author: Fuld, J.

text:
    Max Mencher, Appellant and Respondent, v. Adolph J. Chesley, Respondent and Appellant.
    Argued May 28, 1947;
    decided October 16, 1947.

      Lyman Stansky for plaintiff, appellant and respondent.
    I. The publication is libelous per se because it exposes plaintiff to public hatred, ridicule and contempt by falsely accusing him of communist affiliations and sympathies that allegedly caused him to obstruct the proper functioning of the OPA of which he was an official. (Levy v. Gelber, 175 Misc. 746; Boudin v. Tishman, 264 App. Div. 842; Balabanoff v. Hearst Consolidated Publications, Inc., 294 N. Y. 351; Wright v. Farm Journal, Inc., 158 F. 2d 976; Katapodis v. Brooklyn Spectator, Inc., 287 N. Y. 17; Cooney v. Legg, 34 F. Supp. 531; People v. Ruthernberg, 299 Mich. 315; State v. Boloff, 138 Ore. 568; Kaminsky v. American Newspapers, Inc., 283 N. Y. 748; Bennet v. Commercial Advertiser Assn., 230 N. Y. 125; Lunn v. Littauer, 187 App. Div. 808; More v. Bennett, 48 N. Y. 472; Moore v. Francis, 121 N. Y. 199; Klaw v. New York Press Co., 137 App. Div. 686; Hoey v. New Fork Times Co., 138 App. Div. 149; Hayes v. Van Gelder, 231 App. Div. 663; Grant v. Reader’s Digest Assn., Inc., 151 F. 2d 733, 326 U. S. 797; Sanderson v. Caldwell, 45 N. Y. 398.) II. Where an article is susceptible of two interpretations, one of which renders it libelous per se, and the other of which renders it not libelous per se, the complaint should not be dismissed on motion. The sense of the words complained of becomes a question of fact for determination by the jury. (Balabanoff v. Hearst Consolidated Publications, Inc., 294 N. Y. 351; Hoey v. New York Times Co., 138 App. Div. 149; Klaw v. New York Press Co., Ltd., 137 App. Div. 686; Foley v. Press Publishing Co., 226 App. Div. 535; Neaton v. Lewis Apparel Stores, 267 App. Div. 728; Klemin v. Smith, 250 App. Div. 269; Jacobs v. Herlands, 259 App. Div. 823.) III. Paragraphs numbered 13, 14, 15, 16, 17, 19, 20, 21, 23, 24, 25, 29 and 33 are a proper part of the complaint. (Balabanoff v. Hearst Consolidated Publications, Inc., 294 N. Y. 351; Zirn v. Bradley, 269 App. Div. 961.)

      Ernest P. Seelman and James S. Brown, Jr., for defendant, respondent and appellant.
    I. The complaint is insufficient in that it attempts to make nonlibelous words actionable by pleading extrinsic facts. In the absence of a plea of special damage the complaint should be dismissed. (O’Connell v. Press Publishing Co., 214 N. Y. 352; Miller v. Maxwell, 16 Wend. 9; Seelman on Law of Libel & Slander, p. 134.) II. The present case is clearly distinguishable from the cases heretofore decided that it is libelous to charge a lawyer with being a communist or a member or legislative representative of the Communist Party. III. To call a man a communist or a member of the Communist Party should not be deemed a libel per se. (Garriga v. Richfield, 174 Misc. 315; Moffatt v. Cauldwell, 3 Hun 26; Martin v. Press Publishing Co., 93 App. Div. 531; Shelby v. Sun Printing & Pub. Assn., 38 Hun 474; Ferrand v. Brooklyn

      Daily Eagle, N. Y. L. J., Dec. 5, 1933, 241 App. Div. 752; Spector v. News Syndicate Co., 280 N. Y. 346; Foot v. Pitt, 83 App. Div. 76.) IV. The entire statement of defendant on its face was fair criticism and comment on a matter of public concern and so nonaetionable. (Hoeppner v. Dunkirk Printing Co., 254 N. Y. 95; Hills v. Press Co., 122 Misc. 212, 214 App. Div. 752; Tanzer v. Crowley Publishing Corp., 240 App. Div. 203; Hall v. Binghamton Press Co., 263 App. Div. 403, 296 N. Y. 714.) V. The four paragraphs, 24, 25, 29 and 33, which the Special Term and the Appellate Division refused to strike out, should have been stricken. VI. The Appellate Division properly struck out paragraphs 13 ,14, 15, 16, 17, 19, 20, 21 and 23.
   Fuld, J.

In August, 1944, following his dismissal as Chairman of the War Price and Rationing Board for the Borough of The Bronx, defendant issued a statement to the press in the course of which he made certain remarks about plaintiff, who was then in charge of the Information Division of the Regional Office of Price Administration. Claiming that the statement falsely charges him (1) with being a communist, having communist affiliations and sympathies, and (2) with having improperly and unfaithfully performed his official duties, plaintiff sues for libel.

Whether or no the complaint states a cause of action is the problem presented by the first question certified by the Appellate Division upon defendant’s appeal; the courts below have held that it does, and an affirmance must follow unless the publication is without defamatory import and, therefore, non-libelous as matter of law. (Balabanoff v. Hearst Consolidated Publications, 294 N. Y. 351, 356; Katapodis v. Brooklyn Spectator, Inc., 287 N. Y. 17, 21.) We must, accordingly, first ascertain whether the statement permits the construction urged and, if it does, whether it is actionable.

In his statement — a copy of which was sent to plaintiff’s superiors — defendant asserts in substance that he had several times been summarily “ fired ” on flimsy and unfounded charges, that the ostensible reason for his dismissal was that “ a number of units of a political pressure group, a left-wing organization ” — which had sought to run various other defense organizations for its own political advantage — had been thwarted by defendant in their efforts to *1 use the Price Panels for their own selfish political purposes,” and had accordingly complained to defendant’s superiors about his “ non-cooperatian.” After answering this charge, the statement continues with a paragraph which forms the gist of the libel action: “ I have never been in politics and am not up" on that topic, so I can’t figure it all out., Maybe the people can. I hope so, I do know that the publicity department of the Regional Office, which started this controversy and which I believe instigated the attack, is directed by Max Mencher, former Daily Worker employee, wizard public relations and stunt man of the Office of War Information, who is for the time being on the OPA payroll. He was campaign manager for Isidore Nagler, Communist candidate for Bronx Borough President in a recent election. Maybe that will help to add up the score.”

It has long been the" rule that words charged to be defamatory are to be taken in their natural meaning and that the courts will not strain to interpret them in their mildest and most inoffensive sense to hold them nonlibelous. (See, e.g., Townsend v. Hughes, 2 Mod. 150, 159; Turrill v. Dolloway, 17 Wend. 426, 428; Cafferty v. Southern Tier Publishing Co., 226 N. Y. 87, 93.) While in the present case there was no direct charge that plaintiff was a communist or had communist affiliations or that he had misused his public office, the statement, read against the background of its issuance, under the circumstances of its publication, is certainly susceptible of such a construction. As to the first, the assertion that plaintiff had formerly been employed by the Haily Worker, generally known to be the official publication of the Communist Party, and that he had acted as campaign manager for a communist 'seeking public office, may reasonably be understood as a charge that plaintiff was either a communist or that he co-operated in communistic activities and associated with communist figures. And, as to the second aspect, the statement — in reciting that plaintiff had been involved in an effort to remove defendant from public office because he, defendant, had opposed certain units of a political pressure group,” which, for their own selfish political advantage, sought to dominate the OPA — is capable of being read as a charge that plaintiff used his official authority to assist outside groups in their endeavor to capture control of a public agency for their own private political purposes. We do not — indeed, we may not — determine that that is the only meaning to be placed upon the words used; to do so would encroach upon the province of the jury. It is enough that reasonable basis exists for such an interpretation. Once that is decided, it becomes the jury’s function to say whether that was the sense in which the words were likely to be understood by the ordinary and average reader.

A charge that a public official misused his position — was guilty, in effect, of malfeasance in office — is of course defamatory. Whether it is likewise libelous to characterize one as communist or as communist sympathizer is the prime question for decision.

A writing is defamatory — that is, actionable without allegation or proof of special damage — if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turpitude to him. (Katapodis v. Brooklyn Spectator, Inc., supra, at p. 20; see, also, Peck v. Tribune Co., 214 U. S. 185, 189-190; Grant v. Reader’s Digest Assn., 151 F. 2d 733,73A-735, certiorari denied 326 U. S. 797.)

Whether language has that tendency depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place. (See Harrison v. Thornborough, 10 Mod. 196, 197; Sweeney v. Schenectady Union Pub. Co., 122 F. 2d 288, 290, affd. 316 U. S. 642; Sydney v. Macfadden Newspaper Pub. Co., 242 N. Y. 208, 214; see, also, Gatley oh Libel and Slander [3d ed.], p. 22.)

Today and in the recent past — whether or not communism stands for violent overthrow of government (cf. Bridges v. Wixon, 326 U. S. 135, particularly at p. 168 [Stone, Oh. J., dissenting] ) -— it is undeniable that for communism and its adherents and sympathizers, there has been widespread public aversion. Evidence of that antipathy is found not only in public opinion polls arid in other studies (see, e.g., Riesman, Democracy and Defamation II, 42 Col. L. Rev., 1304-1305, and publications there cited in notes 91, 92, 93, 97), but also in legislation and executive orders enacted and promulgated during the past several years which subject communists and their affiliates and sympathizers to loss of public office and private position and, in some cases, even to deportation proceedings. (See, e.g., Executive Order [1947], No. 9835, part V, par. 2, subd. f; part III, par. 3 [12 Federal Register 1935, 1938] ; Selective Training and Service Act of 1940, § 8, subd. [i], in force through 1945, re-enacted June 29,1946 [IT. S. Code, tit. 50, Appendix, § 308, subd. (i)]; Emergency Relief Appropriation Act of 1943, § 9, subd. [f], § 11, subd. [b], [IT. S. Code, tit. 15, §§ 721-728]; cf. Order of IT. S. Civil Service Commission, dated May 29, 1940; see, also, Gibbons, Recent Legislative Attemps to Curb Subversive Activities in the United States, 10 Geo. Wash. L. Rev. p. 104, p. 107, note 9, p. 108, note 10, p. 123, note 79.) This being so, it is no answer that communists may function as a recognized political party.

