within the meaning of subdivision 4 of section 10 of the statute. (Taylor v. Bowles, 145 F. 2d 833; Woods v. Durr, 170 F. 2d 976, 176 F. 2d 273.) TV". That subdivision 4 of section 10 of the Emergency Housing Rent Control Law7, as amended, guarantees to the University the unqualified right to withdraw the subject premises from the rental market is implicit in the decision of the Court of Appeals in Teeval Co. v. Stern (301 N. Y. 346). (Yakus v. United States, 321 U. S. 414; Loab Estates v. Druhe, 300 N. Y. 176.)
   Desmond, J.

Petitioner-respondent, New York University, sought from the Local Rent Administrator certificates of eviction against tenants of apartments in building adjoining the University’s new Law Center. The University proposes to use the premises as dormitories for faculty and students. The Local Rent Administrator denied the University’s application and the University filed a protest with appellant State Rent Administrator. The State Rent Administrator considered the application de nova, and denied the protest without prejudice: (1) to the University’s refiling applications for certificates of eviction to obtain housing accommodations for members of its staff, and (2) renewal of the application after efforts made to relocate the present tenants. The University then brought this article 78 of the Civil Practice Act proceeding in the Supreme Court, New York County, to review the determination of the State Rent Administrator. The Special Term Justice held that the University had a right to the issuance of unconditional certificates of eviction, and made an order directing issuance of such certificates.

The Appellate Division affirmed, two Justices dissenting, and the tenants and the Temporary State Housing Rent Commission appealed to this court. The Appellate Division majority wrote no opinion, but the dissent stated that the commission’s requirement that petitioner relocate the twenty-four tenants was fair and reasonable, that there was no compelling necessity for petitioner’s proposed use of the property as compared to the hardship tó the families which would be evicted, and that the granting of the petition would be inconsistent with the purpose of the act, citing Loab Estates v. Druhe (300 N. Y. 176, 179). The Appellate Division dissent stated, too, that the commission’s relocation requirement was appropriate, but it is to be noted that the New York City Administrative Code, applicable in the Loab Estates case (supra), specifically made relocation of tenants a requisite for eviction, a provision which is not found in the State act or in the commission’s regulations promulgated thereunder.

The Special Term held that what petitioner is trying to accomplish is a lawful “ withdrawal of the housing accommodations from the rental market ”, as permitted by subdivision 4 of section 10 of the State Residential Rent Law (L. 1946, ch. 274, as amd. by L. 1951, ch. 443, otherwise cited as McKinney’s Unconsol. Laws, § 8590, subd. 4). It pointed out that the phrase of that statute: “ Nothing in this act shall be construed to require any person to offer any housing accommodations for rent ”, was taken almost verbatim from the former Federal Price Control Act, and that, under the Federal act, the Supreme Court had suggested (Bowles v. Willingham, 321 U. S. 503, 517) that there was an absolute right in an owner to evict tenants so as to use his property for uses not covered by the act. It is undisputed here that the use proposed by this petitioner, that is, for dormitories for students and faculty, is specifically excluded (see State Residential Rent Law, § 2, subd. 2, par. [a]; McKinney’s Unconsol. Laws, § 8582, subd. 2, par. [a]) from the definition of “ housing accommodations ” in the State act (and, incidentally, this court has held in People ex rel. Clarkson Memorial Coll. v. Haggett, 300 N. Y. 595, that college-owned buildings rented by the college to faculty members are exempt from realty taxation as being ‘ ‘ used exclusively for carrying out ” one of the purposes of the owning corporation [Tax Law, § 4, subd. 6]).

Referring to a regulation of the State commission, which we will quote hereafter, Special Term held that this record shows that petitioner is in immediate need of these dormitory facilities and that its educational program will be seriously jeopardized without them. The final conclusion of that court, confirmed by the Appellate Division, was that the determinations of the commission were arbitrary and capricious, and that they must be set aside and the commission directed to issue the eviction certificates.

The facts are not in dispute. The University, in 1948, acquired, for future use as a dormitory in connection with the Law School, these three dwellings, across the street from its new Law Center building recently completed. It is not disputed that the University, in good faith, has immediate need for dwelling accommodations for about two hundred nonresident instructors, fellows and students in its School of Law, who are to participate in new or expanded courses in the school. The premises contain thirty-two small apartments. At the time these proceedings were commenced twenty-four apartments only were occupied by tenants. Twenty-one of those tenants are appellants here, and the Temporary State Housing Rent Commission is the other appellant.

As pointed out above, subdivision 4 of section 10 of the act (McKinney’s Unconsol. Laws, § 8590) says: “ 4. Nothing in this act shall be construed to require any person to offer any housing accommodations for rent, but housing accommodations already on the rental market may be withdrawn only after prior written approval of the state rent commission, if such withdrawal requires that a tenant be evicted from such accommodations.” The commission’s regulations include a section 59 which says, in effect, that an eviction certificate shall be issued where the landlord establishes that he seeks in good faith permanently to withdraw occupied housing accommodations from the rental market. As we read the record and the contentions of the parties, it is agreed that petitioner here meets those particular requirements. However, that same section 59 of the regulations goes on to say that such an eviction certificate shall not be issued unless the landlord establishes that he is seeking to recover possession because of an immediate and compelling necessity and exceptional circumstances, that the continued operation of the housing accommodations will impose undue hardship on him, and that the granting of the eviction certificate is not inconsistent with the purposes of the act. It is really on that second part of section 59 of its regulations that the commission relies here, its finding being, in effect, that the granting of eviction certificates here would be inconsistent with the purposes of the act. Respondent points out that the Legislature, by section 2 of chapter 443 of the Laws of 1951 (McKinney’s Unconsol. Laws, § 8584, n.), validated the commission’s regulations, but only insofar as not inconsistent with the act itself, but that particular statute does not help us decide this case.

