author: Finch, J.

text:
    Good Health Dairy Products Corporation of Rochester, Respondent, v. Mary C. Emery Appellant, Impleaded with Another. Edward Vandeville, Respondent, v. Mary C. Emery, Appellant, Impleaded with Another.

      Argued May 17, 1937;
    decided July 13, 1937.

      Arthur V. D. Chamberlain for appellant.
    The orders of the Appellate Division were not properly granted as a matter of law and are contrary to law. (Gochee v. Wagner, 257 N. Y. 344; Potts v. Pardee, 220 N. Y. 431; Engel v. Eureka Club, 137 N. Y. 100; Lorillard v. Clyde, 122 N. Y. 41; Jordan v. Van Epps, 85 N. Y. 427; Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498; Byrne v. Hasher, 249 App. Div. 651; Central New York Coach Lines, Inc., v. Syracuse Herald Co., 249 App. Div. 692; Bigelow v. Old

      Dominion Copper Co., 225 U. S. 111; Wolf v. Kenyon, 242 App. Div. 116.)

      Eric P. Smith for respondents.
    The judgment in favor of appellant’s son is not res judicata as to appellant and the order denying her motion to plead it as such should be affirmed. (Neenan v. Woodside Astoria Transp. Co., 261 N. Y. 159; Trotter v. Klein, 140 Misc. Rep. 78; Self v. International Ry. Co., 224 App. Div. 238; Pullam v. Greater Eagle Wet Wash Laundry Co., 137 Misc. Rep. 103; Syczyk v. Szczerbaniewicz, 233 App. Div. 342; Haverhill v. International Ry. Co., 217 App. Div. 521.)
   Finch, J.

An automobile, owned by the defendant-appellant, Mary C. Emery, and operated by her son, William E. Emery, collided with a motor truck owned by the plaintiff Good Health Dairy Products Corporation of Rochester, N. Y., and operated by the plaintiff Edward Vaudeville. Both vehicles were damaged and both drivers were injured as a result of the accident. William E. Emery instituted suit in the City Court of Rochester against Vandeville and the Good Health Dairy Products Corporation. Judgments were returned in his favor against both, which judgments have been affirmed by the County Court and the Appellate Division. After the actions had been commenced by William E. Emery, but before they were tried, the plaintiffs in this action (who were the defendants in the action brought by William E. Emery) instituted this suit in the Supreme Court against William E. Emery and Mary C. Emery to recover for personal injuries and property damage to the motor truck. Mary C. Emery entered counterclaims for the property damage to her automobile. After the City Court judgments in favor of William E. Emery had been affirmed, William E. Emery and Mary C. Emery made motions to amend their answers in the Supreme Court action, to plead as an additional defense the judgments in the City Court actions as res judicata. • The order was granted as to William E. Emery but denied as to the appellant Mary C. Emery. She appealed to the Appellate Division, which affirmed on the law and not in the exercise of discretion, and certified the following question to this court: On the record was the order of the Appellate Division properly granted as matter of law?

Liability on the part of Mary C. Emery, as owner of the automobile, is derivative and is akin to that imposed on a master for the negligent acts of his servant under the doctrine of respondeat superior. (Vehicle and Traffic Law [Cons. Laws, ch. 71], § 59.) Section 59 creates a liability, but, although not enlarging the rights of an owner, does not attempt to impose liability unless the operation of the automobile has been negligent. Such liability on the part of the owner or master can arise only if the operator of the automobile is negligent. (Pangburn v. Buick Motor Co., 211 N. Y. 228.) It having been adjudicated in the City Court action that the operator of the automobile owned by Mary C. Emery was not negligent as to the plaintiff Good Health Dairy Products Corporation or the plaintiff Vaudeville, that question is foreclosed and the plea of res judicata is available to Mary C. Emery in suits brought against her.

The doctrine of res judicata, as generally stated, is that an existing final judgment rendered upon the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all other actions on the points in issue and adjudicated in the first suit. Despite the frequent statement that the plea is available only to parties to the prior action or their privies, and that the estoppel of the judgment must be mutual, there are a number of cases holding that to this rule there are so-called' exceptions. An apparent exception to this rule of mutuality has been held to exist where the liability of the defendant is altogether dependent upon the culpability of one exonerated in a prior suit, upon the same facts, when sued by the same plaintiff. See Portland Gold Mining Co. v. Stratton’s Independence, 158 Fed. Rep. 63, where the cases are collected. * * * The cases in which it has been enforced are cases where the relation between the defendants in the two suits has been that of principal and agent, master and servant, or indemnitor and indemnitee.” (Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 127, 128.)

Thus it has been held that, where the liability of a principal or master'is derivative, a judgment on the merits in favor of the servant or agent from whom the liability is derived, may be set up as a defense by the principal or master, although he was not a party to the earlier action. (Featherston v. President of Newburgh & Cochecton Turnpike Co., 71 Hun, 109; Portland Gold Mining Co. v. Stratton’s Independence, Ltd., 158 Fed. Rep. 63. See 1 Freeman on The Law of Judgments [5th ed.], § 4.69. Cf. Castle v. Noyes, 14 N. Y. 329.)

Behind the phrase res judicata lies a rule of reason and practical necessity. One who has had his day in court should not be permitted to litigate the question anew. Although normally it is necessary that mutuality of estoppel exist, an exception is at times made where the party against whom the plea is raised was a party to the prior action and had full opportunity to litigate the issue of its responsibility.” (See Liberty Mutual Ins. Co. v. Colon, 260 N. Y. 305, 312.) Under such circumstances the judgment is held to be conclusive upon those who were parties to the action in which the judgment was rendered. Where a full opportunity has been afforded to a party to the prior action and he has failed to prove his freedom from liability or to establish liability or culpability on the part of another, there is no reason for permitting him to retry these issues.

Where the issue in the second action differs in any way from that in the earlier action, the plea, of course, is not available.

In the case at bar, however, the plaintiffs have had a full opportunity to litigate the issue of liability. In the actions in which the judgments in favor of William E. Emery were recovered it was essential for him to establish the negligence of the defendants therein. And those defendants, now the plaintiffs in the case at bar, although they had a full opportunity to show their freedom from negligence, were found hable and are bound by the verdict against them. It is true that Mary C. Emery, not being a party to the earlier actions, and not having had a chance to litigate her rights and liabilities, is not bound by the judgments entered therein, but, on the other hand, that is not a valid ground for allowing the plaintiffs to litigate anew the precise questions which were decided against them in a case in which they were parties.

The case of Nennan v. Woodside Astoria Transp. Co. (261 N. Y. 159), relied upon by the plaintiffs, is not in point, since the action in which the attempt to plead res judicata was made was an action by a passenger in the bus against the operator of the automobile which collided with it, whereas the prior suit had been between the bus company and the operator of the automobile. Not only was there no privity between the bus company and its passenger, but the liability of neither was derived from the other, and the first trial afforded no opportunity to litigate the relative rights and liabilities as between the passenger and the owner of the automobile.

In each case the order appealed from should be reversed and the motion granted, with costs in all courts, and the question certified should be answered in the negative.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ., concur.

Orders reversed, etc.


source: Caselaw Access Project

author: Rippey, J.

license: Public Domain

text:
    Agnes Curcio, as Administratrix of the Estate of John A. Curcio, Deceased, Respondent, v. The City of New York, Appellant.
    Argued June 8, 1937;
    decided July 13, 1937.

      Paul Windels, Corporation Counsel (Frederick vP. Bryan and Leonard M. Wallstein, Jr., of counsel), for appellant.
    There was no proof that defendant was negligent or failed in any duty which it owed to the decedent. (Swan v. Riverside Bathing Beach Co., 132 Kan. 61; Flora v. Bimini Water Co., 161 Cal. 495; Peterson v. City of New York, 267 N. Y. 204.) Even had the defendant been negligent there was no proof that such negligence was the proximate cause of the death. (Laidlaw v. Sage, 158 N. Y. 73; Maher v. Madison Square Garden Corp., 242 N. Y. 506; Bertalot v. Kinnare, 72 Ill. App. 52.)

      Charles J. Buchner for respondent.
    The negligence of the defendant was clearly proven. (Larkin v. Saltair Beach Co., 30 Utah, 86.) The negligence of the defendant was the proximate cause of the death. (Esposito v. St. George Swimming Club, 143 Misc. Rep. 15; Martin v. Herzog, 228 N. Y. 164; P. G. Poultry Farm v. Newtown B. P. Mfg. Co., 248 N. Y. 293.)
   Rippey, J.

This is an action to recover damages for the death by drowning of John A. Curtió in a swimming pool maintained by the defendant in a building known as the Public Baths on the corner of President street and Fourth avenue in the borough of Brooklyn, New York. The case was tried before the court without a jury, and resulted in a verdict for the defendant dismissing the complaint. The Appellate Division, second department, reversed the judgment of the Trial Term on the law and the facts and granted a new trial, one justice dissenting. The defendant appeals to this court on a stipulation for judgment absolute in the event that the decision of the Appellate Division is affirmed. If there is an issue of fact in the case, the judgment of the Appellate Division must be affirmed, even though the Court of Appeals disagrees with the Appellate Division as to where the weight of the evidence lies. (World Exchange Bank v. Commercial Cas. Co., 255 N. Y. 1.) The appellant contends, however, that there is no evidence of negligence on the part of defendant, or, if it should be held that there was such evidence, that it was not the proximate cause of the drowning, and that a reversal on the facts by the Appellate Division is error of law, which the Court of Appeals may review. (Rockowitz C. & B. Corp. v. Madame X Co., 248 N. Y. 272.)

