author: O’Brien, J. Cardozo, Ch. J.

text:
    Oscar L. Graf et al., as Executors and Trustees under the Will of Joseph L. Graf, Deceased, Appellants, v. Hope Building Corporation, Respondent, Impleaded with Others.
    (Argued March 18, 1930;
    decided May 13, 1930.)

      David Steclder and Edmund B. Hennefeld for appellants.
    Equity will not relieve the respondent from its default. (Bennett v. Stevenson, 53 N. Y. 508; Noyes v. Anderson, 124 N. Y. 175; Valentine v. Van Wagner, 37 Barb. 60; Dwight v. Webster, 32 Barb. 47; Smith v. Lamb, 59 Misc. Rep. 568; Ferris v. Ferris, 28 Barb. 29; Heinitz v. Shushansky, 199 App. Div. 936; Trowbridge v. Malex Realty Corp., 198 App. Div. 656; Bard v. Rabinfried Realty Co., 126 Misc. Rep. 427.) The maxim de minimis non curat lex cannot apply to a default in a case of mortgage foreclosure. (1 Wiltsie on Mortgage Foreclosure [4th ed.], p. 81; Real Property Law, § 254, subd. 2.) No relief will be granted in the absence of fraudulent or other conduct on the part of the mortgagee inducing the default. (Heinitz v. Shushansky, 199 App. Div. 936; Pizer v. Herzig, 120 App. Div. 102; Ferris v. Ferris, 28 Barb. 29; Hothorn v. Louis, 52 App. Div. 218; 170 N. Y. 576; Martin v. Clover, 45 N. Y. St. Repr. 44; 137 N. Y. 615; Cole v. Hinck, 120 App. Div. 355; Bennett v. Stevenson, 53 N. Y. 508; Noyes v. Anderson, 124 N. Y. 175; Trowbridge v. Malex Realty Corp., 198 App. Div. 656; Valentine v. Van Wagner, 37 Barb. 60.)

      Herbert R. Limburg, Harry F. Mela, Herman A. Brand and Joseph L. Weiner for respondent.
    The alleged default on the defendant-respondent’s part falls within the maxim de minimis non curat lex. (Douglass v. Mainzer, 40 Hun, 75; Matter of Becker, 4 Hill, 613; Freese v. Blos, 248 Ill. 280; Blos v. Berritz, 190 Ill. 545; Colman v. Shattuck, 62 N. Y. 349; Hixon v. Oneida County, 82 Wis. 575; Gammaway v. Street Improvement Dist., 164 Ark. 407; Workman v. Worcester, 118 Mass. 168.) A court of equity has power to relieve a mortgagor from a default which is not willful. (Broderick v. Smith, 15 How. Pr. 434; Lynch v. Cunningham, 6 Abb. Pr. 94; Noyes v. Anderson, 124 N. Y. 175; Shaw v. Wellman, 59 Hun, 447; Ver Planck v. Godfrey, 42 App. Div. 16; Schieck v. Donohue, 92 App. Div. 330; Isaacs v. Baldwin,
      105 N. Y. Supp. 38; Germania Life Ins. Co. v. Potter, 124 App. Div. 814; Smith v. Lamb, 59 Misc. Rep. 568; Strange v. Rosenberg, 101 Misc. Rep. 618; Loughery v. Catalano, 117 Misc. Rep. 393; Trowbridge v. Malex Realty Corp., 198 App. Div. 656; Bard v. Rabinfried Realty Co., Inc., 126 Misc. Rep. 427; Nove Holding Corp. v. Schechter, 218 App. Div. 479; Besas v. Slobodoff, 129 Misc. Rep. 205.) The rule is applicable to defaults in paying interest as well as to those involving taxes. (Nove Holding Corp. v. Schechter, 218 App. Div. 479; Bard v. Rabinfried Realty Co., 126 Misc. Rep. 427; Giles v. Austin, 62 N. Y. 486; Palmer & Singer Mfg. Co v.. Barney Estate Co., 149 App. Div. 136; Horton v. N. Y. C. R. R. Co., 12 Abb. N. C. 30; 102 N. Y. 697; Giles v. Austin, 52 N. Y. 486; Real Property Law, § 254.)
   O’Brien, J.

Plaintiffs, as executors of Joseph L. Graf, are the holders of two consolidated mortgages forming a single lien on real property the title to which is vested in defendant Hope Building Corporation. According to the terms of the agreement consolidating the mortgages the principal sum is made payable January 1, 1935. Nevertheless, a clause provides that the whole shall become due after default for twenty days in the payment of any installment of interest. David Herstein is the controlling stockholder and also president and treasurer of defendant. He alone was authorized to sign checks in its behalf. Early in June, 1927, he went to Europe. Before his departure a clerical assistant who was also the nominal secretary of the corporation computed the interest due July 1, and through an error in arithmetic incorrectly calculated it. Mr. Herstein signed the check for the erroneous amount but before the date upon which the interest became due, the secretary discovered the error, notified the mortgagee of the shortgage of $401.87, stated that on the president’s return from Europe the balance would be paid and on June 30 forwarded to the mortgagee the check as drawn. It was deposited by the mortgagee and paid by defendant. On July 5 Mr. Herstein returned, but, through an omission in his office, he was not informed of the default in the payment of interest. At the expiration of twenty-one days this action of foreclosure was begun. Defendant made tender of the deficiency but the mortgagee, strictly insisting on his contract rights, refused the tender and elected to assert the power created by the acceleration clause in the consolidation agreement.

On the undisputed facts as found, we are unable to perceive any defense to the action and are, therefore, constrained to reverse the judgment dismissing the complaint. Plaintiffs may be ungenerous, but generosity is a voluntary attribute and cannot be enforced even by a chancellor. Forbearance is a quality which under the circumstances of this case is likewise free from coercion. Here there is no penalty, no forfeiture (Ferris v. Ferris, 28 Barb. 29; Noyes v. Anderson, 124 N. Y. 175, 180), nothing except a covenant fair on its face to which both parties willingly consented. It is neither oppressive nor unconscionable. (Valentine v. Van Wagner, 37 Barb. 60.) In the absence of some act by the mortgagee which a court of equity would be justified in considering unconscionable, he is entitled to the benefit of the covenant. The contract is definite-and no reason appears for its reformation by the courts. (Abrams v. Thompson, 251 N. Y. 79, 86.) We are not at liberty to revise while professing to construe. (Sun P. & P. Assn. v. Remington P. & P. Co., 235 N. Y. 338, 346.) Defendant’s mishap, caused by a succession of its errors and negligent omissions, is not of the nature requiring relief from its default. Rejection of plaintiffs’ legal right could rest only on compassion for defendant’s negligence. Such a tender emotion must be exerted, if at all, by the parties rather than by the court. Our guide must be the precedents prevailing since courts of equity were established in this State. Stability of contract obligations must not be undermined by judicial sympathy. To allow this judgment to stand would constitute an interference by this court between parties whose contract is clear. One has been unfortunately negligent but neither has committed a wrong. If defendant’s president had left some person in charge with authority to deal with affairs as they might arise, the first error could have been immediately corrected and the second would not have occurred. Even after Mr. Herstein’s return on July 5, two weeks remained before the expiration of the twenty days. The secretary’s forgetfulness during this time is not sufficient excuse for a court of equity to refuse to lend its aid to the prosecution of an action based upon an incontestably plain agreement. Such a refusal would set at nought the rules announced and enforced for a century in such cases as Noyes v. Clark (7 Paige, 179); Hale v. Gouverneur (4 Edw. Ch. 207); Ferris v. Ferris (supra); Valentine v. Van Wagner (supra); Malcolm v. Allen (49 N. Y. 448); Bennett v. Stevenson (53 N. Y. 508); Hothorn v. Louis (52 App. Div. 218; affd., 170 N. Y. 576). The words of Chancellor Walworth in Noyes v. Clark (supra) express the rule which has since prevailed in respect to the rights of a mortgagee against a defaulting mortgagor under an acceleration clause: “ The parties * * * had an unquestionable right to make the extension of credit dependent upon the punctual payment of the interest at the times fixed for that purpose. And if, from the mere negligence of the mortgagor in performing his contract, he suffers the whole debt to become due and payable, according to the terms of the mortgage, no court will interfere to relieve him from the payment thereof according to the conditions of his own agreement. (Steel v. Bradfield, 4 Taunt. Rep. 227; James v. Thomas, 5 Barn. & Adol. 40.)” Ferris v. Ferris (supra) illustrates the application of that rule when the court, holding that the acceleration clause works neither a forfeiture nor a penalty, rejected a defense founded upon the fact that the mortgagor was unacquainted with business and suffered the day of payment to arrive sooner in consequence of her own negligence than she would otherwise have done. This court has never departed from that rule. Cases can be found in other courts where the facts may be so distinguished as to take them out of the rule or where other theories have been applied in a way which fails to meet with our approval. We feel that the interests of certainty and security in real estate transactions forbid us, in the absence of fraud, bad faith or unconscionable conduct, to recede from the doctrine that is so deeply imbedded in equity.