Accordingly, having regard for the current public attitude — transitory though it may be — the courts have held that a false charge that one is a communist is basis for a libel action. (See Kaminsky v. American Newspapers, Inc., 283 N. Y. 748; Boudin v. Tishman, 264 App. Div. 842; Levy v. Gelber, 175 Misc. 746; Spanel v. Pegler, 160 F. 2d 619; Wright v. Farm Journal, 158 F. 2d 977; Grant v. Reader’s Digest Assn., supra; Gallagher v. Chavalas, 48 Cal. App. 2d 52; Toomey v. Jones, 124 Okla. 167.) And it is of little moment whether the statement describes plaintiff as a communist or as one having communistic sympathies and affiliations, for, as has been observed,11 any difference is one of degree only ”. (Grant v. Reader’s Digest Assn., supra, p. 735, per Learned Hand, C. J.)

Defendant’s statement about plaintiff consists not of any comment or criticism based upon facts accurately stated but of unequivocal and bald allegations of fact which the complaint stamps as false. Consequently, no question of fair comment is here involved. (See Hoeppner v. Dunkirk Printing Co., 254 N. Y. 95, 105, 106; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N. Y. 106, 118; Kaminsky v. American Newspapers, Inc., supra.) And, by the same token, none of free speech, for, as has been said, “ Free speech and free press are an established part of pur democratic institutions, but both are limited by the law of slander and libel. By word and by pen the official record and pronouncements of a public man may be discussed and criticised, condemned and even vituperated, but the facts cannot be perverted with impunity.” (See Caldwell v. Crowell-Collier Pub. Co., 161 F. 2d 333, 336; see, also, Sweeney v. Schenectady Union Pub. Co., supra, at p. 291.)

Since, then, we may not say that the imputation of communism is as a matter of law not libelous, the jury may find the statement defamatory in that aspect as well as in the other — that plaintiff made improper use of his office. In upholding the complaint, however, we do no more than determine that it presents an issue of fact for a jury to decide. (Balabanoff v. Hearst Consolidated Publications, supra, at p. 356; Katapodis v. Brooklyn Spectator, Inc., supra, at p. 21; Sweeney v. United Feature Syndicate, 129 F. 2d 904, 907.) As this court wrote in the Katapodis case (supra), p. 21, “ We think it is not for us to say that the publication of such a piece of news did-not hurt the plaintiffs by tending to deprive them of friendly association with a' considerable number of respectable members of their community. We believe it is the right of the plaintiffs to have a jury say whether the false words did, in fact, so defame them.”

We are thus brought to a consideration of the remaining certified questions which revolve about relief sought by defendant in reliance upon rule 103 of the Buies of Civil Practice. One — the second question certified upon defendant’s appeal — concerns the propriety of the order at Special Term insofar as it denied defendant’s motion to strike several paragraphs from the complaint. The other — certified upon plaintiff’s appeal — involves the propriety of the order of the Appellate Division insofar as it struck out a number of other paragraphs. The latter question we answer in the affirmative, for the Appellate Division’s disposition was correct. The remaining question, however, we cannot answer. The courts below had discretion to deny the motion, without passing upon the questions of law asserted, and this court has no power to review the exercise of such discretion. (Cf. Braunworth v. Braunworth, 285 N. Y. 151.) In such a case, lack of specification by, the Appellate Division, as provided in. section 603 of the Civil Practicó Act, that its decision was based solely upon a question of law, compels us to presume that its disposition was dictated by an exercise of discretion. That being so, it follows that there is no decisive question of law presented for our review and that the appeal from this portion of the order must be dismissed. (Langan v. First Trust and Deposit Co., 296 N. Y. 60.)

The appeal from that portion of the order which affirms the denial of defendant’s motion under rule 103 should be dismissed ; otherwise, the order should be affirmed, with costs to plaintiff. The question certified upon plaintiff’s appeal and the first question certified upon defendant’s appeal are answered in the affirmative, the second question certified upon defendant’s appeal is not answered.

Loughban, Ch. J., Lewis, Conway, Desmond, Thaoheb and Dye, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frances Leonard, an Infant, by Harry Leonard, Her Guardian ad Litem, Appellant, v. Home Owners’ Loan Corporation, et al., Defendants, and New York Telephone Company, Respondent. (Action No. 1.) Harry Leonard, Appellant, v. Home Owners’ Loan Corporation, et al., Defendants, and New York Telephone Company, Respondent. (Action No. 2.)
    Argued October 2, 1947;
    decided October 17, 1947.

      Morris Simon for appellants.

      Frcmk L. Wiswall and Carl 0. Olson for respondent.
   Per Curiam.

In its charge the trial court instructed the jury that a verdict could not be rendered against defendant New York Telephone Company unless it was shown that that defendant “ caused or contributed to cause ” the brick — over which the infant plaintiff tripped — to fall in the alleyway. No objection having been made by plaintiffs, that charge became the law of the case. Since the evidence thus rendered vital was not adduced, we have no alternative hut to affirm the determination dismissing the complaint. (See e.g. Buckin v. Long Island R. R. Co., 286 N. Y. 146, 149.) We pass on no other question. The judgments should be affirmed, with costs.

Lotjghean, Oh. J., Lewis, Conway, Desmond, Thaoheb, Dye and Ftjld, JJ., concur.

Judgments affirmed.


text:
    In the Matter of William Thompson, Appellant, against Jack Valentine et al., Constituting the Board of Elections of Wayne County, et al., Respondents.
    Argued October 27, 1947;
    decided October 27, 1947.

      Victor Levine for appellant.
    The remedy sought in this proceeding was a proper one. (Matter of McCabe v. Voorhis, 243 N. Y. 401; Frank v. Eaton, 225 App. Div. 149; Matter of Foote v. Lee, 175 Misc. 60; Matter of Layman, 164 Misc. 558.)

      John W. Brandt for Town Clerk of the Town of Butler, respondent.
    The Supreme Court has no jurisdiction to entertain this proceeding in its present form. (Alcoholic Beverage Control Law, § 144; Election Law, § 142; § 330, subd. 1; Civ. Prac. Act, § 1285, subd. 4; Matter of Keough, 179 Misc. 1; Schieffelin v. Britt, 150 App. Div. 568.)
   Per Curiam.

Appellant was, under the provisions of subdivision 1 of section 330 of the Election Law, as made applicable to this proceeding by section 144 of the Alcoholic Beverage Control Law, required to bring this proceeding within fourteen days after the last date for filing the local option petition. Since this present proceeding was not begun within that period, it should have been dismissed at Special Term. We pass on no other question.

The order should be affirmed, without costs.

Lotjghran, Ch. J., Lewis, Desmond, Thaoheb, Dye and Fuld, JJ., concur; Conway, J., taking no part.

Order affirmed.


author: Desmond, J.

text:
    In the Matter of Jhan Robbins et al., Appellants and Respondents, against Ada Chamberlain et al., Comprising the Board of Inspectors of Elections of the 16th Election District of the Town of Orangetown, Rockland County, Respondents and Appellants. In the Matter of Robert P. Allen et al., Appellants and Respondents, against Ada Chamberlain et al., Comprising the Board of Inspectors of Elections of the 16th Election District of the Town of Orangetown, Rockland County, Respondents and Appellants. In the Matter of Ethel J. Arnstein et al., Appellants and Respondents, against Lucy Engelhardt et al., Comprising the Board of Inspectors of Elections of the 13th Election District of the Town of Orangetown, Rockland County, Respondents and Appellants. In the Matter of Esther M. Bess et al., Appellants and Respondents, against Philip Klee et al., Comprising the Board of Inspectors of Elections of the 3d Election District of the Town of Orangetown, Rockland County, Respondents and Appellants.
    Argued October 30, 1947;
    decided October 30, 1947.

      Joseph L. Roesoh for Jhan Robbins and another, petitioners, appellants and respondents.
    I. The Inspectors of Elections have acted illegally in excluding petitioners’ names from the registration roll. (Matter of Blankford, 241 N. Y. 180; Matter of Barry, 164 N. Y. 18; Matter of Seld [Seigfred], 268 App. Div. 235; Matter of Garvey, 147 N. Y. 117.) II. The constitutional rights of the petitioners will be infringed unless their names be included on the registration roll and their right to vote be safeguarded. (Election Law, § 151; N. Y. Const., art. II, § 3; Matter of Watermeyer v. Mitchell, 275 N. Y. 73.)

      Arthur Garfield 'Hays, Elias Messing and Milton M. Ga/rrow for Esther M. Bess and others, petitioners, appellants and respondents.
    I. Constitutional and statutory requirements have been satisfied. II. Petitioners are residents of the town of Orangetown. (Silvey v. Lindsay, 107 N. Y. 55; Matter of Goodman, 146 N. Y. 284; Matter of Garvey, 147 N. Y. 117; Matter of Blankford, 241 N. Y. 180; Matter of Watermeyer v. Mitchell, 275 N. Y. 73; Matter of Barry, 164 N. Y. 18.)

