author: Cardozo, Ch. J.

text:
    The People of the State of New York, Respondent, v. Chris Teuscher, Appellant.
    Constitutional law — Farms and Markets Law — cattle — quarantine — statute providing for quarantine of herd of cattle untested for tuberculosis, where ninety per cent of herds in town have been tested, valid — no arbitrary preference of localities or persons — no improper classification — no denial of equal protection of laws nor unlawful delegation of legislative power — action may be maintained by People to recover penalties for violation and to restrain violation in future of order of quarantine.
    1. Section 76 of the Farms and Markets Law (Cons. Laws, eh. 69; amd. L. 1924, eh. 267), providing that “ Whenever ninety per centum of the herds of cattle in any town have been subjected to the tuberculin test * * * and the owner of any untested herd in such town refuses or neglects to have his herd tuberculin tested, then the commissioner may order the premises or farm on which such untested herd is harbored to be put in quarantine,” is valid.
    2. A contention that the standard to be applied in ordering a quarantine involves an arbitrary preference of some localities and persons to the detriment of others, and a classification, unrelated, in anj^ reasonable degree, to the mischief to be remedied, cannot be sustained. A class may lawfully be restricted if the lines defining the restriction are not arbitrary altogether and the rule to be applied within them is uniform and even. The plan of the statute, making the township the territorial unit in the war upon unhealthy cattle, cannot, therefore, be condemned where experience has shown that the most effective method of attack is by division into units, established, not merely by coercion, but with the willing co-operation of the persons most affected.
    3. Nor may the statute be successfully attacked upon the ground that there is a denial of the equal protection of the laws, if not an unlawful delegation of legislative power, when the voluntary use of a test by a prescribed percentage of the owners in a township is made a standard of conduct to which others must conform, though owners in other townships, where there is a different percentage of opposition, are free from such restraints. A command thus conditioned is neither a denial of equal laws nor an illegitimate delegation of legislative power. It is the adaptation of the rule, according to the judgment of the vicinage, to the occasion and the need. The local mind can best discern the local needs and interests, and it was within the power of the Legislature to say that where ninety per cent of owners of cattle in a town have resorted to the test, the other ten per cent must conform or submit to quarantine.
    4. An action may be successfully maintained, therefore, by the People of the State, to recover penalties from one who violated an order of quarantine made in accordance with the provisions of the statute and to restrain the violation of such order hereafter.

      People v. Teuscher, 222 App. Div. 791, affirmed.
    (Argued June 21, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 4, 1928, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived.

      W. R. Pratt for appellant.
    The quarantine provisions of section 76 of the Farms and Markets Law so far as applicable hereto are not within the police powers of the State of New York and are in violation of the Constitution of the State of New York. (Ives v. South Buffalo Ry. Co., 201 N. Y. 279; People v. Ringe, 110 N. Y. Supp. 74; People v. Orange Co. Rd. Constr. Co., 175 N. Y. 84; People v. Mitz, 193 N. Y. 159; People v. Coler, 166 N. Y. 144; People v. Grout, 179 N. Y. 417; Barbier v. Connolly, 113 U. S. 27; Soon Bing v. Crowley, 113 U. S. 703; Hatch v. Reardon, 184 N. Y. 431; People v. Ericson, 147 N. Y. Supp. 226.) The imposition of a penalty in this case is void and unconstitutional as imposing a penalty where no law has been violated. (Ives v. South Buffalo Ry. Co., 201 N. Y. 271; Mannix v. Frost, 164 N. Y. Supp. 1050; People ex rel. Ogden v. McGowan, 195 N. Y. Supp. 286.) The summary quarantine of the defendant’s herd and produce, without investigation, notice or cause, deprived the defendant of liberty and property without due process of law. (People v. Jenkins, 202 N. Y. 53; People v. Wilson, 166 N. Y. Supp. 211; Matter of Smith, 146 N. Y. 68.)

      Albert Ottinger, Attorney-General (George L. Flanders and Almon W. Burrell of counsel), for respondent.
    The statute in question is a health statute and is enacted for the purpose of preventing the spread of communicable diseases and is a matter of public interest. (Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458; Durand v. Dyson, 271 Ill. 382.) Section 76 of the Farms and Markets Law, and the power to issue quarantine as therein provided, is within the police power of the State and is constitutional. (Matter of Viermaster, 179 N. Y. 235; Musco v. United Surety Co., 196 N. Y. 459; Holden v. Hardy, 169 U. S. 366; Lawton v. Steele, 152 U. S. 133; Barbier v, Connolly, 113 U. S. 27; Adams v. City of Milwaukee, 144 Wis. 371; Durand v. Dyson, 271 Ill. 382; Biddles, Inc., v. Enright, 239 N. Y. 354; Richter v. State, 16 Wyo. 437; City of New Orleans v. Charouleau, 121 La. 890; Hawkins v. Hoye, 108 Miss. 282.) The statute properly directs the imposition of a penalty for the acts committed by the defendant in removing his milk from the farm quarantine. (Lawton v. Steele, 152 U. S. 133; Holden v. Hardy, 169 U. S. 366.)
   Cardozo, Ch. J.

The action is by the People of the State against a farmer and dairyman in the township of Rome, Oneida county, to recover penalties for the violation of an order made in 1925 by the Commissioner of Farms and Markets in accordance with the provisions of the Farms and Markets (now the Agriculture and Markets) Law (Cons. Laws, ch. 69), and to restrain the violation of such order hereafter.

The defense is that the order is illegal and void.

Section 76 of the Farms and Markets Law as it stood before its amendment in 1924 (L. 1924, ch. 267) provided as follows:

The commissioner may order any animal or animals affected with communicable disease or which have been exposed to a communicable disease or which he believes to be suffering from or exposed to a dangerous communicable disease, to be put in quarantine and may order any premises or farm where such disease exists or shall have recently existed to be put in quarantine, so that no domestic animal be removed from or brought to the premises quarantined; and shall prescribe such regulations affecting animals, persons or property as he may deem necessary or expedient to prevent the dissemination of the disease from the premises so quarantined.”

This section was amended in 1924 by adding thereto the following:

Whenever ninety per centum of the herds of cattle in any town have been subjected to the tuberculin test for the purpose of ridding such herds of the disease known as tuberculosis, and the owner of any untested herd in such town refuses or neglects to have his herd tuberculin tested, then the commissioner may order the premises or farm on which such untested herd is harbored to be put in quarantine, so that no domestic animal shall be removed from or brought to the premises quarantined, and so that no products of the domestic animals on the premises so quarantined shall be removed from the said premises ” (Since amended by L. 1926, ch. 84; L. 1927, ch. 214).

Discovery of tuberculosis in cattle is made in two ways: First, by physical examination, i. e., inspection by sight and touch, an imperfect and uncertain method; and second, by the1 so-called tuberculin test, or tests similar thereto. Physical examination is compulsory whenever ordered by the Commissioner (§ 78). The tuberculin test requires the co-operation of the owners (§79).

Section 78 provides that the Commissioner may cause a physical examination of dairy cows whose milk is marketed in liquid form or otherwise to be made at any time. If, from such examination, an animal be deemed by the commissioner to be infected with tubercxdosis ” it shall be immediately removed from the herd, slaughtered or disposed of as the commissioner may prescribe.”

Section 79 provides that “ the owner of a herd of cattle kept for dairy or breeding purposes * * * may apply to the commissioner for examination of his herd by the tuberculin, or other approved tests,” subject, however, to prescribed regulations. One of these is to the effect that the Commissioner may cause any animal responding to the test to be slaughtered or held in strict quarantine. Another is to the effect that if diseased cattle are found, the owner shall agree to follow directions of the commissioner designed to prevent the reinfection of the herd and to suppress the disease and prevent the spread thereof.”

Ninety per cent of the herds of cattle in the township of Rome, Oneida county, were subjected to the tuberculin test at the request of their "owners. There is evidence that of 3,500 cattle tested, 1,600 were condemned as tubercular and slaughtered. The defendant, the owner in that township of a herd of twelve cows, refused to permit the test to be applied to his herd. Thereupon the Commissioner, acting under section 76 of the statute, made an order, dated November 10, 1925, that the defendant’s premises or farm on which said untested herd is harbored or kept be * * * placed in quarantine; ” that no bovine animal shall be removed from or brought to said premises,” and that no products of the bovine animals on said premises shall be removed from said premises,” the order to take effect immediately.

The defendant contests the validity of the order and refuses to obey it. He has violated its commands by removing his milk from the farm and selling it to the milk-gathering stations at Marcy and Oriskany, New York. He assails the statute back of the order as an unconstitutional interference with liberty and property, and a denial to him and others of the equal protection of the laws. The standard to be applied in ordering a quarantine involves, in his view, an arbitrary preference of some localities and persons to the detriment of others. The classification, he says, is unrelated in any reasonable degree to the mischief to be remedied (Power Co. v. Saunders, 274 U. S. 490, 493; Quaker City Cab Co. v. Comm, of Penn., 277 U. S. —). His challenge was promptly met. Section 40 of the statute provides for a penalty of $200, and section 38 for an injunction. In an action brought by the Commissioner under the authority of those sections, there has been a judgment for the plaintiff, which on appeal to the Appellate Division has been unanimously affirmed.

We find no arbitrary preference of localities or persons, no classification unrelated to the mischief to be remedied.

The plan of the statute is to make the township the territorial unit in the war upon unhealthy cattle. More will be accomplished, it has been thought, by attacking the units severally than by going against all together (Miller v. Strahl, 239 U. S. 426, 434; Northwestern Laundry v. City of Des Moines, 239 U. S. 486, 495). No doubt there are gaps and leaks in any scheme of subdivision. Milk from the herds in the tested town of Rome will be rid of the infection, but milk may be brought from untested towns nearby, and sold even in Rome without offense against the statute. This is far from saying that the purification of the source of supply in a given territorial unit is not a public good. At least the local herds will be sound, and buyers from that source of supply will have a certificate of safety. A class may lawfully be restricted if the lines defining the restriction are not arbitrary altogether and the rule to be applied within them is uniform and even. Adams v. City of Milwaukee (228 U. S. 572) supplies a helpful precedent. A city ordinance forbade the sale of milk from cows outside the city unless the tuberculin test had been applied before the sale. The ordinance was allowed to stand though cows within the city were subject to a different rule. Legislation is not void because it hits the evil that is uppermost. Equally it is not void because it hits the evil that is nearest. There would be paralysis in a different rule. A statute prescribes the quality of food produced within a State. It does not become invalid for failing at the same time to provide a method of maintaining equal quality in respect of food imported. As well might we say that every local ordinance is void because by the conditions of its existence it is a rule for a locality. The war upon disease would be even harder than it is if nothing short of extermination could render it legitimate.

