author:
Desmond, J.
      Van Voorhis, J.

text:
    Marjorie J. Nichols, Appellant, v. Charles W. Nichols, Jr., Respondent.
    Argued January 14, 1954;
    decided April 8, 1954.

      Thomas I. Sheridan and M. Claiborne Mebel for appellant.
    I. The agreement of the parties is clear and unambiguous in its terms, and it provides for no allocation of payments as between plaintiff and the children of the parties. (Matter of Herzog, 301 N. Y. 127.) II. Modification of the agreement can, by its terms, be effected only by means of a writing signed by both parties, and not by defendant alone, or by judicial action. (Goldman v. Goldman, 282 N. Y. 296; Holahan v. Holahan, 191 Misc. 47; Matter of Denison, 255 App. Div. 294; Carlson v. Carlson, 269 App. Div. 21; Cogswell v. Cogswell, 130 Misc. 541; Harwood v. Harwood, 182 Misc. 130, 268 App. Div. 974; Johnson v. Johnson, 206 N. Y. 561; Raner v. Goldberg, 244 N. Y. 438; Matter of Herzog, 301 N. Y. 127.) III. The statutory right of taxing authorities to spell out an allocation of payments as between a wife and children, for tax purposes, has no bearing upon the contractual treatment of such payments, or upon the obligations of the parties with respect to such payments, as between themselves. (Krell v. Krell, 192 Misc. 1, 274 App. Div. 972.) IV. The agreement was ratified, confirmed and approved by a decree of divorce granted by a competent Nevada court, and the courts of the State of New York are without power to modify that decree. (Toms v. Toms, 188 Misc. 451; Smith v. Smith, 255 App. Div. 652; Barber v. Barber, 21 How. [U. S.] 582; Lynde v. Lynde, 162 N. Y. 405, 181 U. S. 183; Van Horn v. Van Horn, 196 App. Div. 472; Rehill v. Rehill, 281 App. Div. 855, 306 N. Y. 126; Hoyt v. Hoyt, 276 App. Div. 995, 301 N. Y. 589; Schacht v. Schacht, 295 N. Y. 439; Fry v. Fry, 279 App. Div. 122, 304 N. Y. 889.) V. Defendant’s tax liability has not been “ finally determined,” and defendant’s counterclaim should therefore be dismissed.

      Eugene A. Sherpick and William C. Woodson for respondent.
    I. Plaintiff was not entitled to receive the payments provided for the support and maintenance of the children after she ceased to have custody of the children and was no longer providing for their support and maintenance. (Matter of Herzog, 301 N. Y. 127; Canadian Ind. Alcohol Co. v. Dunbar Molasses Co., 258 N. Y. 194; Lorillard v. Clyde, 142 N. Y. 456; Dexter v. Norton, 47 N. Y. 62; Dolan v. Rodgers, 149 N. Y. 489; Wilson Sullivan Co. v. International Paper Makers Realty Corp., 282 App. Div. 800; Marks Realty Co. v. Hotel Hermitage Co., 170 App. Div. 484; Cogswell v. Cogswell, 130 Misc. 541; Harwood v. Harwood, 182 Misc. 130, 268 App. Div. 974; Rehill v. Rehill, 306 N. Y. 126.) II. Having actually received the benefit of the deduction or omission from her gross income for income tax purposes of the payments received by her for the children’s support, plaintiff is liable to defendant under the separation agreement for such income tax savings.
   Desmond, J.

We cannot concur in so much of the judgment appealed from as reduces the monthly alimony made payable to plaintiff by a separation agreement between the parties, as confirmed by a Nevada divorce decree obtained by plaintiff against defendant.

Plaintiff and defendant were married in 1934, had three children born in 1935, 1937 and 1938, respectively, separated in September, 1945, and in October, 1946, executed a separation agreement which was ratified, confirmed and approved ” by the terms of a decree of absolute divorce obtained by plaintiff against defendant in Nevada in December, 1946. This suit is brought to recover alleged arrearages of support money provided for in that separation agreement, for the months from August, 1950, to August, 1951, both inclusive. The defense bases itself on the fact that, in August, 1950, defendant (over the opposition and protest of plaintiff) took over the custody of the children who, previously and under the terms of the agreement and decree, had lived "with their mother, and on the further fact that in March, 1951, a habeas corpus proceeding brought by the wife to get the children back, resulted in an order awarding their custody to their father (defendant here) subject to rights of visitation by plaintiff and to a right given her by the habeas corpus order “ to have any child with her at such times and during such periods as may be mutually agreeable to relator [plaintiff here] and to such child ”. All three children have lived with their father since he, as the Trial Justice here put it, made in August, 1950, “ a unilateral change in the arrangement ” as to the custody. The record shows that the mother has at all times been ready and willing to resume custody of the children, and, in fact, she brought the habeas corpus proceeding for that purpose. There is no showing or' claim of any unfitness of the mother to care for her children; the opinion in the habeas corpus proceeding merely found, without further specification, that the happiness, welfare and best interests of the children will be served if their custody, at least for the present, is awarded to the father ”.

There is, therefore, no basis whatever on this record for any defense (and none is put forward) that any unfitness of the wife has made it impossible for her to care for her children, as provided for in the separation agreement and in the Nevada decree. Nor is there any pleading, proof or finding that she has in any manner breached the separation agreement, as to care of the children. The children are with their father because he refused to return them to the mother, and because the habeas corpus order directed that he keep them. The sole defense of defendant (except for a counterclaim dealing with a separate income tax matter to which we will later refer herein) as against this common-law suit for balances due under the specific promises of the agreement, is his theory that the agreement should be so construed as to reduce the alimony payments, in the situation that has developed. We turn now to that agreement.

The lengthy, elaborate and carefully drawn separation contract has this, and this only, to say as to alimony:

“ Third: For the support and maintenance of the wife and for the support, education and maintenance of the children the husband agrees to make the following payments to the wife:

“ (a) $125,000 in cash upon the delivery of this agreement.

. “(b) Until the death of the husband or the death or the remarriage of the wife, whichever may first occur, the sum of $2,500 per month on or before the first day of each month.

“ (c) In the event of the remarriage of the wife, the amount of said monthly payments shall be reduced at the rate of $15,000 per year.

(d) Upon the death or its attaining the age of 25 years, whichever may first occur, of any child, the amount of the monthly payments then being made by the husband shall be reduced at the rate of $5,000 per year in respect to each such child. Provided, however, that if after its attaining the age of 21 years, any child shall not be making its permanent home with the wife, such payments shall also be so reduced for so long as such situation continues and in such event, the husband shall make monthly payments at the rate of $5,000 per year directly to such child until such child returns to the wife’s home or attains the age of 25 years.”

That seems plain enough. The husband, until his death or the death or remarriage of the wife, is to pay to the wife *1 For the support and maintenance of the wife and for the support, education and maintenance of the children ’ ’, the sum of $2,500 per month. There is no allocation (as there was, for instance, in Matter of Herzog, 301 N. Y. 127) of a specific monthly amount for the children, or for each child, or a specific amount for the wife. The $2,500 per month is a single, undivided amount. Furthermore, the agreement (supra) lists categorically the situations in which the monthly $2,500 is to be reduced, that is, first, on the remarriage of the wife, second, on the death or attainment of the age of twenty-five years by any child, or third, in the event of the living apart from the mother, after reaching twenty-one and before reaching twenty-five years, of any child. Not only does that careful listing of exceptions fail to provide for any reduction under the facts as they now are, but it shows that the parties actually had in mind that one or more children might at some time be living apart from the mother. So realizing, they provided for a reduction of the alimony at the rate of $5,000 per year for any such child, if he or she should reside apart from the mother’s home while that child was between the ages of twenty-one and twenty-five years. At the time the father took these three children, in August, 1950, they were eleven, twelve and fourteen years of age, respectively. How can the courts say that the monthly payment is to be reduced because the children are with their father when the agreement itself lists all the eventualities in which there is to be a reduction, and omits the one that has occurred? The agreement itself in terms destroys this defense since it provides for a reduction as to a child living apart from its mother when the child is between twenty-one and twenty-five years of age, only. It is not only the language but the sense of this agreement that, so long as the father is alive and the mother is alive and unmarried, and the children are alive and under twenty-one years of age, the monthly payment shall be $2,500 per month, no more and no less.