      David R. Moses, Morton Lexow and William H. Jenkins, Jr., for Inspectors of Elections, respondents and appellants.
    I. To be qualified to vote under the constitutional and statutory provisions within a certain district, the applicant must be domiciled therein. (Matter of Rooney, 172 App. Div. 274; People v. Cady, 143 N. Y. 100.) II. Where a person occupies an abode which is predicated and dependent upon his attendance at a seminary or other place of learning, he neither loses the domicile that he had prior to such acquisition nor does he gain a new one. (Matter of Watermeyer v. Mitchell, 275 N. Y. 73; Matter of Geis, 162 Misc. 398; Matter of Foster, 123 Misc. 852; Matter of Gardiner, 183 App. Div. 491.) III. Since the status of the wives and other members of their families are derivative they gain no voting domicile in occupying the abode furnished by the student-veterans in the Federal housing project. (People v. Cady, 143 N. Y. 100; Matter of Hirschhorn v. Ahearn, 230 App. Div. 533; Matter of Hoffman v. Bachman, 187 Misc. 799.) IV. The very fact that the Legislature has extended special privileges relative to registration and voting to inmates of veterans’ hospitals and their wives and families which are' more liberal than those extended to students and their wives and families demonstrates that their wives here cannot have the privilege they seek, without further action on the part of the Legislature.
   Desmond, J.

Section 4 of article II of the State Constitution and section 151 of the Election Law say that, for purposes of registering and voting, no person shall be deemed to have gained or lost a residence “ by reason of his presence or absence * * * while a student of any seminary of learning ”. Those enactments have been construed by the courts, and held to mean at least this: that a student who moves into residence on the campus of an educational institution does not, without more, accomplish a change of voting residence (Matter of Garvey, 147 N. Y. 117; Matter of Barry, 164 N. Y. 18; Matter of Blankford, 241 N. Y. 180; Matter of Watermeyer v. Mitchell, 275 N. Y. 73). But the quoted constitutional and statutory enactment “ disqualifies no one; confers no rights upon any one.” (Silvey v. Lindsay, 107 N. Y. 55, 61.) It means only that such presence at a seat of learning is not a test of a right to vote, and is not to be so regarded. The person offering to vote must find the requisite qualifications elsewhere.” (Same citation.) No case (except the present ones) goes so far as to hold that a married student, moving with his wife from their former residence to one nearer his studies, automatically loses his right to vote by force of the constitutional-statutory edict.

The petitioners here, whose votes have been successfully challenged in the election districts in Rockland County wherein they now reside, occupy apartments at a housing development called “ Shanks Village ”. Those buildings were formerly part of the wartime Camp Shanks, but after the war they came under the control of the Federal Public Housing Administrator who leased them to Columbia University or, at least, put them under the control of that university. The agreement between Columbia and the administration authorizes the former to rent the apartments to students only, and only to such students as are war veterans. All the petitioners are such students or their wives or relatives, all occupy these apartments as separate family domiciles, and each male petitioner is actually the head of a family unit, consisting in most cases of himself and his wife. (Anomalously enough, the wives have been permitted to vote by these same adjudications.) Many of these student-veterans are gainfully employed, part-time, elsewhere than at the schools they attend. Shanks Village is many miles from any of those educational institutions and the residential facilities there are a part of the Columbia campus only to the limited extent above described.

Our Constitution and our statutes, for sufficient reasons, have decreed that those who attend colleges and seminaries away from their family homes and live in college residential halls during the college year in the fashion conventional before the war, do not, thereby and without more, become qualified to vote in the communities in whose life and doings these students had so limited a part and so limited an interest. The mischief against, which the law was aimed was “ the participation of an unconcerned body of men in the control through the ballot-box of municipal affairs in whose further conduct they' have no interest, and from the mismanagement of which by the officers their ballots might elect, they sustain no injury.” (Silvey v. Lindsay, supra, p. 60.) However, that old concept of semi-cloistered college life has little to do with the way these petitioners are getting their education. They are married men who have left their parental firesides and gone out on their own, with their wives and children. Their living arrangements at Shanks Village bear small resemblance to an old-fashioned college community, but are more like, the kind of new-fashioned company-owned housing projects, which great industries build near their factories to attract and serve their employees and their employees’ families. These students are family men, not college boys away from their parental homes. True, their tenure of occupancy at Shanks Village can continue only while they are students, but, since they have no other homes, their tenure is “ temporary ” or “ indefinite ” only in the' same sense as the tenure of the occupant of a city apartment house.

There is no substantial dispute of fact here. These petitioners have 'shown their eligibility to vote from the only residences they have. As to the right to vote of the petitioners who' are wives or parents of veteran-students, we cannot see that there is any doubt whatever.

The orders should be modified so as to grant the petitions of the student petitioners, and as so modified affirmed, without costs.

Thacher and Dye, JJ., concur with Desmond, J.; Loughran, Oh. J., Conway and Fuld, JJ., concur in result; Lewis, J., taking no part.

Ordered accordingly.


text:
    In the Matter of Harvey Holding Corporation, Appellant. Louis I. Satter et al., Copartners Doing Business as Louis I. Satter & Co., Respondents.
    Argued October 6, 1947;
    decided November 13, 1947.

      David Krauss for appellant.
    I. The Appellate Division in dismissing appellant landlord’s petition committed reversible error as a matter of law, since respondent tenants are in possession under a lease, in force since on and before June 1, 1944, wherein the rental stipulated is in a graduated scale, within the meaning of section 13 of chapter 273 of the Laws of 1946. The lease, upon the exercise of the tenants’ option, constituted a present demise for the full term of three years and three months, beginning December 1, 1943, and ending February 28, 1947. (Orr v. Doubleday, Page & Co., 223 N. Y. 334; Jones & Brindisi v. Breslaw, 250 N. Y. 147; Raynolds v. Browning, King & Co., 123 Misc. 367, 217 App. Div. 443, 245 N. Y. 623; Swan v. Inderlied, 187 N. Y. 372; Masset v. Ruh, 235 N. Y. 462; Crimmins v. Metropolitan Elevated R. R. Co., 87 Hun 187; Storms v. Manhattan Ry. Co., 178 N. Y. 493; Burns v. City of New York, 213 N. Y. 516.) II. The rental stipulated in the lease is in a graduated scale within the meaning of section Í3 of chapter 273 of the Laws of 1946. (Miller v. Robertson, 266 U. S. 243; Allen v. Morsman, 46 F. 2d 891; United States v. Brunett, 53 F. 2d 219;
      Helvering v. St. Louis Southwestern Ry. Co., 84 F. 2d 857; Hyatt v. Taylor, 42 N. Y. 258; Gillespie v. Zittlosen, 60 N. Y. 449; Matter of Baron [Grossman], N. Y. L. J., June 22, 1946, p. 2487, col. 3; Matter of 627 Broadway Corp. [Atlantic & Pacific Supply Co.], N. Y. L. J., March 12, 1947, p. 977, col. 6; Matter of Sgarlato [Baltic Plating & Polishing Corp.], N. Y. L. J., May 15, 1947, p. 1920, col. 4; Matter of Nana Realty Corp. [Alfano], N. Y. L. J., May 12, 1947, p. 1868, col. 5; Matter of Murray Properties, Inc. [Weinberg Textiles Corp.], N. Y. L. J., May 8, 1947, p. 1808, col. 2.)

      Morris Holman for respondents.
    A lease for one definite period of fifteen months at a stipulated annual rental of $3,600, with an option on the part of the tenants only, to extend said lease for a further period of two years at an annual rental of $4,200, is not a graduated scale lease within the meaning of section 13 of chapter 273 of the Laws of 1946. (Tompkins v. Hunter, 149 N. Y. 117.)
   Fuld, J.

In 1936, respondents, as tenants, and appellant’s predecessor, as landlord, executed a lease to cover two stores located in New York City. There were periodic renewals. On November 30, 1943, an extension agreement was signed by the parties; in substance, it modified the preceding lease and extended the term from December 1, 1943, to February 28, 1945, with a monthly rental during that period of $300. By provision in the extension agreement, the tenants were given the privilege of extending the lease for two years further — • that is, from March 1, 1945, to February 28, 1947 — at an increased monthly rental of $350. The tenants exercised the option and paid that sum — $350 a month — for the remainder of the term.

In March, 1947, the landlord petitioned the court for an order determining and fixing the fair and reasonable rental to be paid pursuant to section 13 of the Business Bent Law (L. 1945, ch. 314, as amd. by L. 1946, ch. 273). The petition recites that such rent is to be based upon “ the rent charged for the most nearly comparable business space in the same building ”, That was the proper criterion only if the lease stipulated a rent “ in a graduated scale ” (§ 13). By their amended answer, the tenants denied that the lease called for a graduated rent and asked for a dismissal of the petition. When the petition came on for hearing, the court granted the landlord’s application to the extent of placing the matter on the calendar upon condition that a notice of issue be filed, calendar fees be paid and ‘ ‘ the bill of particulars, * * * as required by Chapter 314 of the Laws of 1945, as amended,” be served.

The landlord, indicating reliance upon section 13, served a bill of particulars which set forth merely the locations and areas occupied by other tenants in the building and the rentals paid by each. Section 4 of the statute requires the landlord, following the tenant’s written demand, to furnish the particulars therein specified in “ any proceeding * * * under this section,” and directs dismissal of the proceeding if the particulars be not supplied. Pointing to that provision, the tenants moved for an order dismissing the petition because of the landlord’s failure to serve such a bill or, in the alternative, directing that the landlord serve a bill of particulars “ pursuant to Section 4 ”.

The court at Special Term concluded that the lease prescribed a graduated rent and denied the tenants’ motion; the Appellate Division, two justices dissenting, held otherwise, reversed Special Term’s order, and dismissed the petition. . Whether the rent is to be fixed under section 13 — applicable if the lease stipulated a rent in a graduated scale — or under section 4, and whether, in any event, the tenant is entitled to the particulars enumerated in section 4, are the questions presented for our determination.