Reliance is placed by respondent upon Noyes v. Anderson (supra), but we think that the reasoning in that case requires a reversal here. There the issue related to the effect upon a collateral agreement of a default in the payment of an assessment, and the court, giving full recognition to the principles of the cases above cited, decided that the breach of a condition subsequent in that agreement, unlike a default in the payment of interest on the principal of a mortgage debt, resulted in a forfeiture. The reason for the decision is best understood from a consideration of this language in the opinion: “ The stipulation of the plaintiff’s agreement essentially differs, in its nature and object, from a provision in a mortgage to the effect that the principal sum shall become due on a specified default in the payment of interest as provided by it. In the latter case provision is so made for the time when the principal sum may become due, and that time is regulated by an event which may or may not occur so far as it is dependent upon the default of the mortgagor. The consequence so produced is not deemed a forfeiture. The result is maturity of the principal debt at the time, not definitely fixed, when the mortgage is made, but specifically stipulated for in that instrument. And in such case the court as a rule will not grant relief to the mortgagor from the effect of his default when nothing is done on the part of the mortgagee to render it unconscionable for him to avail himself of it. (Noyes v. Clark, 7 Paige, 179; Mal colm v. Allen, 49 N. Y. 448; Bennett v. Stevenson, 53 id. 508.) But the case at bar must be considered and determined in the light of the undisputed facts and circumstances under which the agreement was made, and in reference to the purpose represented by it.”

The judgment of the Appellate Division and that of the Special Term should be reversed and judgment ordered in favor of plaintiff for the relief demanded in the complaint, with costs in all courts.

Cardozo, Ch. J.

(dissenting). The action is one for the foreclosure of a consolidated mortgage.

The principal of the mortgage is $335,000, payable in quarter-annual installments of $1,500, beginning April 1, 1925, and continuing until January 1, 1935, when there is to be payment of the residue ($276,500). Interest computed at the rate of 5%% per annum is payable quarter-annually, like the installments of the principal. At the option of the mortgagee the whole of the principal is to become due after default for twenty days in the payment of any installment of the interest.

On July 1, 1927, there became due the quarterly installment of principal ($1,500), and interest ($4,621.56), in all $6,121.56. The interest payments were not constant in amount, for the debt on which interest was to be computed varied each quarter with the reduction of the principal. At this time, the owner of the equity of redemption was the Hope Building Corporation, which was not a signer of the bond nor personally bound for the payment of the debt. The corporation was owned and controlled by its president, Mr. Herstein, who sailed for Europe June 2, 1927, on a hurried trip for business. Before leaving he requested his bookkeeper, who was nominally the secretary of the corporation, to make out the checks for the principal and interest payable in July. Through an error in arithmetic, she computed the interest as $4,219.69, which was $401.87 short of the correct amount. Mr. Herstein signed a check for the interest so computed and also one for $1,500, the installment of the principal. After he had gone, the bookkeeper recalculated the interest and discovered her mistake. There was no one authorized to sign checks when the president was away. Accordingly on June 24 she mailed the two checks to the plaintiff mortgagee, stating that a mistake in arithmetic had been made, and that the president was expected to return about July 5, at which time a check for $401.87 would be promptly forwarded. The president of the corporation returned at the appointed time, but unfortunately the bookkeeper forgot about the error, and failed to bring it to his attention. The twenty-day period of grace expired July 21. On July 22, without warning or demand, the plaintiff began this action for the foreclosure of its mortgage, electing to declare the principal indebtedness to be due by reason of the default in the payment of the interest. Promptly the same day, the corporation, thus advised of its default, tendered the overdue installment. The tender, being rejected, was kept good by payment into court. These facts being proved, the trial judge held that there had been a mere mistake in computation, against which equity would relieve by refusing to co-operate with the plaintiff in the effort to collect the accelerated debt. The Appellate Division unanimously affirmed. Upon appeal by the. plaintiff the case is now here by allowance of this court.

There is no undeviating principle that equity shall enforce the covenants of a mortgage, unmoved by an appeal ad misericordiam, however urgent or affecting. The development of the jurisdiction of the chancery is lined with historic monuments that point another course. Equity declines to treat a mortgage upon realty as a conveyance subject to a condition, but views it as a lien irrespective of its form (Trimm v. Marsh, 54 N. Y. 599). Equity declines to give effect to a covenant, however formal, whereby in the making of a mortgage, the mortgagor abjures and surrenders the privilege of redemption (Mooney v. Byrne, 163 N. Y. 86, 93). Equity declines, in the same spirit, to give effect to a covenant, improvident in its terms, for the sale of an inheritance, but compels the buyer to exhibit an involuntary charity if he is found to have taken advantage of the necessities of the seller (Pomeroy, Equity Jurisprudence, vol. 2, § 953). Equity declines to give effect to a covenant for liquidated damages if it is so unconscionable in amount as to be equivalent in its substance to a provision for a penalty (Kothe v. Taylor Trust, 280 U. S. 224). One could give many illustrations of the traditional and unchallenged exercise of a like dispensing power. It runs through the whole rubric of accident and mistake. Equity follows the law, but not slavishly nor always (Hedges v. Dixon County, 150 U. S. 182, 192). If it did, there could never be occasion for the enforcement of equitable doctrine (13 Halsbury, Laws of England, p. 68).

To all this, acceleration clauses in mortgages do not constitute an exception. They are not a class by themselves, removed from interference by force of something peculiar in their internal constitution. In general, it is true, they will be enforced as they are written. In particular this has been held of a covenant in a mortgage accelerating the maturity of the principal in default of punctual payment of an installment of the interest. If the quality of a penalty inheres in such a covenant at all, it is not there to such a degree as to call, in ordinary circumstances, for mitigation or repression (Noyes v. Clark, 7 Paige, 179; Ferris v. Ferris, 28 Barb. 29; Malcolm v. Allen, 49 N. Y. 448; Bennett v. Stevenson, 53 N. Y. 508). Less favor has been shown to a provision for acceleration of a mortgage in default of punctual payment of taxes or assessments. We have held that such a provision, though not a penalty in a strict or proper sense, is yet so closely akin thereto in view of the forfeiture of credit that equity will relieve against it if default has been due to mere venial inattention and if relief can be granted without damage to the lender (Noyes v. Anderson, 124 N. Y. 175; followed in Ver Planck v. Godfrey, 42 App. Div. 16; Germania Life Ins. Co. v. Potter, 124 App. Div. 814, and cf. Trowbridge v. Malex Realty Corp., 198 App. Div. 656). In the one case as in the other, in foreclosure for default of taxes just as in foreclosure for default of interest, the privilege of acceleration is absolute in the event of a default, if the privilege is to be measured by the language of the covenant. The distinction lies in this only, that the punctual payment of interest has an importance to the lender as affecting his way of life, perhaps the very means for his support, whereas the importance of payment of the taxes is merely as an assurance of security. The difference is not one of kind, for the provision is enforcible even as to taxes if the default is continuous or willful; it is a difference merely of degree, the purpose of the payment being referred to as a test wherewith to gauge the measure of the hardship, the extent of the oppression.

There is neither purpose nor desire to impair the stability of the rulé, which is still to be enforced as one of general application, that non-payment of interest will accelerate the debt if the mortgage so provides.- The rule is well understood, and is fair to borrower and lender in its normal operation. Especially is it fair if there is a period of grace (in this case twenty days) whereby a reasonable leeway is afforded to inadvertence and improvidence. In such circumstances, with one period of grace established by the covenant, only the most appealing equity will justify a court in transcending the allotted period and substituting another. There is a difference, however, between a denial of power, without heed to the hardship calling for its use, and a definition of hardship that will limit the occasions upon which power shall be exercised. In none of the cases cited as indicative of lack of power was there any need to determine the effect of accident or mistake apparent to a mortgagee who has preferred default to payment. Indeed, in the one case in which there was even an approach to such a theme, what was said was merely obiter, the actual decision being that the borrower was not at fault (Noyes v. Clark, supra). However fixed the general rale and the policy of preserving it, there may be extraordinary conditions in which the enforcement of such a clause according to the letter of the covenant will be disloyalty to the basic principles for which equity exists. We have seen that this may happen where the default is one affecting the payment of the taxes, though the standard form of mortgage, now embodied in the statute (Real Property Law, §§ 254, 258; Cons. Laws, ch. 50), groups interest and taxes together in the clause that makes provision for the acceleration of the principal. The courts of sister States at times have been less liberal than ours, and have held that even in respect of taxes the covenant will be enforced as it has been written, irrespective of the hardship (see, e. g., Weiner v. Cullens, 97 N. J. Eq. 523; Derechinsky v. Epstein, 98 N. J. Eq. 79; s. c., 99 N. J. Eq. 447). For us the rale is settled otherwise, and not even in the prevailing opinion is there the expression of a purpose to recede from it. Having gone so far, however, we shall have difficulty in refusing to go farther. Already, in the spirit of our holding, there are decisions by other courts that relief may be granted in extraordinary conditions, though the default has relation to the payment of the interest. Thus, in a recent case in Connecticut, acceleration of the debt was refused where a check for the interest had miscarried after its deposit in the mails (Console v. Torchinsky, 97 Conn. 353, 357). The exercise of a dispensing power was deemed to be a branch of the jurisdiction of equity to relieve against the consequences of accident or mistake. This does not mean that such provisions for accelerating payments are provisions for forfeitures. Fairly made and fairly enforced they are not.” Even so, “ a court of equity may intervene to prevent the creditor from taking an unconscionable advantage of the letter of his bargain ” (Beach, J., in Console v. Torchinsky, supra; cf. Nove Holding Corp. v. Schechter, 218 App. Div. 479).