We thus have a situation where the statute says that no one shall be required to offer housing accommodations for rent, and that housing accommodations may be withdrawn from the rental market only after prior written approval of the commission. Then there is a regulation which says that a certificate of eviction is to be granted in such a situation only where the landlord shows immediate and compelling necessity, exceptional circumstances, undue hardship, and consistency with the purposes of the act. There is nothing whatever, either in the statute or the regulations, which authorizes the commission to impose as a condition that the landlord relocate the evicted tenants, and the imposition of such a condition may well, therefore, be unlawful and a nullity. As to the requirements of the regulation, that it be shown that the granting of the eviction certificate is consistent with the purposes of the act itself, we think that condition was reasonably met here since the primary purpose of the act is to prevent undue rent increases, and since the act specifically excludes college dormitories from its coverage, and makes it plain that the landlord has a right to withdraw his property from the rental market, that is, to convert it into nonrental uses.

As to the regulation’s requirement that undue hardship, immediate necessity, etc., be shown, the problem is, perhaps, a little more difficult. There may be doubt that the commission had power to impose such a regulation, in view of the statutory language and policy which gives a landlord a right to withdraw the accommodations. To allow the commission to impose further requirements of hardship, necessity, etc., would seem, not only to be inconsistent with the statute itself but to be of doubtful constitutionality, as prohibiting a landlord from turning his own property into a nonrental use. However, we need not, in this case, pass on the validity of so much of section 59 as requires a showing of hardship, special circumstances, etc. Special Term, as noted above, held that exceptional circumstances were shown. The Appellate Division, apparently, agreed, and that conclusion was well founded on this record. As we read the commission’s order and opinion, it really made no definite finding of its own on this hardship matter, but held: first, that the proposed use is not exempt from the act; second, that eviction would be inconsistent with the statute; and, third, that no certificate should be granted unless relocation be provided by petitioner. A finding by the commission, as to lack of undue hardship, can be spelled out, we suppose, from the incorporation, into the commission’s opinion, of a report by its examiner. That examiner’s report says that the University’s need for housing for its scholars is not such a hardship as is contemplated under section 59, that hardship means financial loss or illness preventing continued operation of the premises, and that removal of accommodations from the rental market ” means boarding them up or keeping them vacant for the reason that occupancy would violate other laws, and removal of those other violations would be too expensive. We think that construction by the examiner, of section 59, is an arbitrary one. But, for present purposes, we can content ourselves with holding that, even assuming the validity of the whole of section 59, petitioner did show hardship and compelling necessity by its undisputed proof that it needs these buildings for its own University purposes, and that without them its educational program will be seriously interfered with.

The order should be affirmed, with costs.

Conway, J.

(dissenting). I dissent and vote for reversal upon the dissenting opinion of the two Justices of the Appellate Division.

We are not to decide here whether the Temporary State Housing Rent Commission should have decided as it did. The Legislature set it up as an administrative tribunal, clothed it with statutory power and validated its regulations. The majority does not say that the regulations are unreasonable. That was for the Legislature to determine and it was within legislative competency. We could not say they were unreasonable in this emergency as it has been found by the Legislature. The majority, assuming the validity of section 59 in its entirety, reaches the conclusion that petitioner did show hardship and compelling necessity by its undisputed proof that it needs the buildings for its own University purposes, and that without them its educational program would be seriously interfered, with. It seems to me that a complete answer was made by the dissenting Justices in the Appellate Division as follows: “ While there is no question about the good faith of petitioner, it is apparent that in the circumstances the State Bent Commission’s rule allowing conversion provided that petitioner would secure a relocation of the tenants is entirely fair and reasonable. There is no compelling public necessity shown for the extension of dormitory requirements of petitioner when weighed against the hardship which would result by forcing the eviction of twenty-four low income families with no provision for their relocation. * * * The overwhelming number of the persons for whom these dwelling spaces are sought are graduate students from outside the metropolitan area and a number of research assistants for projects not yet implemented. The denial was without prejudice to the applicant’s right to refile for specific housing units if it shows that possession is sought for the personal use of members of the landlord’s faculty. The University did not see fit to make such application. The commission did not abuse its authority, but acted in the exercise of a wise and sound discretion when it refused unconditionally to evict the present tenants in order to house in the same rental quarters students from distant communities.” (279 App. Div. 887.)

So long as reasonable men may differ as to the wisdom of the action of an administrative tribunal, it may not be said that its action is arbitrary.

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

Order affirmed.


author: Fuld, J. Dye, J.

text:
    City of Buffalo, Appellant, v. Strong & Co. et al., Defendants, and United States Trust Company of New York, as Substituted Trustee under the Will of Henry S. Redmond, Deceased, et al., Respondents.
    Argued March 14, 1952;
    decided April 23, 1952.

      Fred G. Maloney, Corporation Counsel (Edward A. Silliere and Elmer S. Stengel of counsel), for appellant.
    I. The phrase “ at the expiration ” does not have a precise meaning. (Lester v. Jewett, 11 N. Y. 453; I. X. L. Furniture v. Berets, 91 P. 279; Rogers v. Burr, 97 Ga. 10; Weber Showcase & Fixture Co. v. Kaufman, 45 Ariz. 397; Ex parte Szumrak, 278 F. 803; In the Goods of Thomas Ruddy, L. R. 2 P. & M. 330.) II. The phrase — ‘6 The City reserves the right to recall or repay this bond at the expiration of twenty years from its date of issue” — appearing on each bond clearly defines in this case the beginning of an option period and does not fix a date of call. (Ex parte Szumrak, 278 F. 803.) III. If a fixed date of call had been intended, the bonds would have stated that ‘ ‘ The City reserves the right to recall or repay this bond on the 10th day of October, 1928.” (Road Dist. No. 2, Colorado Co., Texas v. Gregory, 120 S. W. 2d 859.) IY. Unless the meaning of the language of a contract be plain and unambiguous, judgment on the pleadings is not proper.