The Business Bent Law was enacted in 1945 to regulate, control and stabilize rents of premises occupied for business purposes in cities having a population of over a million. In general, it provided a pattern for the fixing of emergency and reasonable rents. Thus, “emergency rent” — with certain exceptions not here pertinent — is defined in subdivision (c) of section 2 as “ the rent reserved or payable under any lease, agreement or tenancy of business space in force ” on June 1, 1944, “ plus fifteen per centum of such.rent Fixing a “ reasonable ” rent in excess of the emergency rent — in the ordinary case — is the subject of section 4. It is provided that such rent may be fixed by agreement, by arbitration, or by the Supreme Court; if by the court, it is to be based on the fair rental value of the business space as of the date the application is made. The items and matters to be considered in determining the amount are enumerated, and the landlord is required, in such a case, to serve a bill of particulars reflecting upon those items — which include, among others, the consideration paid by the landlord for the entire property, the assessed valuation of the property, the cost of maintenance and operation, and the kind, quality and quantity of services furnished.

Section 13 deals with situations somewhat out of the ordinary — where the lease is either one wherein the specified rent is variable depending upon the volume of tenant’s business or one wherein the rent stipulated is in a graduated scale. That section requires the tenant to pay the rent specified in the lease during its term and, upon expiration — in the case, at least, of the graduated rent lease — a sum based on the amount charged for the most nearly comparable space in the same building. Thus, insofar as pertinent, section 13 — at the time the proceeding was instituted — read as follows: “ The provisions of any lease, in force since on and before June first, nineteen hundred forty-four, wherein the rental stipulated is in a graduated scale, shall determine the rents payable during the term of such lease; and upon the expiration of such lease, the emergency rent shall be a reasonable rent to be fixed by * * * the supreme court upon the basis of the rent charged for the most nearly comparable business space in the same building or other rental area, or other satisfactory evidence * * * on the date the application to the supreme court * * * is made.”

The lease here involved did not, in its original form, call for a graduated rental, It did, however, grant to the tenant an option to extend the initial term of fourteen months for an additional term of two years at a rent $50 a month higher than for the preceding period. The tenant exercised the option and paid the larger sum for the extended term. Obviously, if the lease as originally executed had provided for a rent of $300 for fourteen months and of $350 for two years thereafter, it would have been one for a rent “ in a graduated scale ”. In effect and in legal contemplation, that is just what we have here. The tenant’s exercise of an option to extend the term accomplishes not a new lease but simply a prolongation of the original agreement for a further period; once the option is exercised, the original lease, it is settled, is deemed one for the entire term. (See Jones & Brindisi v. Breslaw, Inc., 250 N. Y. 147; Masset v. Ruh, 235 N. Y. 462; Orr v. Doubleday, Page & Co., 223 N. Y. 334; New York Business Buildings Corp. v. McCutcheon & Co., 229 App. Div. 681, aifd. 257 N. Y. 554.) In the Jones case (supra), for instance, the lease, initially for a term of two years and four months, accorded the tenants an option to extend the term for another two years. Defendants agreed — by statement to that effect in the lease itself — to guarantee rent payments. The tenants exercised the option and then, during the additional period, defaulted in their rent. In an action by the landlord against the guarantors, the latter contended that they were not liable because the guaranty did not cover the new term. The court held otherwise, declaring (p. 151): “ The rent stipulated in the * * * lease was for four years and two months if the tenants exercised the privilege of extension. They exercised the option and became bound to pay the rent stipulated in the lease. There was no new lease; none was required; all the stipulations and agreements were contained in the one instrument which by the election of the tenant, continued for four years and two months.” Similarly here — the option having been exercised — the tenants remained in possession under the lease subject merely to increased rent for the extended period; the lease became one for three years and two months at a graduated rental within the meaning of section 13.

Once determined that the rent is to be fixed pursuant to that section, it follows — contrary to the tenants ’ further contention — that the landlord is not under the necessity of furnishing the particulars required by section 4. By its very terms, the items are to be supplied only in proceedings “ under this section [4] ” — and analysis of the statute serves to confirm the validity of that conclusion. The particulars enumerated in section 4 bear upon the formula to be employed in reaching the' fair and reasonable rent there prescribed and not upon the formula prescribed in section 13. The latter section makes important and consequential — in fixing the reasonable rent after termination of a graduated rental lease —1 ‘ rent charged for the most nearly comparable business space in the same building ”. Obviously, the consideration paid by the landlord for the entire property, the assessed valuation of the property, the amount of gross income derived from the entire building, the cost of maintenance and operation, the services furnished to tenants, or the other matters particularized in section 4, cannot aid in arriving at rent based upon the most nearly comparable space in the building. To require section 4 particulars in a proceeding under* section 13 would not assist court or tenant nor illumine one whit the problem for determination.

In other words, since the rent stipulated was in a graduated scale, the new rent, after expiration of the lease, is to be fixed pursuant to section 13, its determination governed by its provisions. Accordingly, the order of the Appellate Division should be reversed, and that of Special Term denying the motion to dismiss the petition affirmed, with costs in this court and in the Appellate Division.

Loughran, Ch. J., Lewis, Conway,- Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly.


text:
    General Synod of the Reformed Church in America, Respondent, v. Bonac Realty Corporation, Appellant, et al., Defendants.
    Argued October 7, 1947;
    decided November 20, 1947.

      Sidney J. Loeb, Leon Harris and Samuel Greenberg for appellant.
    I. Respondent waived strict performance of the terms of the. mortgage as to payment of principal and interest dure, and it should not have ignored that waiver before notice retracting it. (Spenser v. C. M. L. Ins. Assn., 142 N. Y. 505; Wachtel v. Equitable Life Assur. Soc., 266 N. Y. 345; Rathbone v. Forsyth, 171 App. Div. 26; Heller & Brother v. Continental Mills, 196 App. Div. 7; Rosenthal v. Brown, 247 N. Y. 479; Dry Dock Sav. Inst. v. 103 E. 75th St. Apartments, Inc., 296 N. Y. 280; Perkins v. Guaranty Trust Co., 274 N. Y. 250.) II. An agreement “ not to foreclose for interest and other payments due ” waives a default in the principal then due and the right to statutory amortization. (Schreiber v. American Employers’ Ins. Co., 290 N. Y. 673.) III. The judgment of foreclosure and sale including the after-acquired personalty was error, in the absence of proof that such personalty was a fixture or that the intent was to make it a part of the security for the loan. (Doheny v. Lacy, 168 N. Y. 213; Manufacturers Trust Co. v. Peck-Schwartz Realty Corp., 277 N. Y. 283; Roche v. Thurber, 246 App. Div. 850, 272 N. Y. 582; Faber v. City of New York, 213 N. Y. 411.) IV. There was no evidence or finding that the after-acquired mechanical refrigerators, gas ranges, or portable showers now on the premises were fixtures or that the intent was to make them a part of the security for the loan. (Manufacturers Trust Co. v. Peck-Schwartz Realty Corp., 277 N. Y. 283.)

      George L. Allin, Arad Riggs and Joseph R. Shaughnessy for respondent.
    I. There is no merit in the defense that the foreclosure action was premature. (Ferris v. Spooner, 102 N. Y. 10; Locklin v. Moore, 57 N. Y. 361; Hothorn v. Louis, 52 App. Div. 218, 170 N. Y. 576; Ferlazzo v. Riley, 278 N. Y. 289; Stackhouse v. Barnston, 10 Ves. Jr. 453.) II. Appellant failed to establish its defense that the mortgage was extended by agreement in 1939. (Sidrane v. F. D. R. Realty Corp., 296 N. Y. 357.) III. The partial defense that the consolidated mortgage did not cover the refrigerators, gas ranges, other personal property and fixtures was properly overruled by the trial court. (Kinman v. Nyrealty Corp., 167 Misc. 534; President & Directors of Manhattan Co. v. Bankers Trust Co., 29 N. Y. S. 2d 211, 264 App. Div. 787, 290 N. Y. 550; Adler v. Atlas Brick Corp., 283 N. Y. 64; Roche v. Thurber, 246 App. Div. 850; President & Directors of Manhattan Co. v. Ellda Corp., 245 App. Div. 625; President & Directors of Manhattan Co. v. Newberry, 265 N. Y. 588; Prudential Ins. Co. v. Sanford Real Estate Corp., 157 Misc. 563, 246 App. Div. 567; Shelton Holding Corp. v. 150 East 48th St. Corp., 264 N. Y. 339; Guaranty Trust Co. v. New York & Queens Co. Ry. Co., 253 N. Y. 190; Grant v. Atlantic Assets, Inc., 163 Misc. 728.) IV. The rule that refrigerators and gas, ranges in apartment houses are personal property should be limited to cases of conditional sales and should not be applied against a mortgagee in favor of the owner of refrigerators and gas ranges who also owns the land subject to a real estate mortgage. (Madfes v. Beverly Development Corp., 251 N. Y. 12.)
   Desmond, J.

This action was brought to foreclose plaintiff’s mortgage on a New York City apartment house owned by defendant-appellant Bonac Realty Corporation. Various alleged defenses were pleaded by the owner but they were all rejected by the Special Term Justice, after a trial. The foreclosure judgment was unanimously affirmed by the Appellate Division, and we granted leave to appeal to this court.

Defendant’s contentions that the action was prematurely brought, or that there had been a waiver by plaintiff of its right to foreclose, or an extension of the time of payment of the arrears of interest, were all properly rejected by the trial court, and nothing more need be said about them here.

However, another assertion by defendant owner, set up as a partial defense in its answer, needs some further discussion. In that partial defense the owner avowed that the mechanical refrigerators, cooking ranges and portable showers in the several apartments of the house, were not subject to the mortgage and that their inclusion in the property directed by the judgment to be sold, was error. That protest is based largely on some language in this court’s opinion in Manufacturers Trust Co. v. Peck-Schwartz Realty Corp. (277 N. Y. 283, 286) to which we will refer at a later place in this opinion.