Enlightening is the course of legislation in States other than our own. There as here experience has shown that the most effective method of attack is by division into units, established, not merely by coercion, but with the willing co-operation of the persons most affected. A system known as the county area plan and the “ county area accredited plan has found a place upon the statute books with the approval of the courts. Thus, in Iowa, an act,was passed in 1923, whereby the county area plan was to be established by the State Commission whenever there was submitted a petition signed by fifty-one per cent of the owners of breeding cattle within a county that the county be thereafter enrolled upon that basis. Provision was then to be made for the testing of the cattle by owners signing the petition or other appropriate agreements. In 1924 this statute was amended so as to compel submission by unwilling owners. Whenever seventy-five per cent of the owners of breeding cattle in any county operating under “ the county area plan ” signed agreements to that effect, the county was to be enrolled by the department under the “ accredited area plan.” Thereafter “ every owner of breeding cattle within the county shall cause his cattle to be tested, and shall comply with all the requirements for the establishment and maintenance of a tuberculosis-free accredited herd.” These statutes were upheld by the Supreme Court of Iowa (Lausen v. Bd. of Supervisors, 214 N. W. Rep. 682; Fevold v. Bd. of Supervisors, 210 N. W. Rep. 139). The power of the State was broadly asserted to create such agencies and establish such subdivisions as it chose in its war upon disease. A county area plan, adopted upon like petition by a stated percentage of the owners, has been adopted in Minnesota (L. 1923, ch. 269), and sustained by its courts (Schulte v. Fitch, 162 Minn. 184), and adopted also in Nebraska, and there again sustained (State ex rel. Spillman v. Heldt, 213 N. W. Rep. 578). Laws to the same effect will be found in many other States (See, e. g., New Jersey [a petition by 90%], L. 1927, ch. 91, §§ 4, 5, 6; Vermont [90%], L. 1927, No. 12; Mass. [85%], L. 1927, ch. 335; California, Bovine Tuberculosis Law, L. 1927, ch. 47, § 10; Illinois, L. 1925, p. 2; § 75, 111. Rev. Stat.; Idaho, L. 1923, ch. 146; L. 1927, ch. 56; Indiana, L. 1925, p. 605; § 3764, Annotated Statutes; Missouri, L. 1925, p. 103; § 12101A, Rev. Laws; Wisconsin, L. 1925, ch. 392; ch. 94.07 Wisconsin Statutes; Washington, L. 1927, ch. VI, § 3110; Connecticut, L. 1927, ch. 188; Ohio, General Code, § 1121; Tennessee, L. 1927, ch. 46, § 6). “ Legislation so general marks a rising tide of opinion which is suggestive and informing ” (Roman v. Lobe, 243 N. Y. 51, 55). An evil prevalent far and wide has evoked far and wide the reaction of a like response.

The size of the unit is not, however, the sole basis of the attack upon the statute. Attack is also made upon the standard of selection to be applied within the unit. The principle of local co-operation — a principle shared by this statute with those in other States — involves, it is said, a false basis of division. There is a denial, in this view, of the equal protection of the laws if not an unlawful delegation of legislative power, when the voluntary use of a test by a prescribed percentage of the owners in a township is made a standard of conduct to which others must conform, though owners in other townships, where there is a different percentage of opposition, are free from such restraints. Again there is significance in practice and decision. If the Legislatures in so many States have deemed it wise to invite and secure voluntary local co-operation ” before applying a plan to a given area ” (Schulte v. Fitch, supra), we may suspect that in a choice so general there is something more substantial than a vagary of the will.

The local mind can best discern in these things as in many others the local needs and interests (Adams v. City of Milwaukee, supra,at p. 583; Ohio ex ret. Clarke v. Deckebach, 274 U. S. 392, 397). The Legislature might have said that every farmer in every township must submit his cattle to the test (Durand v. Dyson, 271 Ill. 382; City of New Orleans v. Charouleau, 121 La. 890; State v. Heldt, supra). It chose to adopt a rule less general and oppressive. Whether there was need for the test at any given time and place could not be known in advance. The need might vary from year to year within the same local subdivision, and even in the same year between one division and another. Inspectors in the State service could not be sure, however diligent their inspection, for physical examina- ' tion by the sense of sight or touch is a fallible and deceptive guide. The safest thing was to leave the choice to the enlightened self-interest of those within the industry. They would inspect their own herds, not intermittently and casually, but with the solicitude of ownership. Better than mere officials, they would know what should be done. Some protection, however, there would have to be against dissent within the group, the factious opposition of an intransigent minority. The test of a herd would go for naught, the danger of infection would be as great almost as before, so long as another herd, untested, was harbored on a neighbor’s farm. The statute does not say that even then a mere majority of owners may impose their will on the minority. Not till ninety per cent have united in resorting to the test does it say that the other ten per cent must conform, or else submit to a quarantine that will keep their cattle off the market. Pressure so effective is equivalent to a command to yield.

A command thus conditioned is neither a denial of equal laws (Adams v. City of Milwaukee, supra, at p. 581), nor an illegitimate delegation of legislative power (People ex rel. Unger v. Kennedy, 207 N. Y. 533). It is the adaptation of the rule, according to the judgment of the vicinage, to the occasion and the need. Small use would there be in stimulating the many within a township to a care of the public health, if one or a few wiseacres or obstructionists could make the labor vain. More and more, in its social engineering, the law is looking to co-operative effort by those within an industry as a force for. social good. It is harnessing the power that is latent within groups as it is harnessing the power in wind and fall and stream. Conspicuously is it doing this in its dealings with agricultural producers, spread often over wide areas, and thus deficient in cohesion, but yielding up new energies when functioning together. We see this in the very statutes, already quoted, with their attempt to check tuberculosis by co-operative effort. We see it in the co-operative marketing associations which have made such headway of recent years in this State and many others, associations with privileges and powers peculiar to themselves (Liberty Warehouse Co. v. Burley Tobacco Growers Co-op. Marketing Assn., 276 U. S. 71, cf. Co-op. Corporations Law, L. 1926, ch. 231, § 119, Consol. Laws, ch. 77). A different question would be here if the majority within a group could impose its will on a minority for the advancement of its own welfare, unrelated to the public good. Such a case was Eubank v. City of Richmond (226 U. S. 137), where two-thirds of the owners on a city block were at liberty for their own convenience to compel the other third to set the houses back. Here the good to be attained is not selfish merely or personal to those whose cattle have been tested. There is benefit to them, but also something more. Bound up with their protection is the advancement of a public good, the preservation of the public health (Booth v. State of Indiana, 237 U. S. 391, 398; Miller v. Schoene, 276 U. S. 272).

Ninety per cent of the cattle owners in the township of Rome have said by their acts that the test rejected by the defendant is useful and desirable. Legislation in this State and elsewhere has confirmed their judgment. Acts of Congress have done the same (See e. g., Mason’s Fed. Code, art. 21, §§ 111, 123). The defendant holds out, and says the test is worthless. The Constitution does not protect him in this assertion of his own will against a judgment so preponderant (Matter of Viemeister, 179 N. Y. 235).

Other objections have been considered, and have been found to be untenable. The statute makes provision for compensation when tuberculous animals are slaughtered by order of the Commissioner or his deputies. It would not be invalid if compensation were withheld (Adams v. City of Milwaukee, supra; State v. Heldt, supra; People v. Cipperly, 101 N. Y. 634; Jacobson v. Massachusetts, 197 U. S. 11; Miller v. Schoene, supra).

The judgment should be affirmed with costs.

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

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. Alexander Karlin, Appellant, v. Charles W. Culkin, as Sheriff of the County of New York, Respondent. In the Matter of the Investigation upon Petition of the Association of the Bar of the City of New York et al., Respondents. Alexander Karlin, Appellant.
    Courts — attorneys — contempt — habeas corpus — Appellate Division has power to direct general inquiry into conduct of members of the bar — member of bar may be compelled to testify as to his professional acts — refusal to be sworn a contempt — habeas corpus properly dismissed.
    1. The Appellate Division of the Supreme Court has power to direct a general inquiry into the conduct of its officers, the members of the bar, and in the course of that inquiry to compel one of those officers to testify as to his acts in his professional relations, subject to his claim of privilege if the answers will expose him to punishment for crime.
    2. Such power is incidental to the control of the Supreme Court over attorneys and counselors at law which was recognized in'the Constitution of 1777, and has been confirmed by the existing statutes. The history of such control in England and in this State reviewed, and the authorities collated.
    3. The refusal of a member of the bar to be sworn when called to testify at such an inquiry, constituted, therefore, a contempt (Civ. Pr. Act, § 406); he was properly committed to jail until he should submit to be sworn and examined; and a petition for his release upon habeas corpus was properly dismissed.

      People ex rel. Karlin v. Culkin, 223 App. Div. 822, affirmed.
    (Argued May 10, 1928;
    decided July 19, 1928.)
    Appeal from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered April 2, 1928, the first of which affirmed an order of Special Term dismissing a writ of habeas corpus and remanding the relator to custody, and the second of which affirmed an order of Special Term adjudging the appellant herein to be in contempt of court.

