author:
Crane, J.
      O’Bbien, J.

text:
    396 Flatbush Avenue Extension Realty Corporation, Appellant, v. The City of New York et al., Respondents, and Barney Zirinsky et al., Appellants, Impleaded with Another.

      (Argued March 8, 1934;
    decided April 17, 1934.)

      Almet R. Latson, Robert Abelow and William T. Condon for appellants.
    The deed from the city conveyed to the purchaser a fee to the whole parcel subject, only to an easement in the city. (Matter of City of New York [Tunnel St.], 160 App. Div. 29; 212 N. Y. 547; City Club of Auburn v. McGeer, 198 N. Y. 609; Blackman v. Striker, 142 N. Y. 555; Auburn & Syracuse Electric R. R. Co. v. Headley, 119 Misc. Rep. 94; 206 App. Div. 653.) The rights of the city under the easement resérved or excepted in the deed, are limited to an enjoyment .of the easement and include nothing except what is essential to such enjoyment and do not prevent the use and occupancy by the plaintiff of any part of the servient tenement not actually used by the city in the enjoyment of its easement so long as the covenants of limitation of use contained in the deed are complied with. (Grafton v. Moir, 130 N. Y. 465; Herman v. Roberts, 119 N. Y. 37; Dexter v. Beard, 130 N. Y. 549.) If the nature of the easement reserved by the city and the rights of the parties thereunder be not entirely clear from the deed, then the surrounding circumstances and the contemporaneous acts of the parties must be examined. The rights of the plaintiff depend upon the intent of the parties. (Baird v. Erie R. R. Co., 210 N. Y. 225; Elk Horn Coal Corp. v. Hackworth, 61 Fed. Rep. [2d] 304.)

      Paul Windels, Corporation Counsel (Charles Blandy, Trabue Carswell and Louis Cohen of counsel), George D. Yeomans and George H. Stover for respondents.
    By the conveyance from the city to plaintiff’s predecessor no right was given to the grantee and her assigns to occupy and use that part of the area retained by the city. (LasDaub Realty Corp. v. Fain, 214 App. Div. 8; Langdon v. Mayor, 93 N. Y. 129; Newport v. Hatton, 207 Cal. 515; Peck v. McClelland, 247 Mich. 369; Roby v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 176; Long Island R. R. Co. v. Mulry, 212 N. Y. 108; Kip v. N. Y. C. & H. R. R. R. Co., 140 Misc. Rep. 62; 236 App. Div. 654; Miner v. N. Y. C. & H. R. R. R. Co., 123 N. Y. 242; Hudson & Manhattan R. R. Co. v. Wendel, 193 N. Y. 166.) The alleged facts and circumstances surrounding the transaction cannot show that by the language of the deed it was intended to grant to plaintiff’s predecessor the right to use the surface of the area in question. (Ford v. Joyce, 78 N. Y. 618; Southard v. Curley, 134 N. Y. 148; Christopher St. R. Co. v. 23d St. R. Co., 149 N. Y. 51; Susquehanna S. S. Co. v. Anderson, 239 N. Y. 285; Thomas v. Bartow, 48 N. Y. 193; Grymes v. Sanders, 93 U. S. 55; Curtis v. Albee, 167 N. Y. 360; Kaufman v. Wade, 206 App. Div. 630; Whittemore v. Farrington, 76 N. Y. 452; Stettheimer v. Killip, 75 N. Y. 282; Schoonmaker v. Hoyt, 148 N. Y. 425; Salomon v. North British & M. Ins. Co., 215 N. Y. 214; Metzger v. Ætna Ins. Co., 227 N. Y. 411; 154 W. 14th St. Co. v. Schulte, Inc., 121 Misc. Rep. 853; 210 App. Div. 851; Silver Fox Co, v. New York Indemnity Co., 125 Misc. Rep. 430.)
   Crane, J.

The city of New York acquired in fee for rapid transit railroad purposes pursuant to the authority conferred by the Rapid Transit Act (Laws of 1891, ch. 4), the triangular plot of land situated on the westerly side of Flatbush Avenue Extension distant eight feet eleven inches southerly from the southerly side of DeKaib avenue, having the dimensions of sixty-four feet one and one-half inches along Flatbush Avenue Extension and forty-seven feet eleven and three-quarter inches on the southerly side and forty-two feet six and one-half inches on the northerly side.

