author: Loughran, Ch. J. Froessel, J.

text:
    In the Matter of Bakers Mutual Insurance Company of New York, Appellant. Department of Health of the City of New York, Respondent.
    Argued January 5, 1950;
    decided April 13, 1950.

      Samuel Schub and Milton B. Pfeffer for appellant.
    I. The State Workmen’s Compensation Law, and the public policy expressed therein, are paramount to this municipal regulation. (Matter of McGrinder v. Sullivan, 290 N. Y. 11; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 256 N. Y. 619; Thomas v. Morris, 286 N. Y. 266; Munzer v. State of New York, 41 N. Y. S. 2d 98; Matter of Maryland Cas. Co. [City of New York], 274 App. Div. 211; Duffy v. 42nd St. M. & St. N. Ave. Ry Co., 266 App. Div. 865; Hunter v. Derby Foods, 110 F. 2d 970.) II. Substantial justice requires the production of the medical records. (Steinberg v. New York Life Ins. Co., 263 N. Y. 45; Matter of Maryland Cas. Co. [City of New York], 274 App. Div. 211.) III. Because the City of New York is also an employer subject to the Workmen’s Compensation Law, the claimed privilege would result in an unconstitutional, unequal protection of the laws. (N. Y. Const., art. I, § 11; U. S. Const., 14th Amendt., § 1.) IV. To promote healthy and sound working conditions throughout the State, the Workmen’s Compensation Law confers upon the board the right to secure accurate information, data and statistics. It is a right which may not be abridged by the city’s Sanitary Code. (Workmen’s Compensation Law, § 148, subd. 2.)

      John P. McGrath, Corporation Counsel (Fred Iscol, Seymour B. Quel and Frank A. Piazza of counsel), for respondent.
    The application was properly denied since by express provision of the Sanitary Code the medical report is confidential and not subject to subpoena. The provision is valid and is applicable to workmen’s compensation proceedings. (Bandel v. City of New York, 69 Misc. 93, 144 App. Div. 938, 204 N. Y. 683; Matter of Stracquadanio v. Department of Health, 285 N. Y. 93; Matter of Maryland Cas. Co. [City of New York], 274 App. Div. 211; Thomas v. Morris, 286 N. Y. 266; McGowan v. Metropolitan Life Ins. Co., 234 App. Div. 366, 259 N. Y. 454; Cushman v. Brundrett, 50 N. Y. 296; Mills v. Hildreth, 81 N. Y. 91; People ex rel. McGuiness v. McAneny, 211 N. Y. 535; Buffalo Loan Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N. Y. 450.)
   Loughran, Ch. J.

At a hearing held by a referee of the Workmen’s Compensation Board upon a claim for death benefits, the widow of a deceased employee named Isaac Trepper introduced medical testimony as to the cause of, his death and its connection with his employment. The employer’s carrier thereupon served upon the health department of the city of New York a subpœna duces tecum commanding that department and its registrar to produce before the referee the “ original confidential certificate of death filed with the Department of Health of one Isaac Trepper who died on March 2, 1947, at 2940 West 29th Street, Brooklyn, New York.”

On the return day of that process, a representative of the city health department appeared before the referee and refused to produce the demanded document on the ground that it was a communication that had been made confidential by the Sanitary Code of the city. The employer’s carrier then applied under section 406 of the Civil Practice Act for a warrant to compel production of the document before the Workmen’s Compensation Board. Special Term denied that application. The Appellate Division affirmed. We gave the carrier leave to bring the case here.

With exceptions not now material, section 33 of the Sanitary Code of the city requires a “ certificate of death ” and a separate “ confidential medical report ” of the cause of death to be filed (1) by any of a number of specified members of the staff of a hospital, or similar institution located within the city when in such an institution a death occurs from natural causes, and (2) by the attending physician when elsewhere in the city there occurs a death of that kind. (Subds. [a], [b].) Such confidential medical report ”, section 33 says, shall be deemed not a part of such certificate ” of death, but on the contrary, shall be regarded and treated as a confidential and privileged communication, and shall not be subject to subpoena or open to inspection for any reason whatsoever, other than for scientific purposes approved by the [city] Board of Health.” (Subd. [c].)

The certificate of the death of Isaac Trepper was filed with the city department of health by a physician in private practice. He set forth therein the following items: (1) the place of death was 2940 West 29th Street, Brooklyn, which was not a hospital or institution; (2) the length of Trepper’s residence there was twenty-two years; (3) the time of death was March 2, 1947, at 9:30 a.m. ; (4) Trepper was a white man sixty-two years old who had been under medical care since December, 1946. These particulars were followed by an entry in this form: “ I further certify that death was not caused, directly or indirectly by accident, homicide, suicide, acute or chronic poisoning, or in any suspicious or unusual manner, and that it was due to natural causes more fully described in the confidential medical report filed with the [city] Department of Health. ”

The text which we have quoted from section 33 of the Sanitary Code of the city is incontestably clear. Manifestly that section was meant to be a bar to any juridical evidentiary use of a confidential medical report ” filed in accordance with its requirements. Consequently the city department of health was right in its refusal to produce the confidential medical report of Trepper’s death — unless indeed so much of section 33 of the Sanitary Code as gave privacy to that report is in itself without validity.

Section 33, as it now reads, was adopted by the board of health of the city department of health on December 12, 1938, pursuant to the municipal charter which (in accordance with a State statute) was adopted by the electorate of the city at the general election of 1937 and took effect January 1, 1938 (see Matter of Broderick v. City of New York, 295 N. Y. 363). By section 558 of that charter the city board of health is authorized (1) to add to and to alter, amend or repeal any part of the Sanitary Code; (2) to publish therein additional provisions for the security of life and health in the city; and (3) to confer additional powers on the city department of health not inconsistent with the Constitution or laws of this State or with the city charter.

The State Workmen’s Compensation Law says: “ A subpoena or a subpoena duces tecum maybe signed and issued by the chairman, a member of the [workmen’s compensation] board, referee or such other officer as may be designated by the chairman. A subpoena or a subpoena duces tecum may also be signed and issued by any attorney and counsellor-at-law appearing before the board on behalf of a claimant or other party. Failure to obey such subpoena shall constitute a contempt as provided by the civil practice act.” (Workmen’s Compensation Law, § 119.) These provisions of the State Workmen’s Compensation Law are read by the carrier (the appellant here) as a contradiction of section 33 of the city Sanitary Code — a construction which necessarily would bring section 33 under the condemnation of the provisions of section 558 of the Charter of the City of New York which, as we have said, forbid a grant to the city health department of any power inconsistent with the Constitution and laws of the State. We cannot adopt that conception of the sense of section 33 in the face of a number of sections of the Public Health Law of the State to which we now pass.

The State has a sanitary code of its own in respect of which the Legislature has made this declaration: " No provision of the [State] sanitary code shall relate to the city of New York or any portion thereof, and every provision of the [State] sanitary code shall apply to and be effective in all portions of the state except the city of New York unless stated otherwise ” (Public Health Law, § 2-b). The State Commissioner of Health may not supervise the work of the health authorities in the city of New York (Public Health Law, § 4). The powers and duties of local boards of health are regulated by article 3 of the State Public Health Law; but (as that same article says) thirty-eight of the forty sections thereof “ shall not be construed to affect, alter or repeal laws now in force relating to the board of health of the city of New York nor the sanitary code duly adopted and now in force in such city ” (Public Health Law, § 38). Article 20 of the State Public Health Law, which makes provisions for the registration of births and deaths says: Nothing in this article shall be construed to affect, alter, or repeal laws now in force applying to the city of New York ” (Public Health Law, § 394).

The intent of the Legislature in providing for such a statutory scheme seems to us to have been simply this: The Sanitary Code of the City of New York is to have within that city the force and effect of State law while elsewhere in the State the Sanitary Code and Public Health Law of the State are to be supreme (cf. People v. Blanchard, 288 N. Y. 145).

Whether the State Public Health Law may be applicable within the city of New York to situations not provided for by the Sanitary Code of that city is a question that is not here presented.

The right to resort to means competent to compel the production of written as well as oral testimony has long been regarded as not less than essential to the very existence and constitution of a court at common law. But persons subpoenaed may nevertheless assert against the compulsion of such process whatever privileges they may enjoy under the common law or by statute (see American Lithographic Co. v. Werckmeister, 221 U. S. 603; 8 Wigmore on Evidence [3d. ed.], § 2191, pp. 62-63). Section 33 of the Sanitary Code of the City of New York gave privacy to the confidential medical report here in question as a means of equipping public officials for the discharge of functions committed to them for the public good. Whether the reasons in favor of such a privilege outbalance the reasons that may be urged against it was here a legislative question which, since it has been settled by the authorities having jurisdiction, cannot be reagitated in the courts. All in all, then, section 33 of the Sanitary Code of the City of New York is quite consistent with section 119 of the State Workmen’s Compensation Law and does not conflict with the provisions of subdivision b of section 558 of the charter of the city, to which we have referred (cf. Thomas v. Morris, 286 N. Y. 266, 269-270).

As appellant here, the carrier also complains of a so-called favored and exceptional position ” which the City of NewYork is said to hold as an employer of labor by reason of an asserted " unrestricted access which it has to the files of its own Department of Health ”. On that basis, section 33 of the City Sanitary Code is said to produce “ an unconstitutional, unequal protection of the laws.” The answer is plain. Section 33, we repeat, makes a “ confidential medical report ” open to inspection only for scientific purposes approved by the Board of Health.”

Section 33 of the Sanitary Code of the City of New York was adopted, as we have said, in 1938. Since that time, however, the Legislature has twice declared that no provision of the State Sanitary Code shall relate to the City of New York or any portion thereof (see Public Health Law, § 2-b, as amd. by L. 1946, ch. 166, § 2, as amd. by L. 1947, ch. 293, § 1).. This tacit statutory sanction of the policy of section 33 of the Sanitary Code of the City of New York leaves no room for judicial consideration of any contrary policy (Messersmith v. American Fidelity Co., 232 N. Y. 161, 165).

The order should be affirmed, with costs.

Froessel, J.

(dissenting). The basic question before us on this appeal is the validity of subdivision (c) of section 33 of the Sanitary Code of the City of New York, upon which respondent relies for its refusal to obey the subpoena duces tecum issued herein. As now written, this section, with respect to the so-called “ confidential medical report ”,

i. creates a new " confidential and privileged communication ",

ii. renders it immune from subpoena, and;

iii. thus creates, by virtue of its unavailability, a new rule of evidence by rendering it inadmissible in any action or proceeding, however material or competent it may be;

iv. forbids inspection “ for any reason whatsoever, other than for scientific purposes approved by the [New York City] Board of Health ”, but

v. allows “ access ” thereto by authorized funeral directors (subd. [f]); and

vi. is, of course, limited in its operation to the City of New York only.