      Abraham Tulin and Leon A. Tulin for appellant.
    The proceeding under review is unauthorized by the law of this State and is unconstitutional. (McQuigan v. D., L. & W. R. R. Co., 129 N. Y. 50; Saxton v. Stowell, 11 Paige Ch. 526; Matter of Brewster, 12 Hun, 110; Matter of Eldridge, 82 N. Y. 161; Matter of Kaufman, 245 N. Y. 423; Matter of Randel, 158 N. Y. 216; Matter of Goodman, 199 N. Y. 143; Matter of Robinson, 209 N. Y. 354; Matter of Flannery, 212 N. Y. 610; Ex parte Robinson, 19 Wall. 505; Ex parte Bradley, 7 Wall. 364.) The general investigatory power assumed by the Supreme Court herein is an assumption of non-judicial power which is unwarranted by and in violation of section 1 of article VI of the Constitution of this State. (People ex rel. McDonald v. Keeler, 99 N. Y. 463; Matter of Davies, 168 N. Y. 89; McGrain v. Daugherty, 273 U. S. 135; People ex rel. Bender v. Milliken, 185 N. Y. 35; Prentis v. Atlantic Coast Line, 211 U. S. 210.) The order adjudging the appellant in contempt and committing him to jail was made in violation of the appellant’s right to immunity from self-crimination under section 6 of article I of the Constitution of this State. (Matter of Both, 200 App. Div. 423; Ward Baking Co. v. Western Union Telegraph Co., 205 App. Div. 723; People ex rel. Travis v. Knott, 204 App. Div. 379; People v. Bermel, 71 Misc. Rep. 356; Brandon Manufacturing Co. v. Bridgman, 14 Hun, 122; Kinney v. Roberts & Co., 26 Hun, 166; 89 N. Y. 601; Zamato Trading Co. v. Brown, 27 Hun, 248; Andrews v. Prince, 31 Hun, 233; Kellog v. Sowerby, 32 Misc. Rep. 327; Ely v. Perkins, 57 Misc. Rep. 361; People’s Coat, Apron & Towel Supply Co. v. Light, 168 App. Div. 142.)

      Isidor J. Kresel, Bernard Hershkopf and Leon Leighton for respondent.
    The Appellate Division had jurisdiction to order this investigation. (Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261; McQuigan v. D., L. & W. R. R. Co., 129 N. Y. 50; Davis v. Zimmerman, 91 Hun, 489; German Alliance Ins. Co. v. Kansas, 233 U. S. 389; Briggs v. Mackellar, 2 Abb. Pr. 30; Wilckens v. Willet, 1 Keyes, 521; People ex rel. McDonald v. Keeler, 99 N. Y. 463; People v. Sharp, 107 N. Y. 427; McGrain v. Daugherty, 273 U. S. 135; Kilbourn v. Thompson, 103 U. S. 168; Matter of Bar Assn. of City of New York, 222 App. Div. 580.) The court, after due consideration, has properly exercised its discretion by instituting the present inquiry as the appropriate means of asserting its indispui> able power to control attorneys. (Matter of Peters, 221 App. Div. 607; Hamilton v. Wright, 37 N. Y. 502; Matter of H., an Attorney, 87 N. Y. 521; Matter of Reifschneider, 60 App. Div. 478; Sherman v. Yankee Products Corp., 201 App. Div. 647; Matter of Rouss, 227 N. Y. 81; Matter of Wilson, 160 App. Div. 521; People v. Alfani, 227 N. Y. 334; Matter of Phillips, 143 App. Div. 522.) The appellant’s objection that this investigation violates his right of privacy is at war with his duty as an attorney and officer of the court, and is overriden by the highest requirement of public policy, namely, the necessity of the courts to fulfill their essential purpose of administering justice. (State ex rel. Reynolds v. Circuit Court, 193 Wis. 132; 214 N. W. Rep. 396; Rubin v. State, 216 N. W. Rep. 513; Matter of Richardson, 247 N. Y. 401.) The commitment is in accordance with law. (Matter of Hirschfield v. Hanley, 228 N. Y. 346; Matter of Hertle [In re Ahearn], 120 App. Div. 717; 190 N. Y. 531; People ex rel. Fennell v. Wilmot, 127 Misc. Rep. 791; Stewart v. Smith, 186 App. Div. 755; People ex rel. Phelps v. Fancher, 2 Hun, 226; People ex rel. Jones v. Davidson, 35 Hun, 471; Matter of Taylor, 8 Misc. Rep. 159.)
   Cardozo, Ch. J.

A petition by three leading bar associations, presented to the Appellate Division for the first judicial department in January, 1928, gave notice to the court that evil practices were rife among members of the bar. “ Ambulance chasing ” was spreading to a demoralizing extent. As a consequence, the poor were oppressed and the ignorant overreached. Retainers, often on extravagant terms, were solicited and paid for. Calendars became congested through litigations maintained without probable cause as weapons of extortion. Wrongdoing by lawyers for claimants was accompanied by other wrongdoing, almost as pernicious, by lawyers for defendants. The helpless and the ignorant were made to throw their rights away as the result of inadequate settlements or fraudulent releases. No doubt, the vast majority of actions were legitimate, the vast majority of lawyers honest. The bar as a whole felt the sting of the discredit thus put upon its membership by an unscrupulous minority.

It spoke its mind through its associations, the organs of its common will. The court was asked to inquire into the practices charged in the petition, and any other illegal and improper practices, either through an investigation to be conducted by itself or through some other appropriate procedure. It was asked upon the conclusion of the investigation to deal with the offenders in accordance with law, and to grant such other remedies as would avoid a recurrence of the evil and maintain the honor of the bar.

The court responded promptly. It held (speaking by its presiding justice) that its disciplinary power is not limited to cases where specific charges are made against a named attorney.” It will act of its own motion whenever it has reasonable cause to believe that there has been professional misconduct either by one or by a class. Information may be adequate to define the offense and identify the offender. If so, charges will be preferred, and the offender brought to trial. On the other hand, information may be so indefinite as to make charges impossible or improper without further inquisition. If so, the power of inquisition, it was held, is commensurate with the need. Only by such means will the court be able to devise appropriate rules to prevent the continuance of such evil practices and bring the unworthy to judgment and protect the worthy in the profession from suspicions in the public mind.”

The order of the Appellate Division designates a justice of the Supreme Court to conduct the investigation at an appointed term with full authority to summon witnesses and to compel the giving of testimony and the production of books, papers and documentary evidence.” The petitioning associations are authorized to furnish counsel in aid of the inquiry. The investigation is to extend into the practices described in the petition and any other practices obstructive or harmful to the administration of justice. The court conducting the inquiry is to report the proceedings to the court making the order, i. e., the Appellate Division, with its opinion thereon, and upon the coming in of the report there is to be such other and further action as shall seem just and proper.

The investigation proceeded in the form directed by the order. Many witnesses were examined. They were given the privilege at their option of examination in camera. There came a time when the appellant, a member of the bar for twenty-five years, was served with a subpoena. He appeared in court, but refused to be sworn. His practice had involved the trial of many actions for personal injuries. He was called to testify as to his conduct in the procurement of retainers in these cases and in others. There is no denial that the testimony had relation to the ends of the inquiry. His refusal to testify was a challenge to the inquiry as a whole. Upon his persisting in that challenge, the court adjudged him in contempt and committed him. to jail until he should submit to be sworn and examined. A petition for his release upon habeas corpus was dismissed. Both orders, the one adjudging the contempt and the one dismissing the writ, were affirmed by the' Appellate Division. They are now before this court.

The precise question to be determined is whether there is power in the Appellate Division to direct a general inquiry into the conduct of its own officers, the members of the bar, and in the course of that inquiry to compel one of those officers to testify as to his acts in his professional relations. The grand jury inquires into crimes with a view to punishment or correction through the sanctions of the criminal law. There are, however, many forms of professional misconduct that do not amount to crimes. Even when they do, disbarment is not punishment within the meaning of the criminal law (Matter of Rouss, 221 N. Y. 81, 85). Inquisition by the court with a view to the discipline of its officers is more than a superfluous duplication of inquisition by the grand jury with a view to the punishment of criminals. The two fields of action are diverse and independent. True, indeed, it is that disbarment may not be ordered without notice of specific charges (Judiciary Law [Cons. Laws, ch. 30], § 476; Matter of Eldridge, 82 N. Y. 161; Matter of an Attorney, 83 N. Y. 164). So also an indictment must precede a conviction of a felony. We cannot know to-day whether charges will be laid against the relator as an outcome of his testimony or of the testimony of others. If preferred, they will be the subject of a separate proceeding, as separate as proceedings before and after an indictment. The requirements of the law as to the formulation of a charge are inapplicable to an inquisition in advance of the preferment of the charge.

" Membership in the bar is a privilege burdened with conditions ” (Matter of Rouss, supra, p. 84). The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, üke the court itself, an instrument or agency to advance the ends of justice. His co-operation with the court was due whenever justice would be imperilled if co-operation was withheld. He might be assigned as counsel for the needy, in causes criminal or civil, serving without pay (Code Crim. Pro. § 308; Civ. Prac. Act, §§ 196, 198). He might be directed by summary order to make restitution to a client of moneys or other property wrongfully withheld (Matter of H., an Attorney, 87 N. Y. 521). He might be censured, suspended or disbarred for any conduct prejudicial to the administration of justice ” (Judiciary Law, §. 88, subd. 2). All this is undisputed. We are now asked to hold that when evil practices are rife to the dishonor of the profession, he may not be compelled by rule or order of the court, whose officer he is, to say what he knows of them, subject to his claim of privilege if the answer will expose him to punishment for crime (Matter of Rouss, supra). Co-operation between court and officer in furtherance of justice is a phrase without reality if the officer may then be silent in the face of a command to speak. There are precedents of recent date, decisions in Wisconsin and Ohio, upholding the power of the court by a general inquisition to compel disclosure of the truth. (Rubin v. State, 216 N. W. Rep. 513; Ohio Ct. of App., 26 Ohio Law Bull. 355, 515.) Precedents far more ancient, their roots deeply set in the very nature of a lawyer’s function, point the same way.

“ The supreme court shall ‘have power and control over attorneys and counselors-at-law ” (Judiciary Law, § 88, subd. 2). The first Constitution of the State declared a like rule in terms not widely different. Provision was there made that all attorneys, solicitors and counselors at law hereafter to be appointed, be appointed by the court and licensed by the first judge of the court in which they shall respectively plead or practice; and be regulated by the rules and orders of the said courts” (Constitution of 1777, § 27). What was meant by this provision that lawyers should be “ regulated by the rules and orders of the said courts? ” Would the men who framed the Constitution of 1777 have been in doubt for a moment that a rule or order might be made whereby lawyers would be under a duty, when so directed by the court, to give aid by their testimony in uncovering abuses? We find the answer to these questions when we view the history.of the profession in its home across the seas.