      William S. Gaud, Jr., and Heywood Shelley for United States Trust Company of New York and others, respondents.
    I. The phrase “ at the expiration of ” has a fixed and definite meaning when used in connection with the granting of an option. (Lester v. Jewett, 11 N. Y. 453; Fine Realty Co. v. City of New York, 53 Misc. 246; Ferree v. Moquin-Offerman-Hessenbuttel Coal Co., 29 Misc. 624; Railway Adv. Co. v. Posner, 35 Misc. 285; Maier
      v. Rebstock, 92 App. Div. 587; de Pass v. Stoddard, 83 Misc. 12; Schweinburg v. Altman, 145 App. Div. 377; Mogoffin v. Holt, 62 Ky. [1 Duv.] 95; Rogers v. Burr, 97 Ga. 10; Thompson v. Fairleigh, 300 Ky. 144.) II. Chapter 724 of the Laws of 1907 should be construed in accordance with the established meaning of the phrase “ at the expiration of ” and not on the basis of speculation as to what the Legislature might have intended. (Adler v. Deegan, 251 N. Y. 467; Johnson v. Hudson Riv. R. R. Co., 49 N. Y. 455; People ex rel. Sheldon v. Board of Appeals of City of N. Y., 234 N. Y. 484.)

      Nathaniel L. Goldstein, Attorney-General (John C. Crary, Jr., and Wendell P. Brown of counsel), for "William A. Lyon, as Superintendent of Banks of the State of New York, and another, respondents.
    I. “At the expiration of twenty years from its date of issue ” means the specific date of expiration twenty years from date of issue, or, at most, within a reasonable time thereafter. (Lester v. Jewett, 11 N. Y. 453; Fine Realty Co. v. City of New York, 53 Misc. 246; Ferree v. Moquin-Offerman-Hessenbuttel Coal Co., 29 Misc. 624; Taylor v. Blair, 59 Hun 347; Maier v. Rebstock, 92 App. Div. 587; Adler v. Deegan, 251 N. Y. 467; Schweinburg v. Altman, 145 App. Div. 377, 207 N. Y. 681; de Pass v. Stoddard, 83 Misc. 12; Railway Adv. Co. v. Posner, 35 Misc. 285.) II. The legislative history of the statute supports respondents’ position. (People ex rel. Sheldon v. Board of Appeals of City of N. Y., 234 N. Y. 484; Mabie v. Fuller, 255 N. Y. 194; Matter of Carter v. Kalamejski, 255 App. Div. 694, 280 N. Y. 803.)
   Fuld, J.

The City of Buffalo brought this action against the holders of its water bonds dated October 10, 1908, for a judgment declaring that such bonds are callable at any time before their maturity in 1958 at the option of the city. In its complaint — which set forth the text of the bonds as well as the text of the state and local action which led to their issuance — the city alleged that, although its common council had provided, by budgetary appropriations, sufficient funds for the recall and repayment of those bonds, it “ cannot, without great peril to its financial standing and credit,” recall the bonds for payment, without a prior determination that it has the right so to do. All of the present holders of the bonds, which are registered, were named as defendants.

Answers having been filed, several of the defendants moved for judgment on the pleadings, asserting as basis therefor that the city’s right to call the bonds had long since expired. Though the trial court agreed with defendants that there was no triable issue, it held that the city was entitled to the declaration which it was seeking — that the bonds were subject to call at the option of the city at any time between October 10, 1928 and their maturity date in 1958. Upon appeal, the Appellate Division likewise ruled that no triable issue existed; however, it held that the city’s option had to be exercised, if exercised at all, during the year 1928 and granted judgment in favor of the defendant bondholders.

The bonds, aggregating $500,000, appear to have been issued in denominations of $1,000. The text of the individual bonds insofar as material reads in this way:

“ The CITY OF BUFFALO in the State of New York for value received hereby promises to pay to the holder hereof registered according to the provisions endorsed hereon the sum of
ONE THOUSAND DOLLARS
on the 10th day of April 1958 with interest thereon at the rate of 4 per cent per annum payable semi-annually on the 10th days of October and April of each year both principal and interest being payable at the office of the Comptroller of the City of Buffalo or at the Gallatin National Bank of the City of New York as the purchaser hereof may elect.
The City reserves the right to recall or repay this bond at the expiration of twenty years from its date of issue.
This bond is issued by virtue and in pursuance of chapter 203 of the Laws of 1906 as amended by chapter 724 of the Laws of 1907 and of a resolution of the Common Council of the City duly passed and approved.”

The controversy turns upon the meaning of the clause wherein The City reserves the right to recall or repay this bond at the expiration of twenty years from its date of issue.”

Chapter 724 of the Laws of 1907, which authorized the city to issue bonds in the sum of $2,500,000 for the improvement of its water supply — of which the bonds here in question are a part — provided as follows: ‘ ‘ They shall be sold or awarded as provided in section four hundred and ninety-two of the charter of said city; such bonds to bear interest at a rate not exceeding four per centum per annum, payable semi-annually at the office of the comptroller of the city of Buffalo or at the Gallatin national bank of the city of New York, as the purchaser may elect, the principal to be payable at the same place at the end of a term of fifty years from date of issue; provided, however, that the common council may, in its discretion, reserve in the resolution ordering the sale of said bonds, or any of them, the right to repay or recall said bonds, or any of them, at the expiration of twenty years from the date of issue.” (Emphasis supplied.)

The reservation in the bonds of the right to call them at the expiration of twenty years from its date of issue ” is in the language of the statute. We are therefore required to determine the meaning, not of a private contract — as to which extrinsic evidence might in a proper case be appropriate — but of a legislative act. Consequently, it follows that the courts below were correct in granting judgment on the pleadings.