It was not a part of the existing Sanitary Code on January 1, 1938, when said code was continued by the Legislature and given the force and effect of law (New York City Charter, § 558, subd. a). It was thereafter adopted by the board of health on December 12,1938, in place of former section 33, purportedly pursuant to subdivision b of section 558 of said charter, which empowered said board

(1) “ to add to and to alter, amend or repeal any part of the sanitary code ”;
(2) to publish additional provisions for the security of life and health in the city ”, and
(3) to “ confer additional powers on the department not inconsistent with the constitution or laws of this state or with this charter ”.

Its validity must therefore rest upon the board’s power under this statute.

I agree with the majority that the section under consideration was meant to be a bar to any juridical evidentiary use “ of a confidential medical report ” filed in accordance with the requirements, but deny the power of the board to enact such provision under the statutory authorization granted in subdivision b of section 558.

(1) That the board was not authorized “ to add to and to alter, amend or repeal any part of the sanitary code ” in any manner it pleased requires no citation of authority; the Legislature may not be deemed to have granted the board such unlimited and plenary power, and, without a guide or standard, it would be invalid (Matter of Levine v. O’Connell, 300 N. Y. 658; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184, 190).

(2) Authority to ‘ ‘ publish additional provisions for the security of life and health in the city ” furnishes such a guide or standard. The question, then, naturally presents itself: does the challenged enactment provide ‘‘ for the security of life and health ”? The corporation counsel in his brief states: “ It is obvious that the Board of Health adopted new § 33 because it was of the opinion that disclosure in a death certificate of the .cause of death would in many instances bring shame or discredit on the deceased and on those who survived him without in any way serving the public interest.” This appears to be its real purpose, for what scientific purposes are served by secreting statistics? How are life and health secured by this provision? As we said in Thomas v. Morris (286 N. Y. 266, 269), Hidden in the files of the health office, it serves no public purpose except a bare statistical one.”

There is no counterpart to this provision in the law obtaining throughout the State. On the contrary, verified copies of death certificates containing the cause of death are issued upon request, subject to regulations by the State Commissioner of Health throughout the State, outside the city of Hew York (Public Health Law, §§ 377, 389, 391). Prior to the amendment of section 33, such certificates were for many years likewise procurable from the Hew York City Board of Health upon payment of a nominal fee. In Thomas v. Morris (supra), an action to recover damages for the death of plaintiff’s intestate, we held that certain records with respect to a communicable disease, kept by the Suffolk County Commissioner of Health in the course of his official duties, may be made available to plaintiff through a subpoena duces tecum; that no privilege attaches to these records, and that the public policy of the State as expressed in the Public Health Law and the State Sanitary Code confers no such privilege ; that such privilege does not exist unless conferred by some statute. We have no statute here empowering the board of health to confer such privilege.

There are no special local conditions surrounding the cause of death of residents in the city of Hew York any different from those in the rest of the State; scandal, shame and discredit affect all people alike; and there is no reasonable basis for the inflexible regulation so far as the security of life and health are concerned. It is quite different when the board of health adopts reasonable regulations with respect to the control of local epidemies, or in many other situations peculiarly affecting the life and health of the people of the city of Hew York, such, by way ’ of illustration, as protecting the purity of New York City’s milk supply (Matter of Stracquadanio v. Department of Health, 285 N. Y. 93); but even in that case they “ must be based upon special conditions existing in the city ” (Matter of Kress & Co. v. Department of Health, 283 N. Y. 55, 59). If it is contended that inspection must be denied to insure the accuracy of these reports, the answer is that we may not assume that physicians will file untrue medical reports in any event; but certainly there can be no doubt that reasonable safeguards permitting limited inspection would produce reports as accurate as those barring all Juridical inquiry. The enactment here, with its complete bar to inspection for any purpose whatsoever (except scientific purposes), is so unyielding that not even the commissioner of health is permitted to allow inspection; it has no real relation to the security of life and health in the city, and serves no public purpose except a bare statistical one.”

(3) Subdivision (c) of section 33 is obviously inconsistent with the general laws and public policy of the State. Its inconsistency with the Public Health Law of the State has already been indicated. While the case before us deals especially with a subpoena issued in a workmen’s compensation proceeding and on behalf of a carrier, it may in another case be desired by the widow or parent of a workman, or by the defendant in a criminal proceeding, in which liberty or life may be involved. The provision assumes to exercise a most sweeping power, and purports to render the records in question immune generally from subpoena, thus limiting the power not only of State agencies, such as the Workmen’s Compensation Board (Workmen’s Compensation Law, §§ 49-a, 118, 119, 142, subd. 3), but also of the courts themselves (Civ. Prac. Act, §§ 63, 403-414) and grand Juries (Code Crim. Pro., §§ 252, 261). Certainly it cannot be claimed that subpoenas will unduly interfere with the board’s custody or its use of the records for scientific purposes, for our Civil Practice Act and the Rules of Civil Practice already contain definite provisions in the way of safeguards for subpoenas duces tecum served upon “ a department or bureau of any municipal corporation ” by the substitution of copies for original records (Civ. Prac. Act, § 412; Rules Civ. Prac., rule 162).

The provision in question establishes a new class of confidential communications with respect to New York City deaths, not found in the Civil Practice Act nor in other statutes enacted by the State Legislature. The section may not be upheld on the ground that it is designed to supplement the existing statutory privilege applying to the physician-patient relationship (Civ. Prac. Act, § 352) since that privilege may be waived, and is waived in a proceeding such as the instant one (Matter of Maryland Cas. Co. [City of New York], 274 App. Div. 211; see 8 Wigmore on Evidence [3d ed.], § 2377, subds. [e], [d], pp. 778-779).

Moreover, by making the report unavailable, the section creates a new rule of evidence contrary to the evidentiary rule prevailing throughout the State generally by rendering inadmissible confidential medical reports arising out of New York City deaths in any action or proceeding, no matter how vital, competent and material that evidence may be, even in a case where, as here, the decedent’s relatives assert a claim based on cause of death.

The power to limit our courts, grand juries, and all government agencies should not be implied. In People v. County of Westchester (282 N. Y. 224, 232) and Matter of Kress & Co. v. Department of Health (supra, p. 60), we quoted with approval from Presiding Justice Lazansky’s opinion in Jewish Consumptives’ Relief Soc. v. Town of Woodbury (230 App. Div. 228, 234, affd. 256 N. Y. 619), as follows: “ The authority of a municipality to abrogate State law is never implied or inferred. It is only derived from express grant, never from a general grant of power. A State policy may not be ignored by a municipality unless it is specifically empowered so to do in terms clear and explicit.” (See, also, 2 Dillon on Municipal Corporations [5th ed.], § 601; Mills v. Sweeney, 219 N. Y. 213, 219.) No such express grant of power will be found in subdivision b of section 558 of the New York City Charter.

The aim of the section under review is, of course, well-intentioned, but in my opinion it is not consistent with the laws of this State nor with its public policy. There is a vast difference between denying inspection to those not having a legitimate interest in the record, on the one hand, and barring inspection, without any qualification whatsoever, on the other. The purpose of the board could well be achieved validly with reasonable and proper safeguards to prevent indiscriminate inspection but allowing inspection under proper supervision. An illustration of this procedure is found in section 20 of the Mental Hygiene Law. It requires the Department of Mental Hygiene to keep in its office certain records, “ accessible only to the commissioner, medical director and such other officers and subordinates of the department as the commissioner may designate, except by the consent of the commissioner or an order of a judge of a court of record ”. (Emphasis supplied.) Similarly, subdivision 9 of section 34 requires the director of each State institution to make a record which “ shall be accessible only to the director and such officers and subordinates of the institution as he may designate and to the commissioner and his representatives, except on the consent of the commissioner or an order of a judge of a court of record.” (Emphasis supplied.) These records are probably just as embarrassing to the relatives of the inmate as the confidential death report would be to the relatives of a decedent. Yet, it is significant to note that the Legislature has made them available in proper cases upon a court order.

The prevailing opinion properly disposes of the limited constitutional objection raised here, and, since no other has been presented here or below, we may not now consider any other (Matter of O’Neill v. Board of Regents of Univ. of State of N. Y., 298 N. Y. 777). However, I am constrained to conclude that subdivision b of section 558 of the Hew York City Charter did not authorize and empower the board of health to enact subdivision (c) of section 33 of the Sanitary Code in its present form, for the reason that said section does not provide “ for the security of life and health that it is inconsistent with the laws of this State and its public policy; and that it constitutes an unwarranted and invalid interference with the right to the production of documents, as permitted not only at common law but by our many related State statutes as well.

The order should he reversed and the motion remitted to Special Term for further proceedings not inconsistent with this opinion.

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

Order affirmed.


source: Caselaw Access Project

author: Loughran, Ch. J.

license: Public Domain

text:
    In the Matter of the Claim of Marion Masse, Claimant, against James H. Robinson Co., Inc., et al., Respondents. Workmen’s Compensation Board, Appellant.
    Argued January 10, 1950;
    decided April 13, 1950.

      Nathaniel L. Goldstein, Attorney-General (Theodore M. Schwartz, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, appellant.
    The disability and death of decedent were due to accidental injuries arising out of and in the course of his employment. In addition to the proof of a series of strains during the entire week from April 10, 1947, to April 15, 1947, there is uncontradicted evidence of a specific incident of lifting and unusual exertion on April 15, 1947, which caused decedent to become immediately ill from a cardiac injury and to become totally disabled and to die from the effects of such injury. (Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Matter of O’Sullivan v. Woods Theatre Co., 195 App. Div. 609; Matter of Fogarty v. National Biscuit Co., 221 N. Y. 20; Matter of Pickerell v. Schumacher, 242 N. Y. 577; Matter of Kusel v. Eastern Bridle Iron & Steel Corp., 283 N. Y. 671; Matter of Mark v. Myrod Amusement Corp., 267 App. Div. 844; Matter of Hut v. Lejack Holding Corp., 262 App. Div. 978; Matter of Wightman v. Westfall Mfg. Co., 266 App. Div. 935; Matter of Furtardo v. American Export Airlines, 274 App. Div. 954; Matter of Fairley v. Socony-Vacuum Oil Co., 274 App. Div. 837; Matter of Katchmer v. Smith & Sons Carpet Co., 272 App. Div. 1091; Matter of McCormack v. Wood Harmon Warranty Corp., 288 N. Y. 614; Matter of Ruby v. Lustig, 299 N. Y. 759.)