The barrister, unlike the attorney, was not in the strict sense an officer of the court where he was privileged to speak (Halsbury, Laws of England, vol. 2, p. 385, title Barristers; Wettenhall v. Wakefield, 1833, 2 Dowl. 759). He was called to the bar upon tie nomination of the inns of court, whose members exercised that power as the delegates of the judges (King v. Benchers of Gray’s Inn, 1780, 1 Douglas, 353, per Mansfield, L. C. J.; King v. Benchers of Lincoln’s Inn, 4 B. & C. 855; 2 Holdsworth, History Laws of England, 496; 6 id. 434; Pearce, Inns of Court [2d ed.], 405, 415; Halsbury, supra, vol. 2, p. 360). If a barrister was suspected of misconduct, the benchers of his inn might inquire of his behavior. We can hardly doubt that refusal to answer would have been followed by expulsion. There was thus little occasion for controversies as to discipline to be brought before the judges unless the benchers failed in the performance of their duties. In case they did fail, a supervisory power was ever in reserve. The inns being unincorporated associations were not subject to mandamus (King v. Benchers, etc., 1 Douglas, 353; King v. Benchers, etc., 4 B. & C. 855; Pearce, Inns of Court, supra). They were subject, however, to visitation by the judges (King v. Benchers, etc., supra; Pearce, supra). What the court could not do by the instrument of a writ, the judges did by orders in their capacity as visitors. They were not diffident or chary in announcing their pleasure or displeasure. Dugdale’s Origines Juridiciales contains a record of the orders of the judges in the exercise of their control over members of the inns. The conduct of the barristers was regulated with minute particularity, even in matters so personal as the growth of their beards or the cut of their dress (see, e. g., 4 Holdsworth, History of English Law, 264; 6 id. 434; Dugdale, supra, pp. 191, 310, 311, 314; 1 Cunningham, Historical Memorials, 208-240; 2 Black Books of Lincoln’s Inn, 20, 21, 30, 31, 32, 47, 132, 275, 392, 393, 410, 432, 440, 451, 454; 3 Black Books, 445; Pension Book of Gray’s Inn, pp. 61, 91, 102, 120, 169, 212, 279, 290, 295, 337; 2 Middle Temple Record, 986, 987; 3 Inner Temple Records, 30). Short shrift would there have been for the barrister who refused to make answer as to his professional behavior in defiance of the visitors.

The attorney, unlike the barrister, was not a member of an inn, but an officer of the court, and subject to its orders (6 Holdsworth, 434). These orders might be general, not directed to a single attorney as the outcome of a controversy, but announcing rules of conduct to be adhered to in the future. Many prohibitions now imbedded in our law, often with the added sanction of a legislative enactment, came into being through regulations or orders adopted by the court of its own motion to put an end to some abuse. Thus, by section I of an order made in Michaelmas Term, 1654, by the Court of Common Pleas, as well as by a like order of the Court of Upper or King’s Bench, attorneys were required to give notice of their chambers or habitations under pain of being put off the roll; ” no one, under like penalty, was to practice in another’s name, nor was any one knowingly to permit another to practice in his name, excepting in warrants of attorney for common recoveries; for the prevention of maintenance and brocage, no attorney was to be lessee in an ejectment nor bail for a defendant in this court in any action ” (Cooke’s Rules, Orders and Notices of the Courts of Common Pleas and King’s Bench, Michaelmas Term, 1654).

The plenitude of the control thus asserted over the behavior of attorneys would lead us to infer that there was power to compel them to submit to an inquisition as to professional misconduct, even if precedent more precise were lacking for such an exercise of power. The curious thing is, however, that precedents more precise exist. More than three centuries ago evils not unlike those revealed in this petition disturbed the English courts. They met the situation in much the same way, by an inquest under oath as to the conduct of their officers.

In Easter Term, 9 Eliz. 1567, the lord chief justice of the Common Pleas delivered a charge to a jury made up of officers, clerks and attorneys, who had been summoned by special writ to inquire into wrongdoing by officers of the court (Cooke’s Rules and Orders in the Common Pleas). This was not a grand jury in the usual sense, for the Common Pleas was not a court of criminal jurisdiction. The ordinary courts of criminal jurisdiction were the King’s or Queen’s Bench and the Court%of the Justices of Assize, Oyer and Terminer and Gaol Delivery (Stephen, History of the Criminal Law, vol. 1, p. 75; Jenks, Short History of English Courts, pp. 170-174; Holdsworth’s History of English Law, vol. 1, pp. 198, 212; Coke, 4 Institutes, 99). The special jury was instructed to inquire into falsities, erasures, contempts and misprisions, “ de omnibus falsitatibus, de rasuris, de contemptibus, et de misprisionibus.” Those guilty of falsities were the ambulance chasers of the day. A falsity, said the lord chief justice, is where a man outwardly will set a shew, a face and countenance that he doth well, and truly knowing inwardly and to himself that it is not so but mere subtlety and falsehood, as, for example, if he will sue forth of purpose false process, or wittingly of himself will minister a false and foreign plea, not taking it of his client.” An erasure, as its name imports, is a wrongful alteration of a record of the court. A contempt is committed by such as contemn and break our orders and rules, and will not obey the orders of this court; within this are not only officers, clerks and attorneys contained, but also any other stranger that contemneth the same.” A misprision “ is where a man knoweth treason or felony to be done, and yet doth conceal it and keep it close.” This might seem, if it had been left unqualified, to be a license to inquire into misprisions generally. A qualification swiftly followed. “ The misprision you are to inquire of is misprisio clerici,” as where writs have been fraudulently put in without the seals required by law. The offense was thus linked to the jurisdiction of the court. The charge closes with an arraignment of disloyal or negligent attorneys, and an appeal to the jury to hold them to their duty. Our court is “ slandered and evil spoken of, our cares and labors made void and frustrate ” by the “ negligence of clerks and ministers; ” the client “ beginneth to think evil of us that are judges, to suspect our skill,” and to speak evil of the law. “ Of these and like negligences ” the jury shall inquire; and also of such attorneys “ as be late and slack comers to the Term by reason whereof their clients’ matters go not forward.” “ We shall deprive such of their attorneyship.” The end of the inquisition was, not punishment, but discipline. “ I will appoint you no time certain,” said the lord chief justice in conclusion, “ but that you may do it at your leisure in time convenient between this and Michaelmas Term; if you will have such as give evidence to be sworn, we shall find the means that they shall be sworn.” The inquest was not to lack the sanction of an oath.

In Michaelmas Term, 1654, both the Common Pleas and the King’s Bench resorted to a like expedient for the discipline of attorneys as well as other officers (Cooke’s Rules, Orders and Notices in the Court of Common Pleas and in the Court of King’s Bench).

The order of the Common Pleas is divided into sections. Section III bears the title “ concerning the reformation and punishment of abuses in general.” It is “ ordered that a jury of able and credible officers, clerks and attorneys once in three years be impaneled and sworn to inquire:

1. Of the points usually inquirable by the writ, viz., falsities, contempts, misprisions and offences.
2. Of such who have been admitted attorneys or clerks and are notoriously unfit, their names to be presented to the court, and they to be punished or removed, as the case shall require.
3. Of new or exacted fees, and of those that have taken them under whatsoever pretense, and to prepare and present a table of the due and just-fees that the same may be fixed and continue in every office, and likewise for the Fleet.
And that some persons be enjoined and sworn to give evidence, viz., some clerks of the court, and some attorneys in every county, not excluding others.”

A system was thus established for a continuing inquiry into the conduct of attorneys with a view to their discipline and removal by a court of civil jurisdiction.

Supplementary to this system are the provisions of section IV, “ concerning the better preservation of order among the officers and clerks, and observation of breach of orders and misdemeanors.” By this section it was ordered that the court do once every year in Michaelmas Term nominate twelve or more able and credible practisers in the court to continue for the year coming for these purposes hereafter limited; ” that they give information to the court from time to time of breaches of orders and miscarriages of officers, attorneys and clerks ” (Cooke’s Rules, Orders and Notices of the Court of Common Pleas).

Orders similar to those set forth in sections III and IV were made at the same term by the Court of Upper or King’s Bench.

With this background of precedent there is little room for doubt as to the scope and effect of the provision in the Constitution of 1777 that attorneys might be regulated by rules and orders of the courts. The provision was declaratory of a jurisdiction that would have been implied, if not expressed. The next Constitution, that of 1821, was silent as to the whole subject, containing no reference either to regulation or to appointment. Promptly, to avoid misapprehension, the Legislature passed a statute, the act of April 17, 1823 (L. 1823, ch. 182, § 19), which continued in the same words the provision formerly contained in the Constitution of 1777. There was a revision of the statutes in 1827 (Act of Dec. 4, 1827), in which the provision was omitted, but the courts continued to act upon the theory that the power of regulation was either inherent or implied (Matter of H., an Attorney, 87 N. Y. 521). The question does not now concern us whether the power may be withdrawn or modified by statute (Matter of Cooper, 22 N. Y. 67, 68). Instead of being withdrawn, it has been explicitly confirmed. In 1912, by an amendment of section 88 of the Judiciary Law (L. 1912, ch. 253), the jurisdiction was removed from the realm of implication. The earlier statutes were restored through a renewed declaration that lawyers are subject to the control and power of the court. We are back to the law as it existed in 1777.

The argument from history is reinforced by others from analogy and policy. The power of the court in the discipline of its officers is in truth a dual one. It prefers the charges, and determines them (Matter of Percy, 36 N.Y. 651; Randall v. Brigham, 7 Wall. [U. S.] 523, 540; Ex parte Wall, 107 U. S. 265; Fairfield County Bar v. Taylor, 60 Conn. 11; Matter of Durant, 80 Conn. 140). Preliminary inquiry there must be, at least to some extent, before a decision can be reached whether to prosecute at all (Matter of Percy, supra). Voluntary affidavits or even unsworn statements will often be enough (Matter of Percy, supra; Randall v. Brigham, supra). Occasions may arise where the probe must be more searching if justice is not to fail. The power to inquire imports by fair construction the power to inquire by methods appropriate and adequate, and so by compulsory process if search would otherwise be thwarted. Analogies are at hand to give support to that conclusion. A legislative body may act upon common knowledge or information voluntarily contributed. At times it stands in need of more. There is then power to investigate by subpoena under the sanction of an oath (Briggs v. Mackellar, 2 Abb. Pr. 30; People ex rel. McDonald v. Keeler, 99 N. Y. 463; McGrain v. Daugherty, 273 U. S. 135, 175; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harvard L. Rev. 153, 167). “ The right to pass laws, necessarily implies the right to obtain information upon any matter which may become the subject of a law ” (Briggs v. Mackellar, supra; cf. the General City Law [Cons. Laws, ch. 21], § 20, subd. 21). Such analogies are not decisive, yet they reinforce in some degree the structure of the argument. A curious anomaly would be here if the courts with all their writs and processes could do less in regulating and controlling the conduct of their officers than a legislative body can do in relation to a stranger.