By comparison with the text of modern bonds, the language of the bond before us is indeed laconic. (Cf. 3 Fletcher, Corporation Forms Annotated [3d ed., 1938], §§ 2602, 2916, 2917.) The contention of plaintiff city is that “ at the expiration of ” is equivalent to “ at any time after ’ ’, and that it was therefore authorized to call the bonds at any time after October 10, 1928. Defendant bondholders, on the other hand, claim that “ at the expiration ” pin-pointed and designated a single day, namely, October 10,1928, and that the city had the right to call the bonds on that day alone, or, at most, within a reasonable time after that day.

We agree with the city — which, we note, urged the same construction as it now does at least as long ago as 1936. (See East Side Sav. Bank of Rochester v. City of Buffalo, supra, 104 N. Y. S. 2d 110.) The manifest purpose of a call provision in a municipal bond is to enable the city either to employ its own funds to end the obligation to pay interest, or to take advantage of an opportunity to borrow at lower rates. But a call privilege limited to a single moment of time twenty years hence is the thinnest of sporting chances and has no place in either intelligent borrowing or intelligent investment. Defendant bondholders have not referred to a single instance of any other bond, either private or governmental, with a call provision such as they claim this to be, and our own research has failed to discover any.

To attribute such an intention to the legislature is inherently unreasonable. That body evidently considered that it had effected a reasonable compromise and balance between the desires of the borrower and those of the lender, by assuring the latter an indefeasible right to interest for twenty years and by giving the former the freedom to terminate its obligation thereafter. All the other signs point in the same direction. For example, the right to call all or part of the bonds evidently contemplated the possibility that the bonds might be retired in installments, and therefore negatives the suggested limitation to a single exercise of the right at one point of time. Moreover, the discretion left to the common council to include or omit the call provision assumed that the call provision had some substance and might, for that reason, be unacceptable to prospective investors — a discretion that would be wholly incongruous if the call provision meant only what the bondholders now claim. Since the sale of the bonds with the call provision included was successful, we conclude that the purchasers accepted the risk of the termination of their investment in accordance with ordinary call practice.

The bondholders place great emphasis on a change in the language of the enabling legislation. The bond issue was originally authorized by chapter 203 of the Laws of 1906, which specified a rate not to exceed 3%% and required that the right be reserved to “ repay at any time after the expiration of twenty years all or any part of these bonds.” Apparently, the interest rate proved too low and, the following year, by chapter 84 of the Laws of 1907, the statute was amended to provide for a rate not to exceed 4%. The city then proceeded to sell some of the bonds so authorized, but failed to include any provision entitling it to call them prior to their maturity. Once again, the legislature was appealed to, and by chapter 724 of the Laws of 1907, it changed the language of the authorization to read as quoted above, and at the same time validated the bonds' already sold. Defendants point to the phraseology in the original 1906 measure — “at any time after the expiration of twenty years ” — and contrast it with the language in the later 1907 act — “ at the expiration of twenty years ” — urging that the change was meaningful. We are unable to conclude that any change of substance was intended. Other language alterations there were, and they plainly carried with them no legal consequences: the earlier statute described the option as one “ to repay ”, the later language, as a right “ to repay or recall ”. We perceive no basis for attaching any greater significance to the one change than to the other. And, indeed, the legislature appears to have been of the same opinion; chapter 349 of the Laws of 1909, which amended the legislation just discussed, recites that one of its purposes was “ to make said act more certain.” The amendment empowered the city to increase the authorized issue to $3,500,000, and, in addition, inserted in the repayment clause the words “ any time after ”, so that it read “ at any time after the expiration of twenty years from the date of issue.” While that legislative construction may be “ without binding force ” (City of New York v. Village of Lawrence, 250 N. Y. 429, 447), it does confirm the conclusion that we reach, without reliance upon the amendment, that no change was effected by the 1907 legislation that is here of relevance.

Our attention has been called to a number of cases wherein the expression “ at the expiration ” or some similar language was used — in some of which it was held to mean the ‘ ‘ particular day ” specified or a “ reasonable time ” thereafter (e.g., Lester v. Jewett, 11 N. Y. 453, 454; Maier v. Rebstock, 92 App. Div. 587, 589; Thompson v. Fairleigh, 300 Ky. 144), and, in others, “ at any time after ” the date specified (e.g., Ex parte Szumrak, 278 F. 803; In the Goods of Thomas Ruddy, L. R. 2 P. & M. 330). Study of those decisions establishes only that the phrase can have no absolute or inalterable signification and that it takes on meaning and color from the context and setting in which it is found. (Cf. Surace v. Danna, 248 N. Y. 18, 21; Towne v. Eisner, 245 U. S. 418, 425; Cabell v. Markham, 148 F. 2d 737, 739.) As already indicated, it is our conclusion that, in its present context, the design of the option was to render the bonds callable at any time after they had been outstanding for twenty years.

The judgment appealed from should be reversed, with costs in this court and in the Appellate Division, and judgment directed adjudicating and declaring the rights of the parties in accordance with the views expressed in this opinion.

Dye, J.

(dissenting). We all agree, including the parties, that this is a proper case for a judgment on the pleadings and that the registered 4% water bonds sought to be called for payment were validly issued under date of October 10, 1908, the principal payable fifty years from date, viz., October 10, 1958, subject to the condition that “ The City reserves the right to recall or repay this bond at the expiration of twenty years from its date of issue.” (L. 1906, ch. 203, as amd. by L. 1907, ohs. 84, 724; resolution duly adopted by Common Council of the City of Buffalo, March 25, 1908, and approved by the Mayor April 6, 1908.)