      Edward L. Robinson, Jr., William M. Fay, Solon J. Stone and William B. Lawless, Jr., for respondents.
    The Appellate Division was correct in holding that there is no evidence to support the board’s conclusion to the effect that Masse, who suffered a heart attack while getting out of bed in his own home, met with an accident during the course of his employment. A conclusion as to the existence of an accident within the meaning of the Workmen’s Compensation Law cannot be based upon the finding that Masse’s work, during the week preceding the attack which he had at home, was more arduous than usual. Even if we assume the existence of the board’s premise, its conclusion is not thereby supported. (Matter of Jeffreyes v. Sager Co., 198 App. Div. 446, 233 N. Y. 535; Matter of Dyviniek v. Buffalo Courier Express Co., 296 N. Y. 361; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Matter of Lerner v. Rump Bros., 241 N. Y. 153; Matter of Doulin v. City of Saratoga Springs, 236 App. Div. 749, 261 N. Y. 558; Matter of La Fountain v. La Fountain, 259 App. Div. 1095, 284 N. Y. 729; Matter of Dworak v. Greenbaum Co., 261 App. Div. 1022, 287 N. Y. 555; Matter of Schwalenstocker v. Department of Taxation & Finance, 293 N. Y. 861; Matter of Chiara v. Villa Charlotte Bronte, 273 App. Div. 834, 298 N. Y. 604.)
   Loughran, Ch. J.

This is a workmen’s compensation case. The employee, Paul J. Masse, whose work had long been physically hard, was subjected to unusual strain and exertion during his working hours in the week that ended April 15, 1947. On that date, he moved a large number of heavy objects after which he looked pale and weak and on his arrival home went to bed. When he complained of chest pains the next morning, his wife summoned a physician who found him suffering from an acute coronary occlusion which caused him thereafter to be wholly disabled until he died on May 21, 1947, at age thirty-seven. In the opinion of this physician, the cause of death was the unusual strain and exertion that had been imposed upon Mr. Masse by the character of his work during the week ending April 15, 1947.

The Workmen’s Compensation Board made an award of compensation for the period of disability and an award of death benefits to Mr. Masse’s widow in accordance with the following finding of fact: “ During the week preceding April 16, 1947, while the said Paul J. Masse was engaged in the regular course of his employment * * * due to unusual extra exertion, strain and effort, he sustained accidental injuries in the nature of a coronary occlusion ’ ’.

On appeal to the Appellate Division, the decision and awards of the board were reversed and the claims dismissed for reasons stated by the court in these words: “ The board has found that the accidental injury occurred during the week ending April 15th. There is no evidence of deceased’s having experienced an accident during that week other than that his work was somewhat more arduous than usual. The findings of accidental injuries are without proof to sustain them. They are not assignable to any accidental experience ‘ identified in space or time ’ or to any particular event which was ‘ catastrophic or extraordinary ’ and which arose out of and in the course of the employment. (Matter of Jeffreyes v. Sager Co., 198 App. Div. 446, affd. 233 N. Y. 535; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83, 85, 86; Matter of Lerner v. Rump Bros., 241 N. Y. 153, 155). We may not say that unusual hard work in regular course of an employment prolonged for a week or so is an event of accident.” (275 App. Div. 976.)

A lengthening line of recent cases in this court commits us to a different conclusion. (See Matter of Green v. Geiger, 280 N. Y. 610; Matter of McCormack v. Wood Harmon Warranty Corp., 288 N. Y. 614; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Bohn v. L. R. S. & B. Realty Co., 289 N. Y. 808; Matter of Godsman v. Grumman Aircraft Engineering Corp., 295 N. Y. 708; Matter of Shaw v. Browers Garage, 295 N. Y. 709; Matter of Brooks v. Elliott Bates, Inc., 295 N. Y. 710; Matter of Flammer v. Bethlehem Steel Co., 295 N. Y. 817; Matter of Cooper v. Brunswick Cigar Co., 298 N. Y. 731; Matter of Ruby v. Lustig, 299 N. Y. 759.) The cited cases — in each of which the Appellate Division upheld an award — stand for this proposition: A heart injury such as coronary occlusion or thrombosis when brought on by overexertion or strain in the course of daily work is compensable, though a pre-existing pathology may have been a contributing factor.

Perhaps we have heretofore as matter of law denied claims for workmen’s compensation in cases that cannot he easily distinguished from the one now in hand. (See Matter of Scully v. Linwood Amusement Corp., 268 N. Y. 512; Matter of La Fountain v. La Fountain, 284 N. Y. 729; Matter of Dworak v. Greenbaum Co., 287 N. Y. 555.) But such variations represent no difference as to what is the right basis for decision of controversies of the present kind. Whether a particular event was an industrial accident is to be determined, not by any legal definition, but by the common-sense viewpoint of the average man. (Cf. Matter of Lurye v. Stern Bros. Dept. Store, 275 N. Y. 182, 185.)

The order of the Appellate Division should be reversed and the awards reinstated, with costs to the Workmen’s Compensation Board.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Order reversed, etc.


author: Per Curiam.

text:
    Louise A. Rauch, Appellant, v. Mossberg Garage Corporation, Respondent.
    Argued April 4, 1950;
    decided May 18, 1950.

      Charles E. Powers for appellant.
    The Commercial Rent Law (L. 1945, ch. 3, as amd.) controls the rental of garage space in New York City. (Shepard Warehouses v. Scherman, 63 N. Y. S. 2d 421; Esposito v. 285 St. John’s Place, Inc., 68 N. Y. S. 2d 18; Carothers v. Bowles, 148 F. 2d 554; 18 Beekman Place, Inc., v. Wales, N. Y. L. J., Dec. 19, 1947, p. 1821, col. 3, 273 App. Div. 965.)

      Sol A. Herzog for respondent.
    The Legislature did not intend to include within the scope of this statute the typical garage-customer relationship here presented, nor does this statute even purport to include it. (Sirom Estates, Inc., v. Miller, 186 Misc. 865; Twentieth Century Associates v. Waldman, 294 N. Y. 571; Morse & Grossman, Inc., v. Acker & Co., 297 N. Y. 304; Matter of Fifth Madison Corp. [New York Tel. Co.], 297 N. Y. 155; Sno-Wite, Inc., v. Gerald Operating Corp. 271 App. Div. 314, 297 N. Y. 1007; United Merchants Realty & Improvement Co. v. New York Hippodrome, 133 App. Div. 582, 201 N. Y. 601; Hess v. Roberts, 124 App. Div. 328; Plane

      tary Recreations, Inc., v. Kerns, Inc., 184 Misc. 340; Kaypar Corp. v. Fosterport Realty Corp., 69 N. Y. S. 2d 313, 272 App. Div. 878; Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884; Isaacson v. Ken Drug Corp., 195 Misc. 246; Polner v. Arling Realty Inc., 194 Misc. 831; WMCA, Inc., v. Blockfront Realty Corp., 194 Misc. 932, 272 App. Div. 800; White Way Arcade, Inc., v. Broadway Turtle King, Inc., 273 App. Div. 281; Matter of Rouss, 221 N. Y. 81.)
   Per Curiam.

The Commercial Rent Law (L. 1945, ch. 3, as amd.) was not" designed to, and does not, regulate the relationship between the operator of a public garage and one who has his automobile stored or garaged therein — at least where, as in the present case, no definite space is assigned to him. As is clear from its language, its history and its purpose, the statute extends its protective coverage only to those who, as tenants, either possess or occupy a specified and measurable area of commercial real estate. Obviously, one who simply garages a car in a public garage is not a tenant within the meaning of that statute.

The judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Paul Carborano, Appellant.
    Argued April 5, 1950;
    decided May 25, 1950.

      Joseph A. Solovei for appellant.
    I. Appellant did not have a fair trial. Summation remarks alluding to the failure of appellant to call his wife and others as witnesses in his behalf was reversible error. (People v. Kehoe, 253 App. Div. 762; People v. Ferguson, 245 App. Div. 837; People v. Kilroe, 201 App. Div. 549; People v. Kearns, 214 App. Div. 804; People v. Bernstein, 260 App. Div. 955; People v. Rafkind, 254 App. Div. 742; People v. Hinksman, 192 N. Y. 421.) II. Appellant’s basic right to remain mute upon advice of counsel, when emasculated as was here done, constitutes reversible error. (People v. Mleczko, 298 N. Y. 153; People v. O’Regan, 221 App. Div. 331; People v. Abel, 298 N. Y. 333; People v. Pignataro, 263 N. Y. 229; People v. Marendi, 213 N. Y. 600; People v. Rutigliano, 261 N. Y. 103; People v. Michor, 226 App. Div. 569; People v. Esposito, 224 N. Y. 370; People v. Manganaro, 218 N. Y. 9; People v. Wolf, 183 N. Y. 464.) III. A line of questioning had been pursued by the prosecutor despite the well-recognized rule of law that it is reversible error to receive evidence upon the trial of an offense other than that charged. (People v. Thompson, 212 N. Y. 249; People v. Loomis, 178 N. Y. 400; People v. McLaughlin, 150 N. Y. 365.) IV. The trial court’s change in position in first admitting this testimony and then excluding it after the damage had been done, added to the adverse effect on the jurors’ minds. (People v. Robinson, 273 N. Y. 438; People v. Conrow, 200 N. Y. 356.)

      Miles F. McDonald, District Attorney (Frank Di Lalla of counsel), for respondent.
    I. Appellant’s trial was had, in every respect, according to law. Summation remarks alluding to the failure to call his wife and other witnesses in appellant’s behalf were proper. (People v. Sharp, 107 N. Y. 427; People v. Hovey, 92 N. Y. 554; Gordon v. People, 33 N. Y. 501; People v. Leonardo, 199 N. Y. 432.) II. No prejudicial error was committed in considering appellant’s right to remain mute on advice of counsel. (People v. Mleczko, 298 N. Y. 153; People v. Abel, 298 N. Y. 333; People v. Pignataro, 263 N. Y. 229; People v. Dolce, 261 N. Y. 108; People v. Rutigliano, 261 N. Y. 103; People v. Marendi, 213 N. Y. 600; People v. Greenwall, 115 N. Y. 520; People v. Mull, 167 N. Y. 247; People v. Gillette, 191 N. Y. 107; People v. Guardino, 286 N. Y. 132; People v. Watson, 216 N. Y. 565.) III. There was no prejudicial conduct on the part of the court or prosecutor. (People v. Guardino, 286 N. Y. 132.)
   Fuld, J.

Carborano was convicted of two crimes of grand larceny in the first degree. In affirming, the Appellate Division did so under section 542 of the Code of Criminal Procedure, thereby recognizing that errors had been committed. We agree that the record contained sufficient evidence to have warranted a verdict of guilt, but not that the errors failed to affect defendant’s substantial rights.