The argument is pressed that in conceding to the court a power of inquisition we put into its hands a weapon whereby the fair fame of a lawyer, however innocent of wrong, is at the mercy of the tongue of ignorance or malice. Reputation in such a calling is a plant of tender growth, and its bloom, once lost, is not easily restored. The mere summons to appear at such a hearing and make report as to one’s conduct, may become a slur and a reproach. Dangers are indeed here, but not without a remedy. The remedy is to make the inquisition a secret one in its preliminary stages. This has been done in the first judicial department, at least in many instances, by the order of the justice presiding at the hearing. It has been done in the second judicial department, where a like investigation is in progress (Matter of Brooklyn Bar Assn., 223 App. Div. 149), by order of the Appellate Division directing the inquiry. A preliminary inquisition, without adversary parties, neither ending in any decree nor establishing any right, is not a sitting of a court within the fair intendment of section 4 of the Judiciary Law whereby sittings of a court are required to be public. It is a quasi-administrative remedy whereby the court is given information that may move it to other acts thereafter (Cf. Matter of Richardson, 247 N. Y. 401, at pp. 413, 418). The closest analogue is an inquisition by the grand jury for the discovery of crime. There secrecy of counsel is enjoined upon the jurors by an oath of ancient lineage (Sir Frederick Pollock, Essays in the Law, p. 212). It would be strange if disclosure were a duty upon an inquisition by the court. There is a practice of distant origin by which disciplinary proceedings, unless issuing in a judgment adverse to the attorney, are recorded as anonymous (See, e. g., Matter of an Attorney, 83 N. Y. 164; Matter of H., an Attorney, 87 N. Y. 521). The need of secrecy is the greater when the proceeding is in the stage of preliminary investigation. Full protection against publicity was accorded to the relator if he had chosen to avail of it. Publicity came to him through his refusal to be sworn.

We conclude that the refusal was a contempt (Civ. Prac. Act, § 406), and that the investigation must proceed. In so holding we place power and responsibility where in reason they should be. No doubt the power can be abused, but that is true of power generally. In discharging a function so responsible and delicate, the courts will refrain, we may be sure, from a surveillance of the profession that would be merely odious or arbitrary. They will act considerately and cautiously, mindful at all times of the dignity of the bar and of the resentment certain to be engendered by any tyrannous intervention. No lack of caution or consideration can be imputed to them here. They did not move of their own prompting, but at the instance of the very bar whose privacy and privilege they are said to have infringed. In the long run the power now conceded will make for the health and honor of the profession and for the protection of the public. If the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work.

The orders are affirmed.

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

Orders affirmed.


author: Crane, J.

text:
    Rudolph M. Rodkinson, Respondent, v. Henry J. Haecker et al., Appellants.
    Attorney and client — services — account stated — evidence — lawyer and client may have an account stated — admittedly correct account becomes account stated — failure to object within reasonable time after receiving statement of account construed as acquiescence in its justness — conclusiveness of account stated — action by attorney to recover from clients for services on account stated — verdict properly directed for plaintiff where only defense was that there could be no account stated between lawyer and client — cross-examination of plaintiff as to reasonableness of his charges properly foreclosed — letter from defendant’s attorney showing plaintiff’s relationship as counsel properly admitted.
    1. A lawyer and his client may have an account stated between them the same as other persons though it is always open for the client to plead or to show that for some equitable reason it should not be enforced. (Audley v. Jester, 148 App. Div. 94; affd., 212 N. Y. 573, followed; Matter of Howell, 215 N. Y. 466, distinguished.)
    2. As a general rule where an account is made up and rendered, he who receives it is bound to examine the same or to procure someone to examine it for him. If he admits it to be correct it becomes a stated account and is binding on both parties. If instead of an express admission of the correctness of the account, the party receiving it keeps the same by him and makes no objection within a reasonable time, his silence will be construed into an acquiescence in its justness, and he will be bound by it as if it were a stated account. An account stated is conclusive upon the parties unless fraud, mistake or other equitable considerations are shown which make it improper to be enforced.
    3. Where, therefore, in an action, attorney against clients, to recover compensation for services, the complaint stated a cause of action on an account stated, alleging that a detailed account had been submitted to the defendants, who made a payment on account and requested time in which to pay the balance, and the defendants did not plead fraud, mistake or overreaching, but set up as their sole defense that as a matter of law there could be no account stated between lawyer and clients, a verdict was properly directed in favor of plaintiff for the balance shown.
    4. A contention that it was error for the court to foreclose defendants’ cross-examination of the plaintiff as to the reasonableness of the charges, cannot be sustained, where it was insisted by defendants’ counsel that as there could be no account stated as a matter of law, there was none as a matter of fact, and, therefore, they could cross-examine the plaintiff as to the reasonableness of his charges, on the basis of quantum meruit. The evidence was properly excluded unless it was for the purpose of showing that there was no account stated between the parties as a matter of fact, or else that the amount was so unconscionable as to call for relief.
    5. On another cause of action for services rendered as counsel to ^defendants’ attorney, a letter from the attorney to plaintiff was properly received in so far as it bore upon the plaintiff’s relationship with the attorney and the services he was rendering in connection with the litigation, though statements therein as to the efficiency of plaintiff’s work should have been excluded.

      Rodhinson v. Haecker, 223 App. Div. 710, affirmed.
    (Argued June 13, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 25, 1928, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

      David G. McConnell for appellants.
    Where services are rendered by an attorney subsequent to his employment by clients, in the absence of an express agreement, the attorney cannot recover for the services on the theory of account stated, but must prove the reasonable value of the services rendered. (Steele v. Hammond, 136 App. Div. 667; Matter of Howell, 215 N. Y. 466; Cooper v. Conklin, 197 App. Div. 205; Stern v. Hyman, 182 N. C. 422; Ridge v. Healy, 251 Fed. Rep. 798; Porter v. Bergen, 54 N. J. Eq. 405.) The court erred in refusing to admit evidence with respect to the nature and character of the services rendered by respondent to his clients, the appellants, and also the results of litigation instituted by respondent in their behalf. (Clare v. Kelley, 188 App. Div. 665.) The court erred in admitting a letter sent by the attorney of record, the respondent being the counsel for appellants at the time of the receipt of the letter. (Steber v. Palm Knitting Co., Inc., 206 App. Div. 439; Ives v. Ellis, 169. N. Y. 85; Tredwell v. Doncourt, 18 App. Div. 219; Stinesville & B. Stone Co. v. White, 32 Misc. Rep. 135; Matter of Reinhardt, 95 Misc. Rep. 413; Turner v. Northwestern Mut. Life Ins. Co., 232 N. Y. 171.)

      Joseph Sterling for respondent.
    An account stated may be had between attorney and client. No error was committed in the court’s evidentiary ruling concerning the account stated. (Case v. Hotchkiss, 37 How. Pr. 283; Audley v. Jester, 148 App. Div. 94; 212 N. Y. 573; Cooper v. Conklin, 197 App. Div. 205; Clare v. Kelley, 188 App. Div. 665; Parsons v. Segno, 187 Cal. 260; Ida County Savings Bank v. Johnson, 156 Iowa, 234; Beals v. Wagener, 47 Miss. 489; Werner v. Knowlton, 107 App. Div. 158; Pos v. Brooklyn Heights R. R. Co., 195 N. Y. 62; Petersen v. Ocean Electric Ry. Co., 161 App. Div. 720.) After the litigation or service to be performed by the attorney is completed, the client being sui juris and fully informed as to the business transacted, a contract for compensation entered into at that time will be upheld. (Kidd v. Williams, 132 Ala. 140; 1 Story’s Eq. Juris. [14th ed.] § 436; Phillips v. Overton, 4 Hay [Tenn.], 291; Bibb v. Smith, 1 Dana [Ky.], 580.) The court properly admitted in evidence the letter of Wilkinson to the plaintiff. (Tredwell v. Doncourt, 18 App. Div. 219; Stinesville & B. Stone Co. v. White, 32 Misc. Rep. 135; Matter of Reinhardt, 95 Misc. Rep. 413; Ives v. Ellis, 169 N. Y. 85.)
   Crane, J.

The plaintiff is a lawyer. He has sued to recover compensation for his services. Defendants were stockholders in the Sylvan Electric Baths, Inc., holding a majority of the preferred stock and the minority of the common stock. They got into a dispute with one Bueckle, another stockholder, who had obtained control of the corporation, and was working it either to his own advantage or to the disadvantage of the defendants. The plaintiff was consulted and retained. Thereafter, in behalf of the defendants, he commenced proceedings in the Supreme Court of Kings county to set aside the election of directors. A directors’ action was also instituted against Bueckle and others and a third action instituted for fraud and deceit. One of these proceedings was discontinued, another was decided adversely to the defendants on the trial and on appeal, and another was pending at the time that the defendants settled their difficulties with Bueckle and disposed of their stock.

The plaintiff was first consulted in January of 1924, his services as attorney continuing until May of 1925, when he was substituted of record by one James E. Wilkinson. Thereafter, until October, 1926, the plaintiff acted as counsel in association with said Wilkinson. On the latter date his relations with the defendants were severed.

On June 1, 1925, plaintiff sent to his clients a full itemized statement of his account showing the charges for his services and disbursements and a balance due over and above the amounts received. At the same time he wrote a letter in which he explained the reason for and the amount of the charges. On July 9, 1925, one of the defendants, acting for himself and the others, acknowledged the receipt of the account and inclosed a check for $500 with the following statement: “I am enclosing $500.00 on account to be followed with another payment.” On September 1, 1925, the plaintiff sent another statement of his account, giving credit for the amount of $500. The balance due was $2,518.25. Thereafter, on October 1, November 1, and December 1 and December 31 of 1925 and January 30, 1926, statements of this account were sent to and received by the defendants, all showing the balance due as of September 1, 1925, in the amount of $2,518.25. On February 13, 1926, the defendants in response to these bills paid $1,000 more on account, and on May 14, 1926, the defendant H. J. Haecker wrote the plaintiff asking for more time in which to pay the balance; His letter reads:

Much as I have wanted to pay my share of the costs of our action against Bueckle, I am to-day so completely broken by the unusual circumstances during the past two years, that I find myself for the present so short of available cash that I must ask for time.”.