The first and best rule of construction of every contract, and the only rule we need here, is that, when the terms of a written contract are clear and unambiguous, the intent of the parties must be found therein (Hartigan v. Casualty Co. of America, 227 N. Y. 175, 179; Brainard v. New York Central R. R. Co., 242 N. Y. 125, 133). The applicability, to separation agreements, of that fundamental rule, has been affirmed by this court on several occasions (Galusha v. Galusha, 116 N. Y. 635, 646; Stoddard v. Stoddard, 227 N. Y. 13; Goldman v. Goldman, 282 N. Y. 296; Schmelzel v. Schmelzel, 287 N. Y. 21).

The trial court herein, conceding that the father could not lessen his debt by taking the children away from their mother, thought, however, that the separation agreement necessarily implied ‘ ‘ that if the arrangement for custody were later changed by a court, the obligation of the husband to pay the wife for the support of the child would be altered accordingly ”. The alimony was, accordingly, reduced from $2,500 to $1,250 per month beginning with the month after the entry of the habeas corpus order. But there are compelling reasons why such an implication and such a reduction is invalid. “We may not now imply a condition which the parties chose not to insert in their contract ” (Raner v. Goldberg, 244 N. Y. 438, 442). These parties, obviously represented by most painstaking attorneys, not only put this whole matter of money payments in such complete terms as to forbid any additions by implication, but went, even, to the length of adding this express language on the subject: “ Fifteenth: The parties have incorporated in this agreement their entire understanding. No oral statement or prior written matter extrinsic to this agreement concerning the rights, duties or obligations of either party hereto to the other shall have any force or effect. The parties are not relying on any representations other than those expressly set forth ”. Further on, in article Seventeenth, the parties declared that each had had independent legal advice by counsel of his or her own selection, that each fully understood the facts and his or her legal rights and liabilities, and that each, after receiving such legal advice, believed the agreement to be fair. Elsewhere in the writing, and serving as final evidence of the completeness and unalterability of the arrangement, we have an express provision that, if the agreement should be (as it afterward was) made part of any decree or judgment, such judgment or decree should nowise change the agreement and if such judgment or decree should be (as it later was) in a divorce action, it should contain no provision for alimony but should, if the law permitted, deny any jurisdiction of the court issuing such judgment or decree, to modify the same in any respect. If all that language does not operate to forbid the writing into this separation agreement of a new term, not stated or suggested in the paper, and inconsistent with its covenants, then the writing of agreements that speak for themselves is a lost art.

This is not the first time the New York courts have had to deal with unitary and unallocated support provisions for wife and children, in situations like this where the wife, for some reason not of her making, was not supporting the child or children and yet demanded the full alimony. In every such case until the present one the courts have enforced the contract as written and refused to do what the parties had failed to do, that is, apportion the total sum (Harwood v. Harwood, 182 Misc. 130, affd. 268 App. Div. 974; Cogswell v. Cogswell, 130 Misc. 541; and see discussion in Yates v. Yates, 183 Misc. 934). Particularly close is the Cogswell case, where the then Justice Rippey dealt with a husband’s promise to pay his wife $400 per month for the support of the wife and such children as shall be with her ’ ’. The couple had three children and all three were actually living with their father but the court found it impossible to reduce the husband’s obligation, since that suit, like the present one, was at law on an indivisible promise to pay, not subject to modification by a court. The most recent judicial pronouncement on the subject is by this court in Rehill v. Rehill (306 N. Y. 126, 133) wherein it was held that a $200 per month agreed payment to the wife “ for her support and maintenance and for the support and maintenance of their children, until she shall die or remarry ” could not be reduced by the husband or by the court simply because, after coming' of age, one of the daughters moved out of her mother’s residence. To the husband’s argument (in Rehill v. Rehill) that the parties intended that the full amount should be paid only so long as the wife actually supported both children in her home, this court gave the answer equally appropriate in the present case: The simple answer to this defense is that the separation agreement contains no such provision”. (P. 133.) Another recent decision of ours — Matter of Herzog (301 N. Y. 127, supra) — is helpful only insofar as it shows the opposite sort of situation since the Herzog agreement and trust indenture, read together, made a specific allocation of separate amounts for the wife and each child, and, further, said that when the children were in the custody of their father, payments for them, to the mother, should cease.

It seems almost unnecessary to add as a reason for overturning the decision below, that this separation agreement was “ ratified, confirmed and approved ” and that each of the parties was “ ordered to comply with the terms and conditions thereof ” in and by the Nevada decree (see similar Nevada decree language quoted in Schacht v. Schacht, 295 N. Y. 439, 442). Thus the terms became part of a judgment entitled to full faith and credit, and the past due payments became a “ debt of record ” (Barber v. Barber, 21 How. [U. S.] 582, 595; Lynde v. Lynde, 162 N. Y. 405, affd. 181 U. S. 183; Van Horn v. Van Horn, 196 App. Div. 472). The Nevada decree established rights which would be substantially impaired ” by the judgment entered herein (Schacht v. Schacht, supra, p. 442, and authorities cited; Goldberg v. Mayer, 243 App. Div. 477, affd. 270 N. Y. 660; Fry v. Fry, 304 N. Y. 889; Rehill v. Rehill, supra). In our recent Rehill decision, in a most similar situation, we denied power to the New York courts even to entertain a demand to reform the separation agreement approved by the Nevada court, since ‘ ‘ were we to do so we would in effect be 1 reforming ’ the Nevada decree as well as the separation agreement, which we may not do ”. (306 N. Y. 126, 135.) In the present case there is not even a request for reformation, but an attempt to reform by implying nonexistent terms. It would be all well enough to attempt, in such a situation, to work out the natural justice of the thing, were there no valid agreement and valid judgment confirming it. But natural justice and the stability of society requires us to compel the performance of contracts, and the enforcements of judgments, as they are written. Who knows whether this plaintiff would have signed the agreement if it had contained the term now sought to be implied, or whether the Nevada court would have approved it in such form?

In article Fifth of the separation agreement it is stated that the monthly payments “ are predicated upon the assumption and understanding that such payments are and will continue to be deductible from the husband’s gross income and will become the taxable income of the wife ”. That furnishes a little more evidence that, whatever position either party took later, they both considered, when signing the agreement, that the agreed upon monthly alimony was an indivisible payment to the wife, and taxable as such. As it turned out, the income tax authorities took a different view and permitted the husband to deduct only so much of the alimony as the tax officers thought paid for the wife’s sole benefit. Those later determinations cannot change the meaning of this contract. However, tax savings and refunds to plaintiff were brought about by the rulings that only part of the monthly payments were deductible by the husband and taxable to the wife. The resulting situation is covered by subdivision (a) of article Fifth of the separation agreement, which says that if it shall be 6 ‘ finally determined ’ ’ that any part of the support money payments are not a valid deduction from the husband’s taxable income, and if the wife shall receive tax benefits from that determination, she will pay to him the resulting differences in her Federal and State income taxes. Her failure to make those repayments to him is the subject matter of defendant’s counterclaim in this suit. We agree with the courts below that defendant is entitled to recover on that counterclaim in the amount allowed him below.

The judgment should be modified by adding a further award of damages to plaintiff of $6,250 for the months from April, 1951, to August, 1951, both inclusive, with appropriate interest, and, as so modified, affirmed, with costs to plaintiff.

Van Voorhis, J.