Upon the construction of the subway in Flatbush Avenue Extension an official map or plan was prepared and signed by the Transit Construction Commissioner, dated October 1, 1919, for the purpose of the sale, under authority of the Rapid Transit Act, of property not retained for rapid transit purposes. This plan shows easement areas to be retained aggregating 828 square feet out of the total area of the plot of 1,021 square feet. The easement area indicated as part 1 contains 291 square feet and extends upward to a plane ten feet above the elevation of the curb, as shown on the cross section at the lower left-hand corner of the map. This map, from the time of its preparation, was an official record of the Transit Construction Commissioner for the purpose of showing what was to be resold by the city and what was to be retained for rapid transit purposes.

Thereafter, application was made by the Transit Construction Commissioner to the Commissioners of the Sinking Fund of the city of New York, as required by the Rapid .Transit Act, for authority for the resale, the property to be sold being described fully in said application. This application refers to the resale map above mentioned and describes the property which it was intended to sell, as indicated on said, map, and as subsequently contained in the deed which was delivered to plaintiff’s predecessor.

The property above described is in the form of a triangle. The entrance to the subway is on Flatbush avenue. As you enter you turn to the left and go down a flight of stairs, then left again onto the subway platform which is underneath the avenue. All of this triangle was not to be used and was not in use at the time of the sale. The diagrams in .evidence show that the entrance, stairway .and platform were the easements in actual use. Any one going to the place would see these structures as part of the subway. Not so the rest of the triangle. This the city desired and proposed to sell together with the right to use the space over the subway above a certain height. So we come to the descriptions, the auction sale and the deed. All is súpposed to have been done in good faith and we do not understand the city or the Commission as repudiating any of the acts of its agents or representatives. We may say right here, before going further, that the piece of property here in dispute is north of the subway station on Flatbush avenue, and about twenty-two square feet on the avenue. It also is a triangle. At the time of the sale it Was rented out for a news stand; it was not used as part of or in connection with the subway or the easement for a subway. What did the city sell and what , did it intend to sell?

In the terms of sale it is stated as to plot IV,; which includes.the property in question, “Ample area for high-grade stands is permitted at the street-level * * * The principal value of this plot is for stands * * *. Nearly a year ago this office received an. offer of $3,600 per annum net ground rent.” Again it is stated, “ The properties will be sold in fee simple free and clear of. all encumbrances, except certain permanent and perpetual easements to be reserved and retained for the maintenance and operation in perpetuity of the structures of the rapid transit subway railroads as they,now exist free of interference or right of interference.” “ In the case of Plot IV the subway structures may be altered with respect to the location of the present entrance facilities, providing such entrance facilities are not reduced in capacity or their safety impaired, and provided the approval of the Chief Engineer is secured as aforesaid.” This right or privilege was assured to the purchaser.

The instructions given by the Commission to the auctioneer to be read prior to the sale were these: Those of you who have studied the detailed maps of the parcels to be sold, in the office of the Transit Commissioner or its predecessor, the Transit Construction Commissioner, will please note that the easement lines shown on such detailed maps do not always exactly follow the contours of the actual subway structures, but the easements as delimited on such drawings will not prevent the purchaser from utilizing any parts of the easement areas not actually occupied by the subway or structure or any of its supports, providing the subway or structure or any of its supports are not interfered with and the utility, stability and safety of the same are not impaired thereby.”

With regard to Plot IV — The news stands which you may have observed to be in large part on the sidewalk are there by virtue of a license issued by the Bureau of Licenses. No such license, however, can be given without the consent of the abutting owner, and the purchaser of this property will have the right as owner to give consent for the issuance of the requisite license. For this consent the owner can of course charge an adequate rental.”

From these instructions any one would gather that the actual structures were the easements, or else that any part of the easement areas not actually occupied by the structures could be utilized by the purchaser for rental purposes.

The deed for which the plaintiff’s predecessor in title paid $49,300 recited: “ Whereas, said real property so acquired by the city, except the permanent and perpetual easement and right-of-way therein, hereinafter described, has become unnecessary for rapid transit railroad purposes * * *. Now, therefore, this indenture witnesseth, That the city, in consideration of the premises and of the said sum of Forty-nine thousand three hundred dollars * * * does hereby grant and release unto the said party of the second part, her successors and assigns forever, subject to said easement and right-of-way therein, including the covenants and restrictions hereinafter expressed, all that certain plot,” etc., describing all of the large triangle including the existing structures, “ together with the appurtenances and all the estates, right, title and interest of the city in and to said premises, except said permanent and perpetual easement and right-of-way hereby reserved and retained.”