Defendant, purchasing the apartment house in 1935, took it subject to the mortgage now being foreclosed. That instrument contained this clause: Together with all fixtures and articles of personal property now or hereafter attached to, or used in connection with, the premises, all of which are covered by this mortgage.” There were refrigerators and ranges in the building when defendant bought it, but these became worn out or obsolete, and defendant put in new, modern ones. Defendant bought and installed portable showers, also. Any of those articles could be removed from the building, without injury to the structure, by pulling electric plugs or disconnecting. pipe unions. Adhering to the rule of Madfes v. Beverly Devel opment Corp. (251 N. Y. 12) we agree with appellant that none of them were fixtures ”, as the law understands that word. They were, however, articles of personalty “ attached to ” and “ used in connection with ” the premises. Indeed, it is notorious that apartments of this kind in New York City are not acceptable to tenants unless the landlord supplies such conveniences. So, the language of the covering clause of the mortgage would seem clearly to include these refrigerators, ranges and showers. (See Cohen v. 1151 Fulton Ave. Corp., 251 N. Y. 24.). Appellant points out, however, that there is, outside the words of the mortgage, no proof (and no specific finding by the court) as to the actual intent of the mortgagor and mortgagee as to such furnishings thereafter to be installed, and no showing of any particular circumstances indicating an intent, one way or the other. The argument that, absent such proof and such a finding, there is no coverage of such articles, even when there is an “ after-acquired property ” clause in the mortgage, is based, as we have said, on statements in the opinion in Manufacturers Trust Co. v. Peck-Schwartz Realty Corp. (supra). That opinion says, dealing with a covenant identical with the one in this mortgage, that there is no lien on movables such as are here involved, unless one of four requirements is satisfied. Those four requirements are (we paraphrase): that the articles are fixtures, or that they have by attachment become physical parts of the realty, or - that there is an express agreement that they shall become such parts, or, finally, that it shall clearly and unequivocally appear from all the facts and circumstances that the intent was to make them a part of the security for the loan ”. The first three of those stated essentials are, of course, not in the present case. If the statement in the opinion as to the fourth requirement is read to mean that there must be affirmative clear and unequivocal proof, apart from the mortgage itself, that the parties in fact intended to have the mortgage cover these appliances, then plaintiff failed to prove its case, for there is no such separate showing of intent in this record. But we do not read Manufacturers Trust Co. v. Peck-Schwartz Realty Corp. (supra) as insisting on such additional evidence, in every case. In that case, as Judge Rippey’s opinion carefully pointed out, there was much to. suggest that the parties to the mortgage never in fact considered the furnishings covered; and there was no finding, one way or the other, as to their intent. In the present case the Trial Justice had before him only the mortgage covenant, which in clear and nontechnical language put the movables, presently in the house or thereafter to be acquired, under the lien. Appellant bought the building subject to that same mortgage, and, charged with knowledge of the after-acquired personalty clause, bought and installed new appliances. With such proof, and nothing else, before him, the. Trial Justice here properly found that the refrigerators, ranges, and showers “ are covered by the consolidated mortgage.” We read that as an affirmative and sufficient finding of intent.

We point out that there is in this case no conflict between rival claims of different parties asserting liens on the same articles. Such a situation may produce its own problems, not herein considered.

The judgment should be affirmed, with costs.

Loughran, Oh. J., Lewis, Conwat, Thaoher, Dye and Fuld, JJ., concur.

Judgment affirmed. [See 297 N. Y. 781.]


text:
    Western Union Telegraph Company, Appellant, v. Pacific and Atlantic Telegraph Company of the United States et al., Respondents, et al., Defendants. Western Union Telegraph Company, Appellant, v. Southern and Atlantic Telegraph Company et al., Respondents, et al., Defendants. Western Union Telegraph Company, Appellant, v. Empire and Bay States Telegraph Company et al., Respondents.
    Argued October 14, 1947;
    decided November 20, 1947.

      John H. Waters, Francis R. Stark and Clarence W. Roberts for appellant ia first above-entitled action.
    L The Court of Appeals in Johnson v. Western Union Tel. Co. (293 N. Y. 379) did not intend to lay down the general rule that whenever a lease (a) is for a long term (b) and includes all the lessor’s property (c) and provides that the rent shall be payable directly to the lessor’s stockholders, but contains no covenant to pay taxes or to keep the property free from tax liens, the lessee is obligated to pay the Federal income taxes assessed against the lessor by reason of the rent paid to the stockholders. The “ General Plan or Scheme ” was referred to not as an independent ground of decision, but as the background for the construction of the express tax covenant. II. The general plan or scheme could not have been an independent ground of decision, for as defined in the majority opinion the general plan or scheme to which they referred included the tax covenant. That the tax covenant alone was the substantive ground of decision is clear from the fact that the court held that Western Union was obligated to pay not only the lessor’s income taxes but all its debts. III. If the majority in the Johnson case intended to hold that even in the absence of any tax covenant the inclusive nature of the lease, its long term, and the method of payment of rent required the lessee to pay income taxes, such holding was unnecessary to the decision, is contrary to the uniform current of authority, and should not be extended to other cases such as those now at bar. (United States v. Western Union Tel. Co., 50 F. 2d 102; Harwood v. Eaton, 68 F. 2d 12; Commissioner v. Western Union Tel. Co., 68 F. 2d. 16, 292 U. S. 636; United States v. Morris & Essex R. Co., 135 F. 2d 711, 320 U. S. 754; Commissioner of Internal Rev. v. Western Union Tel. Co., 141 F. 2d, 774, 322 U. S. 751.) IV. The Court of Appeals did not overrule or disapprove Brainard v. N. Y. C. R. R. Co. (242 N. Y. 125). It qualified the holding in that case, which was to the effect that the lessee was not to be held liable for income taxes unless income taxes were mentioned by name, to the extent of holding that they need not be mentioned by name if some other express words were used which meant the same thing. (United States v. Warren R. Co., 127 F. 2d 134.) V. The judgment cannot be sustained on the ground that the covenant to pay the rent “ without deduction or abatement for taxes ” or for any other purpose required lessee to pay the income taxes. VI. The covenant to return the property in as good condition as when received, wear and tear excepted, relates to physical condition and not to incumbrances on the title.

      Arthur Garfield Hays, Osmond K. Fraenkel and Seymour M. Heilbron for Abraham & Co. and others, respondents, in first above-entitled action.
    This case is governed by the decision of the Court of Appeals in Johnson v. Western Union Tel. Co. (293 N. Y. 379).

      William W. Owens for Cobb & Co., respondent in first above-entitled action.
    The lease-expressly requires plaintiff to bear Pacific’s income taxes. (Johnson v. Western Union Tel. Co., 293 N. Y. 379.)

      Ernst Lampé and Jesse Knight for Isabella Home, respondent in first above-entitled action.
    The lease imposes a clear obligation on the lessee to pay Pacific’s income taxes. (Johnson v. Western Union Tel. Co., 293 N. Y. 379; Central of Georgia Ry. Co., 47 F. Supp. 786; Suter v. Jordan Marsh Co., 225 Mass. 34; Boston & Providence R. R. v. Old Colony R. R., 269 Mass. 190; Pittsfield & N. A. R. Corp. v. Boston & A. R. R., 260 Mass. 390; European & North Am. Ry. v. Maine Central R. R., 135 Me. 338; Van Rensselaer v. Dennison, 8 Barb. 23; Hoboken Mfrs. R. R. Co. v. Hoboken R. R., 133 N. J. Eq. 270; Monongahela St. Ry. v. Phila. Co., 350 Pa. 603.)

      Alice Dillingham for Anna Rochester, respondent in first above-entitled action.
    A covenant to pay “without any deduction or abatement for or on account of taxes or assessments or for any other purpose whatsoever” must mean what it says, that the promisor agrees to pay the taxes. (Pittsfield & North Adams R. R. Co. v. Boston & Albany R. R. Co., 157 N. E. 611; Johnson v. Western Union Tel. Co., 293 N. Y. 379; Seymour v. Warren, 179 N. Y. 1.

      Philip Novick and Nat G. Helman for King & Co., respondent in first above-entitled action.
    The clause that there was to be no “deduction or abatement for or on account of taxes or for any purpose whatsoever ” except only for “ prior ” debts outstanding when the lease was made is so all-inclusive as to embrace every type of tax and every type of debt, with the sole exception of any debts outstanding when the' lease was made. (Johnson v. Western Union Tel. Co., 293 N. Y. 379.)

      M’Cready Sykes for United States Trust Company of New York, respondent in first above-entitled action.
    The conclusive parallel between the present casé and Johnson v. Western Union Tel. Co. (293 N. Y. 379) is that in neither case does the lease provide by affirmative covenant for payment by the lessee of the taxes in question and that in both cases liability is conclusively predicated on the necessary implication of a negative covenant. In both cases the lessee is required to maintain certain property free of any diminution that might otherwise be caused by the incidence of a tax. (Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 158 U. S. 601; Harbeck v. Pupin, 145 N. Y. 70.)

      Ganson J. Baldwin for Northwestern Telegraph Company, amicus curies, in support of respondents’ position.

      John H. Waters, Francis R. Stark and Clarence W. Roberts for appellant in second above-entitled action.
    I. Plaintiff lessee is not liable for the payment of Federal income taxes assessed against defendant lessor. II. The secondary relief prayed for, namely, a decree prescribing an equitable method for paying the income taxes, should be granted.

      Arthur Garfield Bays, Osmond K. Fraenkel and Seymour M. Heilbron for public stockholders and others, respondents in second above-entitled action.
    This case is governed by the decision in Johnson v. Western Union Tel. Co. (293 N. Y. 379).

      Alice Dillingham for Anna Eochester, respondent in second above-entitled action.

      John E. Waters, Francis R. Stark and Clarence W. Roberts for appellant in third above-entitled action.
    I. Plaintiff lessee is not liable for the payment of Federal income taxes assessed against defendant lessor. (Bowers v. Interborough Rapid Transit Co., 121 Misc. 250; Commissioner of Internal Rev. v. Western Union Tel. Co., 141 F. 2d, 774, 322 U. S. 751; United States v. Morris & Essex R. Co., 135 F. 2d 711, 320 U. S. 754; Commissioner v. Western Union Tel. Co., 68 F. 2d 16.) II. The secondary relief prayed for, namely, a decree prescribing an equitable method for paying the income taxes, should be granted. III. Liability in the Johnson case was based on the tax covenant and reference to the plan or scheme of the lease was for the purpose of supporting the court’s construction of that covenant. The provisions of the lease in the Johnson case from which the ° court fashioned the “plan” are entirely unlike the provisions of the Empire lease from which the respondents would fashion a similar plan.