(dissenting). In our view it was not the intention of this agreement that the wife should receive more money for her personal use if she became less fit than the father to have custody of their children. She was not intended to derive a personal advantage if it were held that their welfare would best be served by transferring them to the father. Neither did the agreement confer upon her rights without duties, since she agreed to pay for their support, education and maintenance out of the $2,500 per month which the husband contracted to pay to her. Appellant does not dispute that it was her duty thus to provide for these children under this separation agreement, which was confirmed by the Nevada divorce decree, nor does she deny that the New York County Special Term had jurisdiction in the habeas corpus proceeding by reason of circumstances occurring subsequent to the entry of the Nevada decree. Due to that final order of a court of competent jurisdiction, it has become impossible for plaintiff to perform her obligation to support, educate and maintain these children in her custody, which she agreed to do. She contends that she is thereby discharged from the obligation to spend any part of the $2,500 per month for the children. The financial burden must be borne by him of supporting and educating these three offspring of the marriage, who are now in their early and middle teens, while at the same time he is compelled to duplicate these expenditures by paying to his estranged wife, without obligation on her part, these very moneys which the agreement contemplated that she was to spend for the same purpose. We think that such a decision violates the intent of the parties as expressed in the contract. There is no occasion for us to assume, without having the final order in the habeas corpus proceeding under review, that the court which rendered it fell into error in finding not only that these children have “ flatly refused to make their home ” with their mother, but also that 1 ‘ on the basis of the evidence, it cannot be said that the preference which the children have expressed and manifested for their father, both in court and in chambers, is capricious or entirely without foundation. ” The decision of the court in the habeas corpus proceeding continues: ££ It goes without saying that on question of custody the paramount consideration is the happiness, interest and welfare of the children involved. No hard and fast rule can be laid down. Each case must rest upon facts peculiar to it. The court will, of course, consider the preference of the children, if of sufficient age and discretion, even though not controlling. The court will also consider the character and competency of the parents, the ability of each parent to care for and protect the children, the advantages which the children will derive if custody is awarded to such parent, the probable environment in which the children will live, the age, sex and health of the children, and other similar circumstances [citing cases]. I believe that the happiness, welfare and best interests of the children will be served if their custody, at least for the present, is awarded to the father. In reaching this conclusion, I have disregarded evidence of incidents not in the presence of the children.” It was further found that there was no evidence that the children’s preference for their father “ has been induced by any undue influence exerted upon them,” nor that their minds ‘1 have been poisoned against the mother, as claimed by the relator.”

When they refused to make their home with their mother, and came to live with him and his second wife under these circumstances, what was the father to do ? It would have been easier and cheaper for him as it turns out to have locked the door, and told them to go back to their mother. He opened his home to them as any considerate parent would have done, and by orderly process of law obtained a judicial decision confirming the change in custody. It is not contended that this decision was in any respect erroneous.

When, regardless of that decision, appellant sued her former husband to recover the full amount of the monthly payments under the separation agreement, without deduction on account of the change in circumstances affecting the children, the Trial Term and the Appellate Division unanimously denied her that relief. The judgment under review does award to her the full $2,500 per month while the children resided with their father until the final order was entered in the habeas corpus proceeding, but thereafter her recovery has been limited to $1,250 per month on the basis that this is all that the husband is liable to pay to her in event that she ceased to have the legal custody of these children.

This presents the question whether the contract is divisible in event that she ceases to support, maintain and educate the children out of the $2,500 per month that is payable to her partly for that purpose.

This agreement states that in event of the remarriage of the wife, the monthly payments shall be reduced by one half. Whenever one of the children becomes twenty-five years of age, or sooner dies, the amount of the monthly payments is to be reduced by one sixth. If, after becoming twenty-one years of age, any of the children ceases to make his permanent home with the mother, the same amount is to be deducted from the monthly installments and paid directly to the child. The reason for this clause was evidently that the parents could not attempt to regulate the abode of these children after majority, when they would have the right to live where they chose. The reason on account of which no corresponding clause was inserted reducing the amount payable to the wife before the children became twenty-one, was manifestly that the wife agreed to support and educate them in her custody until that time.

Now that the wife has become unable to perform those responsibilities, the judgment appealed from decides that the structure of this separation agreement is such that the obligation of the husband to support his wife is severable from the obligation to pay to her additional money to support the children. In the opinion by Mr. Justice Bebgah, sitting at the New York County Trial Term, it was said: “ The parties are presumed to have had in mind * * * by necessary implication, that if the arrangement for custody were later changed by a court, the obligation of the husband to pay the wife for the support of the children would be altered accordingly. ’ ’ The Appellate Division affirmed, without opinion. The question presented is different from those involved in Rehill v. Rehill (306 N. Y. 126) and in Harwood v. Harwood (182 Misc. 130); Cogswell v. Cogswell (130 Misc. 541), and Yates v. Yates (183 Misc. 934). The contract here makes it evident that $15,000 per year, at the rate of $1,250 per month, was to be paid to the wife for her own support, and that, although she would not have been liable to account for her expenditure of the balance for the benefit of the children for so long as she educated and supported them in accordance with their station in life, it was not meant that she should receive for her own support moneys that were intended to recompense her for providing for the children. The judgment appealed from should be affirmed for the reasons stated by Mr. Justice Beegan.

Even if the foregoing views were erroneous, and if the $2,500 per month contracted to be paid to appellant by respondent were indivisible for all purposes, appellant would be chargeable with a breach of the entire agreement upon her own theory. It is indisputable that by not supporting and educating the children she has omitted to perform a material part of her engagement. It is immaterial in this connection whether she lost custody of the children in the habeas corpus proceeding due to her fault or otherwise. The point is that supporting and educating them was a material factor entering into respondent’s promise to pay to her the $2,500 monthly allowance. Her inability to perform this part of the agreement, due to whatever cause, constituted a breach of the entire contract if her contention that the monthly payments are indivisible be sustained (Duryea v. Bliven, 122 N. Y. 567; Schmidt v. Schmidt, 74 Misc. 423, 425; Haskell v. Haskell, 201 App. Div. 414; 207 App. Div. 723; “Moses” v. “Moses”, 193 Misc. 890, 895; “Almandares” v. “Almandares”, 186 Misc. 667, 673; Durso v. Durso, 205 Misc. 446; Vandemortel v. Vandemortel, 204 Misc. 536, 537; Matter of Noel, 173 Misc. 844, 845-846; Mackey v. Mackey, 205 Misc. 470; Grossman on New York Law of Domestic Relations, §§ 436, 438). In most of the cases just cited, all recovery was denied to a wife due to her breach of a separation agreement by denying visitation rights to the husband, which is, if anything, less material than her omission to support and educate the children out of money paid to her for that purpose. Under such conditions, the wife has usually contended that the broken covenant was independent, and the contract divisible, whereas here it is her position that these monthly installments were indivisible as between her and the children. If that position is sound, then she has broken the entire agreement. A leading out-of-State case upon this point is Cole v. Addison (153 Ore. 688; Note, 105 A. L. R. 901).

Even if the inability of these children to live with their mother be due to some personality factor for which she is not at fault, nevertheless she has broken her part of the agreement by not supporting and educating the children. In Lorillard v. Clyde (142 N. Y. 456, 462) this court wrote, per Andrews, Ch. J.: The general doctrine that when a party voluntarily undertakes to do a thing, without qualification, performance is not excused because by inevitable accident or other contingency not foreseen, it becomes impossible for him to do the act or thing which he agreed to do, is well settled. This doctrine protects the integrity of contracts, and one of the reasons assigned in its support in the early case of Paradine v. Jane (Aleyn Rep. 26) is that as against such contingencies the party could have provided by his contract. (See Harmony v. Bingham, 12 N. Y. 99; Ford v. Cotesworth, L. R. [4 Q. B.] 134; Jones v. U. S., 96 U. S. 24.) ” (Forty-fifth St. Realty Co. v. 17-19 West 45th St. Corp., 142 Misc. 310, 311; 2 Clark on New York Law of Contracts, § 973, footnote No. 82, and cases cited).

In this instance, if appellant intended to be relieved of her obligation to educate and maintain the children in the contingency which has occurred and to keep for herself money intended for their support, her counsel should have seen that the separation agreement so provided.

It is inaccurate to state that the husband has elected not to declare this contract broken by appellant. The position which he has taken, and which has been sustained at the Trial Term and in the Appellate Division, is that the structure of the contract itself renders these amounts severable, at least to the extent of precluding recovery by the wife under the agreement of more than $15,000 per year exclusively for her own use. The allegation in his answer that by the terms of the agreement the sum of $2,500 per month was intended to be one half for the support and maintenance of the plaintiff, and one half for the support, maintenance and education of the children, and that she discontinued providing for their education, maintenance and support, should be construed as an allegation that she has not fulfilled the latter obligation regarded as an independent covenant on her part to be performed, in consideration of which he covenanted to pay $1,250 per month. This position which he took in his answer and at the trial amounted to a contention that the covenant which she had broken was severable from the rest of the agreement, under which she continued to be entitled to receive $1,250 per month for her own support and maintenance. Now that this court is holding that this covenant is not severable, the legal effect is that she has broken a dependent covenant thus entitling him under the cases above cited to claim a breach by her of the entire contract. We should not hold that he has waived every defense due to the circumstance that the part of the agreement which he alleged that she failed to perform turns out to be a dependent instead of an independent covenant. If a party elects to pursue an illusory alternative, that does not prevent him from obtaining the relief to which he is really entitled (Schenck v. State Line Tel. Co., 238 N. Y. 308; Note, 35 A. L. R. 1153; Clark v. Kirby, 243 N. Y. 295; Fitzgerald v. Harbor Lighterage Co., 244 N. Y. 132). If respondent had no such recourse as that which he invoked, in other words, if his payment of $1,250 a month instead of $2,500 was not the correct measure of his rights and liability under the contract, then he should not be precluded from contending that appellant broke the whole contract. What he did should, in the light of our decision, be construed as an act declaring that the entire contract had been broken by her. Bespondent in refusing to pay the full stipulated installments evinced an intention no longer to be bound by the agreement on account of her breach, if the contract was entire, as this court is now holding that it is. In that event, under the authorities, appellant would be entitled to recover nothing, and the judgment awarding to her $1,250 a month should be affirmed for the reason that he has not appealed. Even if it were held that he has not elected to declare the entire agreement broken, the cases cited indicate that he should be given opportunity to do so after the election which he did make has been held to have been illusory.