By suggestion and insinuation, the assistant district attorney who tried the case created the false impression that the defendant at the time of his arrest was in possession of stolen property in addition to that charged against him (see People v. Harvey, 235 N. Y. 282, 294-295; People v. Loomis, 178 N. Y. 400, 403); that he had been previously convicted of or, if not convicted, arrested for the crime of receiving stolen property (see People v. Slover, 232 N. Y. 264, 268; see, also, People v. Perry, 277 N. Y. 460, 466-467); that he had been responsible for the falsification of testimony by one of the People’s witnesses by intimidating him or otherwise instilling fear in him (see People v. Pignataro, 263 N. Y. 229, 236-237; People v. Buzzi, 238 N. Y. 390, 397-398; cf. People v. Marino, 288 N. Y. 411, 418); that he was guilty because he had refused to answer questions put to him by the police when taken into custody (see People v. Abel, 298 N. Y. 333, 335; People v. Mleczko, 298 N. Y. 153, 160; People v. Pignataro, 263 N. Y. 229, 236, supra); and that he had deliberately refrained from calling witnesses, some of whom were outside of the State, because he realized that their testimony would implicate him (see People v. Sharp, 107 N. Y. 427, 465; cf. People v. Manning, 278 N. Y. 40, 43).

Here was no isolated instance of error, but rather a persistent disregard of rules of law designed to safeguard the substantial rights of an accused. Though there may be “no yardstick to measure error and differentiate between the technical and the substantial” (People v. Mleczko, 298 N. Y. 153, 162, supra), and while we may not be able to say with certainty that, absent the errors remarked, the verdict would have been one of acquittal, we may say with some assurance that the repeated improprieties had a decided tendency to blur the issue for decision and to prejudice the jury. (See People v. Tassiello, 300 N. Y. 425; People v. Mleczko, 298 N. Y. 153, 162, supra; People v. Posner, 273 N. Y. 184, 190; People v. Sobieskoda, 235 N. Y. 411, 420; People v. Marendi, 213 N. Y. 600, 619-620.) In a very real sense, therefore, the defendant was deprived of his right to a fair trial, a trial neither colored nor influenced by irrelevant matters likely to mislead or confuse the jury. (See People v. Tassiello, 300 N. Y. 425, supra.)

Nor can a court’s instructions to jurors to dismiss from mind matters improperly brought to their attention always assure elimination of the harm already occasioned. (See, e.g., People v. Robinson, 273 N. Y. 438, 445-446.) If it did, then the prosecution would be in a position to violate the rules of fair conduct with impunity, secure in the thought that the verdict, if one of guilt, would not be upset as long as the judge simply directed the jury to disregard what had occurred. The decision in each case as to whether the trial was fair or unfair, whether the error was harmless or prejudicial, must of necessity depend upon the nature of the proof adduced and upon, the type of error committed. In the present case, while the court may have corrected some of the improprieties, neither its instructions nor its admonitions could possibly have cured the prejudice resulting from their commission.

The judgments should be reversed and a new trial ordered.

Loughran, Ch. J., Lewis, Conway and Desmond, JJ., concur with Fuld, J.; Dye and Froessel, JJ., dissent and vote for affirmance under section 542 of the Code of Criminal Procedure.

Judgments reversed, etc.


text:
    The People of the State of New York, Appellant, v. Sydney Seigel, Respondent.
    Submitted April 5, 1950;
    decided May 25, 1950.

      Miles F. McDonald, District Attorney (David Diamond of counsel), for appellant.
    Defendant was properly convicted of the crime charged. (People v. Gravenhorst, 32 N. Y. S. 2d 760.)

      Samuel Epstein for respondent.
    I. The People failed to establish prima facie that this penny vending machine was used as a gambling device within the meaning of section 982 of the Penal Law. (Times Amusement Corp v. Moss, 160 Misc. 930, 247 App. Div. 771; People v. Gravenhorst, 32 N. Y. S. 2d 760; Matter of Mapakarakes, 169 Misc. 766; People v. Fitzgibbons, 33 N. Y. S. 2d 377; Savoy Vending Co. v. Valentine, 178 Misc. 1; People v. Bitter, 32 N. Y. S. 2d 176; People v. Boxer, 24 N. Y. S. 2d 628.) II. The fact that a machine is unpredictable in its operation, in and of itself does not make that machine a gambling device within the contemplation of section 982 of the Penal Law. (Seaboard N. Y. Corp. v. Wallander, 192 Misc. 227; People v. Gravenhorst, 32 N. Y. S. 2d 760; People v. Rivero, 190 Misc. 1050; Matter of Shapiro v. Moss, 245 App. Div. 835; People v. Boxer, 24 N. Y. S. 2d 628; Times Amusement Corp. v. Moss, 160 Misc. 930, 247 App. Div. 771; People v. Mills, 160 Misc. 730; Matter of Mapakarakes, 169 Misc. 766; Scientific Mach. Corp. v. Simmons, 267 App. Div. 917; People v. Reilly, 255 App. Div. 109, 280 N. Y. 509.)
   Per Curiam.

Defendant was convicted of the crime of keeping a slot machine in violation of section 982 of the Penal Law. The machine, which defendant permitted to stand on the counter in his candy store, would, upon the insertion of a penny dispense either a ball of chewing gum or a small trinket enclosed in a transparent plastic ball. The gum and the trinkets were in a spherical glass container and were visible to the user of the machine. It was stipulated that there were more gum balls than trinkets in the machine and that it was impossible to predict whether the machine would dispense a gum ball or a trinket. There was no proof that the gum balls were worth more or less than the trinkets from a monetary point of view.

We hold that the device was a slot machine within the definition thereof in subdivision 2 of section 982. There was concededly an element of chance, unpredictable by the user, involved in its operation. Under the particular facts of this case, it is immaterial that there was no proof of a difference in intrinsic value between the various objects obtainable from the machine. The trinkets were of some value, and there was a difference in subjective value between the trinkets and the gum balls, even if not in exchange value. As stated in the dissent below, ‘ To the avid eyes of a child, the trinket is a treasure ” (276 App. Div. 984).

The order of the Appellate Division should be reversed and case remitted to that court for its determination of the facts in accordance with section 543-a of the Code of Criminal Procedure.

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

Ordered accordingly.


author: Conway, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Michael Joseph Florio, George Robert Gill, Joseph Cigna and John Frank Lentini, Appellants.
    Argued April 5, 1950;
    decided May 25, 1950.

      Edward H. Levine for Michael Joseph Florio, appellant.
    I. The two kidnapping counts in the indictment should have been dismissed because of their inapplicability. (People v. Plath, 100 N. Y. 590; People v. Camp, 139 N. Y. 87; People v. De Leon, 109 N. Y. 226; People v. Weiss, 276 N. Y. 384; People v. Gordon, 258 App. Div. 916; People v. Rosenthal, 289 N. Y. 482.) II. Abduction, on the other hand, from earliest times, was connected with the crime of rape. The literal meaning of abduction is the unlawful taking and carrying away of a woman or girl. (State v. Hopper, 186 N. C. 405; People v. Smith, 114 App. Div. 513; Regina v. Barrett, 9 Car. & P. 387; People v. Plath, 100 N. Y. 590; Beyer v. People, 86 N. Y. 369; Schnicker v. People, 88 N. Y. 192; People ex rel. Howey v. Warden, 207 N. Y. 354; People v. Deckenbrock, 157 App. Div. 379.)

      Joseph Lonardo and D. Joseph De Andrea for Joseph Cigna, John Frank Lentini and George Robert Gill, appellants.
    The proof establishes that the female’s detention was solely for the purpose of sexual relationship. Therefore the crime of kidnapping has not been made out within the statutory intendment. (People v. Ryan, 232 N. Y. 234; People v. Yannucci, 283 N. Y. 546.)

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
    I. The judgment of conviction was amply sustained by the evidence. (People v. Connor, 126 N. Y. 278; People v. Dohring, 59 N. Y. 374; People v. Bowles, 2 N. Y. Crim. Rep. 447; People v. Lytton, 257 N. Y. 310; People v. Clemons, 37 Hun 580.) II. Defendants may be prosecuted for the crime of kidnapping even though, under the circumstances existing, they may also be charged with the crime of abduction. (People v. Weiss, 276 N. Y. 384; People v. Hope, 257 N. Y. 147; People v. Rosenthal, 289 N. Y. 482.)
   Conway, J.

All four defendants, by a general verdict, have been found guilty on six counts of an indictment which charged kidnapping, rape in the first degree and assault in the second degree. The People proved beyond a reasonable doubt that the defendants, acting in concert and each aiding and abetting the other, inveigled the complainant into an automobile, detained and confined her there while transporting her between New York County and Queens County through Kings County, against her will and without authority of law.

The complainant had been visiting at the home of a neighborhood friend, in lower Manhattan. The defendants arranged a plan whereby two of them drove there and one inveigled complainant out of the house upon the pretense that the one who remained in the automobile was known to her. When she reached the automobile, and said that she did not recall ever seeing the defendant seated behind the wheel, she was induced to enter the car, since it was a cold March night and she was without hat or coat, while the defendant driver attempted to recall himself to her. As soon as she entered, the automobile was put in motion, the two other defendants were picked up at a nearby, prearranged meeting place, and complainant was forcibly confined and imprisoned in the automobile, while it was driven to an isolated spot in Queens County where each defendant raped her. Complainant had never seen any of the defendants before that night. The driver of the car subsequently admitted that he thought they were calling for another girl with a similar name, but that he realized his mistake immediately. Nevertheless, he said, “ ‘ We started out for a girl; she was a girl, and we took her.’ ” We are all agreed that the guilt of the defendants of the acts just detailed was established beyond a reasonable doubt. (People v. Yannucci, 283 N. Y. 546.)

It is now urged upon us, however, that the acts proved did not establish the crime of kidnapping, however much they may have established rape and assault, because the complainant is a female and the purpose of the defendants in thus inveigling, detaining, confining and transporting her against her will and without authority of law was to commit the crime of rape in the first degree upon her.

Concededly, had the complainant been a man, the defendants ’ acts would have constituted the crime of kidnapping, since, under our statute, we have held that a wilful and intentional detention for an unlawful purpose against one’s will and without authority of law constitutes the crime of kidnapping. (Penal Law, § 1250, subd. 1; People v. Hope, 257 N. Y. 147; People v. Small, 249 App. Div. 863, 274 N. Y. 551.)

It is true that the detention inevitably occurring during the immediate act of commission of such a crime as rape or robbery would not form a basis for a separate crime of kidnapping. That, however, is not this case. Defendants’ inveiglement, detention and confinement of a woman unknown to them against her will and without authority of law, constituted the separate and distinct crime of kidnapping. It was true kidnapping in the popular understanding as well as the legal “ spirit and intent ” of the statute. (People v. Hope, supra, p. 154.) The defendants could have been found guilty of kidnapping even if they had never carried out their purpose of raping complainant or had had some undisclosed or undiscovered purpose. (People v. Hope, supra; People v. Small, supra.)