The city by this action seeks a judgment declaring that the language of such reservation gives it the right to repay or recall the bonds or any of them, at any time during the period October 10, 1928, and October 10, 1958, which right the bondholders, the respondents herein, assert the city lost when it failed to call or repay said bonds or any of them, on October 10, 1928, or at the very least within a reasonable time thereafter.

The problem thus sharply presented turns on the meaning of the phrase ‘ ‘ at the expiration of twenty years from its date of issue ” — or to state it quite simply, what is the call date of the bonds?

A majority in the prevailing opinion have dealt with the problem as one of statutory construction rather than one of contract law in order to arrive at the conclusion that the controverted words “ at the expiration of ” as used in the bond, are equivalent in meaning as if the phrase “ at any time after ” had been used.

We are unable to agree with either the premise or the conclusion. While it is true that an enabling act was a necessary prerequisite to the issuance of the bonds as a valid municipal obligation, it is equally true that when the bonds were issued in pursuance thereof, and sold for value, the bond itself became the document which fixed the rights of the city vis-á-vis the party who chances to own it. The bond is an evidence of debt — the language of which must be given effect in accordance with ordinary usage. It is only when- the wording is ambiguous and uncertain that extrinsic evidence may be employed to clarify the meaning. The words “ at the expiration of ” when considered in context are neither meaningless nor ambiguous. The use of the phrase “ at the expiration of ” to designate a fixed point of time is nothing new in legal terminology. It is a common expression often used in the market place and has come to have such a generally accepted meaning that it may be regarded as a phrase of art. As far back as Lester v. Jewett (11 N. Y. 453, 459 [1854]), a leading case and followed since, a contract containing an option to purchase stock “ at the expiration of one year from [this] date ” was held to designate a fixed date in point of time and we refused to give effect to an attempt to exercise the option one day too late. This meaning has been consistently followed in the lower courts (Fine Realty Co. v. City of New York, 53 Misc. 246; Railway Adv. Co. v. Posner, 35 Misc. 285; Ferree v. Moquin-Offerman-Hessenbuttel Coal Co., 29 Misc. 624; Maier v. Rebstock, 92 App. Div. 587; de Pass v. Stoddard, 83 Misc. 12). The same meaning has been adopted in many of our leading foreign jurisdictions (Bour v. Kimball, 46 Ill. App. 327; Magoffin v. Holt, 62 Ky. [1 Duv.] 95; Abell v. Bishop, 86 Mont. 478; Markley v. Godfrey, 254 Pa. 99), and other jurisdictions allow a reasonable time after the expiration of the stated period (Weber Showcase & Fixture Co. v. Kaufman, 45 Ariz. 397; Howard v. Galbraith, 13 Cal. App. 373; Rogers v. Burr, 97 Ga. 10; Davis v. Godart, 131 Minn. 221; McDougall v. O’Connell, 72 Wash. 349). No reported case has been called to our attention and my own research has disclosed none and none is pointed to in the prevailing opinion, holding that in point of time the phrase “at the expiration of ” may be exercised ‘ at any time after ’ ’ the expiration of the fixed period. In Thompson v. Fairleigh (300 Ky. 144 [1945]), authorities interpreting the phrase “ at the end of ” and “ at the expiration of ” are carefully reviewed leading to the conclusion that authorized action taken within a reasonable time will satisfy the contract.

The use of the words “ at the expiration of ” in a municipal bond presents no different problem and requires no different solution than when used in any other chose in action or contract whether of a public or private nature. In fact because a bond is an obligation under seal and is fully negotiable, there is all the more reason that its phraseology should be interpreted in harmony with recognized authorities, for it is axiomatic that in dealing with a problem of construction like phrases should be accorded a like meaning.

The parties themselves have' had no difficulty with the controverted phrase since the issuance of this bond until the commencement of the within litigation. The city had by express reservation a right to call all or any part of the bonds at the expiration of twenty years from [the] date of issue ”. When that date arrived on October 10,1928, the city failed to exercise its unquestioned call privilege as it had the right to do, and by such omission must now be deemed to have abandoned and forfeited such right. After nearly forty-five years of practical construction in harmony with the authorities that have spoken on the subject, they now seek to attribute a contrary meaning by asking us to import into the terms of these seasoned bonds words they did not use, because not authorized by the enabling act at the time, in order to arrive at a meaning not expressed. Reformation of the terms of a written instrument may be had only when the proof is clear and unequivocal that a change is necessary to correct a mutual mistake or set same aside on the ground of fraud. Here no such grounds exist, for concededly the bonds were issued and sold pursuant to State statute and duly adopted resolution of the Buffalo Common Council. We may not attribute to the purchasers the acceptance of any condition relating to call before maturity not expressed in the bond. For purposes of our problem it matters not that the city can now refund at a lower rate of interest or that the call privilege reserved is not in accordance “ with present day call practice,” or that the text of these bonds differs from any other bond ” or that the call privilege is limited to a single moment of time twenty years hence ” and thus make it “ the thinnest of sporting chances ”. Not one of such factors — even if proof thereof existed — and it does not, are controlling here. We may look only to the condition as expressed in the language of the bond itself. '