Even if the answer were not to be construed as alleging at least a partial breach, defendant would not be out of court on the pleadings, inasmuch as plaintiff has failed to allege performance of her obligations, presumably for the reason that according to her theory of the action she rests under no obligation to support and educate these children as a condition of receiving $2,500 each month. If either party should fail on the basis of the pleadings, it should be the plaintiff and not the defendant, since the burden of pleading and proving performance of the conditions on her part was on her (Quinn v. Van Pelt, 56 N. Y. 417; Platt v. Tess Hat Co., 280 App. Div. 345). She has not even alleged performance under the formula allowed by rule 92 of the Buies of Civil Practice.

The circumstance that this separation agreement was confirmed by the Nevada divorce decree, and “ each ” of the parties ordered to comply with the terms and conditions thereof, does not change the meaning of the agreement nor deprive it of its character as a contract in New York State. Indeed, appellant has sued upon it as a contract. The defense is not that the contract should be set aside for fraud or illegality in the courts of this State, after confirmation in another State (Schacht v. Schacht, 295 N. Y. 439; Hoyt v. Hoyt, 265 App. Div. 223). Here the defense is that the contract itself means that appellant cannot recover more than monthly payments of $1,250 for her own support after she has been legally deprived of the custody of the children. Although the Nevada decree prevents impugning the validity of the separation agreement, it did not alter its meaning, nor absolve appellant from her covenant to educate and support the children as a condition of receiving the $2,500 monthly allowance. Indeed, as indicated above, it directs each of the parties to comply with the terms and conditions of the agreement. Van Horn v. Van Horn (196 App. Div. 472) does not lead to a different result. There the subsequent litigation in New York State was concerned mainly with whether the wife had broken the agreement, which was an issue of which the New York courts did not hesitate to take jurisdiction notwithstanding that the agreement had been incorporated in a Nevada divorce decree.

The judgment appealed from should be affirmed, without costs.

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

Judgment accordingly. [See 307 N .Y. 677.]


source: Caselaw Access Project

author: Puld, J.

license: Public Domain

text:
    Premium Point Park Association, Inc., et al., Appellants, v. Polar Bar, Inc., et al., Respondents.
    Argued March 9, 1954;
    decided April 15, 1954.

      Frank H. Connelly for appellants.
    I. The defendants’ automobile parking lot is an “ automobile parking lot ”. (Buffalo Park Lane, Inc., v. City of Buffalo, 162 Misc. 207; Matter of Downey v. Vanderlinde Elec. Co., 276 App. Div. 1044; Best & Co. v. Village of Garden City, 247 App. Div. 893, 273 N. Y. 564.) II. If there was an ambiguity, it has now been resolved in favor of the plaintiffs by the trier of the facts, and his findings have been affirmed. (Browne v. Paterson, 165 N. Y. 460; People v. Santa Clara Lbr. Co., 213 N. Y. 226; Lamb v. Norcross Bros. Co., 208 N. Y. 427; Trustees of Town of Easthampton v. Vail, 151 N. Y. 463; Kenyon v. Knights Templar & Masonic Mut. Aid Assn., 122 N. Y. 247; Isaacs v. Schmuck, 245 N. Y. 77.) III. The rule of strict construction applies only where the meaning of the covenant still remains doubtful after evidence has been taken, or where no evidence of intention is offered. (Kitching v. Brown, 180 N. Y. 414; Booth v. Knipe, 225 N. Y. 390; Reynolds v. Commerce Fire Ins. Co., 47 N. Y. 597; Clark v. Devoe, 124 N. Y. 120; Coleman v. Beach, 97 N. Y. 545; Wilson v. Ford, 209 N. Y. 186.)

      John J. Boyle and Joseph V. McKee for respondents.
    I. The use of defendants ’ business property for the free, casual parking of its patrons’ automobiles does not violate the restrictive covenant which prohibits “ a commercial garage, or automobile parking lot.” (People v. Thistlethwaite, 134 App. Div. 876; Town of Eastchester v. Koch, 282 App. Div. 748; Schoonmaker
      v. Heckscher, 171 App. Div. 148, 218 N. Y. 722; Johnson v. Colter, 251 App. Div. 697; Buffalo Academy of Sacred Reart v. Boehm Bros., 267 N. Y. 242; Bull v. Burton, 227 N. Y. 101; Kitching v. Brown, 180 N. Y. 414; Clark v. Jammes, 87 Hun 215; Buffalo Park Lane, Inc., v. City of Buffalo, 162 Misc. 207; State ex rel. Szodomka v. Gruber, 201 La. 1068; Breinig v. Allegheny Co., 332 Pa. 474; Best & Co. v. Village of Garden City, 247 App. Div. 893, 273 N. Y. 564.) II. The Appellate Division has held, as a matter of law, that the restrictive covenant does not prohibit the use of defendants’ business property for incidental parking of its customers’ automobiles. This holding is amply supported by the record. (Newburger v. American Sur. Co., 242 N. Y. 134.) III. By their inaction and acquiescence in respect of the parking area maintained by Norman Librett, Inc., plaintiffs have given a practical construction to the covenant and they have estopped themselves from enforcing it. (Flint v. Charman, 6 App. Div. 121; Moore v. Murphy, 89 Hun 175.)
   Puld, J.

This is an action to enjoin defendants-respondents, the operators of a refreshment stand in the City of New Rochelle, from using vacant portions of their property as parking space for their customers, on the ground that they thereby violate a restrictive covenant.

Respondent Polar Bar, Inc., acquired the property from its own president, respondent Devlin, and, some time later, built a refreshment stand on the plot. The stand itself occupies but a small part of the premises; the balance is devoted to a parking space which, we are told, can accommodate forty-two cars. The space is solely for the convenience of respondents’ customers and parking there by others is not permitted. No charge or fee is levied for parking; all persons making purchases at the Polar Bar pay the same amount for their purchases, whether they arrived by car or not. Customer parking space is unquestionably essential to respondents’ business, for the stand fronts on the Boston Post Road, a heavily traveled six-lane thoroughfare, largely devoted to commercial traffic, which makes access by pedestrians difficult. Indeed, it is estimated that, in the summer months, 1,000 persons will patronize the shop daily and that, of these, 90% will arrive by car.

Appellants are owners of property in what is known as the Premium Point Park Development. The Polar Bar plot was part of that development, as first laid out in 1905, and was originally subject to the same highly restrictive covenant as the rest. In the succeeding years, however, the character of the Boston Post Road changed radically. In 1940, the land bordering upon it was zoned by the city as “ Class C Business,” and by that year the lots now owned by respondents had lost whatever attraction they might have had for homeowners. In 1946, in recognition of that fact, an agreement was drawn up between respondents’ predecessor in interest and appellants, permitting the Boston Post Road lots to be used for business purposes. As modified, the restrictive covenant provides that no part of the land between the Boston Post Road and the Screening Strip” — land conveyed to appellant association to serve as a screen for the development — shall be used for

(1) A commercial garage, or automobile parking lot.

“ (2) A public garage or public automobile filling station.

“ (3) Commercial bottling of non-alcoholic beverages.

* # *

“ (5) Clubs, lodges, and social buildings in which dancing or bowling may be an incidental use; * * *

(6) Any use prohibited by the said Zoning Ordinance in the City of New Rochelle in a Class C Business District. ’ ’

The character of the neighborhood has remained substantially unchanged since 1946.