On this state of facts the attorney in bringing this action alleged as his first cause of action an account stated as of September 1, 1925, for the balance due. as of that date less the thousand dollars paid February 13, 1926. As these facts were conceded and the services rendered, by the plaintiff with the exception of their value not denied, the trial justice directed a verdict in favor of the plaintiff for this balance. His action has been challenged on appeal upon the ground that as between an attorney and his client there cannot be as matter of law an account stated.

An account stated is nothing more or less than a •contract express or implied between the parties. It is an agreement which they have come to, regarding the amount due on past transactions. The objection of the appellant, therefore, goes to the extent of saying that no contract can be made as to fees between a lawyer and his client, once the relationship has been established.

As a general rule where an account is made up and rendered, he who receives it is bound to examine the same or to procure someone to examine it for him. If he admits it to be correct it becomes a stated account and is binding on both parties. If instead of an express admission of the correctness of the account, the party receiving it keeps the same by him and makes no objection within a reasonable time, his silence will be construed into an acquiescence in its justness, and he will be bound by it as if it were a stated account. An account stated is conclusive upon the parties unless fraud, mistake or other equitable considerations are shown which make it improper to be enforced. (Lockwood v. Thorne, 11 N. Y. 170, p. 174.) While the doctrine of account stated had its origin in the transactions of merchants (Freeland v. Heran, Lenox & Co., 7 Cranch [U. S.], 147), it has since been extended to embrace transactions between other persons. (Stenton v. Jerome, 54 N. Y. 480; Anding v. Levy, 57 Miss. 51, 62, 63 and 64.)

Has it been extended, or can it be extended to include the transactions between an attorney and his client? As I have stated, if the doctrine does not apply to this relationship, then no lawyer can make any contract with his client for his compensation or for additional compensation after the employment has once commenced. In this case which we are considering, an itemized statement was received by the client, in fact five statements, all showing the balance due. The receipt of the bills was acknowledged and payment made On account, with a promise to pay the balance at a later day. If under these circumstances the court or' a jury may examine into the reasonableness of the charges because the doctrine of an account stated cannot apply to a lawyer and his client, then for the same reason a contract to pay a certain amount for future services, once the relationship is established, is not binding and the reasonableness of it may be inquired into by the courts. The reason given for such a claim is that the confidential relationship existing between the attorney and client, once the relationship has been established, prevents the lawyer from making any contract with his client enforcible by the courts. The utmost that he can do is to charge upon the basis of a quantum meruit except where he has made a contract for his services before employment.

For this position the appellant has found some authority. The, Appellate Division of the second department, in Cooper v. Conklin (197 App. Div. 205), held that there could not be an account stated between an attorney and his client. The court said:

The underlying reason for the rule is that the relations between attorney and client are so confidential and the client relies so fully upon his attorney for the protection of his legal rights and is by the nature of their relations so subject to the advice of the attorney that in all such contracts the attorney cannot rely upon the face of the agreement itself, but is compelled by the law to show, in addition thereto, that the contract is fair and reasonable and that the client was fully informed of all the facts which enabled him to judge its fairness and reasonableness. No reason is perceived why this rule of law is not as applicable to a contract which is a result of the implied acceptance by the client of an account rendered by the attorney for the value of his legal services, as to any other contract between them, whether written or oral.”

On the other hand, the Appellate Division of the first department, in Audley v. Jester (148 App. Div. 94), decided the other way. This case is hot referred to in the Cooper case, decided ten years later. Scott, J., writing for the court in the Audley case, said:

“ The evidence presented a typical case of an account stated, showing a consultation between the lawyers and defendant as to the amount due them; a statement of the amount which they claimed to be due; a discussion as to the amount and as to defendant’s liability for some of the charges; a final acquiescence by defendant in the account as presented; the payment of a small sum on account expressly made to evidence his acceptance of the account; and repeated receipts and retention by him of statements of the account without demur or objection. Defendant neither pleaded nor proved that any unfair advantage was taken by him or any mistake made, or that the attorneys had been guilty of any fraud or misrepresentation. * * *
“ The verdict was not, in our opinion, contrary to law, nor yet contrary to the evidence, and we can discern no reason for disturbing it, unless it can be said that the relation of attorney and client forbids an enforcible agreement as to the amount to be paid for past services. There is no such rule at law, and while agreements between attorney and client are justly subjected to careful scrutiny, they are certainly not incapable of enforcement when deliberately entered into and untainted by fraud, mistake, false representation or other unfair inducement.”

The Audley case was affirmed by this court without opinion (212 N. Y. 573). We, therefore, have taken the position that there can be an account stated between a lawyer and his client for the amount of compensation due for services rendered. The facts of this case are not to be distinguished from those in the Audley case. We have here a detailed account submitted to the client, payment on account and a promise to pay the balance, or rather a request for time in which to pay it. The defendants in this case did not plead fraud, mistake or overreaching; but conceded on the trial and concede in their brief that they have no such defense. The sole defense is that there was no account stated. The answer was a general denial. On the trial defendants’ counsel frankly stated that this denial in the answer meant that as a matter of law there could be no account stated; the answer was not intended to mean that there was no account stated, if such a doctrine was applicable to attorney and client.

The appellant recognized the force of the Audley case and also that of Werner v. Knowlton (107 App. Div. 158), which is to the same effect, the opinion being written by His cock, J., later chief justice of this court. The appellant says, however, that these cases have been overruled by this court in Matter of Howell (215 N. Y. 466, 472). What was there said, however, had particular reference to the facts of the case as they appeared at the end of the trial. The client was an elderly lady, some seventy years of age, and from the evidence taken before the referee, it was quite apparent that she did not fully know or understand the nature and the consequences of the contract which she signed or the meaning of the allowances to be made by the court. The rule was there restated that contracts between attorney and client must be fair and reasonable and fully known and understood by the client. The claim of the attorney was opposed as not meeting these requirements. Here, however, in this case, we have no claim made by the defendant that there was any fraud or mistake or mis-' understanding or overreaching. The defendants were men of mature years, conversant with business affairs and with the nature of the services which had been rendered by their attorney. There is no claim in the answer or upon the trial that when they promised to pay the lawyer’s bill they did not know or understand what it was all about, or the amount of the charge. As stated before, the sole defense is that a lawyer cannot make a contract with his client to pay for past services; that there can be no statement of the accounts between them; that any such agreement must be set aside by the court, and the lawyer’s charges limited to such fees as he proves to be fair and reasonable. No doubt charges may be so excessive as to lead to the inference that there has been some unfair dealing or overreaching on behalf of the lawyer; there is no such claim, however, made in this case. No departure was made in the Howell case from the ordinary rules of equity as they are applied to the varying circumstances of each case. We must always start with the facts. There is frequently a tendency to discuss principles and burdens disconnected from the facts; to theorize. Matters look differently when we confront the actual happenings. Facts must come first before we can apply the law. Our laws and explanations are after all merely generalized statements of fact.

As a general principle, a lawyer may make a contract with his client either for future or past services. Such a contract for compensation will be enforced unless it appears to have been procured by fraud, deceit, overreaching, undue influence, or through any other means which would move a court of equity to modify or set it aside. The circumstances may be many, which would prevent the enforcement of the agreement. No one can undertake to specify the instances. Sufficient to state that no undue advantage can be taken of the relationship or of the circumstances or of the client to procure such a contract. The courts are very sensitive of the honor of the bar. Transactions between a lawyer and his client must be fair. Unless unreasonable upon its face, the contract, however, like any other contract is presumed to be fair until the contrary appears. It is a matter of proof. Seldom, if ever, can a contract be sued upon without the circumstances of the transaction appearing. A lawyer and his client may have an account stated between them the same as other persons. It is always open, however, for the client to plead or to show that for some equitable reason it should not be enforced. Equity is a patient listener to all such charges, examines them carefully and thoroughly. When groundless, however, the contract or the account stands.

As before stated, the defendants here took no such position. Their only defense was that there was no account stated because at law such a thing was impossible. There was no claim of circumstances calling for equitable relief.

The appellant further claims that it was error for the court to foreclose his cross-examination of the plaintiff as to the reasonableness of the charges. Under their general denial, the defendants, no doubt, could prove the unreasonableness of the charges in support of the claim that there was no account stated as a matter- of fact. (Clare v. Kelley, 188 App. Div. 665.) The difficulty with the appellants’ position, however, is that they did not desire such proof for any such purpose; they conceded that the facts proved an account stated provided there could be such a thing between a lawyer and his client. They insisted before^the trial court that as there could be no account stated as a matter of law, there was none as a matter of fact, and, therefore, they could cross-examine the plaintiff as to' the reasonableness of bis charges, as the only basis of the plaintiff’s recovery would be on quantum meruit. In this counsel was in error. The evidence was properly excluded unless it was for the purpose of showing that there was no account stated between the parties as a matter of fact, or else that the amount was so unconscionable as to call for relief.

On a third cause of action which was brought to recover for the value of services furnished to Wilkinson and these defendants as counsel, the plaintiff offered in evidence a letter written by Wilkinson to him in reference to the cases. In this letter he happened to state: “ I am going to throw my whole heart and soul into the argument and know that we must win; but unquestionably the man who will be entitled to the credit will be yourself.” This letter was properly received in evidence, as bearing upon the plaintiff’s relationship with Wilkinson and the services he was rendering him in connection with the litigation and the pending cases. These statements regarding the efficiency of the plaintiff’s work might very well have been omitted. I think they should have been excluded. However, all the facts regarding the litigation appeared in evidence and the results of that litigation were before the jury, either from the oral testimony or else from the correspondence between the parties. These rather hopeful statements of Wilkinson could have had little or no effect upon the recovery.