John A. Curcio was, at the time of the accident, over six feet tall, nearly twenty-two years of age, a student at Brooklyn College, about to graduate the following June in the medical course, and a member of the swimming team of the college. He and three other young men, who were expert swimmers, were swimming in the pool between four-thirty and five p. m., January 31, 1933. One of the swimmers heard a groan or yell after they had been swimming around for a few minutes, but paid no attention to it, and he and another boy left t'he pool and went on the platform for the purpose of diving, where they remained for about a minute, when the lifeguard, in charge of the pool and then standing on the balcony overlooking the pool, pointed to the water and shouted, “ Quick, down there,” whereupon one of the men on the platform dived into the pool, secured Curcio, brought him to the side, and he and the lifeguard, who had by that time descended from the balcony and had reached the platform, pulled Curcio out of the water. Immediate efforts at resuscitation failed. The medical testimony showed that Curcio died from asphyxiation and that there was an abrasion one-half inch by three-eighths inch on the right cheek midway between the eye and ear, abrasions on the bridge of the nose, an abrasion one-quarter inch long of the upper Up at the right of the midline, and an abrasion of one-quarter inch in diameter on the left side of his chin. No one saw Curcio enter the pool, and there is no evidence, other than above stated, as to what happened after he entered the pool.

There was a balcony running around the building and above the platform, from which entrance was had to the pool. A view of this pool was at all times available from the balcony. The pool was forty feet wide by sixty feet long, six feet deep at one end, with the bottom sloping upward so that the water was three feet deep at the shallow end. Curcio was found in the water at a depth of about five feet. The use of the pool was customarily given over to small boys up to four-thirty p. m. each afternoon. At that time on the afternoon in question the guard ordered about sixty boys out of the water and proceeded with them to the balcony, where they had their shower and dressing rooms. Generally, older men did not have access to the pool until about five p. m., the interval between four-thirty and five p. M. being held open to enable the youngsters to get out of the pool, dress, and leave the building. The evidence showed that the lifeguard maintained at this pool had passed all required examinations, was thirty-eight years of age, five feet eleven and three-quarters inches tall, weighed one hundred and ninety pounds, and had been employed by the defendant in the same capacity for a period of fifteen years.

There was no evidence that the city charged any fee for the use of the pool or the facilities of the building in question. There was no evidence that there was any defect of construction. The city was not an insurer of the lives of those who used the pool. Its only duty was to exercise ordinary care in its supervision, construction and maintenance of the pool. A person who is sui juris and engages in such a sport as swimming accepts the dangers inherent in the sport so far. as they are obvious and necessary. (Murphy v. Steeplechase Amusement Co., 250 N. Y. 479.) The duty of exercising ordinary care required the defendant to provide an adequate degree of general supervision. (Peterson v. City of New York, 267 N. Y. 204.) The city performed its duty in furnishing a lifeguard, experienced and competent. From his position on the balcony the lifeguard was the first to see Curcio in the water and gave instant attention to his removal from the pool and to efforts at resuscitation. He was tending to one of his duties incidental to his employment in looking after the young boys, but at the same time gave watchful attention to the pool. There is no evidence from which any inference could be drawn that his presence on the platform next to the water would have prevented the accident or that by act or omission of the defendant or any of its employees the boy was placed in a position of danger which caused his death, or that any greater care by the defendant could have averted accident.” (Maher v. Madison Square Garden Corp., 242 N. Y. 506, 507.) Constant attendance of the lifeguard on the platform was not required. Such a requirement of immediate official supervision would have been unreasonable in the circumstances.” (Peterson v. City of New York, supra, p. 206.) The lifeguard could not be at all parts of the building at once. We find no evidence of any violation of duty on the part of the defendant which presents a question of fact.

The Appellate Division asserted that whether the defendant maintained a bathing master, as required by section 312 of the Public Health Law (Cons. Laws, ch. 45; Laws of 1909, ch. 49) and regulation 33 of the Board of Health of»the City of New York, adopted June 28, 1917, and, if it did not, whether its violation of these regulations constituted negligence which was the proximate cause of Curcio’s death, were questions of fact. Regulation 33 provides that “ a bathing master or lifeguard who shall be an expert swimmer and who shall be in constant and watchful attendance during bathing hours shall be stationed at every such bathing establishment.” This regulation relates, however, to beach bathing establishments only. It does not relate to swimming pools of fresh water in the midst of the city. Even though it had related to the particular swimming pool in which Curcio was drowned, the conceded fact is that a lifeguard was furnished by the city and was in attendance at the time. Plaintiff produced no evidence that he was incompetent, inattentive or inefficient. Furthermore, section 340 of the Sanitary Code (New York Code of Ordinances, ch. 20, art. 17), providing for the regulation of bathing establishments, defines that term as used in the regulations referred to as applying only to places conducted for hire, and the last sentence in section 312 of the Public Health Law, which contains a provision similar to regulation 33 above quoted, provides that nothing in that section shall be construed in any way to affect any bathing establishments, in any city or municipality, at which there is maintained at public expense a life-saving guard.” Thus the provisions of section 312 of the Public Health Law and regulation 33 above quoted are not applicable. Had they been applicable there is no evidence that they were not fully complied with.

The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


author: Loughran, J.

text:
    The People of the State of New York, Appellant, v. Emil G. Roschli, Respondent.
    Argued May 25, 1937;
    decided July 13, 1937.

      Samuel J. Foley, District Attorney (Sol. Boneparth and Herman J. Fliederblum of counsel), for appellant.
    The contracts entered into by the members of the association in relation to the plate glass fund were insurance contracts. The making of thirty-three separate insurance contracts with thirty-three persons constitutes engaging in the business of insurance in violation of section 54 of the Insurance Law (Cons. Laws, ch. 281). (Tyler v. New Amsterdam Fire Ins. Co., 27 N. Y. Super. Ct. 151; People v. Standard Plate Glass & Salvage Co., 174 App. Div. 501; Cross v. National Fire Ins. Co., 132 N. Y. 133; Brown v. United States Casualty Co., 95 Fed Rep. 935; Whiteside v. North American Acc. Ins. Co., 200 N. Y. 320; People v. Metropolitan Surety Co., 205 N. Y. 135; People ex rel. Hegeman v. Corrigan, 195 N. Y. 1; People ex rel. Allen v. Whiting, 68 Misc. Rep. 306; Cunningham v. Mellin’s Food Co., 121 Misc. Rep. 353; People v. Meola, 193 App. Div. 487.) The fact that the fund may be classified as a mutual or co-operative company, or the fact that membership in the fund is limited to members of the association, and that it does not undertake to insure outsiders, does not operate to exempt the instant case from the operation of the Insurance Law. (State v. Alley, 96 Miss. 720; Swan v. Mutual Reserve Fund Life Assn., 155 N. Y. 9.)

      Howard L. Kuttner and Henry M. Wolf son for respondent.
    A contract of insurance contemplates a contractual obligation on the part of the insurer and an assumption of risk of loss by the insurer. Both of these factors are non-existent under the facts in the case at bar. (Brownell v. Board of Education, 239 N. Y. 369; Stern v. Rosenthal, 71 Misc. Rep. 422.) The operation of the plate glass fund does not constitute the engaging in the business of insurance. (White v. Haight, 16 N. Y. 310; People ex rel. Daily Credit Service Corp. v. May, 162 App. Div. 215; 212 N. Y. 561; Commonwealth v. Provident Bicycle Assn., 178 Penn. St. 636; Blanchard v. Hamblin, 162 Mo. App. 242.) The operation of the fund is not violative of the public policy of the State as manifested by legislative enactment or otherwise. (People v. Gillson, 109 N. Y. 389; People v. Marcus, 185 N. Y. 257; Lochner v. New York, 198 U. S. 45; Colaizzi v. Pennsylvania R. R. Co., 208 N. Y. 275.)
   Loughran, J.

Defendant was convicted in the Court of Special Sessions of the City of New York upon an information charging him with having conducted an unauthorized insurance business in violation of section 54 of the Insurance Law (Cons. Laws, ch. 28). The judgment of conviction was reversed by the Appellate Division on questions of law. Whether the defendant “ engaged in the business of insurance ” within the intendment of the statute is the single question to be determined upon the undisputed facts.

Manhattan & Bronx Retail Grocers’ Association is a domestic membership corporation. It maintains a so-called “ Plate Glass Fund ” for members only which is administered by the defendant as its secretary. He serves without compensation. Any member may pay a certain sum of money annually into the fund, “ according to the amount of glass he wishes protected.” As many as thirty members contributed thereto at “a definite rate per square foot.” They paid pro-rata for their glass to be replaced in case of breakage.” (See Insurance Law, § 70, subd. 6.) All understood that should the fund become exhausted at any time it “ would automatically close up,” and that there were to be “ no assessments or anything in the event the money would be used up.” The aggregate of contributions at all times exceeded anticipated payments. “At the end of the year, after a saving of about sixty per cent, fifty per cent is paid back to the members, maybe ten per cent is kept as a reserve for next year.” Each contributor received a “ certificate of membership ” attesting that he had deposited a stated sum with the secretary. It was therein asserted that, “ The fund is not an insurance or indemnity company, nor does it take insurance risks or issue insurance policies.” This recital was followed by a “ Description of Glass ” by “ size ” and “ location.” On the instrument received in evidence as a specimen appears the phrase, “ Balance sheet glass not covered.”

We think the evidence established the offense charged.

This fund was a device whereby the contributors, through a chain of reciprocal agreements, undertook to insure each other at cost. In its essentials it was “ that system whereby individuals, partnerships, or corporations engaged in a similar line of business undertake to indemnify each other against a certain kind or kinds of losses by means of a mutual exchange of insurance contracts, usually through the medium of a common attorney in fact appointed for that purpose by each of the underwriters, under agreements whereby each member separately becomes both an insured and an insurer with several liability only.” (G. J. Couch, Reciprocal or Inter-insurance, 94 A. L. R. p. 836.) What is in substance a contract of insurance cannot be changed into something else by giving it another name. (Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; 28 N. Y. 153,161; First Nat. Bank v. National Surely Co., 228 N. Y. 469, 472.) Inter-insurers are within the statute (Insurance Law, art. 10). The prohibition against engaging in the business of insurance without the prescribed authority is absolute. (Id. § 54.) Since it is conceded that the defendant was not so authorized he was validly convicted. (Id. § 53.)