As indicated, our statute and decisions require this conclusion. Insofar as here material, section 1250 of the Penal Law reads as follows:

“ A person who wilfully: 1. Seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to be confined or imprisoned within this state * * * or in any way held to service or kept or detained, against his will * * * Is guilty of kidnapping * * *.”

In People v. Hope (supra) the defendant and two others by threats and intimidations confined a boy at night in the rear seat of an automobile, while compelling his companion, under threat of death, to drive the car as they directed. The purpose of the seizure was never disclosed. We held that the evidence sustained the charge of kidnapping under the above-quoted section 1250 which was then identical with its present wording, except that the word “ secretly ” in the phrase “ to be secretly confined or imprisoned ” was deleted by chapter 773 of the Laws of 1933. We there said (p. 150): “ Kidnapping was a crime under the common law of England, and was defined by Blackstone (Vol. 4, p. 219) as ‘ the forcible abduction or stealing away of a man, woman, or child, from their own country and sending them into another.’ * * * The common-law definition was extended in England at a very early day. (People v. Camp, 139 N. Y. 87.) The crime is now defined by statutes, in all of our States, which have greatly enlarged the cases where conviction may be had. (Smith v. State, 63 Wis. 453; People v. Camp, supra.)

We pointed out at page 152: “ The statute [§ 1250] must be given a reasonable construction in order to promote the efficient enforcement of the criminal law, to prevent crime and to promote the ends of justice. The object of the statute and of the common law on the subject was the same, to secure the personal liberty of citizens and to secure to them the assistance of the law necessary to release them from unlawful restraint.” (Emphasis supplied.) And later we said (pp. 153-154): “ * * * McCarthy [one of the boys] was secretly seized in' the night under circumstances calculated to terrify him. His captors had guns which they threatened to use to kill him with if he moved. They forced him to take the rear seat in the car. They apparently intended to take him in the car to Long Island as Klemmer [the other boy] was told to drive there. They had complete control of his person; he was confined and imprisoned in the car. That was not a mere assault or imprisonment. He was secretly confined and imprisoned because his captors were concealing their purpose from the public by compelling Klemmer and McCarthy to appear to be willing participants in the automobile ride, when in fact they were compelled upon the threat of death to act as they did.

“ The confinement and detention in the automobile for a short time, coupled with the intent, brings the case within the purview of the statute. (State v. Leuth, supra [128 Iowa 189].)

It seems clear that under the common understanding of the term ‘ kidnapping ’ the defendant is guilty of the crime charged and the facts bring the case within the spirit and intent of the statute.” (Emphasis supplied.)

In the instant case, complainant’s captors did not have a gun and they inveigled her into the automobile within the meaning of the statute instead of seizing her, but aside from these immaterial variations, the conduct of the present defendants and the conduct of the defendant in the Hope case (supra) are the same, and constitute the crime of kidnapping.

Likewise, in the Small case (supra), the complainant, a man, as he was returning to his home on a New York City street, was told by the defendants to enter an automobile standing at the curb. He was threatened with a pistol, his hat was pushed down upon Ms face and he was shoved into the back seat of the automobile. He called for help, and as the automobile was backing out of its parking place, the defendants were arrested. The entire occurrence must have taken less than two minutes, and the purpose of the seizure was never disclosed, yet we unanimously affirmed a conviction of kidnapping. We held that the statute did not specify any length of time during which the victim must be detained to establish the crime but that any detention against one’s will without authority of law, if wilful and intentional, is sufficient to constitute kidnapping.

In view of the wording of the statute and these two cases construing it, the conclusion is inescapable that the evidence in the instant case sustains the charge of kidnapping and requires affirmance.

It is also conceded that although the complainant was a female, it would have been kidnapping had the purpose of the defendants been extortion, blackmail, sodomy (People v. Rosenthal, 289 N. Y. 482) or any other crime not requiring that the testimony of the female be supported by other evidence. The argument of counsel seems to be that defendants who kidnap a girl with intent to rape her cannot be convicted of kidnapping because as to the separate crime of rape, the complainant’s testimony must be supported by other evidence. It seems clear that counsel are attempting to read into the kidnapping statute a limitation which the Legislature has not seen fit to put there, either expressly or by implication. Such a strained view of the statute would result in the anomalous situation that a defendant tried for kidnapping a female would be able to defend upon the ground that, while he did kidnap the female, he intended eventually to rape her. Surely, that was not the intent of the Legislature and does not accord with ‘ the common understanding of the term ' kidnapping ’ ”. (People v. Hope, supra, p. 154.)

Counsel also argue that since the purpose of the inveiglement and confinement was rape, the crime committed was abduction (Penal Law, § 70, subd. 3) and could not be kidnapping. In other words, that since the Legislature has defined two crimes, kidnapping and abduction, and has continued to define them for many decades, that therefore, the Legislature intended that kidnapping and abduction could not both be committed, but that if a female were confined and imprisoned for the purpose of rape, her captor could not be prosecuted for kidnapping. Counsel have not called our attention to any evidence of legislative intent in this respect and as far back as 1888, more than sixty years ago, we held squarely to the contrary in People v. De Leon (109 N. Y. 226). There, the acts charged constituted a clear violation of the abduction statute (then Penal Code, § 282, subd. 2; now Penal Law, § 70, subd. 2). Yet we affirmed a conviction under subdivision 1 of the kidnapping statute (then Penal Code, § 211, now Penal Law, § 1250). In the course of his opinion, Judge Andrews discussed the case of Beyer v. People (86 N. Y. 369) an abduction case. The Legislature in the intervening years has accepted our understanding of the legislative intent and the point is no longer open in this court.

Moreover, it is clear from the words of Blackstone which we quoted with approval in People v. Hope (supra) and which will be found on pages 49 and 50 herein, that kidnapping and abduction of a woman have never been mutually exclusive crimes and are even less so today since, as we pointed out in People v. Hope (supra) the kidnapping statute has “ greatly enlarged the cases where conviction may be had ” (p. 150), and since, even subsequent to that decision the Legislature has further enlarged the definition of kidnapping by deleting the word “ secretly in 1933. This is further confirmed by the present wording of subdivision 3 of the section defining kidnapping (Penal Law, § 1250) which uses the words “ abducts ” and " abduction ”.

It may not be claimed that kidnapping and abduction are not separate and distinct crimes. There are many occasions in the criminal law where the same act constitutes different crimes and is punishable in different ways, but no one would claim that prosecution may not be had for either or both depending upon the facts presented and found by a jury. Therefore, defendants can make no objection that the Grand Jury and the District Attorney have chosen to prosecute them for the more general crime of kidnapping rather than for the crime of abduction. As we recently said in People v. Hines (284 N. Y. 93, 105): “ Also the principle is applicable that the State may proceed under a general statute even though a more specific one is available. A specific statute does not necessarily replace a more general statute, and does not become the exclusive method of prosecution. Authorities in this State and elsewhere confirm this principle. In People v. Bord (243 N. Y. 595) defendant urged that the existence of a specific statute covering the exact act with which he was charged prevented a prosecution for the felony under the more general statute. This court rejected that argument.”

The District Attorney’s brief in the Hines case contains numerous citations of out-of-State cases for this principle. In our own State, there are the following: People v. Samuels (284 N. Y. 410); People v. Malavassi (248 App. Div. 784, affd. 273 N. Y. 460; People v. Lefkowitz (232 App. Div. 18, affd. 257 N. Y. 560); People v. Gibson (232 N. Y. 458, 462); People v. Dwyer (215 N. Y. 46, 52); Wilkinson v. Gill (74 N. Y. 63, 67-68). (And, see, Penal Law, § 1938.) As the court said in the Malavassi case (supra), “ The fact that an act is a crime under two or more sections of the Penal Law does not bar prosecution under either provision. In such a case the duty devolves upon the grand jury and the district attorney to determine under which of the applicable sections of the statute an indictment should be found.” (248 App. Div. 784.)

Had it wished, the Grand Jury could have added a seventh count charging abduction and defendants could have been convicted of that crime too. However, the District Attorney may possibly have avoided asking the Grand Jury to indict the defendants for abduction in addition to kidnapping, because our decision in People ex rel. Howey v. Warden of City Prison (207 N. Y. 354), may be read as holding that the inveiglement and transportation of a female for the purpose of a single act of intercourse is not abduction. That case has some similarity to the one presented here in that there was deceit, transportation from one county to another and some degree of force applied. In any event, the District Attorney of a county, familiar with the conditions there and responsible to the People of the county, has the duty of recommending to the Grand Jury indictment for the crime or crimes which the protection of the community requires and we are not here to determine that for him. The protection of women in a county with sparsely settled sections is one of the responsibilities of the Grand Jury of that county and if they select the crime which carries the heaviest punishment for acts lawlessly committed so that conviction may act as a deterrent to others, that is within the competency of such Grand Jury.

It seems to us that the utmost that the defendants would have been entitled to by way of charge from the court, if there had been counts in the indictment for both kidnapping and abduction, would have been that the jury could select one of the two crimes, but could also convict of both kidnapping and abduction depending upon the facts found by it. Had they been so convicted of kidnapping, abduction, rape and assault, by a general verdict, as was done here for all those crimes except abduction, then under section 1938 of the Penal Law, the court, under the settled practice of the criminal law, would have passed judgment on the count charging the highest grade of offense. Thus, in Conkey & Herrington v. People (5 Parker Cr. Rep. 31, 37 [Court of Appeals, Dec., 1860], opinion by Clerke, J.), we said: “ When a general verdict of guilty is rendered upon several counts in an indictment, relating to the same transaction, the practice is to pass judgment on the count charging the highest grade of offense. * * * ” (See, also, People v. Edwards, 173 App. Div. 375; People ex rel. Thornwell v. Heacox, 231 App. Div. 617, 618; People v. Goggin, 256 App. Div. 995, affd. 281 N. Y. 611; People v. Wells, 246 App. Div. 853; Matter of Zovick v. Eaton, 259 App. Div. 585, 586.) That result was accomplished by the sentence here.

The judgments should be affirmed.

Desmond, J.

(dissenting). Bach of the four defendants has been convicted of, and each has been given separate but concurrent sentences for, crimes of kidnapping, first degree rape and second degree assault. The proof, shortly stated, was that defendants inveigled the young woman complainant into an automobile, and, against her will, transported her to a secluded place where she was beaten and where each defendant ravished her. The convictions for assault and rape were sustained by sufficient proof. However, the crime of kidnapping, within the meaning and intent of section 1250 of the Penal Law, was not here proven.