Upon the whole, this case was properly disposed of by the trial court. The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Kellogg, J.

text:
    Best Renting Company, Inc., Respondent, v. The City of New York, Appellant.
    Real property — title — New York city — action to determine adverse claim to real property — defendant can succeed only upon strength of its own title — claim of title by city of New York through grants by State — burden upon it to prove that land in question was conveyed and that State had title thereto — Crown grant to plaintiff’s predecessors of land bounded on Jamaica bay —For the purposes of the description coves and inlets are part of bay — State owner of foreshore except where Crown had parted title therewith — hassock separated from land by narrow creek included in grant of meadows, marshes and creeks — no title to land in State which it could convey to defendant.
    1. In an action to compel determination of an adverse claim to real property, brought by a person in possession thereof for a period of one year and claiming it in fee, or for life, or for a term of years not less than ten, defendant can succeed only upon the strength of its own title and not upon the weakness of the plaintiffs’ claim.

      2. Where upon the trial of such an action against the city of New York, title to the parcel in question, a point or cape projecting into Jamaica bay but now forming part of the upland, is asserted to be in the city by virtue of grants from the State, conveying lands under water and lands constituting islands or hassocks in Jamaica bay, if the grants be read as conveying lands .formerly under water or formerly constituting islands or hassocks, the burden rests upon defendant to establish that the point in question, or a part of it, was formerly land under water or a hassock and that the State of New York had title thereto when it made the grants.
    3. A contention that a grant from the Crown in 1685 to plaintiff's predecessor in title, which makes Jamaica bay the north boundary line of the property granted, must be construed to mean Jamaica bay proper and not the waters of the bay where they wash the shores of inlets and coves, cannot be sustained. For the purposes of the description in the grant, such waters are a part of Jamaica bay.
    4. The State, as the successor of the Crown of England, is the owner of the foreshore or tideway, upon tidal waters within its jurisdiction, except in so far as the Crown had parted title therewith by grants to individuals before the State succeeded the Crown as sovereign.
    5. Where, to the extent that the lands now possessed by the plaintiff were then uplands, they were concededly included in the Crown grant, even assuming that a part of the land was, at the time, a hassock separated from the upland by a narrow creek, it does not follow that it was excluded. The description was inclusive of “ meadows,” “ marshes ” and “ creeks,” and, considering the nature of the land, the word “ marshes ” can only be given force by holding them to be the salt marshes of the shore. They were, therefore, included in the grant and the State of New York had no title to the lands in question which it could convey to the defendant.

      Best Renting Co. v. City of New York, 221 App. Div. 707, affirmed.
    (Argued June 12, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 29, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      George P. Nicholson, Corporation Counsel (Willoughby B. Dobbs, Robert J. Culhane and Rollin H. Reid of counsel), for appellant.
    The city has title to its foreshore or tideway. (Cortelyou v. Van Brunt, 2 Johns. 357; Mayor, etc., v. Hart, 95 N. Y. 443; Sage v. Mayor, etc., 154 N. Y. 61; Jarvis v. Lynch, 157 N. Y. 445; Langdon v. Mayor, etc., 93 N. Y. 128; People v. Steeplechase Park Co., 218 N. Y. 459.) In the grants to the various towns on Long Island the title of the riparian owner ended at high water and the land under water and the islands adjacent belonged to the town. (Tiffany v. Town of Oyster Bay, 209 N. Y. 1; Town of Oyster Bay v. Stehli, 169 App. Div. 257; 221 N. Y. 515; Trustees of Easthampton v. Kirk, 68 N. Y. 459; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Town of Southampton v. Wilcox Bay Oyster Co., 116 N. Y. 1; Town of Brookhaven v. Smith, 188 N. Y. 74; People ex rel. Squiers v. Hand, 158 App. Div. 515.) The trial justice erred in his findings of fact, conclusions of law and decision, the result of which error was the original judgment appealed from. (Bardes v. Herman, 114 App. Div. 772.)

      Charles S. Noyes and William S. Pettit for respondent.
    The plaintiff, having shown a year’s possession under claim of title, was entitled to judgment, unless the respondent established a title to the property. (Davis v. Read, 65 N. Y. 566; Hill v. Mowbray, 147 App. Div. 507; Merritt v. Smith, 50 App. Div. 349; Stackhouse v. Stotenburg, 22 App. Div. 312; Ford v. Belmont, 69 N. Y. 567; Shroeder v. Gurney, 10 Hun, 413; Whitman v. City of N. Y., 85 App. Div. 468.) The title to the land in suit passed under the grant by the Crown of England to John Palmer in 1685, and the city, therefore, acquired no title from the State or the Crown. (Clapp v. Byrnes, 3 App. Div. 284; French v. Carhart, 1 N. Y. 96; Coleman v. Beach, 97 N. Y. 545; Clarke v. Devoe, 124 N. Y. 120; Blackman v. Striker, 142 N. Y. 555; Lowndes v. Town of Huntington, 153 U. S. 1; Tiffany v. Town of Oyster Bay, 209 N. Y. 1; Grace v. Town of North Hempstead, 166 App. Div. 844; 220 N. Y. 628; Bliss v. Benedict, 202 App. Div. 115; 234 N. Y. 596; Starke-Belknap v. N. Y. C. R. R. Co., 197 App. Div. 249 ; 234 N. Y. 630.)
   Kellogg, J.

The complaint alleges that the plaintiff is in possession of a certain parcel of land therein particularly described; that the parcel has been in the possession of the plaintiff for more than one year; that the plaintiff is the sole owner of the parcel; that it claims ownership under a deed to it from Rawdown W. Kellogg, dated December 7, 1916, and recorded in the Queens county clerk’s office on March 27, 1917; that the defendant unjustly claims an estate or interest therein of the value of not less than $250; that the plaintiff understands that such claim is made by virtue of a grant to the defendant by the State of New York made by chapter 568 of the Laws of 1909; that the claim made by the defendant is unfounded and constitutes a cloud upon the plaintiff’s title. It demands judgment, declaring that the plaintiff has a good title to the premises and that the defendant be debarred from all claim thereto. The answer denies the allegations in regard to the plaintiff’s title and possession as well as the allegations that the defendant’s claims to. the property are unjust. It does not deny that the defendant claims title. It does not affirmatively allege title in the defendant to any part of the parcel described. It does not ask for an affirmative judgment. It merely demands judgment that the complaint be dismissed.

The land which the complaint describes is a point or cape on the north side of Rockaway point which projects into Jamaica bay in a northerly or northwesterly direction. It is bounded on the south by a laid out street known as Far Rockaway boulevard or Atlantic avenue; on the west by the waters of an inlet known as Norton creek; on the north by the waters of Jamaica bay; on the east, for the northerly third, by the waters of an inlet known as Norton’s cove, and for the remaining two-thirds, by a laid out street known as Channel avenue. The deed from Rawdown W. Kellogg, dated December 7, 1916, through which the plaintiff lays claim to the premises, as set forth in the complaint, describes the parcel by the known physical boundaries above given. The plaintiff proved, without contradiction, that it was in actual possession of the premises thus described; that it and its predecessors had been in the actual possession thereof for many years.

Where a person has been in possession of real property for a period of one year, claiming it in fee or for life, or for a term of years not less than ten, he may maintain an action against any other person to compel the determination of any adverse claim thereto made by such other person. (Real Property Law [Cons. Laws, ch. 50], sec. 500.) His complaint must set forth a description of the premises; the estate therein claimed by him; a one year’s possession thereof; the unjust claim thereto made by the defendant. (Id. sec. 501.) The answer may simply deny the possession of the plaintiff, in which case, if the defendant succeeds, the judgment must be a dismissal of the complaint. (Id. sec. 502.) It may set up facts showing that the defendant has in the premises an estate in fee, or for life, or for a term of years not less than ten. It may demand any judgment to which the defendant would be entitled “in an action brought by him to recover that estate in said property.” (Id. sec. 503.) If the defendant, by his answer, claims an estate in the property, the subsequent proceedings are the same “ as if it was an action of ejectment.” (Id. sec. 504.) If the judgment determines that the defendant is entitled to possession of the property, it must award him possession accordingly. (Id. sec. 506.) “ Final judgment for the plaintiff must be to the effect that the defendant, and every person claiming under him * * * be forever barred from all claim * * * in the property.” (Id. sec. 507.) ¡

A perusal of these sections might lead to the conclusion that the defendant, not having plead title, was not privileged to prove or to assert it; that the plaintiff, having established its possession, for more than one year, under a claim of title, was entitled to a judgment forever barring the defendant from asserting a claim thereto. However, if it be assumed that the defendant having proven, without objection, the facts of its title, was entitled to assert it, then it follows that it must succeed, if succeed it does, upon the strength of its own title and not upon the weakness of the plaintiff’s claim, precisely as if the defendant were the plaintiff in an ejectment suit. If the defendant has a title he is bound to produce and prove it.” (Barnard v. Simms, 42 Barb. 304, at p. 308.) The plaintiff, therefore, stood on possession. It was for the defendants to establish their title as in an ejectment suit in which they were plaintiffs.” (Merritt v. Smith, 30 App. Div. 349, at p. 353.) In Ford v. Belmont (69 N. Y. 567, at p. 570) it was said of the plaintiff: She had, nevertheless, been in actual possession for three years, and that was sufficient to entitle her to maintain this proceeding, and compel the defendants to show their title.”

The defendant, upon the trial and upon this appeal, has asserted title to the parcel in question by virtue of two grants to it from the State of New York. The first grant is contained in chapter 568 of the Laws of 1909. That act grants to the defendant “ such right, title and interest as the State of New York may have in and to the land under water in Jamaica bay and Rockaway inlet and the tributaries thereto.” The second grant is contained in chapter 522 of the Laws of 1912. That act grants to the defendant “ The right, title and interest of the State of New York in and to the islands, hummocks, hassocks, marsh and meadow lands in Jamaica bay and Rockaway inlet and the tributaries thereto.” The plaintiff makes no claim to land under water in Jamaica bay and Rockaway inlet.” Neither does it claim title to any islands, hummocks, hassocks, marsh and meadow lands in Jamaica bay and Rockaway inlet.” The parcel of land possessed and claimed by the plaintiff, which is the subject of this action, is a point or cape, which is now, and was prior to 1909, the date of the first grant, an upland parcel, rising above the waters of Jamaica bay at high tide. It may be, and in 1909 may have been, meadow lands ” but not meadow lands in “ Jamaica bay ” or Rockaway inlet,” for never since 1909 has it, or any part thereof, been an island or hassock entirely contained by such waters. If, therefore, we read the two grants, according to their literal terms, as conveying lands presently under water, or lands presently constituting islands or hassocks in Jamaica bay, the claims of the parties in no wise conflict, and the defendant has no vestige of a claim to the parcel in question. If, however, we read the grants as conveying all lands formerly under water, or formerly constituting islands or hassocks, the burden rests upon the defendant to establish (1) that the point in question, or a part of it, was formerly land under water or a hassock, and (2) that the State of New York had title thereto when it made the grants. We will deal with these points in the inverse order of their statement.