Here is a conveyance in fee subject only to the easements. Are these easements restricted to the actual structures existing or may these be enlarged and extended? What are these easements? To determine this is to settle the case. The deed specifies these easements. Part 1 alone need be considered. “ Flat portion having a horizontal area of two hundred and ninety-one (291) square feet.” It is conceded by the plaintiff that this area takes in the triangle (smaller triangle) here in dispute. That is, the twenty-two square feet to the north of the subway entrance used for a news stand, are within this 291 square feet area. Only part of the area, however, is actually used for railroad or subway purposes. Exhibit 1-A, so much relied on by the respondent, shows this area as including the piece which the plaintiff here seeks to obtain. This exhibit is the map made and filed by the Transit Commission for the purpose of this sale. The drawing designates part 1 as 291 square feet. However, the drawing also shows an elevation of the existing structure which excludes the property in dispute. Can we do better than give to this deed the construction placed upon it by the parties? The actual structures constituted the easements used for transit purposes; the remaining portion of the 291 square feet not so actually used was conveyed to the grantee in fee subject to an easement not then needed or used, and, until actually occupied by the railroad the grantee could utilize it for his own purposes. This is the representation made to the proposed purchasers at the auction and is the way the parties treated the grant thereafter for ten years.

The news stand existing on this unused portion of the 291 square feet was not a railroad easement and is not claimed to be. Renting this unused and unnecessary property was not the easement subject to which the property was sold. When the grantee took title in fee he took all rights of ownership in this 291 square feet except as to such portion actually used for subway purposes or which thereafter might become necessary for such use. Until that time arrived he was entitled to possession and to the rents and profits derived from its occupation.

The deed is dated July 19, 1921; the sale took place April 28, 1921. On April 30, 1921, the secretary to the Transit Commission wrote to the lessee of the twenty-two-foot frontage on Flatbush avenue (the property in dispute):

Mr. Frank I. Bakst,
“ 319 Pearl Street,
Brooklyn, N. Y.
“ Dear Sir: As you may be aware the property of the City of New York, under the jurisdiction of this Commission, located on the westerly side of Flatbush Avenue Extension, 8' 11" south of DeKalb Avenue, Borough of Brooklyn, which you in part occupy, was sold at public auction on the 28th instant to Mr. B. Zirinsky of 392 Bushwick Avenue, Brooklyn.
“ In ordinary course in accordance with the Terms of Sale, title to this property would pass to Mr.. Zirinsky on June 28, 1921. Therefore, you are advised that the rental agreement, under which you occupy a portion of these premises, will be terminated as of that date unless you are otherwise notified from this office or unless you make a separate arrangement with Mr. Zirinsky.
• " Very truly yours,
“ JAMES B. WALKER,
“ Secretary

To the husband of the purchaser the same secretary wrote July 21* 1921, as follows:

“Dear Sir: As requested by you yesterday after the closing of title to the property on the westerly side of Flatbush Avenue Extension south of DeKalb Avenue, Borough of Brooklyn, I am sending you herewith copies of papers'pertaining to the temporary tenancies existing on the property previous to your taking title. You will note that Frank I. Bakst has paid rental up to and including:. July 15, ; 1921. We have this day .written him requésting that he pay us rental up to and including July 19, 1921, as Sarah Zirinsky had taken title on July 20,1921.
“ Mr. George Lappos, the other tenant, paid rental up to July 1, 1921, and we have this day requested from him the payment of rental for the first 19 days of July, 1921, He was likewise advised that title was passed to Sarah Zirinsky on July 20, 1921. I do not send you a copy of the last receipt sent George Lappos for the reason that the receipt is part of another matter which may be confusing to your record and. which certainly does, not pertain to this property. Very truly yours,
“ JAMES B. WALKER,
“ Secretary.”

And again on July 21, 1921, the tenant was notified by the secretary as follows:

Mr. Frank I. Bakst,
“319 Pearl Street,
Brooklyn, N. Y.
Dear Sir: Referring to our notice to you of April 30, 1921, to vacate the premises on the westerly side of Flatbush Avenue Extension south of DeKalb Avenue:
“ Please be advised that title to this property was passed from the City of New York to Sarah Zirinsky on July 20, 1921. Mr. Barney Zirinsky, who represents Sarah Zirinsky, lives at No. 392 Bushwick Avenue, Brooklyn. * * * ”

It is too much of a demand upon our credulity to ask us to believe that the instructions to the auctioneer, these letters and the terms of sale were made and given without the authority of the Transit Commission. No one says so except the attorney by way of argument. There is no such testimony. We are justified, therefore, in taking this whole transaction as it appears without attempting to give it a strained and artificial construction.