When an advantage is unconscionable depends upon the circumstances. It is not unconscionable generally to insist that payment shall be made according to the letter of a contract. It may be unconscionable to insist upon adherence to the letter where the default is limited to a trifling balance, where the failure to pay the balance is the product of mistake, and where the mortgagee indicates by his conduct that he appreciates the mistake and has attempted by silence and inaction to turn it to his own advantage. The holder of this mortgage must have understood that he could have his money for the asking. His silence, followed, as it was, by immediate suit at the first available opportunity, brings conviction to the mind that he was avoiding any act that would spur the mortgagor to payment. What he did was almost as suggestive of that purpose as if he had kept out of the way in order to avoid a tender (Noyes v. Clark, supra). Demand was, indeed, unnecessary to bring the debt to maturity at law. There is not a technical estoppel (Thompson v. Simpson, 128 N. Y. 270, 291; Spencer Bower on Estoppel by Representation, pp. 61, 352, 358; cf. Williston, Contracts, vol. 3, §§ 1497, 1548, 1557). The consequence does not follow that, in conditions so peculiar, the omission to make demand is without significance in equity. Significant it may then be in helping the court to a determination whether the conduct of a suitor in taking advantage of a default, so easily averted and so plainly unintentional; is consistent with good conscience (cf. Retan v. Clark, 220 Mich. 493). True, indeed, it is that accident and mistake will often be inadequate to supply a basis for the granting or withholding of equitable remedies ' where the consequences to be corrected might have been avoided if the victim of the misfortune had ordered his affairs with reasonable diligence ( United States v. Ames, 99 U. S. 35, 47; Grymes v. Sanders, 93 U. S. 55; Noyes v. Clark, supra). The restriction, however, is not obdurate, for always the gravity of the fault must be compared with the gravity of the hardship (Noyes v. Anderson, supra; Lawrence v. American Nat. Bank, 54 N. Y. 432; Ball v. Shepard, 202 N. Y. 247, 253). Let the hardship be strong enough, and equity will find a way, though many a formula of inaction may seem to bar the path (Griswold v. Hazard, 141 U. S. 260, 284).

Cases such as Klein v. New York Life Ins. Co. (104 U. S. 88); Wheeler v. Connecticut Mut. Life Ins. Co. (82 N. Y. 543), and Whiteside v. North American Acc. Ins. Co. (200 N. Y. 320) do not derogate from the doctrine that a postulant in equity for affirmative relief may be dismissed without a remedy where he is attempting as an actor in the lawsuit to make himself the beneficiary of accident or error. In those cases and in others like them there was an attempt to charge a defendant with a contractual liability in disregard of the conditions limiting its creation. The party insisting on the condition was before the court as a defendant resisting a liability which could only arise if the condition was a nullity. Here, on the other hand, there is no endeavor by the owner of the property to charge the mortgagee with an obligation to do anything affirmative. The operation of the decree will be negative altogether. There is nothing more than a refusal to give active aid and countenance to one who seeks the aid of equity and is unwilling as a price to do equity himself (Pomeroy, Equity Jurisprudence, vol. 1, § 385; 13 Halsbury, Laws of England, p. 71; Mickles v. Dillaye, 17 N. Y. 80, 88; Thomas v. Evans, 105 N. Y. 601; Satterlee v. Kobbe, 173 N. Y. 91, 99; Comstock v. Johnson, 46 N. Y. 615; Werner v. Tuch, 127 N. Y. 217; Thomas v. Brownville, etc., R. R. Co., 109 U. S. 522, 526; Buchannon v. Upshaw, 1 How. [U. S.] 56, 84; Charleston, etc., Ry. Co. v. Hughes, 105 Ga. 1, 21; cf. Hulbert v. Clark, 128 N. Y. 295). In equity as in mechanics action and reaction are equal and opposite. The equity that one asks one must be ready to concede. The maxim applies whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy ” (Pomeroy, supra). The court will stand aside when by intervening it will make itself an instrument of injustice (Thomas v. Brownville, etc., R. R. Co., supra). There is no occasion to define the situations in which it will be ready to go farther and stay the remedy at law. Enough for present purposes that it may withhold a remedy in equity. If justice exacts an acceptance of a tender, the relief to be granted will be subject to that condition, and the decree will be limited to the overdue installments, with costs accruing to the date of tender and refusal.

In this case, the hardship is so flagrant, the misadventure so undoubted, the oppression so apparent, as to justify a holding that only through an acceptance of the tender will equity be done. The omission to pay in full had its origin in a clerical or arithmetical error that accompanied the act of payment, the very act to be performed. The error was not known to the debtor except in a constructive sense, for the secretary, a sub-ordinate clerk, omitted to do her duty and report it to her principal. The deficiency, though not so small as to be negligible within the doctrine of de minimis, was still slight and unimportant when compared with the payment duly made. The possibility of bad faith is overcome by many circumstances, of which not the least is the one that instantly upon the discovery of the error, the deficiency was paid, and this only a single day after the term of grace was at an end. Finally, there is no pretense of damage or even inconvenience ensuing to the lender. On the contrary, and this is the vital point, the inference is inevitable that the lender appreciated the blunder and was unwilling to avert it. From his conduct on the day immediately succeeding the default, we can infer his state of mind as it existed the day before. When all these circumstances are viewed in their cumulative significance, the enforcement of the covenant according to its letter is seen to approach in hardship the oppression of a penalty, just as truly as in Noyes v. Anderson there was unconscionable hardship in an insistence upon a default in the discharge of an assessment. Ninety-one per cent of the interest had been paid when it matured. The other nine per cent was paid as soon as the underpayment became known to an agent competent to act, and only a day too late. Equity déclines to intervene at the instance of a suitor who after fostering the default would make the court his ally in an endeavor to turn it to his benefit.

The judgment should be affirmed with costs.

Pound, Crane and Hubbs, JJ., concur with O’Brien, J.; Cardozo, Ch. J., dissents in opinion in which Lehman and Kellogg, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Matter of Anna Hand, Respondent, v. Ortschreib Building Corporation et al., Defendants. Municipal Bank and Trust Company et al., Appellants.
    (Argued May 5, 1930;
    decided May 13, 1930.)

      Herman W. Bernstein for motion.

      Gerson C. Young opposed.
   Per Curiam.

The proceeding was instituted under subdivision 3 of section 773 of the Civil Practice Act. The appellant was a party to that proceeding. An order adjudging a party guilty of a civil contempt in, proceedings supplemental to execution is not a final order. (Matter of Steinman v. Conlon, 208 N. Y. 198.)

Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


author:
Lehman, J.
      Crane, J.

text:
    The People of the State of New York, Respondent, v. Alex Bogdanoff, Max Rybarczyk and Stephen Grzechowiak, Appellants.

      (Argued March 24, 1930;
    decided May 15, 1930.)

      Thomas L. Newton and Stanley G. Falk for Alex Bogdanoff, appellant.
    The jury was not selected according to law and the appellant was not afforded a fair trial. (New York State Constitution, art. I, § 2; People v. Thayer, 1 Park. Cr. 595; United States v. Marchant, 12 Wheat. 480; Cruce v. State, 59 Ga. 83; State v. Stokley, 88 Kan. 381; People v. Caruso, 170 Mich. 137; Parsons v. Bedford, 3 Pet. 433; Hayes v. Missouri, 120 U. S. 68; People v. Cosmo, 205 N. Y. 91; People v. Dunn, 157 N. Y. 528; Stokes v. People, 53 N. Y. 164; Walter v. People, 32 N. Y. 147; Wynehamer v. People, 13 N. Y. 378.) The statutes under which the appellant Bogdanoff was indicted and tried were unconstitutional and void and the court

      acquired no jurisdiction. (Const, art. 1, § 6; People ex rel. Battista v. Christian, 249 N. Y. 314; People v. Naughton, 7 Abb. Pr. [N. S.] 421; People v. Farson, 244 N. Y. 413; Weimer v. Bunbury, 30 Mich. 201.)

      Ernest W. McIntyre and Charles T. Yeager for Max Rybarczyk, appellant.
    The jury was not selected according to law and the appellant was not afforded a fair trial. (New York State Constitution, art. 1, § 2; United States v. Wiltberger, 5 Wheat. 76; People ex rel. Battista v. Christian, 249 N. Y. 314.) The denial of the appellant Rybarczyk’s motion for a separate trial was not in accordance with the exercise of sound judicial discretion. (People v. Fischer, 249 N. Y. 419; People v. Snyder, 246 N. Y. 491; People v. Conrow, 200 N. Y. 356.)

      W. Bartlett Sumner and Daniel J. O’ Neil for Stephen Grzechowiak, appellant.
    The jury was not selected according to law and the appellant was not afforded the fair trial contemplated by section 2 of article I of the State Constitution, and other, rights secured to the appellant by the State and Federal Constitutions were violated on the trial. (People v. Thayer, 1 Parker Cr. 595; U. S. v. Marchant, 12 Wheat. 480; Cruce v. State, 59 Ga. 83; State v. Stokley, 88 Kan. 381; People v. Caruso, 170 Mich. 137; Thymolby’s Case, Dyer, 152b; Salisbury’s Case, Plowd. 100; Charnock’s Case, 3 Salk. 81.) The statutes under which the appellant was indicted and tried were unconstitutional and void, and, therefore, the court acquired no jurisdiction to try the appellant. (People ex rel. Battista v. Christian, 249 N. Y. 314; People v. Farson, 244 N. Y. 413; Weimer v. Bunbury, 30 Mich. 201; People v. Corey, 148 N. Y. 476; People v. Moran, 246 N. Y. 100.)