      Raymond ill. White, Edgar W. Hatfield and John V. Browne for Marion P. Fearons and others, respondents in the third above-entitled action.
    I. It was the intent of the parties as shown in the lease that Western Union was to discharge all obligations of Empire during the term of the leasehold including Federal income taxes assessed against Empire. (Johnson v. Western Union Tel. Co., 293 N. Y. 379; Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Gold & Stock Tel. Co. v. Commissioner of Internal Revenue, 83 F. 2d, 465; United States v. Western Union Tel. Co., 50 F. 2d 102; Western Union Tel. Co. v. Commissioner of Internal Revenue, 68 F. 2d 16; Commissioner of Internal Revenue v. Western Union Tel. Co., 141 F. 2d 774.) II. The general rule of construction of contracts supports the decision in the Johnson case. (Empire Properties Corp. v. Manufacturers Trust Co., 288 N. Y. 244; Paige v. Faure, 229 N. Y. 114; Orr v. Doubleday, Page & Co., 223 N. Y. 334; People v. Gluck, 188 N. Y. 167; Heryford v. Davis, 102 U. S. 235; 3 Williston on Contracts, § 618; Boston & Providence R. R. v. Old Colony R. R., 269 Mass. 190; Eastern Mass. St. Ry. v. Boston Elevated Ry., 310 Mass. 659; Whitlock v. Boston é M. R. R., 29 F. 2d 351.) III. The parties have already construed the lease that Western Union is liable for the taxes of Empire. (City of New York v. New York City Ry. Co., 193 N. Y. 543; Brooklyn Public Library v. City of New York, 250 N. Y. 495; New York Central R. R. Co. v. New York & Harlem R. R. Co., 185 Misc. 420; Grey v. Grey, 47 N. Y. 552; Leask v. Hoagland, 205 N. Y. 171; People ex rel. U. S. A. P. P. Co. v. Knight, 174 N. Y. 475.) IV. The “ loan agreement ” between Western Union and Empire was properly declared null and void by the courts below. (Johnson v. Western Union Tel. Co., 184 Misc. 728.)

      Alice Dillingham for Anna Rochester, respondent in third above-entitled action.
   Desmond, J.

In the latter decades of the nineteenth century plaintiff Western Union Telegraph Company, absorbed into its own telegraph system a number of independent telegraph companies, formerly its competitors. This absorption was accomplished through long term leasing of all the assets of its erstwhile competitors. The lawyers and businessmen who made these arrangements, and drew the leases, devised covenants to take care of such contingencies as they could foresee, but, not being prophets, they did not forecast the high income taxes of the twentieth century. When these imposts grew to important size, controversies arose as to whether, under the leases, the income tax on the rentals was an obligation of lessor Or lessee. In 1944, we answered that question, as to one such Western Union lease, in Johnson v. Western Union Tel. Co. (293 N. Y. 379, 383). There we held that Western Union, by agreeing to keep that particular leased property “ ‘ clear from all incumbrances arising from tax * * * liens ’ ” and to deliver it back at the end of the time as free from * * * incumbrance thereon as they were, when received ’ ” had, without mentioning the lessor’s income taxes, obligated itself to pay them. In 1926, interpreting a railroad lease in Brainard v. N. Y. C. R. R. Co. (242 N. Y. 125, 129), this court had ruled that a covenant by the lessee to “ ‘ pay all taxes and assessments which may be levied or become chargeable on the said road or property, or upon the said [lessor] Mahoning Company, by reason of its ownership thereof ’ ” described property taxes only and had no reference to income taxes. Essentially, the question in the three cases now before us is whether the bargains as to taxes written into these three leases, are governed by the Brainard case (supra) or by the Johnson case (supra).

The Pacific and Atlantic lease was made in 1873 to run for 999 years, while the Southern and Atlantic and Empire and Bay States grants were for 99 years and were made in 1876 and 1890, respectively. In all three agreements (as in the lease in the Johnson case, supra) the annual rental was to be a stated percentage of the owner corporation’s outstanding capital stock, which amounts were to be paid direct to the lessor’s stockholders, ratably in proportion to their holdings of stock. In all four cases (Johnson and these three) the lessor corporation was to be preserved as a mere shell without inner substance, the cost of such bare existence to be paid by Western Union. None of the three agreements in our present cases included any clause like the ones we construed in the- Johnson case, binding lessee Western' Union to keep the property free of tax liens and to hand it back with the title similarly unclouded.

• The sole references to taxes in the three documents now before us. are in an entirely .different form. In the Western Union v. Pacific and Atlantic case plaintiff promised to pay the yearly accruals “ without any deduction or abatement for or on account of taxes or assessments or for any other purpose whatsover ” while in the other two writings (Southern and Atlantic and Empire and Bay States' cases) the stated obligation of Western Union was to make the annual payments without any deduction or abatement for or on account of taxes or assessments on the aforesaid demised property ”. (In the Southern and Atlantic lease the covenant goes on to say: “ or for any other purpose whatsoever ”.) Those forms of words, whatever be their precise purpose, were certainly not promises by the lessee to pay all lessors’ taxes, including their income taxes. They amount to no more than assurance that each stockholder will get his share of the rent, with nothing taken out by the lessee for taxes. Inferentially, those clauses, above quoted from these three leases, call upon the lessee to pay all property taxes on the demised telegraph systems. Such covenants, as held in the Brainard case (supra) and restated in the Johnson case (supra) do not include income taxes. The Brainard rule is still the law: “ Unless the lease expressly provides for the payment of taxes on the income from rentals received under the lease, the imposition of such a burden on the lessee is not justified.” (242 N. Y. at p. 132.) In the Johnson lease we found no mention of income taxes by name, but a promise to keep and return the telegraph line unspotted by tax liens, an undertaking which could not be performed unless the lessee paid the lessor’s income taxes.

A careful examination of the other language in each of the three leases here under scrutiny brings to light nothing which could be treated as an engagement by the lessee to assume and pay lessors’ own income taxes. No such meaning can be given to the recitals, in the preambles of the Pacific and Atlantic and. Southern and Atlantic writings: “ Whereas the interests both of stockholders and of the public demand unity of action to the end that said stockholders may receive a proper return from their investment ”. Nor are defendants in the Empire and Bay States case helped by the fact that Western Union agreed to, and did, indorse on each Empire and Bay States stock certificate a guarantee of the quarterly payment of 1% on the par value of the stock “ subject to the terms and provisions of the lease ”.

Special Term, while. deciding the present cases in favor of defendants, came to the same conclusion as we do herein, as to the meaning of the several references to taxes in the three leases. The tax clauses here, held Special Term, were not sufficient, as the tax covenant was in the Johnson case {supra), to transfer the income tax obligation. But, said Special Term in these cases, this court in the Johnson case gave a separate and independent reason for construing the Johnson lease as requiring Western Union to pay its lessor’s .income taxes. In the Johnson case, according to the Special Term opinions in the present litigations, this court found Western Union’s liability for the income taxes not only in the specific language as to taxes, but also in 11 the general plan of the contract.” So, reasoned Special Term, while there is no “ Johnson case ” tax lien covenant in the three cases now before us, the “ general plan ” of these three grants is the same as the “ general plan ” of the Johnson contract, and the result therefore must be the same.

That was not the meaning of our opinion in Johnson v. Western Union Tel. Co. (supra). The majority opinion in that case grounded the income tax liability flatly on the clauses as to tax liens. We looked at and wrote about the “ general plan of the contract ” in the Johnson case only to show that the plain meaning of the tax clauses therein was not altered or affected by anything in the lease’s general plan ”. The Brainard case’s holding (supra), not overruled but reaffirmed in the Johnson case, was that such lessors must pay their owii income taxes unless there be found forthright language whereby the lessee assumes that obligation. Such language was in the Johnson case lease. It is not in any of the three leases now before us.

Besides asking for a declaratory judgment that it need not pay these taxes in addition to the agreed rents — a declaration to which we hold it entitled — plaintiff demands a decree that it may, nevertheless, deduct lessor’s income taxes, ratably, from the rental payments to lessor’s stockholders, and pay them into the Federal Treasury, for the lessor’s account. The reason plaintiff seeks this relief is that plaintiff is itself a substantial stockholder in each of the lessor corporations, and fears that it, as such stockholder, may in the end be compelled by the Treasury, to pay lessor’s income taxes, or part of them, under a “ transferee ” theory (see Commissioner of Internal Revenue v. Western Union Tel. Co., 141 F. 2d 774, certiorari denied 322 U. S. 75Í). Whether or not some such arrangement is to be ordered made, and what formula, if any, is to be used, is for Special Term to decide and the cases must be sent back for that purpose. On such retrial Special Term will pass also on plaintiff’s prayer for an injunction.

It appears that in some past years Western Union has paid its lessors ’ income taxes, sometimes under stipulations that such payments should be regarded as advances by the lessee to the lessor. The courts below, responsive to a counterclaim, ordered those loan agreements cancelled. We hold those agreements valid. Since, as we conclude, Western Union was not bound as lessee to make any income tax payments, for the lessors, such payments could not amount to a “ practical construction ” of the lease, against the lessee (see Brainard case, supra, 242 N. Y. at p. 133).

In each case the judgments should be reversed, with costs to the appellant in all courts, and each case remitted to the Special Term for further proceedings Pot inconsistent with this opinion.

Loughran, Ch. J., Lewis, Conway, Fuld and Dye, JJ., concur; Thacher, J., taking no part.

Judgment accordingly.


author: Thacher, J.

text:
    Great Northern Telegraph Company (Limited), Appellant, v. Yokohama Specie Bank, Limited, in Liquidation, et al., Respondents.
    Argued September 29, 1947;
    decided November 20, 1947.