As to this 291 square foot easement, part 1, the plaintiff got a fee subject to an easement for railroad purposes. Part of it was in actual use, part was leased out for profit. The city’s easement for transit purposes will enable it to use the property for such purpose when reasonably necessary, but until then it has no right to the property.

Las-Daub Realty Corp. v. Fain (214 App. Div. 8) does not pass upon this question or the rights in this property. In so far, however, as it holds that the plaintiff’s predecessor did not take a fee subject to these easements we do not approve it.

The judgments below should be reversed and judgment directed for the plaintiff in accordance with this opinion, with costs in all courts.

O’Bbien, J.

(dissenting). The deed recites that this real property, “ except the permanent and perpetual easement and right-of-way therein, hereinafter described,” has become unnecessary for rapid transit railroad purposes and that the Transit Commission had sold the property subject to said easement and right-of-way,” This instrument of conveyance then grants and releases to the vendee all the parcel, “ subject to said easement and right-of-way herein ” together with all the appurtenances and all the estates, right, title and interest of the city in and to said premises “ except said permanent and perpetual easement and right-of-way hereby reserved and retained.” The deed then describes the easement which was reserved and retained as divided into three parts. Part 1 is described as having a horizontal area of 291 square feet. The finding of fact that the 22 square feet which is the subject of this action is included within the 291 square feet which constitutes part 1 of the easement has been unanimously aflirmed, is fully supported by the evidence and is conceded by appellant to be correct. The parties agree in their deed that the above described easement ” shall not prevent the grantee from utilizing any part of it below the subway or structure not occupied by the subway or structure or any of its supports. That part of the easement which is described as part 1 and which is the only part involved in this litigation begins on a level with the street curb and, extending vertically upward for a distance of ten feet, comprises a cube. It is situated wholly above the subway and its structure and consequently, by the terms of the deed, is excluded from utilization by the grantee. The complaint demands judgment declaring that plaintiff is the owner in fee of all the premises, subject only to an easement for the maintenance and operation of the subway structure and its support. So long as the deed remains in its present form, no such relief can be accorded. It expressly reserves and retains title in the city to all of the easement described as part 1, excepts it from the grant and, since it is situated above the subway, denies its use and occupation to the grantee. The deed constitutes a conveyance with an exception, which exception includes the cubic area designated as part 1. That part was reserved and retained. By no reasonable interpretation can the deed, in its present form, be held to convey any part of this twenty-two square feet or to authorize its use or occupation by plaintiff at any time. There is nothing ambiguous in the language of this instrument and consequently there is no room for construction.

As alternative relief the complaint demands that the deed from the city to Sarah Zirinsky be reformed so that the twenty-two square feet included within the ground surface of part 1 of the easement be stricken therefrom or that the limitations upon its use be altered. Among the six parcels of Brooklyn real estate sold by the city at public auction on April 28, 1921, was this parcel at Flat-bush and DeKalb avenues. On all the maps and documents relating to the auction sale it is designated as plot IV. On the day of sale Sarah Zirinsky’s husband purchased these premises and executed a memorandum of sale of plot IV “ referred to in the attached ‘ Terms of Sale,’ ” and on July 19, 1921, the city of New York, acting by the Transit Commission, conveyed these premises by deed to her. The trial court has found and the Appellate Division has unanimously affirmed the finding that the grantee Sarah Zirinsky and her assignor had full knowledge or should have had full knowledge of the contents of the deed, that the deed conforms with the memorandum of sale executed by Zirinsky with the attached terms of sale, that no fraud was practiced, no mutual mistake was made by the parties as to their intention concerning the deed or its contents and that it was not the intention of the parties to the sale that the purchaser and his assigns should have the right to occupy and use or should acquire title to that portion of part 1 which is the subject of this litigation.- If any evidence supports these' findings, this judgment must be affirmed.