      Guy B. Moore, District Attorney (Walter F. Hofheins of counsel), for respondent.
    The denial of defendants’ several motions for separate trials was proper. (Code Grim. Proc. § 391; People v. Snyder, 246 N. Y. 491; People v. Fisher, 249 N. Y. 419.) The jury was selected according to law. (People v. Doran, 246 N. Y. 409; Code Grim. Proc. § 360.) The statutes providing for simplified indictments are constitutional, and the indictment under which the defendants were tried confers jurisdiction on the court. (New York State Constitution, art. 1, § 6; Commonwealth v. Farmer, 218 Mass. 507; Commonwealth v. Jordan, 207 Mass. 259.)
   Lehman, J.

Evidence which is not challenged establishes that on the 27th day of July, 1929, Ferdinand Fechter was killed in the city of Buffalo, Erie county. His death was the result of wounds inflicted by robbers who escaped with a large amount of money which Fechter was carrying from a bank to his home. On September 7th, 1929, the defendant Rybarczyk was arrested. Early the next day the other two defendants were arrested. At the police station they were questioned separately and together. Two made written statements admitting that they had taken part in the robbery. The defendant Rybarczyk made no written statement, but the evidence establishes that he admitted before a number of witnesses that he had taken part in the robbery and that the written statement of Grzechowiak, made in his presence, was true. The grand jury indicted the defendants on September 12th for “ murder in the first degree contrary to Penal Law, section 1044.” Upon that indictment the defendants were arraigned, tried and convicted.

The District Attorney filed a bill of particulars stating That Alexander Bogdanoff, Max Rybarczyk, Stephen Grzechowiak and John Doe, on the 27th day of July, 1929, at the City of Buffalo in this County, killed Ferdinand Fechter by shooting him.” The defendants did not question before the trial the sufficiency of the indictment or demand any further bill of particulars. At the trial they moved to dismiss the indictment on various grounds intended to raise the question of whether the indictment of the grand jury, though complying with the form authorized by section 295-d of the Code of Criminal Procedure, chapter 176 of the Laws of 1929, is such a written accusation as accords with the constitutional rights and guaranties of the accused.

In the Federal Constitution and in the Constitution of many of the States, express provision is made, in language similar to that found in section 6, article I of the Constitution of New York, that no person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury.” Long before the Constitution of State or nation was adopted, the principle that trial for a felony must be preceded by a sworn accusation of a grand jury was firmly established in the common law. The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.” (Jones v. Robbins, 8 Gray, 329, 344.) Indeed, in that case it was decided that the clause in article XII of the Declaration of Rights of the Massachusetts Constitution which reads, no subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or. tire law of the land,’ ” must be so interpreted that no subject «an be held to answer for an infamous crime except upon indictment or presentment of a grand jury. (See Commonwealth v. Harris, 231 Mass. 584.)

Doubtless the framers of the Constitution of the State of New York had never seen or heard of an indictment couched in simple untechnical language. At that time specialized knowledge of legal precedents and the technical craftmanship of a legal artist were required for the drawing of an indictment. Perfection of form was essential to validity. Justice might be delayed or defeated by legalistic insistence upon statement of details which served no useful purpose.

For generations attempts have been made, with varying degree of success, to simplify forms of indictment. Such attempts may not be thwarted by insistence upon the preservation of outworn legalistic formulas. “An indictment, then, within the meaning of the constitution, is nothing more'than what it is defined to be by Blackstone (4 Commentaries, 302), ‘ a written accusation, of one or more persons, of a crime or misdemeanor, preferred to, and presented by, a grand jury, upon oath.’ ” (Wolf v. State, 19 Ohio St. 248.) We may not hold that the framers of the Constitution intended that all the formalities of the old common-law indictments must remain forever inviolate. They intended, undoubtedly, that a written accusation of a crime must be presented by the grand jury before an accused may be held for trial upon a charge of felony. From the days of Magna Charta, the law of the land accorded an accused such protection against unfounded charges. The Legislature cannot dispense with a “ written accusation ” by the grand jury, but it can prescribe new forms of indictments, and dispense with some of its technical formalities. (See Lougee v. State, 11 Ohio St. 68; State v. Schnelle, 24 W. Va. 767.)

In this State, the Legislature long ago provided a simplified form of indictment. “ All the forms of pleading in criminal actions, heretofore existing, are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code. (Code Crim. ¡Pro. § 273, originally section 289 of the Code of Criminal Procedure as reported by the Commissioners on Practice and Pleadings to the Legislature in 1850.)

It is significant that the Legislature not only abolished all the existing forms of indictment, but also provided its own rules by which the sufficiency of the statutory pleadings should be determined. An indictment is sufficient if those elements which the Legislature deemed essential for the protection of an accused can be understood from its form and language. The report of the Commissioners proposing and defending the new system is itself a plea for the substitution of a logical in place of a legalistic approach to the problem. They are,” they reported, not ignorant of the fact, that their proposed reform will strike at the root of a system, artificial and absurd in itself, and which is only saved from the contempt it merits, by the frequent use of the names of venerable legal authorities, under whose sanction it has grown and ripened into maturity. * * * Nor will they allow themselves to believe that absurdities and fictions, so glaring and gross in themselves, as to provoke the laughter and contempt of the intelligent, will be permitted to continue longer than until a safe substitute for them can be found.”

Though doubtless it is the function of the Legislature, rather than the courts, to devise wise substitutes for obsolescent machinery of the law, at times the courts must determine whether such substitutes are safe and reasonably calculated to serve their purpose. Constitutional limitations at times restrict the legislative powers at least to that extent. “ We shall not consider how far the Legislature might go in simplifying indictments before encountering Article XII of the Massachusetts Bill of Rights. We admit that there are limits to its powers in this direction; that, for instance, it could not authorize the omission of allegations necessary to describe a specific crime.” (Holmes, J., in Commonwealth v. Freelove, 150 Mass. 66.)

Article XII of the Massachusetts Bill of Rights provides that “No subject shall be held to answer for any crime or offense, until the same is fully and plainly, substantially and formally described to him. * * * And no subject shall be arrested, imprisoned, despoiled or deprived of his properties, immunities, or privileges, * * * or deprived of his liberty or estate but by the judgment of his peers or the law of the land.” No simplification of an indictment which might deprive an accused of these constitutional guaranties could be sustained by the courts.

In this jurisdiction the courts have used a similar test in determining the sufficiency of indictments. In People v. Farson (244 N. Y. 413) the court said, per Pound, J.: “ The indictment is sufficient if it identifies the charge against the defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case.” In other jurisdictions the test has been at times formulated in other manner, but the test has been essentially the same.

We shall not analyze the multitudinous decisions determining the sufficiency of indictments. In some jurisdictions the courts have strictly construed the language of indictments, and have sustained technical objections which affected no substantial right of an accused. In New York and other jurisdictions it has been noted that the courts, acting under command of the Legislature, measure the sufficiency of indictments solely in relation to the substantial rights of the accused, guaranteed either by the express language or the fair intendment of the Constitution. Even so, the present indictment is certainly not sufficient if measured by any test, heretofore applied by the courts of this State, or, indeed, of any other jurisdiction.

Those tests, however, have been devised and applied when indictments constituted the sole formulation of an accusation, which the accused could demand as of right before he was held to answer. True, bills of particulars might at times be granted in the discretion of the court, but constitutional rights cannot be made dependent upon the favor of a court. They may be asserted as a matter of right. Even when a bill of particulars was granted, it did not become part of the record. (Dunlop v. United States, 165 U. S. 486.) In determining the validity of a law changing the form of the indictment, the courts base decision upon their conclusion whether full protection is afforded to the traditional, fundamental rights of the accused. The problem of the sufficiency of an indictment assumes a new aspect when the Legislature provides that omissions from an indictment may be supplied by a bill of particulars which becomes part of the record of the accusation.

In the new chapter of the Code of Criminal Procedure which authorized simplified indictments, the Legislature has provided a new method of protecting the rights of an accused. No longer may the court grant or withhold a bill of particulars in its discretion. Now the Legislature has commanded that upon the arraignment of the defendant, or at any later stage of the proceedings, the court shall, at the request of the defendant, direct the district attorney to file a bill of particulars of the crime charged.” (Code Grim. Pro. § 295-g.) It must state such particulars as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged.

In Massachusetts the Legislature has made similar provision for a bill of particulars which may be demanded by an accused as of right. (R L. ch. 218, § 39.) There it has been held that now the indictment and bill of particulars must be read together. The bill of particulars thus becomes part of the record. (Commonwealth v. Howard, 205 Mass. 128; Commonwealth v. Peakes, 231 Mass. 449, at p. 456.) If in truth the bill of particulars may be read together with the indictment and becomes part of the record, then it would seem that no constitutional rights of the accused have been infringed by the statute now under consideration.