It may be conceded that the State, as the successor of the Crown of England, is the owner of the foreshore or tideway, upon tidal waters within its jurisdiction, except in so far as the Crown had parted title therewith by grants to individuals before the State succeeded the Crown as sovereign. Had the Crown parted with the title to the land in suit? In the year 1685 Thomas Dongan, Lieutenant-Governor of the Province of New York, conveyed to John Palmer lands on Rockaway point. Concededly, to the extent that the lands now possessed by the plaintiff were then uplands, they were included in the grant. The description contained in the grant is as follows: “Bounded on the East with Hemp-stead West Pattent Line on the South with the Maine Sea or Ocean to Low Water Marke and on the West with the Gutt or Inlett which makes the Bay or Sound betwixt Jamaica and the said Tract Parcell or Neck of land and on the Northward with the said Bay or Sound as it Runns East or Easterly untill it Comes unto or meets the Hempstead Line as aforesaid.” The description continued as follows: “ togather with all and- all -Manner of Messuages Pastures feedings Meadows Marshes Woods Underwoods Wayes ffenees Lakes Ponds Creeks Beach or Beaches Rivers Brooks Springs Hunting Hawking Fishing and Fowling and Appurtenances whatsoever to the said Parcell Tract or Neck of land and Premissess or to any Parte or Parcell thereof in any wise belonging Adjoyning or Appurtaineing.”

We have said that the parcel in suit projects into Jamaica bay. More accurately, it projects into Cornaga bay, which indents the shore of Jamaica bay on its southerly side, and includes both Norton’s creek and Norton’s cove. This inlet is flanked by two headlands which are about two thousand feet apart. The inlet is about one mile deep. A line drawn across the bay from headland to headland would be far to the north of the parcel in suit. The plaintiff contends that the Dongan grant, which makes Jamaica bay the north boundary line of the property granted, must be construed to mean Jamaica bay proper, and not the waters of the bay where they wash the shores of inlets and coves such as Cornaga bay. To sustain this proposition it cites Lowndes v. Huntington (153 U. S. 1); Tiffany v. Town of Oyster Bay (209 N. Y. 1); Grace v. Town of North Hempstead (166 App. Div. 844; affd., 220 N. Y. 628). These cases involved the title to land under water in Huntington bay, Oyster bay and Manhasset bay, which indent the shores of Long Island sound. The patents which granted the lands bounded them by Long Island sound. It was held that the bays were no part of the sound and that in each instance the line bounding the grant was a line to be drawn from headland to headland. The decisions establish a rule of construction peculiar to grants of land upon Long Island sound or other bodies of water similarly situated. Thus in Tiffany v. Town of Oyster Bay (supra) the court said: In the ancient colonial charters granting land on Long Island in which the Sound is named as the boundary on the north, the term refers directly to the body of water known by such name and does not include waters opening into it or connected with it.” In Lowndes v. Huntington (supra) it was said: The northern boundaries in all these charters is given as the Sound.’ That was then, and is now, a well known body of water. It opens into the Atlantic Ocean, but is separate and distinct therefrom. Into it flow many rivers, and open many bays, harbors, and inlets; but the fact of the connection between them and it does not make them a part of the Sound.” Jamaica bay bears no resemblance to Long Island sound. It is not, like the sound, a large body of water, traversed by ocean going vessels, and known to all mariners as a navigable arm of the ocean, a minor sea. It is a shallow bay almost land locked, not more than seven miles across at its widest part, filled with islands and hassocks, themselves indented with many coves and bays, as are the shores of the bay itself. Its surface contracts and expands with the alternating tides, a great surface acreage becoming land with the ebb, and water with the flow. It is navigable only in narrow channels and large vessels never traverse it. “ Jamaica bay ” calls to mind hassocks, flats, coves and long stretches of sand. Long Island Sound ” calls to mind a semi-sea. If we eliminate from the meaning of the former all the inlets, creeks and coves indenting its shores, its islands and its hassocks, we would exclude its most characteristic features. We think that Cornaga bay, for the purposes of the description in the Dongan grant, was a part of Jamaica bay,

The plaintiff also contends that the Dongan grant to Palmer, since it included all creeks, beach or beaches,” carried title to low-water mark on the south shore of Jamaica bay. A map, introduced from the files of the United States Coast and Geodetic Survey, shows that, in the year 1841, the line of shore, in the vicinity of the premises in question, at low tide, was about one-third of a mile to the north of such premises. Therefore, the plaintiff reasons that the premises were included in the grant. In Rockaway Park Imp. Co. v. City of New York (140 App. Div. 160) it was definitely held that the Dongan-Palmer grant carried title to low-water mark. The case never came to this court. The same ruling was made in Rockaway Pacific Corporation v. State (122 Misc. Rep. 503) by the Court of Claims. The decision was affirmed in this court in 243 New York, 556. However, the plaintiff in that case relied upon a grant made to its predecessor in title by the sovereign State of New York in the year 1897. The affirmance of the decision may be attributable to the terms of that grant irrespective of the terms of the Dongan grant. It cannot be said, therefore, that this court held that the Dongan grant carried title to low water. No doubt the plaintiff’s contention finds support in language of Judge Allen who wrote for this court in Trustees of East Hampton v. Kirk (68 N. Y. 459 at p. 462). Judge Allen there said: Ordinarily in a grant of lands under the name of a ' beach ’ or a boundary of lands upon or by, or along a beach,’ the word would be held synonymous with the shore or strand, and as having reference to and including only the lands washed by the sea, and between high-water-mark and low-water-mark.” But Judge Allen also said: ££ In a grant of a ' beach,’ and perhaps, when a ' beach ’ is made the boundary of lands, other clauses of the deed, and the situation of the lands granted or other circumstances may authorize a different interpretation and effect may be given to the word as meaning flats, or the sandy land between the upland and the actual shore line.” While there is much force in the plaintiff’s contention, we prefer not to decide the question raised and will place our judgment upon other grounds.

Proof was given and a finding made that in the year 1878 and prior thereto the northerly end of the point in question was a hassock separated from the upland of the point by a narrow creek, dry in low tide, but navigable in high tide by rowboats. The creek was so narrow at high tide that a man might jump across it. That the creek existed in 1685, the year of the Dongan grant, was not proven or found. It does not appear on the 1841 government map to which we have referred. It does not appear upon a still earlier government map of the year 1835, upon which the shore fine of Jamaica bay is plotted. However, even if we assume that the north part of the point, at the time of the Dongan grant was a hassock, it does not follow that it was excluded from the grant.

The Dongan grant is inclusive of Marshes ” and Creeks.” Low land subject to overflow by tides is called salt marsh or tide marsh.” (Century Dictionary.) It would have been wholly unnecessary to specify “ Marshes ” if thereby bogs or swamps, situate upon the uplands of Rockaway point, had been intended, for they would have been included in the other words of description used. Indeed, it is scarcely conceivable that swamps have ever been present upon that long and narrow sandy neck of land. Yet the word has meaning and must be given force. We think that it can only be given force by holding that the marshes ” of the Dongan grant were the salt marshes of the shore and that they were included in the grant.

The point in controversy appears upon the government map of 1835. The map bears signs indicating that the point from its base to its outer extremity was marsh land. An expert in the service of the Geodetic and Coast Survey testified that the solid unbroken line upon the map, apparently marking the shore lines of the point and adjoining lands, was in fact a line indicating the extreme limit of the marshes along the shore. Another witness testified that this line, as indicated' upon the map, extends into Jamaica bay some seven hundred feet farther than does the actual shore of the point in question as it now appears. Even in the finding made by the trial court that the extreme north end of the point, prior to 1878, constituted a hassock, it is found that the hassock was “ partly marsh and partly meadow land.” The lands, which, in 1835, may have been covered at high tide by a narrow creek, are shown upon the map of that year as marsh lands. We conclude that all the lands now claimed and possessed by the plaintiff were included in the Dongan grant either as Meadows ” or Marshes.” Therefore, the State of New York had no title to the lands in question, which it might convey to the defendant, and the defendant is without title or right thereto.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    The People of the State of New York, Appellant, v. Hyman Jackerson, Respondent.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
   Motion for reargument denied. (See 247 N. Y. 36.)


text:
    Fred S. James & Company, Appellant, v. Rossia Insurance Company of America, Respondent.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 247 N. Y. 262.)


text:
    The People of the State of New York ex rel. Anna Smith, Respondent, v. The Superintendent of the New York State Reformatory at Bedford Hills, Appellant. The People of the State of New York ex rel. Rita Scotti, Respondent, v. The Superintendent of the New York State Reformatory at Bedford Hills, Appellant.

      Appeal — motion to dismiss appeal denied.

    Reported below, 222 App. Div. 680, 681.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
    Motion in each of the above-entitled proceedings to dismiss appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 4, 1927, which affirmed an order of Special Term sustaining a writ of habeas corpus and discharging relator from custody.

      The motions were made upon the grounds that only an academic question is involved in the appeals.

      Alton W. Teale for motion.

      Albert Ottinger, Attorney-General (Henry C. Henderson of counsel), opposed.
   Motion to dismiss appeals denied.


text:
    The People of the State of New York, Respondent, v. William Duffy, Appellant.

      Appeal — appeal without permission to Court of Appeals — motion to dismiss appeal granted.

      People v. Duffy, 220 App. Div. 817, appeal dismissed.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 3, 1927, which affirmed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of the crime of possessing a firearm in violation of section 1897 of the Penal Law.
    The motion was made upon the ground that permission to appeal had not been granted.

      Joab H. Banton, District Attorney (Felix C. Benvenga of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.