Much evidence supports the findings. The interest which is vested in plaintiff through mesne conveyances from Sarah Zirinsky is no greater than the title acquired by her. The terms of sale, which are incorporated in the memorandum of sale executed by Mrs. Zirinsky’s husband and assignor, apply to all six plots which were auctioned on the same day. These terms include many general directions applicable to all the plots and several specific items relating to particular plots. The document notifies prospective bidders that the properties will be sold in fee simple clear of all incumbrances “ except certain permanent and perpetual easements to be reserved and retained for the maintenance and operation in perpetuity of the structures of the rapid transit subway railroads as they now exist free of interference or right of interference. * * * In the case of Plot IV the subway structures may be altered with respect to the location of the present- entrance facilities, providing such entrance facilities are -not reduced in capacity or their safety impaired, and provided the approval of the chief engineer is secured as aforesaid.” The notice warns bidders that it is expressly understood that they have examined the several plots and made sufficient study of the maps or plans prepared in the office of the Transit Construction Commissioner to determine for themselves “ the nature and extent of the easements to be retained for the purposes of the said rapid transit subway railroads * * *. Intending bidders will be given every facility for examining the properties and plans or maps will be. furnished at the office of the Transit Construction Commissioner, Room 603, No. 49 Lafayette Street, New York city, showing the nature and extent of the permanent easements to be retained by the city for rapid transit purposes * *

The terms of sale do not in any way refer to areas available for stands in plot IV. Such reference is in the auction notice. The official map (Plaintiff’s Exhibit 1-A) plainly shows part 1 easement as embracing 291 square feet, none of which is situate within the sidewalk area, and the photograph of the building then existing on plot IV demonstrates that the statement in the auction notice in respect to availability for stands is not misleading. Several small shops at the street level, outside the area of part 1 easement, were then occupied as florist and fruit booths or stands. The notice read by the auctioneer to the effect that news stands, which he said were observable in large part on the sidewalk, were to be available for renting purposes to the purchaser of plot IV, does not warrant an implication that any of such stands were then located or would be allowed to be located within the area designated as part 1. The plan on file with the Commission shows that the sidewalk is outside that area. The following statement in the notice read by the auctioneer might perhaps afford plaintiff some consolation if Zirinsky, the purchaser, had relied upon it or even heard it or, having heard it, if he had attached any importance to it. It reads: “ * * * the easements as delimited on such drawings will not prevent the purchaser from utilizing any parts of the easement areas not actually occupied by the subway or structure or any of its supports * * Zirinsky cannot remember having heard the auctioneer read such a statement, and the trial judge, after hearing all the evidence, expressed Ms belief that Zirinsky did not rely upon anything that the auctioneer said that would mislead Mm. Zirinsky remembers that the auctioneer read the terms of sale and that he made the usual boosting ” remarks of an auctioneer. He said that he relied mainly on the information wMch he received from the real estate clerk and other clerks in the office of the Commission and that he tMnks he never read the figures on plaintiff’s ExMbit 3, a map upon wMch plaintiff strongly relies. He further testified: “ Now I never figured tMs. All I figured was 64 feet long, take off 14 feet off that, leave 50 feet, and I figured $1,000 a foot.” The property was purchased by him for $49,300. The trial judge’s inference of fact is fully justified when, in referring to and quoting Zirinsky’s testimony in respect to the frontage, he remarked: He had not thought of any easements, permanent or temporary, at all.” Zirinsky was not misled, for apparently he did not care, and gave no attention to easements. He received the report of the title company, paid his money and he and his wife accepted the deed and turned it over to the title company. The title company certified to a fee in the property, “ except the permanent and perpetual easements required for the maintenance and operation in perpetuity, free of interference and right of interference, of the Fourth Avenue Rapid Transit Railroad including the subway for structure and the station entrances thereof and upon such terms as will adequately safeguard such maintenance and operation and such other terms and conditions as the Transit Commissioners duly deem necessary and proper. ’ ’ The trial j udge refused to find any mutual mistake of fact or fraud or wrongful intent on the part of the city. On this record it is impossible to hold that there is no basis for the findings which were made. The most that can be said in plaintiff’s favor is that there may have been an erroneous assumption of law by Zirinsky and by subordinates in the office of the Transit Commission.

There has been no practical construction in respect to the effect of this deed. Letters written by a subordinate clerk and signed by the secretary of the Transit Commission, prior to the execution and delivery of the deed, of course cannot bind the city. One need not be particularly credulous in order to believe, in the absence of proof to the contrary, that the Transit Commission, burdened as it was with responsibilities of magnitude, was unaware of the existence of letters relating to news stands written by one of its clerks. It was not within the authority of a clerk or the secretary to construe the legal effect of transactions which later culminated and became merged in an unambiguous deed.

The judgment should be affirmed.

Pound, Ch. J., Lehman, Hubbs and Crouch, JJ., concur with Crane, J.; O’Brien, J., dissents in opinion; Kellogg, J., not sitting.