Colaizzi v. Pennsylvania R. R. Co. (208 N. Y. 275) is here beside the mark. There the parties were employer and employee and the relief benefits secured to the latter were but the incidents of the contract of employment.

The judgment of the Appellate Division should be reversed and that of the Court of Special Sessions affirmed.

Crane, Ch. J., O’Brien, Hubbs, Pinch and Rippey, JJ., concur; Lehman, J., dissents and votes to affirm.

Judgment accordingly.


author: Per Curiam.

text:
    Guaranteed Title and Mortgage Company, Appellant, v. Charles Scheffres et al., Defendants, and Herman Margulies et al., Respondents.
    Argued May 19, 1937;
    decided July 13, 1937.

      Charles A. Kussmaul and Arnold O. Charters for appellant.
    The court has no inherent power to impair a judgment once validly entered. (Feiber Realty Corp. v.
      Abel, 265 N. Y. 94; Emigrant Industrial Sav. Bank v. Van Bokkelen, 269 N. Y. 110; Guaranteed Title & Mortgage Co. v. Scheffres, 247 App. Div. 294; Ward v. Town of Southfield, 102 N. Y. 287; Mandeville v. Reynolds, 68 N. Y. 528; Fuhrman v. Fanroth, 254 N. Y. 479; Jordan v. Van Epps, 85 N. Y. 427; Matter of Moller, 247 App. Div. 35; Herpe v. Herpe, 225 N. Y. 323; Manufacturers Trust Co. v. 351-359 W. 42nd Street Co., 247 App. Div. 523.) The order, amending the judgment of foreclosure and sale by deleting therefrom the provision directing the entry of the deficiency judgment, impairs the vested property rights of the plaintiff. (Livingston v. Livingston, 173 N. Y. 377; Walker v. Walker, 155 N. Y. 77; Germania Sav. Bank v. Village of Suspension Bridge, 159 N. Y. 362; McCullough v. Virginia, 172 U. S. 102; Matter of Greene, 55 App. Div. 475; 166 N. Y. 485; State of Louisiana v. Mayor, 109 U. S. 285; Feiber v. Abel, 265 N. Y. 94; Matter of Greene, 55 App. Div. 475; 166 N. Y. 485; Emigrant Industrial Sav. Bank v. Van Bokkelen, 269 N. Y. 110; Gilman v. Tucker, 128 N. Y. 190.) The respondents were not entitled to any equitable relief. (Cameron-Hawn Realty Co. v. City of Albany, 207 N. Y. 377; Harmony v. Bingham, 12 N. Y. 99; Tompkins v. Dudley, 25 N. Y. 272; Ward v. H. R. Bldg. Co., 125 N. Y. 230; Matter of Moller, 247 App. Div. 35; Smith v. Nelson, 62 N. Y. 288; Ross v. Wood, 70 N. Y. 8; Mayor v. Brady, 115 N. Y. 599; Stilwell v. Carpenter, 59 N. Y. 423.)

      Jonathan Schneider for respondents.
    The power of the Supreme Court to vacate a judgment of foreclosure and sale or to deny a deficiency judgment is inherent. (Thompson v. Laughlin, 91 Cal. 313; Crawford v. Thurmond, 3 Leigh, 85; Heim v. Butin, 109 Cal. 500; Maker v. Hibernia Ins. Co., 67 N. Y. 283; Pitcher v. Hennessey, 48 N. Y. 415; Strochak v. Glass Paper Making Supplies Co., 267 N. Y. Supp. 282; Young v. Weber, 117 N. J. Eq. 242.)
   Per Curiam.

This is an action to foreclose a mortgage on real property. The mortgagors appeared generally but defaulted in pleading. Judgment of foreclosure and sale was regularly entered August 9, 1933, before section 1083-a of the Civil Practice Act. became effective. A deficiency resulted on a sale to the mortgagee and judgment therefor was docketed. Thereafter the mortgagors moved the Special Term to vacate so much of the judgment of foreclosure and sale as directed them to pay a deficiency. The motion was granted and the deficiency judgment previously docketed was canceled upon the ground “ that the value of the property exceeded the amount of the judgment.” This is an appeal by the mortgagee from an affirmance by the Appellate Division of the order of the Special Term. The orders should_be reversed and the motion denied. (Loma Holding Corp. v. Cripple Bush Realty Corp., 265 N. Y. 463; Emigrant Industrial Sav. Bank v. Van Bokkelen, 269 N. Y. 110; Strochak v. Glass Paper Making Supplies Co., 239 App. Div. 312. See Kenly v. Huntington Building Association, Inc., 166 Md. 182.)

The orders should be reversed and the motion denied, with costs in all courts.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Orders reversed, etc.


text:
    The People of the State of New York, Respondent, v. Lloyd Lewis, Appellant.
    Argued June 9, 1937;
    decided July 13, 1937.

      Frederick S. Holbrook for appellant.
    The evidence does not support motive on the part of the defendant. (People v. Myer, 164 App. Div. 296; People v. Fitzgerald, 156 N. Y. 253; People v. Wagner, 71 App. Div. 399; Shepherd v. People, 19 N. Y. 537.)

      Nathan D. Lapham, District Attorney, for respondent.
    The evidence satisfies the tests applicable to circumstantial evidence as a proof of guilt. (People v. Giordano, 213 N. Y. 575; People v. Harris, 136 N. Y. 423; People v. Smith, 245 App. Div. 69; People v. Kennedy, 32 N. Y. 141; People v. Razezicz, 206 N. Y. 249; People v. Galbo, 218 N. Y. 283; People v. Place, 157 N. Y. 584; People v. Badger, 217 App. Div. 424.)
   Rippey, J.

Under the provisions of section 222, subdivision 5, of the Penal Law, defendant was indicted for and convicted of the commission of the crime of arson in the second degree. The charge was that on November 30, 1931, in the town of Victor, Ontario county, New York, he willfully set on fire and burned a barn which at the time contained farm implements, including a vehicle for the transportation of manure, such building and the personal property contained therein being insured against loss or damage by fire. Supplementing the statement in the indictment, a bill of particulars stated that the barn burned was a building on a farm owned and operated by defendant and that the act was committed wrongfully, unlawfully and feloniously and with intent to prejudice and/or defraud the insurer.

The defendant and his wife and two small children resided on a farm consisting of about 123 acres which he had purchased for a home in 1927. One of the buildings consisted of a barn 132 feet, 5 inches long north and south and 30 feet, 3 inches wide, located approximately 125 feet from the highway leading into Victor. On the southeast corner of the bam and below the level of the entrance to the first floor was located a milkhouse, in which there was a gasoline engine used in connection with the milk cooling apparatus and to run the milking machine. A door led out of the milkhouse to an alleyway or runway extending along the south end of the barn from which, some distance from the milkhouse, a door opened into a cow stable in the basement of the barn. From some point in the cow stable a stairway led to the main floor of the barn, on which was standing a load of hay too wet to be put in the mow. To the side and above, extending upwards to the top of the barn, the bays were filled with hay. In the gable at the south end of the barn was a door through which hay was carried by a hayfork and trolley from the outside into the bay, and, at the time of the fire, hay was hanging out of the door at a height of about eight feet above the roof of the milk-house. The exhaust pipe from the gasoline engine in the milkhouse extended out through the roof under and near the opening through which hay was carried into the barn. Across the south end of the barn were two silos filled with silage. Prior to the time of the fire, defendant had collected together his farm tools and machinery at odd times when it was too wet to work the land and had placed them in the basement of the barn for storage for the winter. At the time of the fire the barn contained seven loads of oats, four tons of bean pods, ground oats, dairy feed and rye, and the bays and lofts were filled with hay. The defendant had twenty head of cattle and six horses, all outside the barn at the time of the fire; only a small calf was in the barn.

At and immediately preceding the time of the fire, on November 30, 1931, two of defendant’s hired men were engaged in loading manure on a wagon on the west side of the barn. They had been working all of that day drawing manure out to the field. Defendant’s wife and two children were in the residence. In the afternoon, defendant left his home by automobile and drove to Victor, where at about two p. m. he purchased, at a store where he had been accustomed to buy supplies for the house, a quantity of groceries and four gallons of kerosene which was contained in a square can. He had purchased kerosene from the same store from time to time over a period of at least a year previously and he used it both for his stove and for lamps in his residence. He returned to his home about three p. m. and stopped near the garage. There is some conflict in the testimony as to exactly what occurred immediately afterwards. One of the hired men testified that he saw him take something from his automobile which looked like a can and place it in the milkhouse, after which he took the groceries into the house. His wife testified that as soon as he stopped the automobile he first took the groceries into the house, then she and he went to the garage and he procured a small can and siphoned some gasoline from the tank of the automobile and took the can to the milkhouse for the purpose of starting the gasoline engine. There is no definite testimony anywhere in the case that the can containing kerosene was taken into the milkhouse. After arriving at the milkhouse, defendant succeeded in starting the gasoline engine, although he had difficulty in starting it. He left the milkhouse, went around to the west side of the barn where the men were working, picked up a fork and started to help the men load the wagon with manure. During this period the men heard the gasoline engine running. After they had been working awhile, one of the men testified he heard a crackling noise, looked up and saw that the building was on fire. He called to the other men to drive the horses out and he started to a nearby residence to telephone for help. Defendant went to the house, procured two pails from his wife, went to a pump nearby and filled the pails and came back to the house. By that time help had arrived and one of the neighbors attached ropes to the handles of the pails and defendant went up onto the roof of his residence and drew up the water. He remained there to protect the house from fire and others helped to remove household furniture. There was no evidence that the defendant was in any of the buildings immediately preceding the fire except in the milkhouse and in the residence. A few days after the fire, the insurance adjusters asked defendant how the fire started. He told them that at about three o’clock in the afternoon he started the gasoline engine which was used in connection with the operation of a milking machine, that he was in the engine room for some little time, that the engine did not start readily, but after he had started it he went to the west side of the barn and remained there helping the men load manure until the fire was discovered and that he was not sure that the fire started in the engine room or from the gasoline engine or from the operation of it and that after the fire started he could not get into the engine room because it was afire.