Subdivision 1 of section 1250, to which the kidnapping counts in this indictment refer, is as follows: A person who wilfully: 1. Seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to he confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service or kept or detained, against his will; * * * Is guilty of kidnapping ”. A similarly worded definition of the crime of kidnapping has been in the statute books of New York since 1827 (see chapter 312 of the laws of that year). On its face, such language may seem appropriately to describe the acts of these defendants. But, ever since the passage of chapter XLVIII of the Revised Laws of 1801 (“ An Act to prevent and punish rapes and the forcible taking of Women ”) there has been listed in our statutes another crime, latterly called abduction ” (see 1937 Report of N. Y. Law Revision Commission, p. 457), and now, in modern language and, so far as pertinent here, defined in subdivision 3 of section 70 of the Penal Law, as follows:

‘‘ A person who: * * *
3. Takes or detains a female unlawfully against her will, with the intent to compel her, by force, menace or duress, to marry him, or to marry any other person, or to be defiled; * * * Is guilty of abduction”.

In this State, therefore, there have coexisted for many generations the crime of kidnapping, that is, the seizure, confinement or inveiglement of another with intent to confine or imprison him, and also another crime: abduction, that is, the taking or detention of a female, unlawfully against her will, for the purpose of marriage or defilement. During all that time the intent of the Legislature separately to deal with unlawful seizures when for sexual purposes, is manifest. At one time the two offenses stood on the statute books almost literally side by side, each carrying the same maximum penalty of ten years imprisonment (see 2 Rev. Stat. of N. Y. [1829], part IV, ch. I, tit. II, §§ 25, 28, p. 664). Presumably, the Legislature had deliberately kept in effect those two laws, and the later transfer of each to a separate chapter of the Penal Law did not show a change of the legislative intent in that respect (see People v. Rockwell, 300 N. Y. 557). In more recent times, the punishment for kidnapping has been increased until a person convicted thereof may now, under certain circumstances, be imprisoned for life, or a sentence of death may be imposed. Meanwhile, the maximum term for abduction has remained at ten years. And, what is more significant, it has been the law at least since the Penal Code went into effect in 1881 (L. 1881, ch. 676), that a conviction for abduction cannot be had “ upon the testimony of the female abducted, unsupported by other evidence ” (present Penal Law, § 71; old Penal Code, § 283). To permit an abduction to be prosecuted as a kidnapping would be to defeat that legislative policy as to “ other evidence ” (see People v. Plath, 100 N. Y. 590, 593). It is not surprising, therefore, that forceful takings for marriage or defilement have always been treated as abductions, and not as kidnappings — aside from the present case, we find only one reported decision where there was a conviction for kidnapping on such facts (People v. Kulikauskas, 273 App. Div. 978), and the briefs on that appeal show that this point was not raised.

Furthermore, the kidnapping statute itself (Penal Law, § 1250), contains internal evidence that abduction and kidnapping are distinct offenses, since in subdivision 3 thereof (not here involved) one who “abducts” another at or from a place without the State is declared guilty of kidnapping; in other words, abduction under such circumstances becomes kidnapping (see People v. De Leon, 109 N. Y. 226).

It is impossible to prove with mathematical or clinical precision that the Legislature intended always that these offenses should be separate, one from the other. However, everything points that way, including the fact that the abduction statute was amended as recently as 1940 (L. 1940, ch. 190). Eminent writers on criminal law have come to similar conclusions as to there being essential differences between the two crimes (2 Burdick on Law of Crime [1946], § 359; 1 Russell on Crime [9th ed.], p. 592), and the Supreme Court not long ago warned against stretching the meaning of kidnapping statutes by “ the magic of lexigraphy ” (Chatwin v. United States, 326 U. S. 455, 464).

We find in the prevailing opinion no answer to the foregoing demonstration of legislative intent. Irrelevant here are such cases as People v. Hope (257 N. Y. 147), People v. Small (274 N. Y. 551), and People v. Rosenthal (289 N. Y. 482); each of those is a typical kidnapping case, lacking in the very elements which, as pointed out above, distinguish abduction from kidnapping. As to the suggestion that the present defendants could have been indicted for, and convicted of, both kidnapping and abduction, we can say only that the suggestion has never been heard before, and that it denies to the Legislature the power it has always exercised, of fixing the elements of, and the punishment for, specific and separate crimes.

The reference to People ex rel. Howey v. Warden of City Prison (207 N. Y. 354) can be disposed of by pointing out that the ruling there is as to the meaning of subdivision 2 of section 70, and not of the very different definition of abduction in subdivision 3, which latter subdivision is the one here material. Incidentally, the Special Term opinion in People ex rel. Howey v. Warden of City Prison (supra), approved by the court’s opinion in that case, supports the conclusion herein that the facts now before us make out the crime of abduction under subdivision 3 of section 70.

The judgments of the Appellate Division should be modified so as to provide that the judgments of convictions as to the 1st and 6th counts be reversed and those counts dismissed, otherwise affirmed.

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

Judgments affirmed.


author: Froessel, J.

text:
    Michael M. Martocci, Appellant, v. The Greater New York Brewery, Inc., Respondent.
    Argued February 23, 1950;
    decided May 25, 1950.

      John F. X. Finn, Joseph F. Ruggieri, Francis M. Verrilli, C. J. Pernicone and Joseph J. Lombardo for appellant.
    I. Assuming that the Statute of Frauds requires a writing in the case at bar, and that the writings signed by defendant do not state the consideration for defendant’s explicit and admitted written promise, the law is clear that where plaintiff’s consideration was furnished in its entirety prior to the signing of the writings by defendant, the Statute of Frauds is satisfied by defendant’s signature over his express and definite promise, notwithstanding the fact that the writings do not mention plaintiff’s past consideration. (Drake v. Seaman, 97 N. Y. 230; Standard Oil Co. of N. Y. v. Koch, 260 N. Y. 150; Schechner v. Zipser, 89 N. Y. S. 2d 354; Hedeman v. Fairbanks, Morse & Co., 286 N. Y. 240; Rubin v. Dairymen’s League Co-op. Assn., 284 N. Y. 32; Marie v. Garrison, 83 N. Y. 14; Grundt v. Shenk, 222 App. Div. 82, 248 N. Y. 602; Miller v. McKenzie, 95 N. Y. 575; Grossman v. Schenker, 206 N. Y. 466.) II. The Statute of Frauds does not require any writing at all for a promise by X company to pay to Y commissions upon all future sales made by X company to Z company, especially where X company and Z company are free to discontinue business relations forever within a year, without obligation to Y. Such a contract is not one which by its terms “ is not ” to be performed within a year from the making thereof. It is possible of performance within a year and thus does not fall within the negative above quoted from Personal Property Law (§ 31, subd. 1). (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, 289 N. Y. 846; Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Kent v. Kent, 62 N. Y. 560; Warren Chemical & Mfg. Co. v. Holbrook, 118 N. Y. 586; Blake v. Voigt, 134 N. Y. 69; Jacobson v. Jacobson, 268 App. Div. 770; Newkirk v. Bradley & Son, 271 App. Div. 658; Scanlon v. Henie, 264 App. Div. 913; Marks v. Cowdin, 226 N. Y. 138.)

      Abraham Rotwein for respondent.
    I. Plaintiff failed to prove a cause of action for breach of contract. (Brocia v. Romeo & Co., 240 N. Y. 233; Lamphere v. Lang, 213 N. Y. 585; Meredith v. Canaday, 230 App. Div. 733; Meltzer v. Flying Fame, Inc., 224 App. Div. 41; Syracuse Reduction & Mfg. Co. v. City of Syracuse, 172 App. Div. 224; Miller v. Long Island R. R., 71 N. Y. 380; United Press v. New York Press Co., 164 N. Y. 406; Drake v. Seaman, 97 N. Y. 230; National Citizens’ Bank v. Toplitz, 178 N. Y. 464.) II. The alleged contract proved by plaintiff is void for lack of consideration. (Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 N. Y. 459; Chicago & G. E. R. R. Co. v. Dave, 43 N. Y. 240; O’Meara Co. v. National Park Bank, 239 N. Y. 386; Carpenter v. Taylor, 164 N. Y. 171.) III. The contract is unenforcible because of the Statute of Frauds. (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, 289 N. Y. 846; Elsfelder v. Cournand, 270 App. Div. 162; Hooke v. Petroleum Heating & Power Co., 65 N. Y. S. 2d 115; Droste v. Harry Atlas Sons, 145 F. 2d 899; Fish Clearing House v. Melchor, Armstrong, Dessau Co., 174 Wash. 539; O’Brien v. O’Neill, 271 App. Div. 647.) IV. The two letters do not constitute a sufficient memorandum to satisfy the Statute of Frauds. (Drake v. Seaman, 97 N. Y. 230; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Berman Stores Co. v. Hirsh, 240 N. Y. 209; Standard Oil Co. of N. Y. v. Koch, 260 N. Y. 150.)
   Froessel, J.

The action is in contract for the recovery of commissions. The complaint as amended at the trial alleged an oral agreement whereby, in consideration of the introduction of the defendant by plaintiff to P. Lorillard Company, defendant agreed “ to pay the plaintiff a commission of five (5%) per cent on all sales made by the defendant to P. Lorillard Company and paid for by them ”, which agreement was “ supplemented by the two letters of April 27, 1942, and August 26, 1942 ”. The answer admitted that defendant sold syrup to Lorillard, and in a separate defense alleged an agreement between the parties “ whereby defendant agreed to pay plaintiff a commission of 5% on all sales of syrup made by defendant to said P. Lorillard Company, through the direct effort of said plaintiff.”

Defendant rested at the close of plaintiff’s case, without cross-examining plaintiff. Both sides thereupon moved for a directed verdict. Plaintiff’s motion was granted, the court holding that there was no question of fact for submission to the jury, and that the Statute of Frauds was inapplicable. Judgment was entered in plaintiff’s favor for $16,597.80 and costs. The Appellate Division unanimously reversed, and dismissed the complaint on the law, holding that the Statute of Frauds applied and that defendant’s letters did not constitute a sufficient memorandum of the oral agreement.

The evidence showed that in April, 1942, while plaintiff was endeavoring to collect a substantial bill for services rendered, defendant’s president, an attorney, “ brought up the subject ” of a syrup which defendant produced. Plaintiff was not permitted to state the substance of that conversation. It appears, however, that, following this conversation, plaintiff received from defendant a gallon sample of syrup, sent it to Lorillard with a letter from plaintiff, and conferred with Lorillard’s purchasing agent, who was friendly to plaintiff for about twenty years. Thereafter and on April 27th, plaintiff again spoke to defendant’s president, and asked him to put in writing the conversation about the commission that they had talked about two weeks previously, whereupon the following letter on defendant’s letterhead was delivered to plaintiff, dated April 27,1942:

‘ ‘ Dear Mr. Martocci: —
This will confirm our oral agreement with respect to any sales of syrup by us to P. Lorillard Company:
We will pay you a commission of Five Percent (5%) on all sales made to this company and paid for by them. This Five Percent will be figured on our F.O.B. platform price, exclusive of any deposit which may be made for a container.
Very truly yours,
The Greater New York Brewery, Inc.
Lowell M. Birrell
By: President ”
(Emphasis supplied.)