Concededly, both the covenant and the local zoning ordinance — to which reference is made in subdivision (6) of the covenant— permit respondents to operate a refreshment stand. On the other hand, the prohibition in subdivision (1) against a “ commercial garage, or automobile parking lot ” would certainly preclude the business operation of a parking lot if that were the sole use to which the property was put. Thus, the narrow question presented is whether subdivision (1) also encompasses and, by that token, prohibits a parking lot, if it is merely incidental to, a necessary accommodation for the customers of, a permissible business.

While the term ‘ ‘ parking lot ’ ’ taken by itself may be ambiguous, it may not be so regarded when considered in its present context. When read, as it must be, in conjunction with the term “ commercial garage ” and in the light and against the background of the covenant as a whole, its significance is plain and unambiguous. By prohibiting a commercial garage,” the parties clearly indicated their intent that the property should not be used for the business of storing automobiles for a stipulated rental. (See Town of Eastchester v. Koch, 282 App. Div. 748; State ex rel. Szodomka v. Gruber, 201 La. 1068; Breinig v. Allegheny Co., 332 Pa. 474, 484.) By parity of reasoning, the parking lot prohibited is one conducted and operated in and of itself as a commercial venture, as an independent enterprise, apart from the business of selling comestibles. Furthermore, since the covenant permits the conduct of the business itself, the conclusion is almost inescapable that it permits whatever is customarily and necessarily incidental thereto. We may not construe the covenant as prohibiting in one subdivision that which it expressly sanctions in another.

When the parties did decide to prohibit incidental uses — whether for parking or other purposes — they knew how to express their intention, as evidenced by subdivision (5) which specifically bans “ Clubs, lodges, and social buildings in which dancing or bowling may be an incidental use ”. (Emphasis supplied.) Having failed to prohibit parking lots for such use, it is reasonable to conclude that it was not their purpose to prevent them.

If there be any lingering doubt that the commercial garage, or automobile parking lot ”, proscribed by subdivision (1), does not take in customer parking, it is dispelled by reading it in connection with subdivision (2) which prohibits a public ” garage, but, significantly, not a “ public ” parking lot. The parties apparently regarded a “ commercial ” parking lot as distinct and different from a public ” lot and quite plainly they did not intend to prohibit the latter. Since that be so, then it follows that respondents have not violated the covenant. (Cf. Best & Co. v. Village of Garden City, 273 N. Y. 564, affg. 247 App. Div. 893.)

Even if, however, the covenant were deemed ambiguous, the judgment dismissing the complaint should be affirmed, in view of the undoubted fact that respondents’ suggested construction is at least a reasonable one. The law favors the free and unobstructed use of property, and it is well settled that, if a restrictive covenant is capable of more than one interpretation, it will be construed against the party who is endeavoring to extend it. (See Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N. Y. 242, 249; Schoonmaher v. Hecksher, 218 N. Y. 722, affg. 171 App. Div. 148, 151.) Appellants resist the application of this rule. They contend that any ambiguity in the covenant should be resolved in their favor because the trial judge found that they “ refused to consent to the use of the property as an automobile parking lot, even in connection with an automobile sales agency or service building.” There is nothing in the record to support that conclusion. What does appear is that an earlier draft of the covenant, prepared by respondents’ predecessor, prohibited “ A commercial garage or automobile parking lot except in conjunction with an automobile sales agency and service building on the premises. ” (Emphasis supplied.) The draft was submitted to appellant association which, in preparing the agreement before us, omitted the exception quoted. Considered by itself — for it is the only evidence on the point — the deletion of the except ” clause is wholly equivocal and throws no light on the parties’ intention with respect to incidental parking lots.

The Appellate Division reversed the judgment rendered in favor of appellants and dismissed the complaint on the law alone. In so doing, it held that, since the covenant was ambiguous, it must be construed in favor of a more free use of the property. Because it affirmed the facts found below — which included the finding that appellants refused to permit even an incidental parking lot — appellants contend that the judgment could not properly be reversed unless that finding were also reversed. That is not so. The court undoubtedly concluded that, since there was an ambiguity, it was bound — despite the finding in question — to adopt respondents’ interpretation. In any event, the Appellate Division is not to be taken as having affirmed a finding, such as the one here invoked by appellants, not only factually irrelevant to the decision arrived at, but erroneous as a matter of law.

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

Lewis, Oh. J., Conway, Desmond, Dye, Froessel and Van Voorhis, JJ., concur.

Judgment affirmed.


author: Fuld, J. Feoessel, J.

text:
    The People of the State of New York, Respondent, v. Charles J. Fiannaca, Defendant, and Michael Amato et al., Appellants.
    Argued March 8, 1954;
    decided April 15, 1954.

      Anthony Manguso for appellants.
    I. The order reversed by the Appellate Division is based on the exercise of the lower court’s discretion and should not have been disturbed or reversed. (Matter of Pellegrino [People], 152 App. Div. 482, 207 N. Y. 770; People v. Heit, 152 App. Div. 179; People v. Di Meo, 181 App. Div. 893; People v. Young, 92 Hun 373, 151 N. Y. 651; People v. Parkin, 263 N. Y. 428; People v. Cohen, 245 N. Y. 419; People v. Licenziata, 256 N. Y. 534; Clark v. Delaware & Hudson R. R. Corp., 245 App. Div. 447; Hogan v.
      Franken, 221 App. Div. 164; Matter of Miller, 162 Misc. 563; People v. Continental Cas. Co., 301 N. Y. 79; People v. Schwarze, 168 App. Div. 124; People v. Spear, 1 N. Y. Crim. Rep. 538.) II. Dereliction of duty on the part of the State of New York cannot, and should not, be a basis for forfeiture of a bail bond. (People v. Wirtschafter, 305 N. Y. 515.)

      John F. Dwyer, District-Attorney (George B. Blair of counsel), for respondent.
    The Appellate Division properly reversed the order of the lower court which remitted the forfeiture, vacated the judgment and cancelled the notices of liens. (People v. Coman, 5 Daly 527; People v. Fields, 6 Daly 410; People v. Spear, 1 N. Y. Crim. Rep. 538; People v. Parkin, 263 N. Y. 428; People v. Licenziata, 230 App. Div. 338, 256 N. Y. 534; People v. Schwarze, 168 App. Div. 124; People v. Rich, 36 App. Div. 60; People v. Cohen, 229 App. Div. 515, 255 N. Y. 530; Matter of Pellegrino [People], 152 App. Div. 482, 207 N. Y. 770; People v. Heit, 152 App. Div. 179; People v. Handel, 238 App. Div. 596.)

      . Former sections of the New York City Consolidation Act expressly permitted remission — where the principal was produced after forfeiture — “upon the certificate of the district attorney that the people of the state of New York have lost no rights by reason of” the surety’s failure to produce him “in compliance with the terms of [the] recognizance”. (N. Y. City Consolidation Act, L. 1882, ch. 410, §§ 1482, 1483; see, also, People v. Parkin, 263 N. Y. 428, 432; People v. Bennett, 136 N. Y. 482, 489; People v. Cohen, 229 App. Div. 515; People v. Levy, 169 App. Div. 571, 573.)

   Fuld, J.

This appeal involves an application for remission of a bail forfeiture.

The defendant Charles Fiannaca and one Michael Tascaralla were indicted by the grand jury of Brie County in October of 1948, charged with crimes of burglary and grand larceny. Fiannaca pleaded not guilty and was admitted to bail in the sum of $10,000, the undertaking of bail being executed by him as principal and by the three appellants herein as sureties. The case was moved for trial on a number of occasions in 1948 and 1949, but for some reason — possibly because of the codefendant Tascaralla’s incarceration on other charges — it was not tried. The district attorney finally noticed the case for trial in October, 1952, and, when defendant failed to appear, the bail was forfeited and judgment was directed against appellant sureties in the sum of $10,000.

Some time later, appellants moved for an order remitting the forfeiture and setting aside the judgment entered. It appeared from their affidavits that defendant had been in the Rochester County Hospital for mental examinations during June, 1951; that he was committed to the Rochester State Hospital in July, 1951; and that he escaped from that institution on October 21, 1951 — a year before the case was noticed for trial — and has not since been seen. Although, when appellants became sureties, they had declared under oath that they were worth $20,000, they now seek remission on the ground that — in addition to advanced age and ill health — they have limited ” incomes. More specifically, appellant Galiano expressly states that he “ has a yearly income of $1,500.00 to $2,000.00, in addition to the income received from the real property owned by him ’ ’, and the other two appellants, husband and wife, declare that they receive their support “ from the income of real estate and a small grocery business ”. There is no indication in either case of exactly how much or how little appellants have, in the way of income or capital resources.