The People established that the wind was from the southwest and that flames were first seen coming from the roof of the bam on the west side, on the southwest comer, or on the south side, as variously testified to, and evidence was also introduced to indicate that the milkhouse was not consumed until the upper portion of the barn was completely burned.

Thus the evidence of incendiarism was solely circumstantial. The People were required to rely upon the evidence (1) that defendant purchased a can of kerosene, (2) that he was seen going to the milkhouse with what looked like a can, (3) that thereafter flames were seen coming from the west or south end of the barn and that the wind was blowing from the southwest. From the facts above recited it was the theory of the People that the defendant entered the milkhouse with the kerosene, left it by way of the door opening into the alleyway, proceeded along the alleyway to the cow stable, through the cow stable up to the main floor, and set the barn on fire at a point from which the wind would be expected to carry the flames so that the entire barn might be consumed. This was pure conjecture. Such a conclusion could rest only in surmise and be based upon inference on inference. There was not a scintilla of direct evidence that he did any such thing. So far as incendiarism in and of itself is concerned, the only material fact established by direct evidence was that the barn burned. The conceded fact was that defendant brought home from the grocery store a can of kerosene. There was no definite direct evidence as to what he did with this can of kerosene after he reached home. The only evidence on that subject is that given by the hired man to the effect that he saw him get out of the automobile, take something from it which looked like a can, and go with what he had to the milkhouse. The jury were required to infer from that testimony that what looked like a can was the can of kerosene and was taken to the milkhouse. They were then asked to draw the further inference that the defendant proceeded by the course above indicated into the barn and used the kerosene for the purpose of starting a fire, and this in the face of the fact that it all occurred in the daytime with hired men working in the immediate vicinity, with the barn filled with hay which could have been ignited with a match without the necessity of kerosene with equal certainty of it burning quickly. No inference such as the People sought could reasonably be drawn from the established facts. Nor could any inference be properly drawn of incendiarism from defendant’s conduct after the fire was discovered. With fire burning in a barn filled with hay and bound to consume the barn, no matter what efforts might have been made to stop it, ¿he only rational course for defendant to pursue was to protect his residence, if possible, from the fire. Nor was there any evidence that the defendant definitely stated that the fire started in the milkhouse. All he said was that he did not know where it started and inferred that the only way that he could account for it was the possibility it came from sparks from the gasoline engine through the exhaust igniting the hay hanging out of the door at the south end of the barn. He made no assertion that that was the way the fire started, except in the proof of loss he said that its cause was evidently from a gasoline engine used to operate a milking machine,” nor did he assert that he knew how it started, but he orally asserted the contrary at the time the above statement was made to the adjusters. Nor was his conduct consistent with guilt. If defendant planned, on the theory advanced by the People, to set fire to the barn, he presented the opportunity for the procurement of evidence from the grocer from whom the purchase of kerosene was made and from witnesses who were present when he took the kerosene to the bam of every circumstance on which the inference that he used that method of firing the barn was based. No reason is assigned why he may have been willing to be apprehended, convicted and incarcerated for arson, or even hinted at. That he would pursue such a course of conduct is not probable. The inference of guilt would not naturally flow from the facts and circumstances thus proved or be consistent with them. It is a rule too well settled to require extensive citation of authority that where circumstantial evidence is relied upon, the facts upon which inferences must be drawn must themselves be satisfactorily established and must be of such a character as, if true, to exclude to a moral certainty every other hypothesis but that of the guilt of the accused, and that the ultimate fact may not be based on inference upon inference. (Shepherd v. People, 19 N. Y. 537, 545; People v. Fitzgerald, 156 N. Y. 253.)

At most, the foregoing evidence was of such a doubtful probative value that it was essential for the People to establish motive, and this they attempted to do by showing the defendant stood to gain by collection of insurance on the barn. Additionally, such a showing was necessary to establish one of the essential elements of the crime charged. These conclusions were sought solely upon the basis of circumstantial evidence. “ Motive,” says the court in the Fitzgerald Case (supra, at p. 258), “is an inducement, or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but for the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers it has any concern. It is in cases of proof by circumstantial evidence that the motive often becomes not only material but controlling, and in such cases the facts from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case.”

Prima facie, defendant had no motive for the commission of the crime, but, rather, a strong motive to the contrary. The greater portion of the trial was devoted to the efforts to establish facts from which the inference might be drawn that it was to defendant’s pecuniary interest to fire the barn, but the record as a whole establishes no facts from which any such inference could reasonably be drawn. It was shown that he carried a policy of insurance for $3,000 on the barn, with a farm produce, auto and livestock clause attached, with the Ontario County Patrons Fire Relief Association. A few days after the fire, adjusters representing the insurance carrier with long experience in adjusting fire losses called upon defendant and he presented them with a list of the tools and equipment and the contents of the barn that were burned. Some sinister inference is sought to be drawn from the fact that defendant made up a list of his alleged losses and that, when inquiry was made by the adjusters as to what he thought they were worth, he gave his figures. Nevertheless, the adjusters testified that they based the loss upon sound value as they themselves determined it to be and did not permit defendant to fix the valuation. No suggestion has been made that the $3,000 loss adjustment on the barn was excessive. No evidence of value of separate articles of farm machinery was introduced, with a few exceptions, and defendant’s counsel has computed the difference between the adjustment of $1,800 made on farm machinery and valuation testified to at ninety-five dollars. The District Attorney replies by stating “ that upon the trial we made no contention that the small difference in values of the items selected represented the amount and extent of the deception.” The evidence tended to establish that some tools were old. and worn and in disrepair, but such proof without tangible evidence of overvaluation is insufficient to establish that defendant secured an adjustment of his loss at an amount alleged to be far in excess of the actual value of the property burned. The tools were burned. The adjusters were satisfied to accept defendant’s fist. There is no evidence in the record of deceit. The evidence indicated that the fire insurance was taken out at the time when the barn was purchased and was neither increased nor decreased from that time, notwithstanding that the defendant had during that period and running down to shortly before the fire made extensive improvements; he had built two silos; he had concreted the entire south end of the barn; he had installed a concrete watering trough in the horse stable; he had painted the milkhouse, and he had installed new stanchions for the cattle. These improvements had been made at times when he could spare the time from his necessary farm work. The evidence also established that he had made improvements to the house in which they lived. He had stocked up the barn with food for the maintenance of his dairy herd during the winter, and without this barn he had no other place to accommodate them. There was no evidence that he was, at the time, financially embarrassed. The only reasonable inference from the evidence was that he had built up a home to keep, not to destroy. The evidence as a whole establishes a strong lack of motive and its absence is a powerful circumstance in the exculpation of the defendant where reliance is placed entirely upon circumstantial evidence to establish the crime. (Shepherd v. People, supra.)

The facts and circumstances established in this case are not only not consistent with the guilt of the defendant but are consistent with his innocence. They may furnish some grounds of suspicion; they furnish nothing else. As a matter of law there was no evidence to submit to the jury from which it might draw the inference of guilt beyond reasonable doubt.

Questions were raised upon exceptions to the admission or exclusion of evidence or to the charge which could not be overlooked except for the conclusion which we have reached. Our decision makes consideration of those questions unnecessary.

The judgments should be reversed, the indictment dismissed and the defendant discharged.

Crane, Ch. J., Hubbs, Loughran and Pinch, JJ., concur; Lehman and O’Brien, JJ., taking no part.

Judgments reversed, etc.


author: O’Brien, J. Crane, Ch. J.

text:
    In the Matter of Louis H. Neubeck, Respondent, against Franklin E. Bard et al., Constituting the Erie County Park Commission et al., Appellants.

      Submitted May 21, 1937;
    decided July 13, 1937.

      Jacob Tick, F. Paul Norton and Paul J. Batt for appellants.
    Section 21 of the Civil Service Law (Cons. Laws, ch. 7), so far as it relates to preference in appointment to a position in the non-competitive class, is unconstitutional. (Matter of Barthelmess v. Cukor, 231 N. Y. 436; Matter of Keymer, 148 N. Y. 219; Matter of Merriweather v. Roberts, 268 N. Y. 12; Matter of Sherrill v. O’Brien, 188 N. Y. 185.)

      Manly Fleischmann and Henry Altman for respondent.
    Section 21 of the Civil Service Law is constitutional. (Matter of Keymer, 148 N. Y. 219; Matter of Stutzbach v. Coler, 168 N. Y. 416; Matter of Potts v. Kaplan, 264 N. Y. 110; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Barthelmess v. Cukor, 231 N. Y. 435.) The failure of the Park Commission to nominate the petitioner for examination is not a defense to the proceeding. (Matter of Ricketts, 111 App. Div. 669; People ex rel. Weintz v. Burch, 79 App. Div. 156; Matter of Whaley v. Perkins, 231 App. Div. 502; People ex rel. Qua v. Gaffney, 142 App. Div. 122; Matter of Danziger v. Rice, 245 App. Div. 671.)
   O’Brien, J.