Judgment accordingly.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    In the Matter of the Elimination of the Grade Crossing of Lake Street in the Village of Burdett. Public Service Commission of the State of New York et al., Appellants; The Lehigh Valley Railroad Company, Respondent.

      (Argued March 12, 1934;
    decided April 17, 1934.)

      Charles G. Blakeslee and Sherman C. Ward for Public Service Commission, appellant.

      John J. Bennett, Jr., Attorney-General (Patrick II. Clune of counsel), for Department of Public Works, appellant.
    The statute contemplates the accomplishment of a complete elimination. The roadways connecting the subway or underpass are necessary to provide a complete elimination and the cost of their construction is chargeable to the elimination. (Laws of 1928, ch. 678.)

      Herbert W. Smith for respondent.
    The Appellate Division properly modified the order appealed from by directing that it provide that certain road construction work is not to be regarded as part of the grade crossing elimination and is not to be considered as approaches to the bridge. (Matter of Elimination of Grade Crossing [Wicopee-Beekman County Highway], 231 App. Div. 748; 259 N. Y. 639.)
   Crane, J.

That the Public Service Commission, to avoid grade crossing, may direct alterations or changes in existing highways was not first introduced into the law by the New Grade Crossing Act (Laws of 1928, ch. 678). We find in sections 89, 92 and 94 of the Railroad Law (Laws of 1910, ch. 481, as amd.; Cons. Laws, ch. 49) the power of the Public Service Commission to determine that alterations or changes may be made in any existing highway, at or in the vicinity of a proposed crossing for the purpose of avoiding a crossing at grade.

Pursuant to the constitutional amendment (Art. 7, § 14) providing State aid, chapter 678 of the Laws of 1928 was passed, which says that all existing highway-railroad crossings at grade to be eliminated from the proceeds of bonds issued pursuant to law and the Constitution shall be eliminated in the manner prescribed by the act. We must look to the act for the jurisdiction and power of the Commission as well as the extent of the work and manner of payment. Section 2, subdivision 5, of the act reads as follows: “ * * * Such elimination order shall determine the manner in which such elimination shall be made including a determination as to the alteration to be made in such crossing, its approaches, the method of crossing, the character of the structure and approaches, the type and extent of pavement, the location of the crossing, the closing and discontinuance of a crossing and the diversion of traffic from an existing crossing to an existing or a new highway, road, street or crossing, or the opening of an additional crossing and also including, if so determined by the commission, a change in the location of the railroad when necessary to effect the elimination of such crossing. * * * ”

Section 2, subdivision 7, reads: “ If a railroad corporation, the department of public works, a park commission or a county or other municipal corporation in which the work of elimination is located, desires to make or cause to have made changes or additions which in the opinion of the public service commission are other than necessary for the elimination, and to do or cause to be done such changes or additions in connection with the work of elimination, such changes or additions shall be shown by the plans and shall be described in the specifications, or otherwise, and the approval of such plans and specifications by the commission, given after a hearing on notice to the interested parties, shall be embodied in an order containing findings specifying such changes and additions. Such order shall state an estimated cost of such desired changes or additions other than necessary for the elimination, and the portions thereof chargeable, respectively, to the railroad corporation or corporations, the state, the park commission or the county or counties and other municipal corporation or corporations. * * * ”

Section 3 provides how the cost of all ehminations ordered shall be paid. Turning to section 5, subdivision 1, we find that it enacts the method of acquiring property for highways or to which an easement6 right may be deemed necessary. Section 5, subdivision 11, reads as follows: “11. In case any lands or easement rights in and to lands acquired as aforesaid and not conveyed to a railroad corporation physically form a part of any existing highway, road or street or a new highway, road or street opened to take the place of an existing highway, road or street, the fee title of which existing highway, road or street is vested in a municipal corporation, such municipal corporation may apply to the department of public works for a conveyance of such lands or easement rights. The department of public works, with the approval of the public service commission, may thereupon certify to the board of commissioners of the land office such facts and that such lands or rights, specifically describing same, should be conveyed to such municipal corporation upon such terms and conditions as may be prescribed, whereupon the board of commissioners of the land office shall grant and convey such lands or rights to such municipal corporation upon such terms and conditions.” (Note the reference to new highways.)

Section 5, subdivision 12, reads: 12. Any lands or easement rights in and to lands acquired as aforesaid and not conveyed to a railroad corporation or a municipal corporation, physically forming a part of any existing or proposed highway, road or street, shall become a part of the state, county, town, city, village or other highway or street system of which such existing or proposed highway, road or street forms a part and shall be under the jurisdiction of and .maintained by the proper authorities having charge of such respective systems.”