Prior to that date, defendant had had no business contacts with Lorillard, but, on May 5, 1942, after a test had been made at Lorillard’s laboratories, defendant received its first order. Thereafter, carload shipments of the syrup were made in May, June and July, 1942, on March 31,1943, and until November 25, 1946, aggregating total sales of over $450,000, for all of which Lorillard paid. On August 26, 1942, defendant wrote plaintiff that it had not been favored with additional orders from Lorillard, and concluded:

“ In view of our arrangements with you, we have not felt that we should approach Lorillard through our own sales representatives as they work on a commission basis and in the event any business were forthcoming we would be obligated to pay them as well as you.
“ We would appreciate it very much if you would have a talk with your friends at Lorillard and let us know what you think we should do.” (Emphasis supplied.)

Between September, 1943, and November, 1944, defendant paid plaintiff $5,025.22 by way of commissions, in seven payments, but failed to make any payments thereafter.

Plaintiff urges (1) that the Statute of Frauds does not apply, and (2), if applicable, the statute was in any event satisfied by the letters aforesaid, since plaintiff’s consideration was furnished in its entirety prior to said writings.

In our opinion, the Statute of Frauds applies to this transaction (Cohen v. Bartgis Bros. Co., 264 App. Div. 260, affd. 289 N. Y. 846). If the terms of the contract here had included an event which might end the contractual relationship of the parties within a year, defendant’s possible liability beyond that time would not bring the contract within the statute. Since, however, the terms of the contract are such that the relationship will continue beyond a year, it is within the statute, even though the continuing liability to which defendant is subject is merely a contingent one. The endurance of defendant’s liability is the deciding factor. The mere cessation of orders from Lorillard to defendant would not alter the contractual relationship between the parties; it would not constitute performance; plaintiff would still be in possession of his contractual right, though it may have no monetary value, immediately or ever.

In an effort to show that the Statute of Frauds has been met, plaintiff urges that his consideration was entirely furnished prior to the execution of the writings, and that the Statute of Frauds is satisfied if the memorandum contains only that portion of the agreement which remains executory, citing Drake v. Seaman (97 N. Y. 230, 234); Standard Oil Co. of N. Y. v. Koch (260 N. Y. 150, 154-155); 2 Williston on Contracts ([Rev. ed., with 1946 Supp.], § 571, pp. 1632-1634). In our view, however, the two letters already referred to meet the requirements of the statute. Although the letter of April 27, 1942, is silent as to the consideration to be furnished by plaintiff except as it may be found “ by necessary implication, by inevitable construction ”, when defendant’s promise to “ pay ” plaintiff “ a commission * * * on all sales ” is read in the light of admissions in defendant’s answer and “ in the light of the relations of the plaintiff and the defendant and the other circumstances recognized by both when the promise was made ’ ’ (Stulsaft v. Mercer Tube & Mfg. Co., 288 N. Y. 255, 258; Marks v. Cowdin, 226 N. Y. 138, 143), the additional writing of August 26, 1942, clearly establishes the element of consideration furnished by plaintiff. In that writing — prepared by defendant on its own letterhead — its president, a member of the bar, makes no demand that plaintiff comply with any unfulfilled engagement, but, after reciting the lack of orders from Lorillard, uses this unequivocal language: “ In view of our arrangements with you, we have not felt that we should approach Lorillard through our own sales representatives as they work on a commission basis and in the event any business were forthcoming we would be obligated to pay them as well as you.” (Emphasis supplied.)

Here is clear recognition that defendant is now obligated to pay plaintiff, even though it approach Lorillard through its own sales representatives working on a commission basis, and certainly this language is tantamount to an acknowledgment that plaintiff has furnished the consideration for defendant’s promises. Under these circumstances, we have more than a statement in writing as to what plaintiff was required to do; we have in effect a written acknowledgment that plaintiff has performed. The peril of perjury and error is no longer present when the promisor acknowledges in writing that the promisee has performed.

Subdivision 3 of section 33 of the Personal Property Law has no application here. The oral agreement did not contemplate a past consideration, and the writings constituted a sufficient memorandum of the agreement. Nor was there lack of mutuality. The whole transaction before us is instinct with the inference that plaintiff’s work was done when he, by reason of personal and/or business friendship and association, had induced Lorillard’s purchasing agent to take the syrup, thereby furnishing defendant with a new customer whom it sought. Had plaintiff been unsuccessful, he would have received nothing. His situation was no different from that of the ordinary brokerage transaction, where the broker is not bound to procure a customer, but is entitled to a commission when he succeeds.

While the trial court was in error in holding that the Statute of Frauds was inapplicable here, it was right in directing a verdict for plaintiff. The writings spoke for themselves and their construction was for the court. There was no dispute as to what plaintiff did under the contract; indeed, he was not even cross-examined, nor did defendant offer any testimony to contradict him. Defendant admitted its obligation in the August letter. There were no issues of fact to be submitted to the jury.

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

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

Judgment accordingly. [See 301 N. Y. 662.]


author: Conway, J.

text:
    Edward P. Pattison, Appellant, v. Grace Pattison, Respondent.
    Argued April 4, 1950;
    decided May 25, 1950.

      Louis L. Babcock and Francis J. Maloney for appellant.
    I. The action was tried without regard to the technical form of the complaint. Plaintiff’s recovery on the facts shown was in accord with law and should be sustained irrespective of defects in the complaint or the impropriety of the form of relief granted. (Gillies v. Manhattan Beach Improvement Co., 147 N. Y. 420; Henderson v. Henderson, 247 N. Y. 428; Brady v. Nally, 151 N. Y. 258; Griffin v. Keese, 187 N. Y. 454; Doty v. Brown, 4 N. Y. 71; Ogden v. Alexander, 140 N. Y. 356; Armstrong v. Du Bois, 90 N. Y. 95; Burt Olney Canning Co. v. State of New York, 230 N. Y. 351; Richardson v. Carpenter, 46 N. Y. 660.) II. The facts established by the Referee’s decision and affirmed by the Appellate Division warranted a judgment for the establishment of a constructive trust with respect to the property conveyed to defendant. (Foreman v. Foreman, 251 N. Y. 237; Sinclair v. Purdy, 235 N. Y. 245; Fraw Realty Co. v. Natanson, 261 N. Y. 396.) III. The Appellate Division should have directed judgment establishing a constructive trust instead of dismissing the complaint. (Boissevain v. Boissevain, 252 N. Y. 178; Winter v. American Aniline Products, 236 N. Y. 199; Lonsdale v. Speyer, 249 App. Div. 133; Small v. Kronstat, 175 Misc. 626.)

      Nathan Hyman for respondent.
    Plaintiff admittedly could not pay his bills as they accrued. His conveyance was without consideration and impeded a creditor. Under the statute, the transaction was, therefore, fraudulent and his solvency and wealth under the circumstances are immaterial. Plaintiff being guilty of statutory fraud is not seeking equity with clean hands. (Hearn 45 St. Corp. v. Jano, 283 N. Y. 139; Matter of Associated Gas & Elec. Co., 61 F. Supp. 11, 149 F. 2d 996, 326 U. S. 736.)
   Conway, J.

Plaintiff, a man of seventy-four years, recovered a judgment against his sister, aged seventy-seven, declaring a deed executed by him to her to be null and void and directing that he be reinvested with title to the property. The Official Referee, who was to hear and determine, found that plaintiff had conveyed the property to his sister in 1943, upon her oral promise to deed it back to him when a claim against plaintiff had been satisfied. The Referee further found that the claim had been satisfied in 1948, that plaintiff had demanded the reconveyance of the property and that defendant had broken her promise to reconvey. In directing judgment in favor of plaintiff, the Referee relied upon the well-established rule that, where the parties are in a confidential relationship, a constructive trust arises in favor of the grantor when the grantee breaches an oral promise to reconvey. (See, e.g., Sinclair v. Purdy, 235 N. Y. 245, 253; Foreman v. Foreman, 251 N. Y. 237; Fraw Realty Co. v. Natanson, 261 N. Y. 396; Scott on Trusts, §§ 44, 485; 3 Bogert on Trusts, §§ 482, 496; 4 Pomeroy’s Equity Jurisprudence, § 1056a; Restatement, Restitution, § 182; Restatement, Trusts, § 44.)

The Appellate Division, however, reversed the judgment on the law and dismissed the complaint. In its memorandum, it properly pointed out that the complaint was insufficient as one to set aside a deed for fraud and that, as the Referee had also held, there was no proof of fraud on the part of the defendant sister. The court continued: * * * Neither can the judgment be sustained as one in an action for the declaration of a constructive trust, as argued upon the appeal. The complaint does not allege such a cause of action. There are no findings upon which to base a judgment in such an action and the relief given by the judgment is not that which would be given in such an action. The judgment declares the deed to be null and void and does not purport to impress a lien upon the property and direct reconveyance. * * * ” (276 App. Div. 823.)

While we agree with the Appellate Division that the complaint should be dismissed, we do not think that the theory adopted by that court is correct.

In the first place, we think that the complaint contains an adequate statement of the facts necessary for a cause of action to impress a constructive trust upon the property involved, and that, under it, plaintiff had the right to attempt to establish the existence of such a trust.

However, even if the complaint did not sufficiently allege such a cause of action, that would not be ground for disturbing the judgment in plaintiff’s favor under the circumstances here presented. The record shows that defendant’s counsel was fully aware that plaintiff was attempting to succeed upon such a theory. This was made abundantly clear in the questions put by defendant’s counsel in his cross-examination of plaintiff, wherein he repeatedly referred to plaintiff’s action as one involving a claimed trust. Moreover, defendant’s counsel moved at the close of plaintiff’s case for dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action “ on the view of constructive trust ”. The motion was plainly addressed to the sufficiency of the complaint and not to any alleged variance between the proof and the complaint. If the motion had been made specifically upon the latter ground, of course, plaintiff could have moved to conform the pleadings to the proof and, under the circumstances, the motion undoubtedly would have been granted. In the absence of such a motion, this court has said, the “parties may, if they so elect, depart from the strict issues made by the pleadings and try other questions relating to the merits of the controversy by consent or acquiescence.” (Farmers’ Loan & Trust Co. v. Housatonic R. R. Co., 152 N. Y. 251, 254. See, also, Fallon v. Lawler, 102 N. Y. 228, 233; Gillies v. Manhattan Beach Improvement Co., 147 N. Y. 420, 423-424; 4 Carmody on New York Practice, § 1366, p. 3163.)