Petitioner is a disabled veteran of the World war within the definition of section 21 of the Civil Service Law (Cons. Laws, ch. 7). Prior to January 1, 1935, he filed with the State Civil Service Commission and with the Erie County Park Commission a written application for appointment to the position of supertendent of Ellicott Creek Park and a claim for preference in appointment. That position is classified as noncompetitive. May 1, 1935, a vacancy occurred therein and on July 9, 1935, the Park Commission assumed to appoint appellant Cheetham. July 30, 1935, the Civil Service Commission required petitioner and other applicants to submit to non-competitive qualifying examinations for that position; on October 1, 1935, it allowed petitioner’s claim for preference as a disabled veteran and approved his physical qualifications; on January 2, 1936, it determined that he was fully qualified by reason of experience and knowledge, and on January 23,1936, it directed the Park Commission to terminate Cheetham’s employment and to appoint petitioner. Cheetham’s qualifications have never been recognized by the Civil Service Commission. Of all the applicants for that position petitioner’s qualifications are the only ones which have been so recognized.

Assuming the invalidity of Cheetham’s appointment, the question remains whether, on this record, petitioner has shown himself to be entitled to compel his appointment. Article V, section 6, of the Constitution, after providing that appointments and promotions in the civil service shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive,” directs that disabled veterans of the type of this petitioner shall be entitled to preference in, appointment and promotion, without regard to their standing on any list from which such appointment or promotion may he made.” Section 21 of the Civil Service Law assumes to grant a preference to the same type of veteran “ without regard to their standing on any list from which such appointment or promotion may be made to all competitive and noncompetitive positions provided their qualifications and fitness shall have been ascertained as provided in this chapter and the rules and regulations in pursuance thereof.” In so far as section 21 refers to positions in the competitive class it does not proceed beyond the authority conferred by the Constitution. • (Matter of Potts v. Kaplan, 264 N. Y. 110, 114.) Section 17 of the Civil Service Law provides: The non-competitive-class shall include such positions as are not in the exempt class or the labor class and which it is impracticable to include in the competitive class. Appointments to positions in the non-competitive class shall be made after such non-competitive examination as is prescribed by the rules.” Rule XIX reads: “ 1. The positions in the non-competitive class must be filled by such persons as upon proper non-competitive examinations shall be certified as qualified to discharge the duties of such positions by an examiner or examiners selected or appointed for that purpose by the Commission. The head of any office, department or institution in which there may be a vacancy or vancancies in any position or positions in this class, may name for examination a person for each vacancy * * *. 2. The Commission shall select, appoint and commission examiners or boards of examiners to test the qualifications of persons named for employment in positions in the non-competitive class * * *.” The Park Commission has never named this petitioner for employment or examination for this non-competitive position. In Matter of Merriweather v. Roberts (268 N. Y. 12, 15) this court stated the method by which the Constitution, the statute and the rules provide for appointment to positions in the noncompetitive class. “To fill a vacancy in the noncompetitive class an appointing officer may nominate a candidate for appointment subject to such non-competitive or qualifying examination as the Civil Service Commission of the city shall determine to be appropriate for the position. No appointment may be made until the Commission shall certify that the person is qualified.” In the non-competitive class, as distinguished from the competitive class, no lists are required and, except in one instance, do not exist. The expression “ any list,” as used in the Constitution, means a list, if existing. The process by which an appointment in the non-competitive class is made originates with the appointing power. The language of article Y, section 6, of the Constitution by the incorporation of the words “ any list from which such appointment or promotion may be made ” has reference to the competitive and the labor classes, for the reason that only in those two classes, when a single position is to be filled, lists are required. There is one exception in respect to the non-competitive class by which rule XIX declares that the Civil Service Commission may provide by special regulation that, in any institution where a number of persons are employed in the same grade, the employing officer may name for examination more than one person, in order that there may be a list of qualified persons from which to make an immediate selection in case of vacancy. It is in the event of the existence of such a list that the provision of section 21 of the Civil Service Law relating to a list from which an appointment to a non-competitive position must be made is applicable. The Constitution, the statute and the rules give preference in appointment and promotion only to those disabled veterans whose names appear on an eligible fist. In respect to positions in the non-competitive class the policy of the fundamental law, supplemented by section 17 of the statute and rule XIX made in pursuance thereof, is to allow initiation by the appointing power and, in the absence of a list, to permit discretionary appointment by him subject to proof of merit and fitness as demonstrated by a qualifying non-competitive examination. (Matter of Merriweather v. Roberts, supra.) The law contemplates that appointments are to be made to positions in this class by the head of the department exclusively and not by the applicant nor by the Civil Service Commission. Nothing in the Constitution confers upon a veteran a preference in the right to take a qualifying examination for a competitive or a non-competitive position. (Matter of Keymer, 148 N. Y. 219.) Only such persons are eligible for such an examination as are nominated by the appointing power. (Matter of Merriweather v. Roberts, supra.)

The decision in People ex rel. Fonda v. Morton (148 N. Y. 156) can have no application to the facts in this record. The opinion in that case states that the only question before the court was whether the relator was entitled to a notice and hearing before he could be removed and the decision was that he had no such right. All that the Constitution intends is that when, as the result of examinations, a list is made up, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preference in appointment without regard to his standing on the list. (Matter of Keymer, supra.)

The orders should be reversed and the petition dismissed with costs in all courts. The certified question should be answered in the negative.

Crane, Ch. J.

(dissenting). Louis H. Neubeck is a disabled war veteran. On September 25, 1934, he filed with the Erie County Park Commission a written instrument claiming preference in appointment to the position of superintendent of any of the county parks, pursuant to sections 21 and 22 of the Civil Service Law. In disregard of such application or notice, the Commission on July 9, 1935, appointed the appellant John W. Cheetham as superintendent of Ellicott Creek Park, who thereafter entered upon the performance of his duties.

Neubeck as a war veteran was given a preference in appointment to this vacancy which could not be taken away or nullified by any rule of the Commission regarding forms of application or lists or recommendation of the appointing power. Laws and rules are to carry out, not abolish, the constitutional provisions, provided of course that upon examination the veteran can perform the duties. In this case an examination has disclosed Neubeck’s qualifications. Article V, section 6, of the State Constitution reads: “Appointments and promotions in the civil service of the state, and of all the civil divisions thereof * * * shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, any honorably discharged soldiers * * * shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

The Civil Service Law was passed to fulfill this last command. Section 21 indicates that the veterans’ preference applies to non-competitive and labor class as well as the competitive. Whenever any list of eligible persons shall contain the names of honorably discharged soldiers, etc., they shall head the list “ and such persons shall be given preference on any list of registered applicants for employment in the labor service, in accordance with the dates of their several applications as though such application had been filed prior to those of any persons on such lists not entitled to the preference provided by this section.”

Rules, regulations, forms or blanks shall be adopted to carry out these provisions of the law.

Any and every rule adopted by the Civil Service Commission must be in harmony with the letter and purpose of these sections of the Constitution and the Civil Service Law.

If rule XIX fails to give an opportunity to a veteran either to be placed upon a list or to be appointed because no list is made up or because the head of a department recommends ” only one appointment, ignoring a veteran who has made a demand or application for the place or for an examination, then that rule is inconsistent with veterans’ rights, which cannot be evaded or avoided by failing to create a list. This would be an easy way to exclude veterans who were not wanted.

Bule XIX reads: “ Employment in the non-competitive class. 1. The positions in the non-competitive class must be filled by such persons as upon proper non-competitive examinations shall be certified as qualified to discharge the duties of such positions by an examiner or examiners selected or appointed for that purpose by the commission. The head of any office, department or institution in which there may be a vacancy or vacancies in any position or positions in this class, may name for examination a person for each vacancy. The commission may provide by special regulation that in any institution where a number of persons are employed in the same grade, the employing officer may name for examination more than one person, in order that there may be a list of qualified persons from which to make an immediate selection in case of vacancy. Such nomination may be made to the commission, or to an examiner or board of examiners, as the commission may prescribe by regulations.”

The Park Commission had notice that Louis H. Neubeck was a veteran and demanded or had made application for the position of Park Superintendent at the next vacancy. When the vacancy occurred for Ellicott Creek Park the' Commission should have asked for the examination of Neubeck to fill the place or for the creation of a fist including Neubeck if he were found fit. This rule does not give discretion to the head of any department to name for examination any person he pleases, ignoring all veterans who have applied. If he knows that a veteran has made a demand for the vacancy or the position he must name such veteran for examination or else ask for a list from which to make the appointment. If this be not so the door is wide open for evasion of the Constitution and the Civil Service Law. This rule XIX must be read in harmony with these fundamental laws; in fact it is difficult to read it otherwise.

The order awarding mandamus to the petitioner should be affirmed, and the question answered in the affirmative.

Lehman, Hubbs and Rippey, JJ., concur with O’Brien, J.; Crane, Ch. J., dissents in opinion in which Loughran and Finch, JJ., concur.

Orders reversed, etc.


author: Hubbs, J.

text:
    The People of the State of New York, Respondent, v. Joseph Woltering, Appellant.

      Argued May 24, 1937;
    decided July 13, 1937.

      Louis Waldman and David I. Ashe for appellant.
    There is no proof that the piece of cloth came from a coat belonging to defendant. (People v. Zammuto, 280 Ill. 225; People v. Newton, 3 N. Y. Cr. Rep. 406; People v. Muhley, 11 Cal. App. 129.) The only way the jury could have rendered a verdict of guilty on the evidence adduced was by pyramiding inference, upon inference contrary to the established rules as to circumstantial evidence. (People v. Bennett, 49 N. Y. 137; People v. Harris, 136 N. Y. 423; People v. Bazezicz, 206 N. Y. 249; Lamb v. Union Ry. Co., 195 N. Y. 260; People v. Fitzgerald, 156 N. Y. 253; People v. Galbo, 156 App. Div. 414; 218 N. Y. 283; People v. Acerno, 184 App. Div. 541; People v. Muhley, 11 Cal. App. 129.) The alleged efforts by the defendant to conceal certain facts, from which the prosecution has sought to infer a “ consciousness of guilt,” are entirely consistent with the defendant’s innocence, and may not, as a matter of law, be used as the basis for the further inference that the defendant was guilty of the crime charged against him. (People v. Muhley, 11 Cal. App. 129; People v. Montlake, 184 App. Div. 578; Matter of Case, 214 N. Y. 199; People v. Galbo, 218 N. Y. 283; Jewell v. Parr, 13 C. B. 916; People v. Curtis, 217 N. Y. 304; Hendrickson v. People, 10 N. Y. 13.) In the absence of sufficient proof that the piece of cloth came from defendant’s coat, and in the absence of sufficient proof that defendant wore the coat, there was not, on the whole case, sufficient evidence to submit to the jury. (People v. Erit, 237 App. Div. 35; People v. Ledwon, 153 N. Y. 10; People v. Suffern, 267 N. Y. 115; People v. Smith, 84 Misc. Rep. 348.) The trial court committed reversible error in admitting testimony by the defendant’s common-law wife as to statements made by the defendant to her. These statements were privileged communications and were inadmissible in evidence. (Wigmore on Evidence [2d ed.], § 2332 ff.; Greenleaf on Evidence [16th ed.], § 254; Richardson on Evidence [4th ed.], § 508; Stillman v. Stillman, 115 Misc. Rep. 106.)