The Erie County Court granted appellants’ application and remitted the forfeiture. The Appellate Division reversed, finding that, because of the absence of “ extreme hardship ”, there was no “ factual basis for the exercise of the court’s discretion ”. In directing reversal and denial of the application, however, it did so without prejudice ‘ ‘ to the right of the sureties to renew * * * upon proper papers within the statutory period (Code Crim. Pro., § 598), if so advised.” That order is a final one, finally determining a special proceeding, and the appeal is properly here as of right. (See People v. Parkin, 263 N. Y. 428; Matter of Weinstock v. Hammond, 270 N. Y. 64; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 60-61.)

Section 597 of the Code of Criminal Procedure authorizes a court to remit a forfeiture of bail “ upon such terms as are just.” When the statute was first passed in its present form, this was taken to give the courts a “ discretion almost absolute ”. (People v. Spear, 1 N. Y. Crim. Rep. 538, 541.) But, with time and cases, standards developed, the courts tending to apply one set of criteria where the defendant ultimately put in an appearance and another where he did not. Where a defendant is produced within a reasonable time after forfeiture, a remission will be granted if the People have not lost any rights as a result of his nonappearance, especially if his failure to appear was other than deliberate and willful. (See People v. Continental Cas. Co., 301 N. Y. 79, 83, 84; People v. Phelan, 219 App. Div. 80, 82; People v. Coman, 5 Daly 527, 531, appeal dismissed 63 N. Y. 611; see, also, Note, 84 A. L. R. 420.) On the other hand, where the defendant is not produced at all, or turns up only after a long lapse of time, the courts will ordinarily deny remission without regard to the mitigating factors asserted in connection with his nonappearance. There are exceptions, of course. Death, insanity, imprisonment on another charge may, under some circumstances, warrant remission. (See, e.g., People v. Parkin, supra, 263 N. Y. 428; see, also, People v. Wissig, 7 Daly 23; Note, 7 A. L. R. 392; Note, 26 A. L. R. 412; cf. Taylor v. Taintor, 16 Wall. [U. S.] 366; People v. Green, 253 App. Div. 704; People v. Rich, 36 App. Div. 60, 62.)

Apart from these considerations, however, the only factor which the courts of this state have considered as basis for remission where the principal disappears is whether the surety will thereby suffer “ extreme hardship ”, such hardship as ‘ ‘ will cause destitution to a family, deprive children of support and education, or creditors of their just debts.” (People v. Spear, supra, 1 N. Y. Crim. Rep. 538, 541; see, also, People v. Licenziata, 256 N. Y. 534, affg. 230 App. Div. 358, 360; Matter of Pellegrino, 207 N. Y. 770, affg. 152 App. Div. 482; People v. Di Meo, 181 App. Div. 893, appeal dismissed 224 N. Y. 612; People v. Schwarze, 168 App. Div. 124; People v. Heit, 152 App. Div. 179, 181.) By and large, the courts have tended — “ where the accused was not in custody and produced” (People v. Parkin, supra, 263 N. Y. 428, 432, emphasis supplied) — to hold sureties to strict liability upon the disappearance of their principal. The reason is easily to be perceived; “ there is a principle involved beyond that of clemency to the bondsman. Justice may be defeated by the escape of the principal, and if it is clearly understood that the bondsman will be held rigidly accountable for the escape, the administration of the criminal law will be promoted.” (People v. Schwarze, supra, 168 App. Div. 124, 126; also, People v. Licenziata, supra, 230 App. Div. 358, 360, affd. 256 N. Y. 534.)

In the light of these principles and of Fiannaca’s complete disappearance, it is manifest, first, that the courts below were privileged to remit only on grounds of “ extreme hardship ” and, second, that no such hardship was here shown. As already noted, appellants simply maintain that they are all suffering from ill health and that they have ‘ ‘ limited ’ ’ incomes. However, after indicating that they are property owners, they refrain from disclosing the extent of their resources or just how limited they are. Certainly, these are not such mitigating circumstances as to “ outweigh the public necessity of providing deterrents, as effective as possible,” to the escape of persons convicted of, or indicted for, crime. (People v. Licenzxiata, supra, 230 App. Div. 358, 361, affd. 256 N. Y. 534.)

The district attorney could, of course, have moved the case for trial whenever he chose, but that does not mean that his failure to do so either brought about the defendant’s disappearance or relieved appellants of their obligation as sureties to produce him when required. They could have avoided any risk attendant upon a delay in trial by the simple device of surrendering the defendant, pursuant to section 590 of the Code of Criminal Procedure, “ At any time before the forfeiture of the undertaking ”. (See, also, Taylor v. Taintor, supra, 16 Wall. [U. S.] 366, 371.)

Nor are the circumstances of defendant’s confinement to, and his escape from, the Rochester State Hospital such as to compel remission of the forfeiture. The Code of Criminal Procedure provides, in an appropriate case, for an inquiry before trial into the sanity of a defendant indicted for a crime (Code Crim. Pro., § 658 et seq.). The chances of a defendant’s escape from custody are reduced to a minimum by virtue of the safeguards there set up (e.g., Code Crim. Pro., § 660). Consequently, sureties such as appellants may not stand by and watch a defendant being committed to a civil institution, particularly when the provision of the law (Mental Hygiene Law, § 74), pursuant to which he was apparently committed, indicates that it does not apply to those awaiting trial on criminal charges. (Cf., e.g., Taylor v. Taintor, supra, 16 Wall. [U. S.] 366, 371.) Moreover, there is not the slightest evidence in this case that Fiannaca was in such a mental state as to prevent him from standing trial — that he was incapable of understanding the proceeding or making his defense ” (Penal Law, § 1120). When defendant allegedly became mentally ill, he was still in the custody of appellants, and they were not absolved from the necessity of producing him at that time for possible handling under section 658 of the Code of Criminal Procedure or later, if his condition warranted, for trial. As soon as they learned of his disturbed state — and they had ample opportunity to do so between the time he was sent to the hospital until his escape some months later — it was incumbent upon appellants to inform the court. Proceedings could then have been instituted to determine his sanity — and to arrange for his commitment, if found insane — in accordance with the applicable provisions of the Code (§§ 658-662f).

Advancing a somewhat related argument, appellants assert that, since defendant had been placed in the custody of the state — by being committed to a state mental institution — it was a dereliction of duty ” of the state’s own agents to let him escape which may not be made the basis for a bail forfeiture. The answer has already been given. In the first place, it is more than likely that one accused of serious crime would not have been committed to a civil institution, such as the Eochester State Hospital, had an application been made as provided for in the Code of Criminal Procedure (§ 658 et seq.). In the second place, since the state did nothing to hinder appellants from surrendering defendant for trial or commitment, appellants may not impose upon the state a responsibility to produce him or a liability for his escape.

The order of the Appellate Division should be affirmed.

Feoessel, J.

(dissenting). I dissent, and disagree with the Appellate Division that there was “ no factual basis for the exercise of the [county] court’s discretion in remitting the forfeiture ”. Indeed, I am of the opinion that it was an abuse of discretion to disturb the determination of the County Court made pursuant to section 597 of the Code of Criminal Procedure, and to deny the application for remission, even though it was without prejudice “ to the right of the sureties to renew * * * upon proper papers within the statutory period”. (282 App. Div. 548, 549-550.)

The bail bond was executed on October 4, 1948. The District Attorney did not move this case for trial until four years later. In the meantime, defendant, on July 9, 1951, was committed by the County Court of Monroe County to the Rochester State Hospital, where he remained continuously until October 21, 1951. The commitment was based on the examination by two psychiatrists, who confirmed that defendant was mentally incompetent. While in custody of such institution, which is a State hospital (Mental Hygiene Law, § 60, subd. 14), under the jurisdiction, supervision and control ” of the State Department of Mental Hygiene (Mental Hygiene Law, § 11), he was allowed to escape on the last-mentioned date.