However, since the prevailing opinion has found the solution it sought by resorting to a construction of the enabling act, it would be amiss if we did not point out that we read the same statute with a different result. Originally, chapter 203 of the Laws of 1906, insofar as pertinent, provided for a call privilege “ at any time after the expiration of twenty years ” which language, we submit, was a clear expression of legislative intent authorizing the city to pay the bonds in whole or in part at their option at any time after twenty years ”. However, and before any bonds were issued containing a call privilege expressed in such language, the act was amended by chapters 84 and 724 of the Laws of 1907, the effect of which was to increase the interest rate from 3% to 4% per annum, and to strike out words originally used “ at anytime after ” and substitute in place thereof “ at the expiration of ”. This was a most significant and important change, for it was not until the wording of the enabling act was so revised that the bonds issued in conformity thereto found a market. It was a deliberate and calculated change designed to limit the call privilege in the manner and to the extent stated. It was not a careless and inadvertent piece of draftsmanship but, on the contrary, a clear, concise and meaningful expression of legislative intent. But this was not all. Following the issue of the bonds containing the call privilege in the statutory language “ at the expiration of ” the Legislature again dealt with the subject by enacting another amendment giving the city the right to call its bonds “ at any time after the expiration of twenty years ” (L. 1909, ch. 349) thus demonstrating beyond doubt that it knew and understood that the phrases at the expiration of ” and at any time after ” have a different meaning in designating a point of time. These enactments made prior and subsequent to the enabling act, pursuant to which the bonds were issued, when read together indicate a serious and clear expression of legislative intent. The Legislature under accepted canons of construction must be deemed to have used the phrase “ at the expiration of ” in the sense in which it had been judicially construed up to that time (Lester v. Jewett, supra; Adler v. Deegan, 251 N. Y. 467; People ex rel. Sheldon v. Board of Appeals of City of N. Y., 234 N. Y. 484; Mabie v. Fuller, 255 N. Y. 194).

For these reasons we dissent from the views expressed in the prevailing opinion and vote to affirm the judgment appealed from, with costs.

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

Judgment reversed, etc.

      . The same result had been reached in 1936 in a decision at trial term, from which no appeal had been taken, involving another issue of bonds under the same authorization. (See East Side Sav. Bank of Rochester v. City of Buffalo, 104 N. Y. S. 2d 110.)


author: Lewis, J.

text:
    Joseph Schultz & Co., Inc., Respondent, v. Camden Fire Insurance Association, Appellant.
    Submitted March 12, 1952;
    decided May 29, 1952.

      Paul D. Compton for appellant.
    I. The findings of Special Term, relating to the alleged agreement to transfer the coverage of the policy from the 1922 Mack truck to the 1930 Mack truck, are not supported by the evidence. (More v. New York Bowery Fire Ins. Co., 130 N. Y. 537; Hughes v. John Hancock Mut. Life Ins. Co., 163 Misc. 31.) II. Even assuming the correctness of the lower court’s findings regarding the alleged agreement, no liability thereunder was established. III. The decision cannot be sustained upon the theory that the 1930 Mack truck was substituted for the 1922 Mack truck pursuant to the substitution clause in the policy.

      Irving B. Kass for respondent.
    I. The evidence clearly supports the findings. (Mankes v. Fishman, 163 App. Div. 789; Ottida, Inc., v. Harriman Nat. Bank & Trust Co., 260 App. Div. 1008; Hammond v. Morgan, 101 N. Y. 179.) II. In any event, no confirmation was necessary to coyer the transfer, since under the terms of the policy itself there could be a substitution. III. The provision seemingly confining operations to two named drivers has no application to the facts herein, and in any event does not preclude recovery. (Hammond v. Morgan, 101 N. Y. 179.)
   Lewis, J.

The defendant insurance company issued its “ Motor Truck Cargo Policy ” effective November 8, 1947, insuring plaintiff for a period of one year against loss by stated perils — including theft — of goods in transit while “in or on ” four motor trucks listed on an “ addendum ” to the policy. One of the four trucks thus insured was a 1922 Mack five-ton truck upon which the limit of liability was $5,000.

In October, 1948, plaintiff purchased a 1930 Mack truck from which, according to testimony by plaintiff’s president, the truck body was promptly removed and was replaced by a body taken from the 1922 Mack five-ton truck mentioned above. On November 3, 1948, the plaintiff’s newly acquired 1930 Mack truck, then equipped with the body transposed from the 1922 Mack truck, was loaded with merchandise and was driven by the witness Corsaro to a point on Atlantic Avenue near Pier 22 in Brooklyn. Upon arriving at that point Corsaro dismounted from the truck cab and took his place in a line of shippers at a Pier 22 office awaiting instructions as to routing. Upon receipt of such instructions Corsaro returned to the place on Atlantic Avenue where he had left the truck only to find that in the brief time he had been absent from the operator’s cab the truck and its entire contents had been stolen.

It is the plaintiff’s claim that, by the defendant’s insurance policy issued on November 8, 1947, covering the four trucks listed therein as above stated, and by an oral contract to insure allegedly made in connection therewith by the plaintiff’s broker with the defendant’s authorized agent, the defendant is liable as insurer for the theft-loss thus sustained by the plaintiff.

Upon the decisive question as to whether, at the time of the theft, the 1930 Mack truck was within the coverage of a policy issued by the defendant, the complaint alleges that on or about October 28, 1948, the plaintiff made application through an insurance broker to John J. Kelle, Inc., a duly authorized agent of the defendant, requesting the transfer to the 1930 Mack truck of insurance coverage then applicable to the 1922 Mack truck — one of the four trucks listed in the 1947 policy. It was further alleged that the defendant, by its agent, agreed on October 28, 1948, to include “ said [1930] truck” under, and pursuant to the terms of the 1947 policy issued to the plaintiff; that the plaintiff agreed to make payment of additional premium, if any, by reason of such transfer; that it was agreed by and between the plaintiff and defendant that said insurance would be effective for the duration of the term of the 1947 policy; and that, in consideration of the premises, defendant promised and agreed to and with plaintiff, to execute and deliver to plaintiff, within a reasonable and convenient time, an addendum to the said policy of insurance, in the usual form, insuring the liability of plaintiff as carrier of lawful goods and merchandise, the property of others, on the said truck, under and pursuant to the terms of the said policy.