      Samuel J. Foley, District Attorney (Sol Boneparth, Herman J. Fliederblum, Marlin M. Frank and George Tilzer of counsel), for respondent.
    Although the case against the defendant rests solely on circumstantial evidence, the evidence adduced is more than sufficient to sustain the conviction. The verdict of the jury was not reached as the result of pyramiding inference upon inference. The evidence established, beyond a reasonable doubt, that the piece of cloth, came from the defendant’s coat. (People v. Lytlon, 257 N. Y. 310; People v. Becker, 215 N. Y. 126; People v. Cignarale, 110 N. Y. 23; People v. Trombino, 238 App. Div. 61; People v. Harris, 136 N. Y. 423; People v. Lustig, 206 N. Y. 162; People v. Wolter, 203 N. Y. 484; People v. Smith, 172 N. Y. 210; People v. Gonzalez, 35 N. Y. 49; People v. Enright, 221 App. Div. 26; 248 N. Y. 633; People v. Deitsch, 237 N. Y. 300; People v. Gorski, 236 N. Y. 673; People v. Burt, 51 App. Div. 106.) No error was committed by the trial court in admitting in evidence defendant’s conversation with the woman with whom he resided, for she was not the common-law wife of the defendant. (Pardee v. Mutual Benefit L. I. Co., 148 Misc. Rep. 860; People v. Truck, 170 N.Y. 203.)
   Hubbs, J.

Defendant was indicted on a charge of murder in the first degree, based upon the shooting and killing of one David North on the 1st day of February, 1935. The jury found the defendant guilty of manslaughter in the first degree. The conviction rests upon circumstantial evidence.

The deceased was thirty-two years of age and resided at the southeast corner of One Hundred and Eighty-first street and Grand avenue in the Bronx. South of the apartment house in which deceased lived and immediately adjoining it, is a church yard with a driveway running through the yard east and west. The rear of the church yard faces Davidson avenue and the easterly side of the church yard is made up of a retaining wall with a fence on top of it which wall and fence are thirteen feet above the level of Davidson avenue.

On the evening of February 1, 1935, when the deceased arrived at the apartment house, he was carrying on his person $248.48 in money and various articles of jewelry. He was shot in the lobby of the apartment house which is two steps above the street level. In the vestibule there is a platform four feet long and six feet wide and then thirteen steps lead to another or higher platform. On the south at the head of the thirteen steps is a row of buttons or buzzers. Separating the lobby from the main hall in the building are two French doors which were closed and locked on the night in question. Entran ce is gained either by a key or by having a tenant in an apartment press a button which releases the latch or lock, permitting a visitor to enter without a key. On the first or ground floor, as one enters the main hall, is an apartment occupied by the superintendent of the building and bis wife. The evening of February 1st was cold, the temperature ranging from twenty-one to twenty-two degrees, and there was about six inches of snow on the ground. At about six-thirty p. m. the superintendent of the building entered the house and went to bis apartment on the main floor. At the time, he did not notice anything lying on the floor of the lobby. Very shortly after the deceased entered the lobby, he rang the buzzer or bell in his apartment and his wife answered it. This occurred at about six-thirty p. M. At about six-thirty-five p. m. the superintendent heard a commotion outside which sounded as if several persons were running down steps. He immediately left his apartment, went to the door separating the main hall from the lobby, opened the door and stood on the upper landing in the lobby. He observed two men on the lower landing or platform, fighting or wrestling. One of the men was bending over with his knee almost touching the ground and the other man was standing or bending over him. The superintendent ordered them out, telling them if they wanted to fight to go outside. At that moment he heard a shot, saw smoke in the vestibule and heard the falling of glass. The superintendent ran down the steps to the lower level of the vestibule and at the same time one of the men ran out of the vestibule. North, the deceased, whom the superintendent did not at the time recognize, stood for a moment at the doorway leading to the street with his hand on the right side of his neck. Then he went out, walked about fifty feet south in the direction of the church yard and came back immediately. The superintendent had followed him out of the house and stood in front of the house observing him. When the superintendent got outside, the man who first ran out was not in sight. When North, the deceased, came back to the house, he said to the superintendent, Call the ambulance, I am shot.” It was not until then that the superintendent recognized North as a tenant in the house.

The superintendent, with the help of his wife, who had come out shortly after her husband and was in the vestibule when North, the deceased, came back, assisted North to the superintendent’s apartment. As they were escorting North upstairs to the superintendent’s apartment, the superintendent picked up in the lobby a piece of cloth about ten and one-half inches by twenty and one-half inches, torn from a winter overcoat. He had noticed that the man who ran out and was followed by North wore a dark overcoat. No one other than the superintendent of the building saw the man who shot deceased and he could not identify defendant as the man. The defendant is connected with the crime only through the medium of the piece of overcoat material found in the lobby. That material was described by an expert in the clothing business as the lower part torn from an overcoat, the left vent, and of a material known as blue montagnac and by another witness as chinchilla. The first expert pointed out the similarity between montagnac and chinchilla, the difference being that montagnac is a little wirier. The proprietor of a tailor shop testified that in June, 1934, defendant had left his winter overcoat there for repairs and had taken it from her shop in October, 1934. She described defendant’s overcoat as navy blue in color, as being half-lined and identified the piece of cloth as resembling the cloth in the winter overcoat. It further appeared that the coat from which the piece was taken was a half-lined coat.

The defendant lived, with Agnes McGuirl, claimed to be his common-law wife. She testified that when defendant left his home that morning, he was wearing a winter overcoat, the material of which was like that in the piece found in the vestibule of the apartment house. She further testified that he returned to his home that night about seven-thirty o’clock; that at the time he did not have the blue winter overcoat with him but instead was wearing a gray checkered spring overcoat. She had been at home all day and he had not returned to change his coat nor was the gray overcoat in the house when he left that morning, although it was an overcoat he had previously purchased. When he arrived at his own home he called his so-called common-law wife into a bedroom out of. the hearing of her son who was twelve years of age and said to her that if anybody inquired she was to say that he arrived at home between five and six o’clock that evening and that he did not have a blue overcoat.

An aunt of defendant lived about seven minutes’ walk from the apartment house where deceased was shot, at a distance of about six city blocks south and east of the apartment house. The aunt testified that sometime between six and eight o’clock that night, the defendant came to her home carrying his overcoat on bis arm, and that it was folded so that the inside of the coat showed and that it was a dark overcoat. He said he had been in a fight, that there was blood on his overcoat and that he would call for it the next morning. He left it and went away. The next morning, he called at his aunt’s home at the time wearing a light gray coat and took away the coat which he had left there.

The gun with which deceased was killed was found in the church yard about forty or fifty feet south of the apartment house and about forty feet east of Grand avenue, which would indicate that the man who did the shooting went south in Grand avenue and through the church yard. That would be a course which a man might take in going from the scene of the crime to the home of defendant’s aunt and it was in the direction that the deceased started when he left the apartment house immediately after the shooting.

On this appeal, the defendant contends, first, that there is no proof that the piece of cloth came from a coat belonging to the defendant or that the defendant was the person who wore the coat even if it be assumed that it came from the coat of the man struggling with North. Of course, there is no positive evidence upon those points but positive evidence was produced to the effect that on the morning of the day of the crime, the defendant left his home wearing a blue coat of a material similar to that in the piece found in the hall, that it-was a cold winter day, that at about the time of the crime he appeared at the home of his aunt not wearing his coat but with it folded inside out and on his arm, that he left it there and appeared at his home wearing a light spring overcoat and that the next morning he called at his aunt’s home for the coat he had left there the night before, that he told his wife (so called) to say that he came home between five and six o’clock and if asked to say that he did not have a blue overcoat, that the material in the piece was identified by his own tailor as similar to that in his coat. It is urged by the People that from that evidence the jury was justified in reaching the conclusion that defendant was present at the scene of the crime and that he was the owner of the coat from which the piece was torn and was wearing it on that occasion and that he fired the fatal shot.

While certain facts point to the guilt of defendant and the hypothesis of delinquency or guilt flows naturally from the facts proved, it cannot be said that they are wholly inconsistent with his innocence. He was not seen at the scene of the crime and there is no proof which shows conclusively that he was there. It does not appear how the finger of suspicion came to be pointed at him. On the one hand, we have the finding of a piece of cloth at the scene of the crime like material of which his coat was made. No one testified positively that it was of the same material. We have the finding of the gun with no proof that the defendant ever possessed it. We have proof that the defendant left his home in the morning, wearing a winter overcoat, that he left it at his aunt’s home over night and took it away again the next morning; that he told Agnes McGuirl, with whom he lived, not to admit that he had such an overcoat and that he refused to tell her what became of it. Other than the fact that he had it folded and over his arm, there is no proof that any part of it was missing when he left it at his aunt’s home and there is no proof of the exact hour when he left it at her home which would preclude the possibility that it was left there before the crime was committed. The facts are not inconsistent with his innocence. The material found on the floor of the apartment lobby could have been material from another coat worn by another man. No case has been referred to where a conviction has been sustained in which there was not a closer connection established between commission of the crime and the accused. In each where a conviction has been sustained, there has been a motive with proof of opportunity and identification or direct connection by proof of possession by the defendant of articles belonging to deceased. None of those facts are present in the instant case.