In spite of the meticulous search in the remote past by the courts for technical imperfections which might render an indictment insufficient, where the pleader had sufficient skill to follow common-law forms accurately, the indictment might in fact give to an accused little information of the nature or cause of the accusation. General terms of law having a common law significance seldom particularise the act charged.” (People v. Farson, supra.) Certain offenses might be charged in such general terms that a bill of particulars was customarily required. (See Lambert v. People, 9 Cow. 578, at pp. 586 and 587; also Rex v. Hamilton, 7 Car. & Payne, 448; Reg. v. Stapylton, 8 Cox C. C. 69; Rex v. Bootyman, 5 Car. & Payne, 300; 9 Halsbury Laws of England, 338.) If, now, the indictment and the bill of particulars, which a defendant can demand, may be read together and constitute the written accusation which the grand jury has made and which the accused must meet, the right of an accused to be informed of the nature of the accusation against him receives more adequate protection under the statute than at common law, and an accused has been deprived of no fundamental or substantial rights. (Commonwealth v. Jordan, 207 Mass. 259; Commonwealth v. Farmer, 218 Mass. 507.)

In Massachusetts, as we have pointed out, the courts have held that the indictment and bill of particulars must be read together and together constitute the formulation of the accusation which the accused must answer. Courts and text-book writers have in the past upheld the rule that an indictment must contain not only a certain description of the crime charged, but also “a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury shall find a bill for one offence, and the defendant be put upon his trial in chief for another, without any authority.” (Chitty’s Criminal Law, vol. 1, p. 169; Lambert v. People, supra.) Under the Massachusetts statute (R. L. 218, § 17) the indictment must contain a plain and concise description of the act which constitutes the crime, or the appropriate legal term descriptive of such act, without a detailed description thereof.” The function of the bill of particulars under the Massachusetts statute is to supply additional information concerning an accusation that a person has done an act constituting a crime. In the case here under review the indictment charges only the crime of murder in the first degree.” When or where or by what acts the crime was committed is left unsaid. There is nothing on the face of the indictment which identifies the specific accusation which the grand jury has made, or removes the possibility that under the bill of particulars the defendants might be put on trial for a different homicide from that of which they were accused by the grand jury. Certainly, the indictment and the bill of particulars cannot be read together as the formulation of an accusation of crime unless in fact they refer to the same crime.

Even at common law the possibility was not entirely excluded that a man might be placed on trial for an offense for which he had not been indicted. Though the indictment was required to set forth the facts so far as known to the grand jury, if the name of the victim of homicide, rape or other crime was in fact unknown to the grand jury, the indictment might charge the accused with a crime committed upon a person or persons to the grand jury unknown. Then the indictment might not conclusively show that the crime for which the accused was placed on trial was the same crime described in the indictment. It did not exclude entirely the possibility that the State might bring the accused to trial for a crime committed upon a person or persons other than the person or persons intended by the grand jury to be described in the indictment. That circumstance would not render the indictment itself invalid (Chitty’s Criminal Law, vol. 1, pp. 212, 213), but if it should appear that the name was or might have been known to the grand jury, then the issue could be litigated as to whether the jury did know the name. (Commonwealth v. Glover, 111 Mass. 395.) If it did know the name, then of course the crime described in the indictment would not be the crime for which the accused was tried. (Bishop’s New Criminal Procedure [2d ed.], vol. 2, § 552.)

In the case which we are now reviewing, there can be no real doubt that the grand jury intended to charge the defendants with the murder of Fechter for which they have been tried and convicted. The defendants never claimed otherwise. They point to no substantial right, guaranteed to them by the Constitution, which has been prejudiced by failure to state in the indictment all the essential elements of the crime charged. They confessed to a crime, and the grand jury found an indictment against them for that crime, although the indictment may fail to describe that crime in language which without extraneous proof identifies the charge with the crime confessed and proven. None the less the conviction cannot stand if the defendants by the form of the indictment have been precluded from challenging the assertion of the State that the crime with which they have been charged by accusation of the grand jury is the same crime for which the bill of particulars has been filed, and for which they have been tried and convicted. Though we may feel certain that in this case such a challenge would have been abortive, the accused could not under the Constitution be deprived of the right to make the challenge.

Of course, to the extent that an indictment, unaided by the bill of particulars, fails to set forth all the elements of a crime, it is impossible to determine in any case with certainty, from the face of the indictment alone, that the grand jury has accused a defendant of the very crime specified in the bill of particulars. Doubtless where an indictment contains a statement, even though incomplete, of the acts constituting the crime charged, as is required in Massachusetts, the danger that an accused can be put on trial for a crime not charged in the indictment is greatly reduced. Nevertheless the difference is one only of degree, and logically it would seem that if the courts give effect to differences of degree in determining whether a bill of particulars may supply omissions in an indictment, the decisive consideration in each case must be whether failure to set forth in an indictment all the essential elements of the crime which the accused is held to answer, has resulted" in depriving the accused in that case of a substantial right and subjects him to actual danger of trial upon a charge upon which he has not been indicted.

Indeed, if we discard, as we should, a legalistic approach to the consideration of the sufficiency of an indictment, we can reach no other result. In every case where there is room for doubt whether the grand jury has in fact indicted an accused for the crime for which he is held, the accused must be able to challenge the right of the State to hold him under the indictment. What is written in the indictment must be read in the light of the circumstances under which it was found. If its language is specific and precise, there may be no need for construction. If its language is loose and general, then extraneous evidence may be necessary before we can decide what was intended by the language used. An accused, however, should not be heard to complain that a constitutional right has been infringed by form of an indictment if that form does not preclude an accused from asserting in some manner every substantial right he may have. A written accusation by the grand jury may not be disregarded or amended in order to permit a trial upon a crime not charged by the grand jury, but omissions in an indictment should be supplied or errors in description cured in order to show upon the record that accusation and trial are for the same crime.

Though perhaps this court has not had occasion to assert that rule in definite terms, it is implicit in our entire course of decisions upon the scope and function of indictments. We have held that an indictment may not be amended to change the substantial elements and nature of the crime charged in the indictment. (People v. Geyer, 196 N. Y. 364.) On the other hand, we have held that error in description or name may be corrected or disregarded. (People v. Johnson, 104 N. Y. 213.) So, too, where a defendant is indicted by a fictitious or erroneous name his true name may be inserted whenever that is discovered. (Code Crim. Pro. § 277.) (See People v. Seidenshner, 210 N. Y. 341.)

That a District Attorney should ever, by filing a bill of particulars, seek to hold an accused for a crime for which he has not been indicted is improbable. The provision of the Code of Criminal Procedure, section 271, requiring that the names of witnesses be indorsed upon the indictment would, in most cases, at least, prevent such an error. It may be urged that the Code of Criminal Procedure does not make any provision for challenging the right of the State to hold an accused to answer a charge specified in the bill of particulars, upon the ground that the indictment does not cover the same charge. The answer is that the courts have an inherent power to protect the constitutional rights of an accused who is held without proper and sufficient accusation of a grand jury. (See People v. Glen, 173 N. Y. 395.) The accused may at any time, at least before conviction, assert his constitutional rights to be discharged from custody upon a charge of felony where it does not appear that the grand jury has indicted him upon the charge for which he is held. If challenge is made on that point the State must meet that challenge.

In a recent case ( United States ex rel. Mouquin v. Hecht, 22 Fed. Rep. [2d] 264) an accused named Louis C. Mouquin, who was held under an indictment in form found against Louis A. Mouquin, demanded his discharge. There, the question was whether the grand jury in fact described the person held, though the description was inaccurate, and other evidence was necessary to establish identity. The court, speaking through Learned Hand, Circuit Judge, said: The meaning to be attributed to their [the grand jury’s] words may, in case of doubt, be found by looking at the circumstances under which they are uttered. This is a universal canon. Now the only circumstances relevant to the words used are the evidence before them when they find the indictment, for it is from these alone that they get any acquaintance with the subject.”

In that case the court held that an accused cannot avail himself of a plea that he. is held without indictment, where the description of his person was insufficient to identify him as the person accused, till extraneous proof supplied the deficiency. Analogy to statutory and judicial rules created to meet similar situations supports the decision. In Massachusetts, as in this State, where a defendant has been indicted under a fictitious name because his true name was unknown, the true name may be inserted whenever discovered. (Commonwealth v. Gedzium, 259 Mass. 453.) That is true even though by mistake, some person other than the defendant whom the grand jury intended to describe had previously pleaded to the indictment. (Commonwealth v. Berley, 254 Mass. 556.) Though extraneous evidence be necessary to identify a defendant, insufficiently or erroneously described in the indictment, it seems clear that an accused cannot claim that he is held without indictment where such evidence proves that he is the person the grand jury intended to accuse, and the record is amended accordingly. Similarly it seems clear that an accused is not held without indictment where extraneous proof can be adduced which shows that an accusation of crime, though indefinite, in form, was intended and calculated to describe the crime for which the accused is held. Especially is that true where no claim has been advanced that the grand jury could have intended any other accusation by the indictment. The courts should be astute and eager to preserve all constitutional rights. They may not insist upon the preservation of old forms for the assertion of such rights when those rights can be adequately protected under new forms devised by the Legislature.

It is said that at times a defendant may not choose to request a bill of particulars to supplement the form of indictment used, and that then the record would not show the specific crime for which the defendant has been indicted. That may be true, but a voluntary failure to assert a right provided by statute constitutes a weak foundation for a claim that the statute deprives the accused of a constitutional right. (Patton v. United States, 281 U. S. 276.) At all times it was possible that the record might not show that an indictment charged the particular crime for which a defendant was convicted or indeed any crime, if the defendant chose not to challenge the sufficiency of the indictment. The conviction stood if opportunity to challenge had not been denied. (People v. Wiechers, 179 N. Y. 459.)