      William J. O’Shea, John Godfrey Saxe, Frederick v P..Bryan and Irwin B. Grosman for appellant.
    I. The courts below had full power to grant plaintiff’s motion. (Civ. Prac. Act, §§ 192, 211, 213, 258; Lamport v. Smedley, 213 N. Y. 82; Gittleman v. Feltman, 191 N. Y. 205; Jamison v. Lamborn, 207 App. Div. 375; Jacobs v. Barron, 215 App. Div. 560; Land Mark Corp. v. Manufacturers Trust Co., 238 App. Div. 844; Riordan v. Peoples Savings Bank, 258 App. Div. 904; Prescott & Son v. Nye, 223 App. Div. 356; S. L. & Co. v. Bock, 118 Misc. 756; Thomas v. Moore, [1918] 1 K. B. 555; Matter of Beck, Attia v. Seed, 118 L. T. 629;
      Payne v. British Time Recorder Co., [1921] 2 K. B. 1; Horwood v. Statesman Publishing Co., 141 L. T. 54; Bailey v. Marchioness Curzon, [1932] 2 K. B. 392; Green v. Berliner, [1936] 2 K. B. 477.) II. The Court of Appeals, if and when it answers either question submitted in favor of appellant, should reverse and grant the motion. (Van Bergh, Jurisdiction and Practice of the Court of Appeals, p. 161; Good Health Dairy Products Corp. v. Emery, 275 N. Y. 14; People ex rel. Sweeney v. Rice, 279 N. Y. 70 ; Matter of Hogan v. Supreme Court, 281 N. Y. 572.) III. The statutes of this State confer full power on the lower courts to permit joinder of defendants and causes of action in their discretion. (Payne v. British Time Recorder Co., [1921] 2 K. B. 1; Puritan Fabrics v. Charm Togs, 188 Misc. 646.)

      Edward Feldman, Henry L. Bayles and Daniel Gersen for Elliott V. Bell, Superintendent of Banks of the State of New York, respondent.
    I. Joinder of alternative defendants and the introduction of extraneous causes of action are improper in a special proceeding under the Banking Law to establish a statutory right to participate in the assets of a liquidation. (Lafayette Trust Co. v. Beggs, 213 N. Y. 280; People v. American Loan & Trust Co., 172 N. Y. 371; People v. Metropolitan Surety Co., 205 N. Y. 135; Ticonic National Bank v. Sprague, 303 U. S. 406; Matter of State Bank of Canastota, 238 App. Div. 39, 263 N. Y. 571; F. D. I. C. v. Farmers Bank of Newton, 238 Mo. App. 350; Carr v. Yokohama Specie Bank, 272 App. Div. 64, 297 N. Y. 674; Matter of Societa Di Savoia v. Broderick, 260 N. Y. 260; Matter of Bank of United States, 269 N. Y. 578, 271 N. Y. 660, 299 U. S. 614; Schwarz v. Broderick, 269 N. Y. 610.) II. In any event this is not a proper case for the joinder of an alternative defendant under the provisions of the Civil Practice Act. (Civ. Prac. Act, §§ 211, 213; Ader v. Blau, 241 N. Y. 7; Stern v. Ide & Co., 212 App. Div. 714; Shiowitz v. Fisher, 187 Misc. 897; Klein v. Betzold, 119 Misc. 505; Nicholson v. Close, 258 App. Div. 488; Wertheim v. Lehigh Valley Coal Co., 249 App. Div. 597; Bussett v. California Builders Co., 123 Cal. App. 657; Besharian v. Rhode Island Co., 41 R. I. 94; Eames v. Mayo, 93 Conn. 479.) III. Joinder of defendants is not purely a matter of discretion. (Thomas v. Moore, [1918] 1 K. B. 555; Horwood v. Statesman Publishing Co., 141 L. T. 54; Payne v. British Time

      Recorder Co., [1921] 2 K. B. 1; Ader v. Blau, 241 N. Y. 7.) IV. The Appellate Division has not reviewed or passed upon the exercise of discretion by Special Term. (People ex rel. Dawley v. Wilson, 232 N. Y. 12; Matter of Reimers, 264 N. Y. 62.)
   Thacher, J.

The Appellate Division has affirmed, as a matter of law and not in the exercise of discretion, an order which denied a motion by the plaintiff to join The Chartered Bank of India, Australia and China as an additional party defendant in the action against whom plaintiff’s right to relief is alleged to exist in the alternative and in allowing this appeal has certified the following questions:

1. Had the Supreme Court the power to grant plaintiff’s motion to join The Chartered Bank of India, Australia and China as an additional party herein against whom plaintiff seeks relief in the alternative?

“ 2. Did the Appellate Division err in holding that plaintiff’s application should be denied as a matter of law? ”

The Yokohama Specie Bank, Limited, is a Japanese hanking corporation. It was licensed by the Superintendent of Banks to maintain a banking business in New York referred to as the New York Agency. Prior to December 8, 1941, the Yokohama Specie Bank in Japan, for good consideration and at the request of the plaintiff, agreed to make payments in dollars to plaintiff’s order at its New York Agency and The Chartered Bank agreed with plaintiff to. collect 'and hold these payments for plaintiff’s account. On the outbreak of the war between Japan and the United States on December 8, 1941, the superintendent took possession of the New York Agency for purposes of liquidation, and, pursuant to section 620 of the Banking Law, notified, by mail or by publication as prescribed therein, all persons whose names appeared on the books of the agency as creditors or depositors to file claims with him on or before November 23, 1942. Thereafter The Chartered Bank filed with the superintendent three claims against the New York Agency for plaintiff’s account for $57,219.22 and $25,637.20 and $29,296.87 respectively, but failed to file a fourth claim for another $29,296.87 and also failed to institute any action for the collection of any of these claims before the expiration of the time fixed by section 625 of the Banking Law for the commencement of such actions.

The plaintiff during German occupation of Denmark was under disability resulting from its status as a Danish corporation, and received no notice, by publication or otherwise, of the requirements for filing claims or instituting suit against the New York Agency, nor was any action taken in its behalf by the Alien Property Custodian. German occupation of Denmark having ended, plaintiff brought this action against the Superintendent of Banks and the Yokohama Specie Bank, Limited, in liquidation, and, being confronted by the defense that the action was not commenced within the time specified by subdivision 4 of section 625 of the Banking Law, made this motion to join The Chartered Bank as an additional defendant against whom relief is sought in the alternative. Plaintiff contends that its time to institute the action prescribed by section 625 of the Banking Law was extended during its disability to file claims and to institute actions, but asserts in the alternative that if barred by these provisions of the Banking Law from recovery against the fund in the hands of the superintendent it may nevertheless recover against The Chartered Bank for its failure to file claims and bring actions thereon within the times limited (cf. Carr v. Yokohama Specie Bank, 272 App. Div. 64, affd. 297 N. Y. 674).

We are concerned with sections of the Civil Practice Act having to do with the joinder of defendants (Civ. Prac. Act, §§ 211, 212, 213). These sections are closely related' both in origin and function to those sections of the Civil Practice Act which deal with the joinder of plaintiffs (§ 209) and the joinder of causes of action (§ 258). In their present form all of these sections were designed to conform the practice relating to parties with rules 1, 4, 5 and 7 of - order XVI of the Supreme Court of Judicature in England. Section 209 of the Civil Practice Act finds its source in rule 1 of that order; section 211 in rule 4; section 212 in rule 5, and section 213 in rule 7. Section 258 in its original form had no counterpart in the English rules. It was amended in 1935 (L. 1935, ch. 339) to overcome the decision of this court in Ader v. Blau (241 N. Y. 7) where it was held that before its amendment this section prevented the joinder of a cause of action against one defendant, for causing death through negligently maintaining a fence, in the same complaint with a cause of action against the physician, who took care of the injured intestate, for causing death through malpractice. In its First Annual Report the New York Judicial Council (1935) said of this amendment (p. 44): The Court of Appeals in Ader vs. Blau (1925) 241 N. Y. 7 held that section 258 limited the sections with respect to parties.

Complete freedom should be allowed in the joinder of causes of action as in the joinder of parties, and it is submitted that the correct approach to the joinder both of parties and of causes of action is the English one: May the matters conveniently be tried together? ”

In construing these provisions of the Civil Practice Act we should give great weight to the construction placed upon similar provisions in the English practice order by the English courts (Akely v. Kinnicutt, 238 N. Y. 466, 477). The language of rule 4 of the English practice order (section 211 of our Civil Practice Act), although differing from the language of rule 1 of the practice order (section 209 of our Civil Practice Act), was construed as if it read the same, the English courts holding that joinder of defendants liable to plaintiff on different causes of action would be allowed if the claims arose out of the same transaction or series of transactions and if separate trials of the causes of action would involve common questions of law or of fact (Oesterreichische Export A. G. v. British Indemnity Ins. Co., [1914] 2 K. B. 747; Thomas v. Moore, [1918] 1 K. B. 555; Compania Sansinena de Carnes Congeladas v. Houlder Bros. & Co., [1910] 2 K. B. 354). Such was the construction of the English rules at the time they were written into the Civil Practise Act of 1920. Shortly thereafter it was held in Payne v. British Time Recorder Co. ([1921] 2 K. B. 1) that a plaintiff who agreed to furnish supplies to the defendant British Time Recorder Company according to a specimen furnished by it, and who procured the supplies from another who agreed to furnish them in accordance with the same specimen, could join the purchaser and the supplier as defendants in the same action, suing the purchaser for the price and the supplier in the alternative for breach of contract if it" appeared that the supplies did not conform to the specimen. Holding the joinder proper, the Master of the Rolls observed that there was a common question as to whether the cards conformed to the specimen, and further observed that to sustain the joinder it was not necessary that there be any link between the two defendants or that liability for damage be common to both.