If, to find defendant guilty, it was necessary for the jury to base its finding on inference alone, unsupported by proven facts, the conviction should not be sustained. On the other hand, if inferences that the crime was committed by defendant may be based on proven facts, the conviction may be sustained. The difficulty lies in determining whether the foundation for the inference of guilt does or does not rest upon direct testimony. We have proof that at the scene of the crime was found a piece of overcoat material. Had it been shown that defendant was, at the time, at the scene of the crime, wearing an overcoat of a material apparently similar, failure to produce the coat he was wearing, since opportunity to dispose of it remained with him, would not preclude a conviction. The proof of his presence with the other evidence would permit the inference that the cloth came from his coat,that he was wearing the coat at the time, that it was he who fired the fatal shot, fled from the scene and disposed of the gun. But, to support such inference we must also infer his presence. Again, positive testimony that a piece of material had been torn from his coat, that a similar piece was found at the scene of the crime, that he had been wearing it that day, that he had an opportunity to dispose of the coat, that the one who fired the shot wore a similar coat, would have warranted the inference that he was present at the scene of the crime and was the person who fired the shot. If identification of the gun as one belonging to him had been madej that fact would no doubt have connected him with the crime to the extent that, with all the other facts proven, the jury might have inferred his guilt. As the evidence stands, however, there is neither identification of the defendant nor identification of anything found at or near the scene of the crime as his property.

As previously stated, the facts are not inconsistent with the innocence of the defendant. There is, it seems to us, a break in the chain of evidence however one attempts to reason from the proven facts, which may not be bridged by indulgence in inference. To sustain the conviction we would have to go further than has been gone in previous cases. Whatever may be the inference reasonably to be drawn from failure to testify when ability to deny or explain a course of conduct in a case where people have connected a defendant with a crime by identification, previous association with the deceased, or other similar direct proof, an inference of guilt should not be permitted from failure to testify when no fact has been proven which links the defendant with the crime except by inference. Though in the instant case, by indulging in the same inferences the jury has been permitted to draw, the court may feel that the defendant is guilty, to allow the conviction to stand would violate principles which have stood the test of time and permit convictions where proof of guilt, in the accepted sense, is lacking. That a conviction may rest upon circumstantial evidence alone is not questioned. However, in such cases, the circumstances proved must conform to the test repeatedly stated in various language. In substance it is as stated in People v. Bennett (49 N. Y. 137, 144) and repeatedly reiterated by this court.

“ In determining a question of fact from circumstantial evidence, there are two general rules to be observed.

1. The hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent with them all.

“ 2. The evidence 'must be such as to exclude, to a moral certainty, every hypothesis but that of his guilt of the offense imputed to him, or, in other words, the facts proved must all be consistent with and point to his guilt not only, but they must be inconsistent with his innocence.”

We are also of the opinion that whether the People’s witness Agnes McGuirl (Woltering) was the common-law wife of defendant should have been submitted to the jury as a question of fact, with instructions to disregard her testimony if it found that she was his common-law wife.

The judgments should be reversed and a new trial ordered.

Cbane, Ch. J., Lehman, O’Beien, Loughban, Finch and Rippey, JJ., concur.

Judgments reversed, etc.


author: Crane, Ch. J.

text:
    Dime Savings Bank of Brooklyn, Appellant, v. Beckey Altman, Respondent, Impleaded with Others.

      Argued June 2, 1937;
    decided July 13, 1937.

      Denis M. Hurley and James J. Manogue for appellant.
    The decision of the Appellate Division reversing the judgment entered upon the direction of a verdict was prejudicial and erroneous. (Prudential Sav. Bank v. Madewell Homes Corp., 241 App. Div. 771; Wallace v. Berdell, 101 N. Y. 13; Fagan v. McDonnell, 115 App. Div. 89; 191 N. Y. 515; Vogel v. Nachemson, 137 App. Div. 200; 199 N. Y. 535; Sullivan v. Rosson, 223 N. Y. 217; Thomson v. Erskine, 36 Misc. Rep. 202.) The mortgage contains a receivership clause and an assignment of rents clause, each of which constitutes a distinct and exclusive means of extending the lien of the mortgage to the rents after default. (Schwarz v. Alexander, 178 App. Div. 641; Swan v. Inderlied, 187 N. Y. 372; Bank of Manhattan Trust Co. v. 571 Park Ave. Corp., 263 N. Y. 57; Patterson v. Meyerhofer, 204 N. Y. 96; Katz v. Goodman, 238 N. Y. Supp. 700; Thomson v. Erskine, 36 Misc. Rep. 202; Sullivan v. Rosson, 166 App. Div. 68; 223 N. Y. 217; Post v. Dorr, 4 Edw. Ch. 412; Hollenbeck v. Donnell, 94 N. Y. 342; Fletcher v. Krupp, 35 App. Div. 586; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285; Monica Realty Corp. v. 122-5th Ave. Corp., 264 N. Y. 52; Holmes v. Gravenhorst, 263 N. Y. 148.)

      Bobert Abelow and Matthew Lilling for respondent.
    The entry of the mortgagee into possession of the premises was unlawful; lawful entry is a condition precedent to the right to rents. (Herrmann v. Cabinet Land Co., 217 N. Y. 526; Becker v. McCrea, 193 N. Y. 423; Howell v. Leavitt, 95 N. Y. 617; Deutsch v. Haab, 135 App. Div. 756; Barson v. Mulligan, 191 N. Y. 306; Sullivan v. Rosson, 223 N. Y. 217; Kellogg v. Kellogg, 6 Barb. 116; Cooper v. Slower, 9 Johns. 331; Abrams v. Thompson, 251 N. Y. 79; Prudence Co. v. 160 West Seventy-Third St. Corp., 260 N. Y. 205; Holmes v. Gravenhorst, 263 N. Y. 148; Freedman’s Sav. & Trust Co. v. Shepherd, 127 U. S. 494; Matter of Banner, 149 Fed. Rep. 936.) Considerations of public policy should forbid the mortgagee from obtaining possession without an agreement from the owner or without foreclosure and sale. (Teal v. Walker, 111 U. S. 242; Prudential Ins. Co. v. Liberdar

      Holding Corp., 74 Fed. Rep. [2d] 50; Orr v. Bennet, 135 Minn. 443; Barson v. Mulligan, 191 N. Y. 306.) The owner is entitled to recover substantial damages for the unlawful entry. (Sheehan v. Spring Valley Wood Prod. Corp., 194 App. Div. 119; Miller v. Clary, 210 N. Y. 127; Faulkner V. Cody, 45 Misc. Rep. 64; Marvin v. Lewis, 61 Barb. 49; Homestead Co. v. Valley R. R., 17 Wall. [U. S.] 153; Vandevoort v. Gould, 36 N. Y. 639; Jackson v. Wood, 24 Wend. 443; City of Syracuse v. Hogan, 234 N. Y. 457; Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458; Goodtitle v. Tombs, 3 Wils. K. B. 117; Willis v. McKinnon, 178 N. Y. 451; Bunke v. New York Tel. Co., 110 App. Div. 241; 188 N. Y. 600.)
   Crane, Ch. J.

Appellant brought action to foreclose a mortgage in the sum of $4,000 on premises located in Brooklyn, owned by respondent. An answer was interposed by respondent setting up, in addition to a general denial, two counterclaims, each demanding judgment for $3,150. These counterclaims are referred to by respondent as one in ejectment, and one for trespass for mesne profits.

The facts giving rise to the counterclaims are these: The respondent took the premises in question subject to the mortgage to appellant. That mortgage contained the clause: “ That the holder of this mortgage, in any action to foreclose it, shall be entitled (without notice and without regard to the adequacy of any security for the debt), to the appointment of a receiver of the rents and profits of said premises; and in the event of any default in paying said principal or interest, such rents and profits are hereby assigned to the holder of this mortgage as further security for the payment of said indebtedness.” In February, 1934, respondent failed to pay the interest due, amounting to $43.97. Taxes due from May, 1933, amounting to $204.50, and water rents in the sum of $16.50 had not been paid.

Appellant, attempting to take advantage of the assignment of rents’ provision in the mortgage, directed a letter to respondent and to the tenants on the mortgaged premises on April 11,1934, notifying them that it thereby entered upon and took possession of the premises, and directing tenants to pay all rents, issues and profits to it, or its representative. Respondent resisted the action of appellant, protesting by letter and directing it to cease collecting rents. She also instituted summary proceedings against the tenants who had been paying rent to the appellant. Six weeks after the appellant’s entry upon the premises, this action to foreclose the mortgage was started.

Respondent moved for an order framing issues to be tried by a jury, and appellant made a cross-motion for summary judgment. The Special Term heard both motions, denying the motion to frame the issues and granting the motion for summary judgment. Respondent appealed and the Appellate Division reversed both orders. In a per curiam opinion it held that the acts of plaintiff were illegal and that the assignment of rents did not vest it with possession at the time of default. The court further stated: “Inasmuch, however, as the default in the terms of the mortgage is not disputed, the rents in any event belonged to the respondent (plaintiff) and damages, if any, resulting from the wrongful withholding of possession and trespass, must be predicated on elements other than the collection of such rents and their application to the reduction of the indebtedness.” (246 App. Div. 823.)