The Appellate Division, in its memorandum, also expressed the view that the judgment could not he sustained on the theory of constructive trust because the relief prayed for in the complaint and granted by the order and judgment — the declaration that the deed was null and void — was not the relief usually accorded in a constructive trust case, viz., declaration that a trust be impressed upon the property with a direction to defendant to reconvey to plaintiff. It should be observed that the effect of either judgment is the same. In any event, the mistake in remedy is not ground for dismissal of the complaint as it may be corrected under the provisions of section 111 of the Civil Practice Act. (See Boissevain v. Boissevain, 252 N. Y. 178, 181.)

That brings us to the merits of the case. We must determine whether the Referee on all the facts disclosed could properly hold that plaintiff was entitled to a return of the property. To answer that question, a fuller statement of the facts must be given.

The property involved is located on Delaware Avenue in Buffalo and is improved with a single house. Plaintiff acquired title to the property in 1913, but the house was occupied by his mother and sister, as he was living elsewhere with his then wife. In the year 1924, the mother died. Plaintiff and his wife thereupon conveyed the property to his sister, the defendant herein. There was at that time a mortgage of $4,500 upon the property, held by the Brie County Savings Bank. In 1925, at plaintiff’s suggestion and with his assistance, the sister executed a second mortgage for $1,000, the proceeds of which were used in part to pay the balance due for the mother’s funeral expenses. Previously, the cost of the mother’s nursing and medical expenses had been shared by plaintiff and his sister. The sister had an independent income for over twenty years from her employment in the cafeteria of the school system.

In 1929, plaintiff’s wife died and he went to live with his sister in the Delaware Avenue house. In 1939, the bank insisted upon repayment of the $1,000 which, as noted, had been borrowed in 1925 to defray the mother’s funeral expenses. Defendant obviously did not have the money to pay the bank and plaintiff was either unable or unwilling to do so. Accordingly, an action for foreclosure of the second mortgage was commenced and, on April 25, 1941, the bank took title to the property by a referee’s deed. Plaintiff and defendant, of course, were still living there. On June 24, 1941, the plaintiff bought the property back from the bank subject to a purchase-money mortgage of $5,400. In order to obtain the property, plaintiff had to pay the bank $1,000. It appears that plaintiff did not have that amount of money and found it necessary to borrow the sum from his nephew, who was a resident of Detroit, Michigan. Title to the property remained in plaintiff’s name from that time until February 2, 1943.

About a week before the latter date, according to plaintiff’s testimony, his nephew “ sued me, got a judgment against me, but before he took the judgment against me, when he had served papers on me, I spoke to my sister and said, ‘ Now, I want some time on this thing. I don’t want him to come on and grab that property, so I’d better deed this to you in order that he won’t be able to do that.’ ” Plaintiff further stated that he told his sister he was going to deed the property to her as a precaution so that he [the nephew] wouldn’t seize it and we would be stranded, put out of the house, in other words.” His sister, he said, “ thought that was a very good idea ” and “ said she would give it back.” Plaintiff didn’t tell her when he wanted it back, for “ I couldn’t state when I wanted it back, because I didn’t expect to get it back until I paid the judgment.” I told her I wanted it back when I paid that judgment ” and She said she would give it back.”

At the time he conveyed the property to his sister, plaintiff testified, he owned a house in Fort Erie worth $10,000, a third interest worth $25,000 in property in Mount Morris and certain property in Ontario, Canada, worth $100,000. There was no other evidence as to the fair salable value of those properties.

On cross-examination, plaintiff stated that he made no payments on account of the $1,000 loan from his nephew except six months’ interest ”. He continued:

" Q. Why did you restrict your payments to six months’ interest? A. I didn’t have the money.
Q. So you weren’t able to pay your bills as they accrued, were you? A. No.
Q. So that at the time you weren’t able to pay your bills as they accrued, and at a time when your nephew was threatening legal action to recover his money, you put title of this property back into your sister’s name for no consideration whatever, is that right? A. Yes.” (Emphasis supplied.)

Later on further cross-examination, he testified:

“ Q. You weren’t very diligent, were you, about asking for a reconveyance of that property? A. I was.
“ Q. You made very certain not to ask for it, according to your own testimony, until this judgment had been paid up years later. A. There was no reason to ash for it before.
“ Q. That is true, and there was very good reason not to ask for it before, wasn’t there. A. Yes.
“ Q. Notwithstanding the fact that the judgment was against the property, so that the judgment being the judgment existing while as you claim your sister was an unknown trustee, if she had reconveyed to you, the judgment immediately would have become a lien? A. On the property, yes.
“ Q. So that your avowed purpose in leaving it in her hands all these years was to defeat the rights of your nephew who had the judgment? A. No.
“ Q. Well, it was to hinder his rights, was it not, and delay them and prejudice them? A. Not to prejudice them.
" Q. To hinder and delay them? A. Until such time as 1 could pay the judgment. That was the original reason for the original transfer.
Q. Then, admittedly, then, you weren’t able to pay the $1,000 judgment all the years until she had title? A. Not until 1947.
Q. Not until you would pay it, although you have property worth thousands of dollars in Mount Morris and Canada. A. Yes, I was paying taxes on them and in order not to lose those properties I had to keep up my taxes.
“ Q. Do you know whether this judgment attached any of those properties? A. I don’t believe so.” (Emphasis supplied.)

It appears that an execution was issued upon the judgment obtained by the nephew. In supplementary proceedings, the defendant sister was served and made an affidavit that she was the owner of the furnishings in the property in question. She was, of course, the record owner of the title to the property. The plaintiff brother was “ on the road ” at the time and was not served. The sister said that he would “ get in touch ” with the nephew’s attorney when he returned, but he did not do so until “ a year or two later ”.

Plaintiff remarried in March, 1947, and brought his wife to live with him in the house with the sister. Since that time, according to defendant, she and her brother “ have been on the outs ”.

This action was commenced in October, 1947. There is testimony that the nephew’s judgment was satisfied by plaintiff earlier in 1947, but the title search reveals, and the Referee found, that it was satisfied on May 21, 1948.

Plaintiff has demanded that defendant reconvey the property back to him and she has refused.

As we have mentioned above, the law is clear, that, despite the paroi evidence rule and the Statute of Frauds, the courts will enforce a constructive trust where land is conveyed to a person who is in a confidential relation to the transferror for whom he has orally agreed to hold it. There is an obvious and important qualification upon that doctrine, however. The intended trust, in the words of the Restatement of Trusts (§ 63, subd. [1]) is invalid if the purpose of the settlor in creating the trust is to defraud his creditors or other persons.” In such a ease, the fraudulent grantor may not recover the property, even though the grantee knew of the purpose of the intended trust. Bogert states the reasoning behind the rule well in his work on trusts (Vol. 1, § 211, pp. 616-617): Frequently the settlor who participated in the improper creation of the trust seeks from equity relief as a cestui under the trust * * *. In such case equity is very much disinclined to afford relief because the complainant does not come into court with clean hands and to enforce the trust for him * * * would be to afford comfort and encouragement to a wrongdoer. Generally, therefore, the court leaves the parties as it finds them, and the fraudulent trustee is enabled to keep the property as against the fraudulent settlor. * * * ” (See, also, 1 Scott on Trusts, § 63; 3 Pomeroy’s Equity Jurisprudence, §§ 968-973.)

As long ago as 1857, we recognized this rule as settled in Ford v. Harrington (16 N. Y. 285) where we said (p. 288):

The referee has found that * * * plaintiff * * * assigned the contract for the purchase of the land to the defendant, for the express purpose of placing it, and his interest in the land under the contract, beyond the reach of his creditors. At least such is the necessary inference from the facts found,
“ The general rule, that courts will, under such circumstances, extend no remedy to a grantor or vendor of property to recover hack from the grantee or vendee the property thus transferred, although the transfer is without consideration, is too well settled to be now called in question.” (Emphasis supplied.) (See, also, Pierce v. Pierce, 253 App. Div. 445, 447, affd. 280 N. Y. 562; Furman v. Furman, 178 Misc. 582, 584-585, affd. 262 App. Div. 512, affd. 287 N. Y. 772; Furman v. Furman, 259 App. Div. 988, motion for leave to appeal dismissed 284 N. Y. 591; Simis v. Simis, 146 App. Div. 655, 660; cf. Flegenheimer v. Brogan, 284 N. Y. 268; O’Connor v. O’Connor, 263 App. Div. 820, affd. 288 N. Y. 579.)

Here, the evidence clearly shows beyond contradiction that the sole purpose of the conveyance was the fear that the nephew would seize the house under the judgment and that plaintiff was attempting to put the property beyond the reach of the nephew. No other view of the record is possible on plaintiff’s own testimony. The Referee expressly so found, but he seemed to think that the fact that plaintiff was solvent at the time was a complete answer to this objection. In this connection, it must be noted that while plaintiff says he was possessed of certain properties of large value, he frankly confessed that he could not meet his debts as they accrued, and in particular, that he did not have the money to pay his nephew’s valid claim. Thus, while plaintiff may not have been technically insolvent within the words of section 271 of the Debtor and Creditor Law, at the time of the conveyance, the facts of the case and plaintiff’s own admissions, leave room for no other inference than that plaintiff made the transfer with an intent to hinder, delay and defraud his creditor and that he succeeded in his plan for over five years. If he were solvent, it only makes his action worse for he was deliberately delaying his creditor from receiving payment of a just debt by divesting himself of an asset. Having frustrated, impeded and delayed his creditor for five years, and having remarried and brought his new wife home, he now finds it opportune to pay the judgment and demand the house back. To allow such a plan to succeed would put a premium upon dishonorable conduct.

A conveyance is fraudulent when the grantor, even though solvent, is motivated by an intent to hinder, delay or defraud Ms creditors. (Debtor and Creditor Law, § 276.) In the instant case, the transfer was made by the debtor with the actual intent thereby to impede or altogether defeat the efforts of the creditor ” and it was therefore fraudulent. (Hearn 45 St. Corp. v. Jano, 283 N. Y. 139, 142.) As stated, the record before us permits no other inference, as matter of law, than that plaintiff in making the conveyance, actually intended to hinder, delay and defraud Ms creditor. Plaintiff said so. For that reason, equity will not afford relief, since plaintiff comes into court with unclean hands, but will leave the parties where it finds them.

Thus, although by a different path, we reach the same conclusion as the Appellate Division, that the complaint should be dismissed. The judgment appealed from should be affirmed, With costs.

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

Judgment affirmed.