In Bailey v. Marchioness Curson of Kedleston ([1932] 2 K. B. 392) plaintiff sued Lady Curzon in an action for breach of agreement to employ him as companion to her son and in a separate action sued the son for repayment of disbursements made on his behalf. On motion to consolidate, Scrtjtton, L. J., after quoting rule 1 relating to the joinder of plaintiffs (cf. Civ. Prac. Act, § 209) and rule 4 relating to joinder of defendants (cf. Civ. Prac. Act, § 211), and observing the omission in the latter rule of the provision concerning claims arising out of the same transaction or series of transactions and concerning common questions of fact or law, went on to say that the two rules had been held to cover the same ground ” and are to be construed liberally in favor of allowing- many matters to be tried in one action. Section 211 of the Civil Practice Act, following the English rule, does not mention “ causes of action ” but in terms refers to defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the •alternative ”. Such language, although it fails to use the term “ cause of action ”, nevertheless denotes a cause of action to be asserted in the alternative against the defendant to be joined. Thus in joining a defendant against whom relief is sought in the alternative there is necessarily involved the joinder of another cause of action. Such joinders were allowed in England when the English practice was embodied in our Civil Practice Act (cases cited supra), but only if the liabilities asserted against different defendants arose out of the same transaction or Series of transactions and if separate trials of the causes of action would involve common questions of law or of fact.

The separate causes of action against each of the defendants arose out of the same transaction or series of transactions and common questions of fact and of law were involved. Plaintiff alleges that there were involved a series of exchange transactions in which funds were transferred from Japan to New York to be paid to The Chartered Bank for plaintiff’s account and that the proceeds of these transactions were held by the agency when the Superintendent of Banks took possession. Plaintiff’s right to relief is alleged to exist in the alternative against the fund in possession of the superintendent, if its cause of action is not barred by the statutory limitation, and against The Chartered Bank, if its cause of action against the superintendent has been lost because of the failure of The Chartered Bank to make timely demand or institute action for collection of the money held for plaintiff’s account. The question of law and of fact common to the claims of relief against each of the defendants is the question whether or not the action to recover from the superintendent is barred by the statutory limitation.

The purpose of the Civil Practice Act being to simplify and facilitate conduct of litigation, it is liberally construed to accomplish that purpose, but in our view this case is not only within the purpose but within the clear meaning of the statute when construed in the light of the English practice.

The superintendent contends that Ader v. Blau (supra) is controlling authority against this conclusion. We do not think so. Chief Judge Hiscock placed the decision of the court in that case upon provisions of section 258 of the Civil Practice Act as it then read. This is made clear in the opinion at page 14: But, assuming that we might be tempted or forced to construe these sections standing by themselves as authorizing the present action, we are not at liberty to do this, for they are clearly limited by and must be construed in the light of section 258 of the Civil Practice Act ’ ’. The limitations imposed by that section were repealed in 1935 (L. 1935, ch. 339; see First Annual Report of N. Y. Judicial Council, 1935, quoted supra).

The superintendent also contends that additional parties should not be added because such procedure will complicate and delay the liquidation of the fund in his hands. If there be force in that suggestion it should be addressed to the discretion of the court below. The questions which we are to answer are limited to the power of the Appellate Division to grant the motion if in its discretion it concludes to do so. We may not exercise that discretion.

The appellant suggests that if we reverse we should grant the motion without remitting to the Appellate Division. We think the order of affirmance was in compliance with subdivision (b) of section 603 of the Civil Practice Act and that the matter should be remitted to the Appellate Division.

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for further proceedings not inconsistent with the opinion herein, with costs to abide the event. The questions certified should be answered in the affirmative.

Loúghran, Ch. J., Lewis, Conway, Desmond, Dye , and Ftjld, JJ., concur.

Ordered accordingly.


author: Conway, J.

text:
    The People of the State of New York, Respondent, v. Max Levine, Appellant.
    Argued October 9, 1947;
    decided January 8, 1948.

      Samuel Bader and Harry G. Anderson for appellant.
    I. Appellant was deprived of a fair trial as a result of the prejudicial statement by the prosecutor in his summation that appellant was “ a man who has carried on this regular profession or trade of burglary.” . (People v. Molineux, 168 N. Y. 264; People v. Zackowitz, 254 N. Y. 192; People v. Fielding, 158 N. Y. 542; Moore v. State, 21 Tex. App. 666; People v. Mull, 167 N. Y. 247; People v. Wolf, 183 N. Y. 464; People v. Manganaro, 218 N. Y. 9; People v. Esposito, 224 N. Y. 370; People v. Robinson, 273 N. Y. 438; Weiler v. United States, 323 U. S. 606; Bollenbach v. United States, 326 U. S. 607; People v. Moran, 246 N. Y. 100.) II. The failure of the District Attorney to make a sufficient opening statement was in violation of appellant’s rights. (People v. Romano, 279 N. Y. 392; People v. McLaughlin, 291 N. Y. 480; People v. Vario, 257 App. Div. 975; People v. Wallens, 297 N. Y. 57.)

      James N. Gehrig, District Attorney (Philip Huntington of counsel), for respondent.
    I. The opening statement of the District Attorney was sufficient. (People v. Reilly, 49 App. Div. 218, 164 N. Y. 600.) II. The remark of the District Attorney in summation should not be regarded as ground for reversal. (People v. Pacelli, 200 App. Div; 850, 233 N. Y. 592; People v. Slover, 232 N. Y. 264.)
   Conway, J.

The indictment upon which the defendant was.1 tried, contained three counts. The first charged a burglary of the home of one Schlossberg at Long Beach. The second and third counts were for the burglary of another home in Long¡ Beach on the same day and the commission of petit larceny therein. The issues as to the breaking and entering of the homes and as to the identity of the offender were closely contested. Several errors are urged.

We shall first consider the failure of the District Attorney to open his case to the jury as required by subdivision 1 of section 388 of the Code of Criminal Procedure. That provides: “ The jury having been impaneled and sworn, the trial must proceed in the following order:

“ 1. The district attorney, or other counsel for the people, must open the case ”.

The record discloses that, the Assistant District Attorney addressed the jury as follows:

“ Members of the Jury, in the past, Over a period of years, I have established or had established a custom to waive opening in the presentation of a criminal case so that we could get right down to the meat of the case and have the witnesses take the stand so you could get the first hand information without any attempt on my part to tell you what we are going to prove and to try to color the testimony in advance. But unfortunately for that habit or custom, the highest Court of this State, the Court of Appeal, has ruled that when a prosecutor presents a criminal case he cannot waive opening.

‘1 And so the nearest way that I can come to that old custom of mine is to read to you the indictment, and I am going to ask you at the close of the case that after we have proven the allegations contained in this indictment you bring in a verdict of guilty.

“ The People of the State of New York against Max Levine, Defendant. The Grand Jury of the County of Nassau by this indictment accuse the defendant of the crime of Burglary in the Third Degree, committed as follow: The said defendant Max Levine, on or about the 30th day of August, 1945, at the City of Long Beach, County of Nassau and State of New York, broke and entered the dwelling house of one Ben Schlossberg, located at 143 Belmont Avenue, Long Beach, Nassau County, New York, with intent to commit therein the crime of Larceny.”

The Assistant District Attorney then read the second and third counts of the indictment together with the date upon which the indictment was found and the name of the District Attorney signed thereto. That did not constitute an opening of the case within the meaning of section 388.

We had occasion to refer to this matter recently in People v. Romano (279 N. Y. 392, 395), where the District Attorney had been permitted to waive opening to the jury. We said “We cannot countenance this departure from long standardized forms of law in trials for felony. * * * While the reading of a

detailed indictment might conceivably serve the purpose of an opening (cf. People v. Reilly, 49 App. Div. 218; 164 N. Y. 600), we are not disposed to encourage even that procedure.” An examination of the record in People v. Reilly (supra) discloses that there there was a considerably detailed indictment. 'Here the indictment contained but the name of the crime charged and the date upon which and the place where it was alleged to have been committed. The People urge that this error is not properly presented by objection. We pointed out in People v. McLaughlin (291 N. Y. 480, 483) that section 388 directs that the District Attorney “ ‘ must open the case ’ ” and that that requirement could not be waived even upon the consent of the defendant. In People v. Bradner (107 N. Y. 1, 4-5) we said: “ If the record discloses upon its face that the court had no jurisdiction, or that the constitutional method of trial by jury was disregarded (Cancemi’s Case, 18 N. Y. 128), or some other defect in the proceedings, which could not be waived or cured and is fundamental, it would, as we conceive, be the duty of an appellate tribunal to reverse the proceedings and conviction, although the question had not been formally raised in the court below, and was not presented by any ruling or exception on the trial.” To the same effect is People v. Miles (289 N. Y. 360, 363, 364).

There is another matter urged upon us to which reference should be made. The defendant did not take the stand and did not put his character in issue. Nevertheless, the District Attorney in his summation said: “ You are dealing with a man who has carried on this regular profession or trade of burglary.” The attorney for the defendant objected to this prejudicial and unsupported statement of fact. Thereupon the court said: “ The Court will cover both summations in the charge, and the Court will cover that instruction in the charge.” It is conceded that it was error for the court to fail promptly to rebuke the District Attorney and instruct the jury to disregard the statement. When the court came to charge the jury the promised instruction was not given. No reference was made to the incident. The court did say to the jury as to the summations of counsel that “ in neither case, however, does that constitute evidence or proof of the fact.” That was not sufficient to cure the error which had been committed in failing immediately to direct the jury 'to disregard the unwarranted statement of the District Attorney. Nevertheless, since the counsel for the defendant made no request to the court either to withdraw a juror or to give any "instructions to the jury with reference to the objectionable allegation (People v. Pindar, 210 N. Y. 191, 196; People v. Slover, 232 N. Y. 264, 270), the error is not available to the defendant in this court.

The judgments should be reversed and a new trial ordered.

Loughran, Ch. J., Lewis, Desmond, ThacheIs, Dye and Fuld, JJ., concur.

Judgments reversed, etc.