The new forms may at times prove unwise. Doubtless if district attorneys insist upon using the form employed here, they will at times be unable to meet a challenge to the sufficiency of the description of a crime. Extraneous evidence may still leave uncertain at times whether an indictment for murder ” or larceny covers one crime or several. The evidence presented to the grand jury might cover several connected homicides or a series of defalcations with nothing to demonstrate which crime of the series was intended to be the subject of the charge. Then the courts will be compelled to discharge the accused. Too often the courts are called upon to point out that innovation does not necessarily imply improvement. With, equal ease and with greater certainty the District Attorney might have used, if he had chosen, a more precise form of indictment not subject to any possible claim that the indictment did not describe the same crime covered by the bill of particulars. There must in every case be identity of accusation, and the indictment must describe the crime upon which the accused is held. It is the duty of the District Attorney to formulate that description with such precision that it cannot be successfully challenged. Our decision that in this case the conviction must be sustained where no claim is made that the charge in the indictment of murder in the first degree could have been understood to have any meaning other than a charge of the murder of Ferdinand Fechter, may not be regarded as a judicial approval of the form of indictment used. It is sufficient here; it might prove insufficient in any case where doubt as to its meaning could exist. Whatever form is used, an indictment must still remain a written accusation of a crime by the grand jury. Reasonably precise formulation should render it unnecessary to resort to extraneous proof, yet a faulty formulation of an indictment cannot require a reversal of a conviction unless there is doubt as to the meaning of the indictment.

The defendants have raised other questions upon this appeal. We have considered them, and find no ground for reversal. They have been convicted after a fair trial upon evidence which is clearly sufficient to sustain a conviction. The court did not abuse its discretion in refusing to sever the trial. (People v. Snyder and Gray, 246 N. Y. 491; People v. Fisher, Helfant and Dreitzer, 249 N. Y. 419.) All questions concerning peremptory challenges upon joint trials were considered and decided in People v. Doran (246 N. Y. 409). No reversible errors were committed in the conduct of the trial.

The judgment of conviction should be affirmed as to each defendant.

Crane, J.

(dissenting). What is an indictment? The Constitution of the State of New York (Art. I, § 6) reads: “No person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury.” This entire section was in the Constitution of 1821, and has remained unchanged by the various Constitutional Conventions which have met since that time. The Constitution of the United States, by the Fifth Amendment, reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” What does this word “ indictment ” mean? In framing constitutions, the foundation of all government, binding upon courts as well as Congresses and Legislatures, words are chosen with a carefulness and an exactness seldom found in the drafting of other instruments. Meanings are not left in a fog, to be defined by subsequent generations. The framers of our Constitutions knew what they were doing; they were well acquainted with the evils under which humanity had suffered, and they organized our government with these evils pressing on their minds and hearts. No man shall be held to answer for a capital or otherwise infamous crime, except on an indictment of a grand jury. Did our forefathers know what an indictment was? When using this word in the Constitution, they meant the form of accusation with which they were acquainted, the one in common use at the time, and which was then known to the law as an indictment. This legal accusation consisted of two essentials, from which there has never been a departure for the past century. First, the accused is charged with having committed a crime, known to the law; and second, the act which he did constituting that crime is stated. These are the essentials of an indictment, and without both these elements there is no indictment which the Constitution of the United States or this State recognizes. The Code of Criminal Procedure of the State of New York, in defining an indictment, has merely stated the meaning of the word as used in the Constitutions and exemplified by all authorities. The provisions of sections 274 and 275 provide that the first pleading on the part of the People is an indictment which must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition.

The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone.” (United States v. Hess, 124 U. S. 483, 487.) The indictment is the charge of the State against the defendant, the pleading by which he is informed of the fact, and the nature and scope of the accusation. (Matter of Wilson, 140 U. S. 575, p. 585.) (See, also, United States v. Behrman, 258 U. S. 280, 288.) Although the Fifth Amendment of the United States Constitution only applies to the United States courts, we must assume that the word indictment ” in the Federal Constitution has the same meaning as the same word in the State Constitution. By amendment to the State Constitution, the grand jury may be abolished and an information presented by the District Attorney to the court may take the place of an indictment. Even then, however, the information must state not only the crime of which the accused is charged, but the nature of the act, or the facts constituting the crime. (Hurtado v. California, 110 U. S. 516.) The New York State Constitution has not been amended in this particular, and the requirement still is that for a felony the accused must be charged in an indictment by a grand jury. An indictment is an instrument required by the Constitution, not by the Legislature, stating the crime and the nature of the act constituting it. Such has been the uniform rulings for the United States courts, and such has been the law of every State of this Union, where an indictment was required by its Constitution. (See the collection of cases, Joyce on Indictments [2d ed.], § 281, p. 310.) Cooley on Constitutional Limitations (vol. 1 [8th ed., Carrington], p. 636-7) says that the accusation, whether it be an indictment or information, must be sufficiently specific, fairly to apprise the defendant of the nature of the charge against him, so that he may know what he is to answer and so that the record may show for what he is put in jeopardy. (See, also, Story on the Constitution, vol. 2 [4th ed.], p. 544.)

That an indictment to-day means just what it did at common law in its essential parts, but without its tautology and verbiage, is the statement found in such cases as State v. Fancher (71 Mo. 460, 463); State v. Corson (59 Me. 137, p. 140); Cathcart v. Commonwealth (37 Penn. St. 108, 114); Newcomb v. State (37 Miss. 383, 397); McLaughlin v. State (45 Ind. 338, 343); Noles v. State (24 Ala. 672, 691); Lambert v. People (9 Cow. 578, 609); People v. White (24 Wend. 520, 570); State v. Davis and Quigg (39 R I. 276).

The indictment at common law was very exact in stating all the details and incidents of the alleged crime; it was long and verbose, filled with repetitions and legal phrases. Minor misstatements and errors proved fatal, but all of this has long since passed into history, as for a quarter of a century in this State the short form of indictment has been used, which merely states the crime and the substance of the act constituting the crime, in clear and concise language, and as our Code of Criminal Procedure says, without unnecessary repetition. For all the major offenses, like murder, larceny, burglary, rape and the like, forms which have been standardized by custom have been used, against which all technical objections have failed. When the indictment said that John Jones committed the crime of murder in the first degree, in that on the first day of June, 1928, he feloniously killed Jim Smith, with premeditation and intent to kill, this was sufficient to meet all the requirements of the word indictment,” as used in the Constitution. The nature of the crime and the act constituting it were here stated. Whatever influenced our State Legislature to think it could improve upon these customary short forms of indictment is a matter of speculation. Not one of them, so far as my experience and information lead me to believe, has ever been dismissed as insufficient.

However, the Legislature, with a worthy desire at least to satisfy the critics of the administration of the criminal law, made changes in the form of the indictment, apparently thinking that any change, in and of itself, was evidence of improvement.

In the adoption of chapter III-A, added to the Code of Criminal Procedure by chapter 176 of the Laws of 1929, the Legislature has radically amended the form of the indictment, so that it is no longer the accusation intended by the Constitution. ■ The indictment, or the written paper, signed by the foreman of the grand jury or the District Attorney, has always contained, and by the Constitution of the State was required to contain, not only the name of the crime with which the defendant was charged, but also the act constituting the crime. Now the Legislature says that an accusation leaving out the act constituting the crime shall be an indictment. The Constitution of the State of New York cannot be amended in this fashion. Giving to a word in the Constitution by act of legislation a meaning which it never had is violating our fundamentals of government under legal forms. An indictment is an indictment, and the Legislature has no power to make something else an indictment by merely calling it such. An indictment, as used in the Constitution, had in the minds of our people and the framers of every one of our Constitutions since 1821, a definite meaning. It had an identity of being as much as a sheep, a goat or a horse is a distinct species of creation. The nature of the instrument could not be changed by act of the Legislature any more than the Legislature can make a sheep a goat, by calling it such.

While the Legislature undoubtedly has authority to abbreviate and simplify and to a certain extent modify and change the forms of indictments, yet its authority in this respect is limited, and it cannot make an indictment valid and sufficient, in which the accusation is not set forth with sufficient fullness to enable the accused to know what the matter is which he has to meet, and enable the court to see without going out of the record, that a crime has been committed. Where it is provided, as in this State, that a person shall answer a criminal charge of felony only on an indictment or information, such provision places it beyond the power of the Legislature to dispense with the statement in the indictment of the description of the offense. (Joyce on Indictments, § 56; State v. Clay, 100 Mo. 571, 582; State v. Corson, supra; Noles v. State, supra; Brunson v. State, 70 Fla. 387; People v. Clark, 256 Ill. 14; and cases heretofore cited.)

Under this chapter III-A of our present Code of Criminal Procedure, adopted in 1929, the form of the accusation, which is now called the indictment,” may accuse the defendant of murder, arson, burglary, larceny, libel, without stating more. The act constituting the offense need not be alleged. Whom the defendant killed, or what he stole, or the act he did, is not required to be stated. The accused is faced with a change of crime, without knowing what it is. Our criminal procedure, instead of progressing, is going backward, and in the craving for change we have removed all safeguards which have been considered necessary since the days of Star Chamber proceedings.