In our view of this record there is a lack of proof by the plaintiff sufficient in law to support the allegations of the complaint. There was testimony by plaintiff’s president that in his endeavor to secure insurance upon the newly acquired 1930 Mack truck he communicated with Mrs. Sarah Valencia who had acted as insurance broker for the plaintiff in 1947 when the defendant had issued its policy covering four of the plaintiff’s trucks. In an effort to prove an alleged oral agreement between the plaintiff and the defendant to effectuate a transfer to the 1930 Mack truck of insurance then applicable to the 1922 Mack truck under the 1947 policy which expired on November 8, 1948, the plaintiff called its broker as a witness. According to her testimony she had called by telephone on October 28, 1948, the office of John J. Kelle, Inc.,— concededly an authorized agent of the defendant — and had asked to speak to a Mr. Nolan, an authorized underwriter with whom the broker had previously dealt. Upon being informed that Mr. Nolan was not in his office, the broker asked if she could speak to somebody else.” Thereupon she was put into communication with Mr. Nolan’s secretary. Although the witness admitted she did not know the girls in that office ” by name she testified she had transacted business with them, that she recognized the voice of the person who stated she was Mr. Nolan’s secretary, and that, on prior occasions, she had received 6 ‘ endorsements ” from that person. When the broker was asked what did you say to her and what did she say to you? ” the Trial Justice, upon appropriate objection by counsel for the defendant, refused to permit the broker to answer — the basis of the ruling being that the person with whom the broker claimed to have spoken by telephone had not been proven qualified to bind the defendant. However, the insurance broker was permitted to testify that on October 29, 1948, she mailed to the office of John J. Kelle, Inc., — ‘‘ attention Mr. Nolan” — a post card which she referred to as “ Confirming my telephone conversation in reference to a transfer, giving the policy number, from a 1922 truck to a 1930, and the serial and motor number”. Although the broker’s “ return address ” was on the face of the post card she testified it was not returned to her. It also appears from the broker’s testimony that on November 3, 1948 — the date of the theft — when the broker was notified of plaintiff’s loss of the 1930 Mack truck and its contents, she promptly called by telephone the office of John J. Kelle, Inc. At that time she reported the loss to Mr. Nolan and on the same date wrote the Kelle agency giving details as to the theft and describing the merchandise stolen. The broker’s letter also contained the statement — “I had advised you on Friday, Oct. 29th, by postcard of a transfer of truck eliminating the 1922 Mack Motor #64385 and substituting in its place the above mentioned 1930 Mack Truck.”

The defendant offered no testimony upon the trial which, in the first instance, was had before a jury upon framed issues. Nor was evidence introduced by the defendant when, by agreement of the parties, the case was submitted for final determination upon the evidence taken at the trial.

In More v. New York Bowery Fire Ins. Co. (130 N. Y. 537, 547) this court had occasion to state: “ Our opinion is that when an application for insurance is made, and its rejection is not signified, no presumption of its acceptance can be indulged in. There must be actual acceptance, or there is no contract.”

That statement of law has peculiar application to the facts of record in the present case where, as we have seen, there is no proof whatever that, on a date prior to the theft, an authorized agent of the defendant had agreed to transfer insurance coverage from the plaintiff’s 1922 Mack truck to the 1930 Mack truck which was stolen. “ A party cannot be held to contract where there is no assent. Silence operates as an assent and creates an estoppel only when it has the effect to mislead. There must be such conduct on the part of the insurer as would, if it were not estopped, operate as a fraud on the party who has taken or neglected to take some action to his own prejudice in reliance upon it.” (More v. New York Bowery Fire Ins. Co., supra, p. 545; and, see, Truglio v. Zurich Gen. Accident & Liability Ins. Co., 247 N. Y. 423, 427; Matter of Tanenbaum Textile Co. v. Schlanger, 287 N. Y. 400, 404; Matter of Albrecht Chemical Co. [Anderson Trading Corp.], 298 N. Y. 437, 440; Hughes v. John Hancock Mut. Life Ins. Co., 163 Misc. 31, 32-34, mod. 254 App. Div. 570.)

As the defendant in the case at bar was free to make, or to decline to make the transfer of insurance coverage involved in the application allegedly made by plaintiff on October 28, 1948, and thus was free to accept or reject the new risk involved in such transfer, the burden of proof in this action was upon the plaintiff to establish that prior to the theft of the 1930 Mack truck and contents the defendant, by an authorized agent, had agreed to make the transfer of such insurance coverage. (Lavine v. Indemnity Ins. Co., 260 N. Y. 399, 410.) Absent such proof, and lacking, as does the present record, proof of facts upon which the doctrine of equitable estoppel can be successfully invoked, we conclude that the plaintiff failed, 'as a matter of law, to establish any contract under which liability for loss occasioned by the theft can be imposed upon the defendant as insurer.

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

Loughban, Ch. J., Conway, Desmond, Dye, Fuld and Fboessel, JJ., concur.

Judgments reversed, etc.


text:
    Martha L. Pfleuger, as Administratrix of the Estate of Herbert A. Pfleuger, Deceased, Appellant, v. Mabel G. Pfleuger, as Administratrix of the Estate of Herbert E. Pfleuger, Deceased, et al., Respondents.
    Argued March 4, 1952;
    decided May 29, 1952.

      Edward H. Kavmoky and William J. Brock for appellant.
    The Appellate Division erred in holding that the court passing upon a pleading prior to trial may not take judicial notice of the law of a sister State under section 344-a of the Civil Practice Act. (Croker v. Croker, 252 N. Y. 24; Waldo v. Schmidt, 200 N. Y. 199; Silberfeld v. Swiss Bank Corp., 183 Misc. 234; Raphael v. Raphael, 189 Misc. 144; Schumann v. Loew’s Inc., 199 Misc. 38; Chesny v. Chesny, 275 App. Div. 945; Loranger v. Nadeau, 215 Cal. 362.)