These provisions indicate to my mind that the elimination may take in property required for new highways, new relocations, and that while the cost is to be apportioned as the act provides, certain adjustment must be made if the new roads and highways are turned over to the municipalities. Similar provisions apply to the railroad when it desires to keep and retain property which it can use as part of its right-of-way.

The change in a grade crossing depends upon the map and plan adopted pursuant to section 2, subdivision 6. This may call for highway changes. The cost is the whole cost, the plan and map being considered as one undertaking. This cost, including the elevation of the highway or the tracks and the changes made in the highways or the creation of a new highway, is to be paid for as the act provides. The portion to be borne by the railroad is not limited merely to the elevated or lowered portion.

We gather from all the provisions of this Grade Crossing Act that it was contemplated, as in the Railroad Law, that properly to eliminate some grade crossings it was necessary or reasonable to change existing roads or highways or open new ones. We know from the records before us in other cases that a number of different plans are sometimes presented to the Public Service Commission. In Matter of Grade Crossing Elimination (N. Y., N. H. & H. R. R. Co.) (259 N. Y. 639) there were three such maps presented suggesting various methods and routes. The Commission, after due hearing, must exercise its judgment and discretion in final determination. Evident is it that to accomplish the salutary purpose intended by the Constitution and the law, new highways must at times be opened to reach the changed location of the new overhead or undergrade crossing. As in the present case, it may be very impracticable to make the improvement at the existing grade crossing. Under such circumstances, the opening of a new highway of approach is a necessary part of the improvement and we can see no reason why the railroad should not share the cost, as provided by the statute, of the entire change. The provisions for acquiring the land and the disposition of the highways or land after the improvement is completed speak loudly in favor of this conclusion. While section 2, subdivision 7, refers to the sharing in changes not found necessary to the elimination, this we think means that the cost of these unnecessary changes should be shared only by the municipality or company benefited by such unnecessary changes. To make a railroad pay for improvements in no way connected with the elimination or the work of eliminating dangerous crossings would probably be unconstitutional as taking the company’s property without due process. We have no such case here. Anything, however, appropriate and suitable in the judgment of the Commission to accomplish the aim and purpose of the enactment would come within the constitutional limitations. The order of the Public Service Commission must be reasonable and upon review should it appear that the cost of an improvement has been saddled upon the railroad which has little or nothing to do with elimination work, the courts can deal with the matter and set aside the order as an arbitrary act, or an abuse of discretion.

The salvation of all these remedial enactments which can never go into all the details is the wisdom and caution, the fairness of the regulating body. Our affirmance, without opinion, of the case of Matter of Grade Crossing Elimination (N. Y., N. H. & H. R. R. Co.) (259 N. Y. 639) was with the view that the Commission in that case, considering all the facts and the plans submitted, had gone too far. Other purposes had entered into the creating of the new highway than to make available an overhead crossing. However, if that case has been taken as an authority for the proposition that a railroad can only be charged with its proportionate part of the cost of the inclines to the overhead bridge, we correct the impression now.

In this case we have a very simple proposition with no dispute as to the facts and no doubt as to the purpose or necessity of the new highway. All agree that public welfare requires the elimination of the crossing and that the method directed by the Public Service Commission was entirely proper. The relocation of the crossing at a point about 205 feet south of the existing crossing was the best and most reasonable method of accomplishing the elimination. This caused or necessitated the creation of a new highway to reach the place which was most available both for convenience and expense to place the new crossing. To have raised the road where the tracks crossed at grade would have been very expensive, due to the damages caused adjacent property owners by the change of grade. The new back road or cutoff brings the expense down $57,000.

On the argument the counsel for the railroad frankly admitted that his client did not want the existing grade crossing raised at this increased expense and desired the proposed plan to be carried out. The only objection was to sharing in the cost of the highway improvement beyond the point where the highway commenced the incline to the overhead bridge. This objection we hold to be untenable.

Referring again to the Grade Crossing Act, section 3, paragraph 2, we find how the cost is to be apportioned after the work is completed. Section 5, subdivision 11, specifies how a new highway may be conveyed in fee to the municipalities upon terms and conditions prescribed.

This act prescribes, as it says, a full and complete scheme for removing the danger at grade crossing. As the location may be changed, so must the highways change to meet the new location. It is all one purpose and one improvement, called an elimination proceeding, the cost of which is to be shared by the State, municipalities and railroad as in the act provided. The law also leaves open the opportunity for future or other adjustments as the case may demand.