Aside from the hardship claimed by appellants, it would be a travesty on justice if the People of the State of New York, to whom the bail bond ran and who had defendant in their custody at the time of his escape, were permitted to avail themselves of a forfeiture consequent upon their own lack of ‘ supervision ’ ’ (see Martindale v. State of New York, 269 N. Y. 554). The State should not be allowed to create a debt and collect money for itself by the careless acts of its own officers (People v. Wirtschafter, 305 N. Y. 515, 522).

The order of the Appellate Division should he reversed and the order of the County Court affirmed.

Lewis, Ch. J., Conway, Desmond, Dye and Van Voorhis, JJ.. concur with Fuld, J.; Froessel, J., dissents in an oüinion.

Order affirmed.


author: Desmond, J.

text:
    In the Matter of the Claim of Nicholas Russomanno, Respondent, against Leon Decorating Co., Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued March 3, 1954;
    decided April 22, 1954.

      George J. Hayes, Bernard Katsen and Victor Fiddler for State Insurance Fund and another, appellants.
    The Appellate Division erred as a matter of law in its holding that the claimant was entitled to disability benefits under the provisions of section 203 of the Workmen’s Compensation Law. (McCluskey v. Cromwell, 11 N. Y. 593; People ex rel. Twenty-third St. R. R. Co. v. Commissioners of Taxes of City of N. Y., 95 N. Y. 554; Matter of Rathsheck, 300 N. Y. 346; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; People v. Olah, 300 N. Y. 96; Sexauer & Lemke v. Burke & Sons Co., 228 N. Y. 341; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Matter of Fiol [Calmar S. S. Corp.-Corsi], 305 N. Y. 264.)

      Nathaniel L. Goldstein, Attorney-General (John J. Quinn, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    Ample evidence supported the findings of the Workmen’s Compensation Board that the claimant was entitled to disability benefits under article 9 of the Workmen’s Compensation Law. (Matter of Commissioner of Taxation & Finance v. Nu-Art Adv. Co., 271 N. Y. 112; Matter of Petrie, 215 N. Y. 335; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201, 295 N. Y. 748; Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177, 217 N. Y. 627; Matter of Post v. Burger & Gohlke, 216 N. Y. 544; New York Central R. R. Co. v. White, 243 U. S. 188; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; People ex rel. Twenty-third R. R. Co. v. Commissioners of Taxation of City of N. Y., 95 N. Y. 554; McCluskey v. Cromwell, 11 N. Y. 593.)
   Desmond, J.

Claimant, on October 23, 1950, while employed at his trade of painter, by appellant Leon, suffered a disability, not arising out of and in the course of his employment. Disability benefits, of the kind provided for by chapter 600 of the Laws of 1949, as since amended (Workmen’s Compensation Law, art. 9), have been awarded to claimant for thirteen weeks, the maximum period under section 204 of the Workmen’s Compensation Law. The question here is as to whether claimant, on his employment record, met the test of section 203 of the Workmen’s Compensation Law: “ Employees in employment of a covered employer for four or more consecutive weeks shall be eligible for disability benefits ’ ’.

The undisputed testimony before the board showed that claimant, for about forty years before the onset of this disabling illness, had worked at the painting trade, getting his jobs through his labor union (but occasionally doing independent contracting work). Those jobs were with various employers and were of varying lengths, from a few days to several weeks. As is the pattern of that trade, claimant was, when employed, paid by the day by the particular employer on the particular job. From June 30, 1950, until this disablement, his actual days of work for “ covered ” employers were as follows:

For employer A: from Wednesday, August 16, 1950, to Saturday, September 2, 1950 (two and a half calendar weeks). (There then followed two calendar weeks of unemployment.)

For employer B: from Monday, September 18, 1950, to Wednesday, September 27, 1950 (one calendar week and part of a second).

For employer C: from Monday, October 2,1950, to Thursday, October 5, 1950 (four days in one calendar week). (No employment during the calendar week beginning October 9, 1950.)

For employer-appellant Leon: from Monday, October 16, 1950, to Friday, October 20, 1950 (one calendar week of employment, immediately preceding Monday, October 23, 1950, on which claimant became ill).

We find it impossible to agree with the views of the majority Justices in the Appellate Division. They confirmed the board’s award, on the ground that claimant, while not actually working for “ four consecutive weeks ” prior to disablement, was in employment ” for that period since he was'available for actual work in accordance with the custom and practice of his trade. We agree, rather, with the dissenting Justices who were of the opinion that, on the undisputed facts here, this claimant had not been in covered employment for “ four consecutive weeks

The word “ consecutive ” has one only possible meaning — that is unbroken sequence or uninterrupted succession ” (Commonwealth v. City of Boston, 316 Mass. 410, 411). The statutory phrase “ in employment * * * for four or more consecutive weeks ” cannot, without impermissible stretching, connote any period of time except that covered by four or more successive calendar weeks (see, in Words and Phrases [Perm, ed.], Vol. 17, p. 460, list of cases construing four consecutive weeks ”). Employment in “ four or more consecutive weeks ” is had only when the worker is actually at work during some part, at least, of each of those successive weeks. It is true, as the Appellate Division remarked, that this requirement tends to exclude from these benefits all those who, like this claimant, work by the day for such various employers as need their services, and who, consequently, are often unemployed for a week or more. Such results are unfortunate but they do not change the plain meaning of plain words, or confer legislative powers on the board or the courts. “ It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning ” (McCluskey v. Cromwell, 11 N. Y. 593, 601, and cases cited in Matter of Rathscheck, 300 N. Y. 346, 350). “ A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written ” (People v. Olah, 300 N. Y. 96, 102).

That the Legislature actually intended to deprive large groups of workers of these benefits is manifest from the several exclusions in the ‘ ‘ Employment ” definition of subdivision 6 of. section 201, such as the exclusion (not here applicable) of casual employment ”.

Claimant’s case is not helped by regulation 52, promulgated by the Chairman of the Workmen’s Compensation Board (see Workmen’s Compensation Law, §§ 117, 141 and 241, authorizing the making of regulations). Regulation 52, apparently intending to amplify or explain section 203. (supra), says that an employee is eligible when he has been “ in employment during the work period usual to and available during such four consecutive weeks in any trade or business in which he is regularly employed and in which hiring from day to day of such employees is the usual employment practice ” (subd. b). Decision of this appeal does not require us to construe that regulation, closely and exactly. Whatever be its full meaning and bearing, it can- ■ not overrule the statute itself and we assume it was not intended so to do. In terms, it, just like the statute, requires that there be some “ employment ” during “ four consecutive weeks ”.

The order of the Appellate Division should be reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed, with costs in this court and in the Appellate Division against the Workmen’s Compensation Board.

Lewis, Ch. J., Fuld, Froessel and Yah Yoorhis, JJ., concur with Desmond, J.; Conway and Dye, JJ., dissent and vote to affirm the order of the Appellate Division, with costs, for the reasons stated in the opinion of Coon, J., in the Appellate Division.

Order reversed, etc.


author: Conway, J.

text:
    Mae Gross, as Administratrix of the Estate of Louis C. Gross, Deceased, Respondent, v. Sylvia Abraham, Defendant. State Insurance Fund, Appellant.
    Argued January 19, 1954;
    decided April 22, 1954.

      William H. Stie glitz, Bernard Katzen and Harry Scheckter for State Insurance Fund, appellant.
    A thirty-nine-year-old son, who had been for a long time prior to his father’s death and still is self-supporting and was in no way dependent upon the father for support, is not a next of Mn suffering from pecuniary injury within the meaning of section 133 of the Decedent Estate Law, because the parent performed certain domestic chores around the house owned by the son with whom the parent resided without contributing to the expense of maintaining such house. (Matter of Meng, 96 Misc. 126, 227 N. Y. 264; Matter of Petrasek, 191 Misc. 9; Matter of Baker, 252 App. Div. 38; Matter of Snedeker v. Snedeker, 164 N. Y. 58; Matter of Barker, 134 Misc. 833; Matter of Uravic, 142 Misc. 775; Matter of Sintyago, 198 Misc. 776; Matter of Kaiser, 198 Misc. 582; Tumolo v. Reading Co., 52 F. Supp. 956; Matter of Skakandy v. Wreckers & Excavators, Inc., 274 App. Div. 220; Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367.)