      Franklin R. Brown and Frank A. Pfalser for Ralph R. Marks and another, respondents.
    I. The complaint fails to state a cause of action. (Whitford v. Panama R. R. Co., 23 N. Y. 465; Gurofsky v. Lehigh Valley R. R. Co., 121 App. Div. 126, 197 N. Y. 517; Johnson v. Phœnix Bridge Co., 197 N. Y. 316; Schwertfeger v. Scandinavian Amer. Line, 186 App. Div. 89, 226 N. Y. 696; Debevoise v. New York, L. E. & W. R. R. Co., 98 N. Y. 377; Watkins v. Commercial Stevedoring Co., 216 App. Div. 234.) II. The power of taking judicial notice cannot be invoked to sustain, against attack, an insufficient complaint. (Debevoise v. New York, L. E. & W. R. R. Co., 98 N. Y. 377; Chesny v. Chesny, 275 App. Div. 945; Schumann v. Loew’s Inc., 199 Misc. 38; Bergman v. Lax, 107 N. Y. S. 2d 266; Arams v. Arams, 182 Misc. 336; Berg v. Oriental Cons. Mining Co., 70 N. Y. S. 2d 19; Matter of Mason, 194 Misc. 308.)
   Lewis, J.

In this action — whereby the plaintiff seeks damages from the defendants for wrongfully causing the death of her intestate which occurred in Pennsylvania and is alleged to have been due to an automobile accident in that State — the complaint does not specify the Pennsylvania statute upon which the plaintiff bases her right of action. At Special Term — where the omission of such specification was the sole basis for the defendants’ motion for dismissal of the complaint under subdivision 5 of rule 106 of the Rules of Civil Practice — the motion was denied. At the Appellate Division the order of Special Term was reversed on the law and the complaint was dismissed. (278 App. Div. 247.) Thereafter the Appellate Division granted plaintiff’s motion for leave to appeal to this court and certified the following question: “ Did this Court err, as matter of law, in making its order of May 16, 1951 ? ” (278 App. Div. 1022.)

The certified question requires us in the present case — where the defendants’ motion made at Special Term challenges the legal sufficiency of the complaint — to determine whether the scope of section 344-a of the Civil Practice Act is broad enough to empower the Supreme Court at a Special Term for Motions to take judicial notice of the statutes of a sister State.

Insofar as material to our inquiry, section 344-a provides:

“ § 344-a. Judicial notice of matters of law. A. Except as otherwise expressly required by law, any trial or appellate court, in its discretion, may take judicial notice of the following-matters of law:

££ 1. A law, statute, proclamation, edict, decree, ordinance, or the unwritten or common law of a sister state, a territory or other jurisdiction of the United States, or of a foreign country or political subdivision thereof. * * *

££D. The failure of either party to plead any matter of law specified in this section shall not be held to preclude either the trial or appellate court from taldng judicial notice thereof. ’ ’

The procedural changes brought about by this statute (L. 1943, ch. 536) were in the first instance the product of research and recommendation by the Judicial Council. The purpose of the statute was to formulate procedure which would obviate the former legal requirement of proving as a fact a foreign statute or law upon which a party relied.

We are unable to agree with the view of the Appellate Division that the Supreme Court at Special Term for Motions is not empowered by section 344-a (id.) to take judicial notice of the statutes or laws of a sister State to sustain a pleading. If such an interpretation is to prevail it would follow that each time a complaint is challenged for legal insufficiency by a motion at Special Term, section 344-a would be unavailable as a defensive or offensive measure. Such a result, in our opinion, would thwart the purpose of the enactment.

In our consideration contextually of the phrase “ * * * any trial or appellate court * * * ”, as that phrase appears in section 344-a, we read the words “ trial * * * court ” as referable to courts of original jurisdiction — including a Special Term for Motions — as distinguished from appellate courts. When so read the purpose of the statute is effectuated — to give to courts of original jurisdiction and to appellate courts discretionary power to take judicial notice of a foreign statute or law.

Obviously the statute which we are considering is permissive, not mandatory. Under its provisions judicial notice of the matters of foreign law specified therein may be taken by a court “ in its discretion ”. In the exercise of such discretion the court may — in passing on the sufficiency of a pleading — take, or refuse to take, judicial notice of the specified matters of foreign law depending upon the deterrent factors of time, cost, and other adverse considerations which may be involved in making available to the court accurate knowledge of such foreign law. No such difficulties should be encountered in the present case, where the law upon which the plaintiff relies is a statute of the State of Pennsylvania.

Upon the argument of the present appeal we were made aware of the defendants’ position that they are entitled to be informed as to the statute of Pennsylvania upon which the plaintiff claims her right of action is based. We may not disregard subdivision D of section 344-a (supra), which permits a court to take judicial' notice of the matters of foreign law set forth in that statute, even though, as in the case at hand, no pleading specifies the law of a foreign jurisdiction as to which judicial notice may be taken. However, upon that subject we think it appropriate to suggest that the information the defendants seek may be the objective of a corrective motion under subdivision 1 of rule 102 of the Rules of Civil Practice or a motion for a bill of particulars.

The order of the Appellate Division should be reversed and the order of Special Term affirmed, with costs in this court and in the Appellate Division. The certified question should be answered in the affirmative.

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

Ordered accordingly.

       Ninth Annual Report of the New York Judicial Council (1943, pp. 271-303). And see Saxe — “ New York Extends Judicial Notice to Matters of Law ”, Journal of American Judicature Society (1944, Vol. 28, pp. 86-90).

       A statement of the view that such legislation was desirable is found in Wigmore on Evidence (Vol. 9, 3d ed., § 2573): “ The professional common sense, fortunately, began some time ago to revolt at the needless expenditure of effort involved in compelling formal proof of what was in some instances virtually indisputable. Particularly absurd was the technical insistence on treating the States of the Union as foreign to each other.”

       See eases collected in article entitled “ Bills of Particulars of Foreign Law ” in N. Y. L. J., March 8, 1951, p. 836, col. 1 et seq.