Thereafter issues were framed for the trial by the Appellate Division in the following form:

“1. Did the defendant, Beckey Altman, sustain any damages by reason of the admitted fact that the plaintiff, The Dime Savings Bank of Brooklyn, took possession of her property on April 11,1934, and withheld possession thereof from said owner, Beckey Altman?
“ 2. If the defendant, Beckey Altman, did sustain any damages, state the amount thereof.”

On January 24, 1936, appellant notified respondent that it gave up possession.

A trial was had before Mr.. Justice Hooley and a jury. In February, 1936, just prior to this trial, a receiver was appointed. On the trial respondent attempted to prove the amount of rents collected from the tenants during the period from April 11, 1934, to January 24, 1936, but the court rejected such proof, feeling that it was bound by the decision of the Appellate Division that damages must be predicated upon elements other than rents collected. Respondent also attempted to prove legal expenses in fighting for possession of the property. This was also rejected as an improper element of damage. Respondent then sought to prove by an expert the value of the use and occupation of the premises, and objection to this was sustained. No other evidence was offered and the court directed the jury to answer the first question “ Yes ” and the second question Six cents.” Respondent moved for a direction that she be entitled to recover costs and this was denied.

On March 6, 1936, the issues raised in the foreclosure came on for trial at Special Term and judgment was granted in favor of plaintiff for the relief demanded in the complaint. The judgment of foreclosure and sale embodies a judgment entered on the jury’s verdict. On April 28,1936, respondent appealed from that part of the judgment of foreclosure and sale which awarded her six cents upon the counterclaims and from the order denying her costs.

The Appellate Division reversed that part of the judgment appealed from and ordered a new trial upon the framed issues. It dismissed the appeal from the order refusing to allow costs. In its opinion, it held that the ruling that defendant could not recover for legal expenses was correct, but that defendant was entitled to recover damages for the trespass. It did not state any rule of damage applicable. “ The latter ruling of the trial justice,” it said, was warranted by an inadvertent statement by this court in the memorandum on the appeal from the order granting the motion for summary judgment.” “ Since plaintiff was not entitled to the rents and was not given the right to enter, it surely was guilty of a trespass and is liable for the damages during the period of its unlawful possession.” (249 App. Div. 174, 176, 177.)

Appellant appeals here from the order granting a new trial, giving the required stipulation for judgment absolute. The judgment entered upon the verdict was in favor of respondent for six. cents, and appellant took no appeal from that judgment. Judgment in favor of defendant follows no matter what this court decides. The only question is, whether respondent here is entitled to nominal damages or substantial damages. Whether a stipulation for judgment absolute were given or not, the only question open on the new trial would be the question of damages.

The parties have directed argument here to the question whether appellant is liable for any damage at all, i. e., whether it had the right to enter into possession and collect the rents. That question is not open on this appeal. In the judgment entered after trial, it was decided that appellant was liable, but that respondent had not suffered any substantial damage. Appellant took no appeal from that judgment. The only question open to it is that the judgment so entered was correct and that the reversal of that judgment and the order granting a new trial is erroneous.

The Appellate Division failed to lay down any rule of damage applicable in this case for the guidance of the trial court. As stated, respondent attempted to prove three things: (1) amount of rents collected; (2) legal expenses to which she was put; (3) the reasonable value of the use and occupation. She offered no other proof of damage. There is no evidence in the record as to the disposition of the rents collected by appellant, although there is an intimation in its brief that some expenditures were made for upkeep and repairs. It is conceded that there was a default by respondent, and an entry by the mortgagee without legal right and a collection of rents by it. An accounting as to these rents will, of course, be made when the foreclosure action is finally disposed of.

In an action to recover mesne profits the general rule is that the compensation is to be measured by the annual income of the land during the time possession is withheld. (Sedgwick on Damages, § 908.) Section 990 of the Civil Practice Act provides: In an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property. Those damages include the rents and profits or the value of the use and occupation of the property where either can be recovered legally by the plaintiff.” Section 1011 provides that in an action to recover real property or the possession thereof, plaintiff is entitled to recover as damages the rents and profits or the value of the use and occupation, and Where permanent improvements have been made in good faith by the defendant or those under whom he claims, while holding, under color of title, adversely to the plaintiff, the value thereof must be allowed to the defendant in reduction of the damages of the plaintiff, but not beyond the amount of those damages.” “ The defendant need of course return only profits in the ordinary sense — that is, the gross receipts, less expenses.” (Sedgwick on Damages, § 909.)

In the case at bar there would seem to be no question whether rents and profits received or value of use and occupation is the proper measure of recovery. Had appellant seized the property and then made leases with various individuals, there might be some question that the reasonable value of the use of the premises exceeded the rents received. Here, however, respondent made the leases and appellant apparently collected the rents called for by those leases. The rents collected would be the proper damages recoverable. Appellant received these rents tmder what it believed to be a proper assignment to it, and took them under claim of right. Its entry was peaceable, not forceful. Respondent was in default in her obligations to appellant. It would seem that respondent would be entitled to recover the net rents collected, i. e., the gross rents less the necessary costs of taxes and maintenance, if any, paid by appellant. This would properly include costs of upkeep and necessary repairs, but would not include the expenses of a collecting agent or other representative of appellant.

The measure of damage was stated in Wallace v. Berdell (101 N. Y. 13).

In Woodhull v. Rosenthal (61 N. Y. 394) the rule of damages is stated by Dwight, Commissioner, to be the rental value of the premises recovered; and the whole subject is provided for by the Code of Civil Procedure, which provides (§ 1496) that in an action to recover real property or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property, and section 1497, that ‘those damages include the rents and profits or the value of the use and occupation of the property where either can be legally recovered,’ and section 1531 uses the same language as to the amount of damages allowed in ejectment, viz.: ‘ The rents and profits or the value of the use and occupation of the real property recovered,’ so this may be regarded as the legislative definition of the ancient technical term 1 mesne profits ’ used in the opinion. The term ‘ value of the rents ’ employed in the order, does not essentially depart from this definition.

“ It would be manifestly unjust to confine the owner of the property withheld from him to the rents actually received by the party required to make restitution. The owner should have either those rents, or the rental value, as may be just under the circumstances. In either case, payments necessarily made for taxes and ordinary repairs would be involved in ascertaining the rents received or the rental value. The mesne profits consist -of the net rents after deducting all necessary repairs and taxes, or the net rental value, or the value of the use and occupation. That is all of which the party from whom the possession has been withheld has been deprived. For this he should be made whole, and he should not suffer from any mismanagement, negligence or improvident expenditure by the party in possession. On the other hand he should not be relieved from any necessary diminution of the gross rents or rental value, or gross value of the use and occupation, to which he would have been himself subjected had he not been disturbed in his possession ” (p. 15).

The same rule is followed in Fagan v. McDonnell (115 App. Div. 89; affd., 191 N. Y. 515). “ The statute intends that the plaintiff shall have indemnity (see Wallace v. Berdell, 101 N. Y. 13), and we think that, under the circumstances disclosed, the plaintiff will be fully indemnified if the value of the use and occupation is determined by deducting the actual expenses shown to have been incurred from the gross rental value of the property, which was more than the actual receipts ” (p. 97). Here the court allowed items for repairs, interest on the mortgage (mortgagee was third party), services for janitor, etc. See, also, Holly v. Gibbons (177 N. Y. 401, 402), where it was stated: Such restoration (provision for restitution of real property) should be accompanied by an accounting with respect' to the rents and profits, after proper deductions for taxes and ordinary repairs. (Murray v. Berdell, 98 N. Y. 480; Wallace v. Berdell, 101 N. Y. 13.) ”

Respondent claims that she can recover, in addition, interest on the sums collected, reasonable counsel fees, and those damages that a jury might assess for unlawful trespass. Here there was no force, nor any facts that would warrant aggravated damages. There was no proof offered of any waste or damage to the freehold.

It is suggested that even as to the rents collected, respondent has not been damaged since these rents will be applied on the mortgage indebtedness. Since respondent took the premises only subject to the mortgage, without assuming the mortgage, she would not be hable for a deficiency. Even if she were liable on the mortgage, a deficiency judgment might not be allowed under the provisions of the moratorium statute. The law of the case is that appellant is a trespasser, and had no right to collect the rents. Respondent is, therefore, damaged to the extent of any rents collected in excess of the amounts properly deductible. It does not appear in this record what those amounts are. The new trial was properly ordered for the purpose of ascertaining how much rent was collected between April 11, 1934, and January 24, 1936, or whenever appellant surrendered possession.

Thus far we have considered the case from the standpoint that appellant had no right to enter into possession and collect the rents under the assignment clause in the mortgage. As before stated, such is the law of this case, so that we may not consider whether appellant was in fact justified in so interpreting that provision in the mortgage. The case of Sullivan v. Bosson (223 N. Y. 217) is cited by the Appellate Division as authority for holding that the mortgagee had no right to seize the rents. Construing a similar clause, this court said: “ The mortgage as it relates to the real property therein described is not an absolute conveyance, but a pledge of property as security for the debt. It would appear that the assignment of rent in this case is of the like character as the conveyance of real property and not intended as an absolute transfer thereof. * * * A senior mortgagee desiring to obtain such rents to apply upon bis mortgage should actually possess himself of them or of the right to them through some mutual arrangement therefor, or he should make application to the court to have the receivership extended for his benefit ” (p. 224). The court quoted from Matter of Banner (149 Fed. Rep. 936) the following language: “ That a mortgagee out of possession can, upon the instant of a default in mortgage interest, become to all intents a landlord of the mortgaged building, seems to me something not to be encouraged ” (p. 939).

What procedure the mortgagee should follow to obtain the rents when he does not desire a receivership we may leave for discussion at a later day. Apparently in some jurisdictions a formal demand made of the mortgagor and a refusal have been accepted as sufficient to justify a collection of the rents and income. (Freedman’s Sav. & Trust Co. v. Shepherd, 127 U. S. 494, 502.)

The order should be affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts.

O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur; Lehman, J., concurs in result.

Ordered accordingly.