      Robert Lee Moore and Ernest Griffin Allen for respondent.
    I. The evidence adduced before the trial court was more than sufficient to justify a finding that the son, Charles Gross, suffered a pecuniary loss of at least 15% of the amount recovered for the wrongful death of his father. II. Section 133 of the Decedent Estate Law was amended recently to substitute the test of “ pecuniary damages suffered ” for the inflexible Statute of Distributions. No requirement is made that the next of kin suffering the pecuniary damages be also dependents of the decedent. (Matter of Uravic, 142 Misc. 775; Western Union Tel. Co. v. Cochran, 277 App. Div. 625, 302 N. Y. 545, 303 N. Y. 665.) III. “ Pecuniary Injuries ” as used in sections 132 and 133 of the Decedent Estate Law have always been held to include the monetary value of loss of services of next of kin, regardless of dependency. (Smith v. Lehigh Valley R. R. Co., 177 N. Y. 379; Wessels v. State of New York, 194 Misc. 317; Phalen v. Rochester Ry. Co., 31 App. Div. 448.)
   Conway, J.

On December 21, 1950, plaintiff’s husband, Louis C. Gross, while employed by Eussell & Laurie, Inc., suffered injury arising out of and in the course of his employment through the negligence of the defendant, not his employer, and, died in consequence.

The decedent was survived by his wife and two adult children, Charles Gross and Edna Gross Brown, his married daughter.

The widow, as administratrix, instituted a third-party action against defendant upon two causes of action, the first for pain and suffering endured by the decedent between the date of the accident and date of death, and the second cause of action, pursuant to section 130 of the Decedent Estate Law, for his wrongful death.

The plaintiff recovered the sum of $5,000 on the first cause of action and $10,500 on the second.

In accordance with the provisions of section 133 of the Decedent Estate Law, plaintiff made an application to apportion the damages recovered in the wrongful death action. Plaintiff requested that the recovery be apportioned to the extent of two thirds to herself and one third to her son. No claim was made for a distributive share on behalf of the adult married daughter. Plaintiff’s motion was granted to the extent that the damages in the amount of $10,500 were apportioned 85% to the plaintiff and 15% to the son.

The testimony of the son as to the pecuniary damages suffered by him was in substance as follows: He was an adult son of the decedent gainfully employed in the United States Post Office; the decedent and his wife lived with the son at his home, rent free; the decedent was gainfully employed up to the date of death and used his pay to support his wife and himself; the decedent helped with “the housework around my house, took care of the furnace, ashes, painting and other little carpenter work, grass, cleaning the walks, ice and such things as that ”; that the value of his father’s services rendered to him “ would be at least $10.00 a week ”. It was stipulated by counsel as a fact that decedent also supplied “ the food for the house.”

The State Insurance Fund, as the insurance carrier for the employer of the decedent, paid workmen’s compensation in the sum of $64 and medical expenses of $720.62 during the decedent’s lifetime. It has also paid, and since January 9, 1951, is still paying, to the widow a weekly death benefit of $15.36. In addition it has paid $400 for funeral expenses.

Section 29 of the Workmen’s Compensation Law provides that if an employee be injured under circumstances entitling him to compensation through the wrongful act of another, not in the same employ, he, or in the case of death, his dependents, may accept workmen’s compensation and commence an action against the third-party wrongdoer. The compensation carrier, in such case, has a lien for all payments of compensation and medical care upon any recovery effected in such action and is entitled to reimbursement therefrom. If the recovery in the third-party action is less than the compensation payable, it is applied to the lien and the claimant is entitled thereafter to deficiency payments from the employer and his insurance carrier.

Thus, subdivision 4 of section 29 of the Workmen’s Compensation Law reads: “If such injured employee, or in case of death, his dependents, proceed against such other, the state insurance fund, person, association, corporation, or insurance carrier, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case. ’ ’

The widow and not the son is a “ dependent ” within the meaning of the Workmen’s Compensation Law. So, it will be seen that the larger the share of the recovery received by the widow from the wrongful death action, the less is the compensation required to be paid by the carrier.

The carrier contends that unless a child, minor or adult, is in some manner dependent upon a parent, that is, expectant of pecuniary assistance from the continued life of the parent, he has suffered no pecuniary injury by reason of the death of the parent and cannot share in the recovery of the proceeds of the action for the wrongful death. The respondent’s position is that there is no requirement that the next of kin, in addition to suffering pecuniary damages, be dependents of the decedent.

Accordingly, the sole issue here is whether one who is not a “dependent” can sustain “pecuniary injury ” within the meaning of section 133 of the Decedent Estate Law. That section provides for distribution of the proceeds of a wrongful death action as follows: ‘1 The damages recovered in an action, as prescribed in this article, or obtained through settlement without action, are exclusively for the benefits of the decedent’s husband or wife, and next of Mm, except as hereinafter otherwise provided; and, when they are collected, they must be distributed by the plaintiff, or representative, to any or all of such husband or wife and next of Jtin, in proportion to the pecuniary injuries suffered, the proportions to be determined upon notice to all interested persons in such manner as the court shall deem proper and after a hearing at such time as the court may direct, upon application made by the plaintiff or representative or by the husband or wife or any next of kin. If no action is brought, such determination shall be made by the surrogate of the county where letters have been issued. If an action is brought, the said proportions shall be determined by the court having jurisdiction of the action or by the surrogate of the county wherein letters have been issued to the plaintiff. * * * ” (Emphasis supplied.)

The term “ next of kin ” as used in section 133 is defined in section 134 of the Decedent Estate Law as follows: “ The term ‘ next of kin,’ as used in the last three sections of this article includes all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife, except if decedent leaves surviving a father and mother but no widow, child or descendant, it shall mean both the father and the mother.”

It appears, therefore, that the two important requirements of present section 133 of the Decedent Estate Law are, first, that persons claiming a share in the proceeds of an action for wrongful death be members of the class of “ next of kin ” of the decedent as defined in the Decedent Estate Law, and, second, that they demonstrate a pecuniary loss or injury so that it may be determined what proportion of the proceeds should be awarded to them.

Prior to 1949 section 133 had provided that damages recovered in a wrongful death action were to be distributed “as if they were unbequeathed assets ”, i.e., pursuant to section 83 of the Decedent Estate Law. In 1949 it was amended to its present form. The only change effected by the amendment was that proof of pecuniary injury is now required to be shown in order to determine the proportionate shares to which the respective next of Mn are entitled as opposed to the former section which awarded those shares in accordance with the provisions of section 83 of the Decedent Estate Law.

The purpose and effect of the amendment was to eliminate the injustice which had resulted from the unalterable distribution of damages pursuant to the provisions of the Statute of Distribution. The Legislature did not alter the definition of the class of persons entitled to share in the recovery — next of kin — but merely imposed a condition to the sharing in the recovery by persons of that class, viz., that of pecuniary injury. There is nothing in the language used which indicates an intention to change the elements of what had previously been held to constitute pecuniary injury.

In tMs case the finding of fact, affirmed by the Appellate Division, that the wife suffered pecuniary loss to the extent of 85% and the son to the extent of 15% is conclusive, since it is based upon substantial evidence.

Nevertheless, the carrier asks that “ pecuniary injury ” as used in section 133 be defined to mean that loss which a dependent next of kin suffers by reason of the death. That would not be in accord with the provision of section 132 of the Decedent Estate Law that the damages for wrongful death awarded to plaintiff “be a fair and just compensation for the pecuniary injuries, resulting from the decedent’s death ”, to the persons for whose benefit the action is brought. Those persons under section 130 of the Decedent Estate Law are “husband, wife, or next of kin ”. We have written squarely on the point. In Tilley v. Hudson Riv. R. R. Co. (24 N. Y. 471, 474, Denio, J.) we said with reference to the wrongful death statute: “ Next of kin are embraced in its language, as parties who may be pecuniarily injured by the death of a person to whom they stand in that relation; and it is not required that the degree of kindred should be such as to create the duty of sustenance, support or education.” (Emphasis added.) And, in McIntyre v. New York Central R. R. Co. (37 N. Y. 287, 295-296), in a concurring opinion by Fullerton, J., we said: “ It is true that these children were away from home, probably of full age, and not immediately dependent upon their mother for support. But the evidence also shows that they were not beyond the reach of a mother’s care and bounty. Out of her earnings, insignificant as they were proved to be, she provided small articles of clothing for them, and the jury had a right to find that her death involved them in a pecuniary loss. ” (Emphasis supplied.)

It is clear from the foregoing that dependency is not the only basis for consideration when arriving at the pecuniary damages suffered by a “ next of kin ’ ’.

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

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

Order affirmed.