To meet these obvious objections, the Legislature, in section 295-g of the Code of Criminal Procedure, provided that upon the arraignment of the defendant, the court shall, at the request of the defendant, direct the District Attorney to file a bill of particulars of the crime charged. But such a bill will state the acts which the District Attorney says the defendant committed, and not what the grand jury accuses him of having done. If we were meeting the requirements of due process of law, required by the Fourteenth Amendment of the United States Constitution, a presentment by the District Attorney, instead of an indictment or a bill of particulars furnished by the District Attorney might be sufficient. We are not dealing, however, with the due process of law provision of the Federal Constitution; we are acting under our own State Constitution, which says that this information must be given by the grand jury in the form of an indictment. A bill of particulars is not now, and never has been a part of the indictment. Not having been found on the oath of the grand jury, a bill of particulars cannot cure the failure of the indictment to sufficiently inform the defendant of the charge made against him. (Joyce on Indictments, § 326; State v. Van Pelt, 136 N. C. 633; Commonwealth v. B. & O. R. R. Co., 223 Penn. St. 23; State v. Lehigh Valley R. R. Co., 94 N. J. L. 171; United States v. Bayaud, 16 Fed. Rep. 376; Pine and Scott v. Commonwealth, 121 Va. 812; Commonwealth v. Davis, 11 Pick. [Mass.] 432.) The charge against an accused person is not that he has committed crime generally, like murder or larceny, but that he has committed some act which is made a crime by law. That the bill of particulars can never be considered a part of the indictment is reasonable. Suppose, under this emasculated form of indictment which we are now discussing, a defendant is charged with larceny, and without demanding a bill of particulars, he pleads guilty. For what is he to be sentenced; and after sentence, of what has he been convicted? There are many different kinds of larceny defined by our Penal Law. The crime now covers larceny by trick and device, larceny by false representations, larceny through embezzlement, larceny by illegally using an automobile. (Penal Law, §§ 1290-1313.) If the defendant, after sentence on his plea, is again indicted for the crime of larceny, how can he plead and prove prior conviction for the same offense? The New York Constitution provides: “No person shall be subject to be twice put in jeopardy for the same offense.” (Art. I, § 6.) To be sure, the grand jury minutes may be examined, but any one familiar with investigations by grand juries knows that frequently the charge of larceny may cover many items of book accounts or misappropriations over years of time. Every investigation of a bank or trust company or of a corporation covers innumerable transactions. If out of such investigation, an officer or director is accused of larceny and pleads guilty, without demanding a bill of particulars, which one of all these items or occurrences forms the basis of the charge and of his punishment? The same reasoning applies to criminal libel. The written matter may appear in a book or an editorial or a news item; which part of it does the grand jury consider the crime? Is the grand jury to determine, or the District Attorney? Our Constitution says that the grand jury shall determine, and accuse the defendant accordingly. The whole thing sums itself up in this: the bill of particulars provision leaves the District Attorney to determine of what the defendant is accused; he is the one chosen to speak for the grand jury, whereas the Constitution requires the grand jury to be the accuser and speak for itself.

While the least fairness to any person accused of crime requires that the information or the indictment on which he is arrested shall state the act or thing which he is accused of doing, another reason, equally as urgent, requires this information to be given in the indictment or the information. To determine when a defendant is subjected to second jeopardy for the same offense, there must be no uncertainty about the act for which he was previously punished. It does not meet this requirement to say he was punished for larceny or assault or libel. He was punished for an act, for a deed which, at a specific time and place, constituted the crime. Therefore, the act must be stated in the accusing charge to guide subsequent courts and prosecuting attorneys. (State v. Corson; United States v. Behrman, supra.)

No case can be found in the United States courts or in the court of any State in this Union where a written accusation has been held to be an indictment which does not state the act or the deed which the defendant committed. Even the procedure in England so frequently and publicly cited for its simplicity and efficiency, requires the indictment not only to state the offense, but the particulars constituting it. (The Indictments Act of 1915, 5 & 6 George V, ch. 90.)

Unfortunate indeed, that any question should arise in these cases over the sufficiency of the indictment. The defendants committed an atrocious murder, and are clearly guilty. The People of this State and nation have many times been justified in showing impatience with the technicalities and refinements of the criminal law, whereby guilty men have escaped their just punishment. I heartily sympathize with these criticisms, and yet, there are certain fundamental principles which must be followed and obeyed, or else we have chaos, and not law. Every one instinctively feels that a person arrested for a crime and taken to jail should know at once the thing which he is accused of doing, the act which he is said to have committed. This feeling is part of our inheritance from those who struggled against oppression and false and secret accusation, who were subjected to political revenge and the suspicions of State. Whatever may be the cause for this feeling, we know that at the formation of our government, it was written for both nation and State: No person shall be held to answer for a capital or otherwise infamous crime, * * * unless on presentment or indictment of a Grand Jury; ” and we also know that the indictment has always been an instrument charging a crime and stating the nature of the offense. Nothing could be fairer, nothing more fundamental. Following the mandates of this Constitution, which the judges of this State must maintain in all its integrity, I am persuaded that this indictment is bad in not being a legal accusation against these defendants.

The judgment of conviction should be reversed, the indictment dismissed, and the defendants remanded to the county jail to await a new indictment and a new trial.

Cabdozo, Ch. J., Pound and O’Bbien, JJ., concur with Lehman, J.; Cbane, J., dissents in opinion in which Kellogg and Hubbs, JJ., concur.

Judgment affirmed, etc.


author: Pound, J.

text:
    Losei Realty Corporation, Appellant and Respondent, v. City of New York, Respondent and Appellant.

      (Argued April 7, 1930;
    decided May 15, 1930.)

      Robert H. Wilson for plaintiff, appellant and respondent.
    Loss of rental value is the only legitimate damage for deprivation of the use of the plaintiff’s property. (Leonard v. New York Tel. Co., 41 N. Y. 544; Ehrgott v. Mayor, 96 N. Y. 264; Meyer v. Haven, 70 App. Div. 529; Matter of City of New York, 240 N. Y. 68.) The plaintiff had a right to allow the defendant as much time as it desired to complete its agreements and did not thereby waive its right to recover damages for such delay. (Ruff v. Rinaldo, 55 N. Y. 664; Dunn v. Steubing, 120 N. Y. 232; Deeves v. Manhattan Life Ins. Co., 195 N. Y. 324; General Supply & Constr. Co. v. Goelet, 149 App. Div. 80; Kenny
      v. Monahan, 53 App. Div. 421; 169 N. Y. 591; Crocker-Wheeler Co. v. Varick Realty Co., 104 App. Div. 568; Reading Hardware Co. v. City of New York, 129 App. Div. 292; Raymore Realty Co. v. Pfotenhauer-Nesbit Co., 139 App. Div. 126; Cassidy v. Le Fevre, 45 N. Y. 562.) The value of the use and occupation of the plaintiff’s lands, of which it was deprived by defendant’s delay, is the proper measure of damages. (Ruff v. Rinaldo, 55 N. Y. 664; Hartshorn v. Chaddock, 135 N. Y. 116; Ogden Lumber Co. v. Busse, 92 App. Div. 143; Dufel v. State of New York, 198 App. Div. 97; Mayright v. State of New York, 124 Misc. Rep. 682; Sayre v. State of New York, 123 N. Y. 291; DeCamp v. Bullard, 159 N. Y. 450; Ansonia Brass & Copper Co. v. Gerlach, 8 Misc. Rep. 256.)

      Arthur J. W. Hilly, Corporation Counsel (Willoughby B. Dobbs and Charles J. Nehrbas of counsel), for defendant, respondent and appellant.
    The defendant is not liable for any deficiency in the amount of fill placed upon plaintiff’s lands. (Edison Electric Illuminating Co. v. Thacher, 229 N. Y. 172; Lambert v. Krum, 121 Misc. Rep. 170; Norske Ameriekalinje v. Sun P. & P. Assn., 226 N. Y. 7; Peirce v. Cornell, 117 App. Div. 66; Cook v. Soule, 56 N. Y. 420; Hamilton v. McPherson, 28 N. Y. 72.) The plaintiff’s claim for loss of rental value has been properly rejected. (Slavin v. State, 152 N. Y. 45; Hall Sons’ Co. v. Sundstrom Co., 138 App. Div. 548; 204 N. Y. 660; Ludlow v. Village of Yonkers, 43 Barb. 493; Terry v. N. Y. Cent. R. R. Co., 22 Barb. 40; Rexter v. Starin, 73 N. Y. 601; Dillon v. Anderson, 43 N. Y. 231; Brown v. Weir, 95 App. Div. 78; Cortland County v. Herkimer County, 44 N. Y. 22; Clapper v. Waterford, 131 N. Y. 382; Fox v. Manchester, 183 N. Y. 141; Uline v. N. Y. Cent. R. R. Co., 101 N. Y. 98; Dietzel v. City of New York, 218 N. Y. 270.)
   Pound, J.

The action is brought to recover damages for breach of a contract by which the defendant agreed to fill in the plaintiff’s property on Jamaica bay with dredged material. The plaintiff has recovered a judgment in the sum of $39,493.41. Both parties have taken an appeal to this court. The defendant contests all the material contentions of the plaintiff but on questions of fact the evidence sustains the judgment against the city. The plaintiff contends that the damages awarded are inadequate as matter of law and asks that the judgment appealed from be modified by increasing the amount thereof by the sum of $130,923.22. •

Plaintiff and defendant owned adjoining lands under water in Jamaica bay at the foot of Flatbush avenue, Brooklyn. The defendant had erected a pier at the foot of Flatbush avenue extending out into Jamaica bay; plaintiff’s lands were next east of the pier and it was necessary to cross such lands to gain access to the pier. The boundary fine between the parties was also in dispute.

In order to enable the city to acquire the plaintiff’s lands under water adjoining its Flatbush avenue pier without resorting to condemnation proceedings, and to settle the boundary line dispute, agreements upon which this action is based were made and entered into between the plaintiff and the defendant. These agreements were made under the provisions of the Greater New York Charter and were as follows:

First. On July 13, 1916, the Commissioners of the Sinking Fund approved and adopted an agreement presented to them and directed the Corporation Counsel,, the Mayor and the City Clerk to execute the necessary papers to carry it out. This was the real agreement, between the parties, being made by the Commissioners of the Sinking Fund, the only authorized agency of the city to make such agreements. (Greater New York Charter, § 205.)

Second. On October 11, 1916, the formal deed fixing and describing the boundary fine, conveying the plaintiff’s lands under water adjoining the Flatbush avenue pier and setting forth the other provisions of the sinking fund agreement, was executed by the plaintiff and the Mayor and City Clerk in pursuance of the provisions of the sinking fund agreement and duly delivered. This agreement and the formal deed of execution in accordance therewith constitute the contract between the plaintiff and the defendant.

The plaintiff was to erect a bulkhead upon its property, thirty feet inshore of the new bulkhead line established by the agreements. The defendant agreed within nine months from October 11, 1916, to do the following:

1. To dredge to a depth of eighteen feet outside the bulkhead line established by the agreements.

2. To dredge the lands between such bulkhead line and the plaintiff’s bulkhead thirty feet inshore therefrom, in an “ even slope of natural repose,” so that there should be five feet of water at the plaintiff’s bulkhead at mean low tide.

3. To deposit the dredged material, first upon the lands of the plaintiff “all to a surface and approximately uniform grade averaging 10 feet above mean low water.”

The defendant’s agreement then contained this provision:

“ The City of New York may vary the said order of filling, but from said dredged material or from other sources, shall at all events fill in the lands of said Losei Realty Corporation to the grade aforesaid with due diligence.” This clause is omitted from the formal deed in so far as it requires the fill to be made from other sources ” but the omission does not modify the agreement.

The plaintiff erected its bulkhead. Defendant agreed, first, to dredge the land “ so that there should be five feet of water at the plaintiff’s bulkhead at mean low tide; ” secondly, to fill plaintiff’s lands ■ at an average grade of “ 10 feet above mean low water.” The defendant let a dredging and filling contract to P. Sanford Ross, Inc., not, however, to carry out the entire agreement with plaintiff. The two contracts are not in terms related. The Ross company had four months in which to perform, which would give it until September 12, 1917, to complete its contract, although the defendant had agreed to complete its agreement with plaintiff on July 11, 1917. The Ross company actually completed its wrork on October 17, 1917. It did its work of dredging improperly and negligently and by so doing broke down plaintiff’s bulkhead. In the end the fill provided for was practically but not fully completed by the city but not until December 2, 1922. The plaintiff sued to recover for damages to the bulkhead and for the cost of the completed fill and it has recovered therefor. It also sued for damages for delay in completing the work but the trial judge held that it was entitled to no damages for delay on the ground that the wrong was complete on July 11, 1917, nine months from October 11, 1916, and plaintiff could not lie by, neglecting to make the necessary reparation and hold the wrongdoer liable for loss sustained by the delay. This rule is properly applicable to actions in tort for damages for unlawful injury to property, where the ordinary measure of damages is the depreciation in value caused by the wrrongful act (Slavin v. State, 152 N. Y. 45)., but it is not applicable to actions to recover for breach of contract. One who violates his contract with another is liable for all the direct and proximate damages which result from the violation.” (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 209.) The Appellate Division affirmed with a slight modification not material in this connection.

The city recognized its obligations to plaintiff and undertook to carry them out. Much delay resulted from various causes. Plaintiff waited from July 11, 1917, until April 8, 1920, when it began this action on the theory that the contract had not been terminated or abandoned but was still in full force and effect. The fill was after-wards completed by the city, with the exception of 63,285 cubic yards, on December 2, 1922. Plaintiff now contends that it is entitled to damages due to such delay from July 11, 1917, to December 2, 1922.

The purpose of the contract was to improve the city water front and to give plaintiff a usable property with a proper depth of water. This was a legitimate exercise of the power of the city over the improvement of navigation facilities. (Matter of City of New York, 240 N. Y. 68.) The plaintiff is entitled to recover as damages the loss reasonably resulting from the delay. The question remains as to the measure of such damages and as to the reasonableness of plaintiff’s conduct in relation thereto.

Plaintiff might within a reasonable time after default have put an end to the contract (Taylor v. Goelet, 208 N. Y. 253) and completed the fill itself, or sued for damages, or it might have treated the contract as abandoned by the city. Abandonment of a contract implies not only non-performance but an intent not to perform which may be inferred from acts which necessarily point to actual abandonment. While defendant’s assurances were of such a nature that a reasonable man could believe that the contract could be performed without unreasonable delay, the plaintiff was at liberty to act on that assumption. When, however, the time arrived when a reasonable man would give up hope of performance, the plaintiff would no longer be justified in leaving the land idle and claiming damages for delay for an indefinite period. If it acted reasonably, it would be entitled to recover the entire loss. (Dunn v. Steubing, 120 N. Y. 232, 236; Hartshorn v. Chaddock, 135 N. Y. 116, 122.) The question of reasonable conduct as affecting the measure of damages remains for consideration as a question of fact in the case.

The law wisely imposes upon a party subjected to injury from the breach of a contract the active duty to make reasonable efforts to render the injury as light as possible. When the city failed to complete its contract the plaintiff was bound to use reasonable efforts to mitigate the damages. It had no right, by obstinately persisting in treating the contract as alive, to make the damages larger than they otherwise would have been. The burden of proving that the damages which have been sustained in such cases could have been prevented, unquestionably rests upon the party guilty of the breach of contract.” (Hamilton v. McPherson, 28 N. Y. 72, 77.) No such proof has been offered in this case but the inference is reasonable that damages might have been lessened and the duty of reasonable diligence to lessen damages must be considered. Should the plaintiff have exercised its right to terminate the contract within a reasonable time after breach and then sued for damages? And if so, at what time should it have terminated the contract? Should it have treated -the contract as abandoned if the conduct of the defendant was such as to make it unreasonable for the plaintiff to treat the contract as if it were in force? In determining the measure of damages, where the parties have left the matter doubtful, we ask what would have been in the contemplation of a reasonable man when the contract was made.” (Anson on Contracts [14th Eng. ed.], § 404.)

Taking as the starting point July 11, 1917, when the nine months named in the agreement expired, we find that the work was still proceeding under the Ross contract. No rule of law or reason compelled the plaintiff to terminate the contract on that date. When it allowed the defendant to proceed, it did not release or discharge the stipulation as to time but it could hold the defendant liable, for the damages resulting from the delay, so that if defendant had completed its work with the completion of the Ross contract on October 17, 1917, plaintiff would have been entitled to such damages. (Ruff v. Rinaldo, 55 N. Y. 664.) But the completion of the Ross contract left the agreement with the city incomplete as it would still require some 160,000 cubic yards of earth to finish the fill. Afterwards followed a long delay from October 17, 1917, to April 8, 1920, when this action was commenced, broken only by three or four sporadic offers on the part of defendant to complete the fill with ashes or broken stone. Then came a third period from June 14, 1921, to December 2, 1922, when the city with plaintiff’s consent practically completed the work.

The city never repudiated its obligation to fill the property of the plaintiff up to a grade of ten feet above mean low water. With the coming of the World War it was unable to let a contract to do the work it had agreed to do. It had not done so on April 8, 1920, when this action was begun. Thereafter the defendant, with the acquiescence of plaintiff, let a new contract for dredging and filling in Jamaica bay under which the filling was practically completed on December 2, 1922, when it gave notice to plaintiff that the work was completed.

To hold that one who contracts with another to improve his property may claim damages for delay for a long and indefinite period would in some cases lead to great hardship. Such results do not naturally and obviously flow from the breach. The just claims of the parties would ordinarily be satisfied by treating the contract as abandoned or terminated after wraiting a reasonable time for performance to proceed, and by claiming indemnity for the delay up to that point.

The case should go back for a new trial to enable plaintiff to establish damages for delay.

Damages, if proved, may be recovered in this action although they occurred subsequent to the commencement thereof. The action is for breach of contract and resulting damages for loss of use of the premises. There can be but one cause of action for the breach of contract in which all damages must be proved down to the time of the trial. (Park & Sons Co. v. Hubbard, 198 N. Y. 136.) Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98) and like cases apply only where the cause of action which occasioned-the damages was separate from the cause sued on and had accrued subsequent to the commencement of the first action.

The only proof of damages offered was of the rental value of the lands when fully improved. The proper measure of damages was the difference in the rental value of the lands when improved and in their partly improved condition. For all that appears they might have been leased in their partly improved condition.

The judgment should be modified by granting a new trial as to the amount of the damages resulting from the defendant’s default, and in other respects affirmed, with costs to the plaintiff in all courts.

Cardozo, Ch. J., Crane, Kellogg, O’Brien and Hubbs, JJ., concur; Lehman, J., not sitting.

Judgment accordingly.