- The order of the Appellate Division should be reversed and the determination of the Public Service Commission affirmed, with costs in this court and in the Appellate Division.

Pound, Ch. J., Lehman and O’Brien, JJ., concur; Hubbs and Crouch, JJ., dissent; Kellogg, J., not sitting.

. Ordered accordingly.


author: Per Curiam.

text:
    Emanuel Freund, Appellant, v. Thomas J. Hogan Individually and as Treasurer of the City of Long Beach, et al., Respondents.
    (Argued March 20, 1934;
    decided April 17, 1934.)

      H. H, Nordlinger and Sidney I. Prager for appellant.
    The City Court of Long Beach is not part of the city government but is part of the judicial system of the State. (Whitmore v. Mayor, 67 N. Y. 21; People ex rel. Gilchrist v. Murray, 73 N. Y. 535; Ledwith v. Rosalsky, 244 N. Y. 406; Matter of Adler v. Voorhis, 254 N. Y. 375; Schieffelin v. Leary, 219 App. Div. 660; Schieffelin v. Berry, 217 App. Div. 451; 243 N. Y. 603; Stewart v. Mayor, 15 App. Div. 548; Susswein v. Frankel, 141 Misc. Rep. 832; 234 App. Div. 873; Matter of Siracusa, 125 Misc. Rep. 882; Matter of Prendergast v. Cohalan, 101 Misc. Rep. 712; 179 App. Div. 883; 226 N. Y. 636.)

      Jerome M. Hirsch, Corporation Counsel, Saul Gordon and Samuel Jesse Buzzell for respondents.
    The City Judge of the city of Long Beach is a city officer, under the express provisions of the charter of the city, and the Council of the city had power, by local law, to increase his salary. (Adler v. Deegan, 251 N. Y. 467; Matter of Gresser v. O’Brien, 146 Misc. Rep. 909; Ledwith v. Rosalsky, 244 N. Y. 406; Whitmore v. Mayor, 67 N. Y. 21; People ex rel. Garrity v. Walsh, 181 App. Div. 118.)
   Per Curiam.

The question is whether the City Judge of Long Beach is a city officer, so that the council of such city may increase his compensation under the City Home Rule Law (Cons. Laws, ch. 76), or a State officer (Whitmore v. Mayor, 67 N. Y. 21), whose salary can be regulated only by the Legislature.

The question has been answered to the effect that, so far as compensation is concerned, he is a city officer. (People ex rel. Garrity v. Walsh, 181 App. Div. 118; cited with approval by this court, Ledwith v. Rosalsky, 244 N. Y. 406, 410.)

The judgment should be affirmed, with costs.

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ., concur; Kellogg, J., not sitting. Judgment affirmed.


author: Crane, J. Crouch, J.

text:
    David Bergman et al., Copartners under the Firm Name of Wallkill Valley Pants Company, Appellants, v. Scottish Union and National Insurance Company, Respondent.

      (Argued March 21, 1934;
    decided April 17, 1934.)

      Henry Hirschberg for appellants.
    The refusal by the trial court to permit the jury to render either a general or special verdict in its discretion and the submission of particular interrogatories to the jury over plaintiffs’ exception, deprived plaintiffs of a trial by jury of the issues in the case contrary to the provisions of section 2 of article 1 of the Constitution of the State of New York. (3 Cooley’s Blackstone [4th ed.], *378; Fuller v. Kennebec Mut. Ins. Co., 31 Me. 325: De Vizes v. Clark, 3 A. & E. 506; Foster v. Johnson, 70 Ala. 249; Peck v. Snyder, 13 Mich. 21; Wallingford v. Dunlap, 14 Penn. St. 31) Florida R. R. Co. v. Lessiter, 58 Fla. 234; Underwood v. People, 32 Mich. 1; Greenpoint Nat. Bank v. Gilbert, 237 N. Y. 19; Socony Burner Corp. v. Gold, 227 App. Div. 369; Hodges v. Easton, 106 U. S. 408; Ward v. Cochran, 150 U. S. 597; Chicago R. R. Co. v. Dunlavey, 129 Ill. 143; Vermilyea v. Palmer, 52 N. Y. 471.)

      David A. Ticktin, Abraham Kaplan and Milton Adler for respondent.
    The plaintiffs have not been deprived of a trial by jury. (Domagalski v. Springfield F. & M. Ins. Co., 218 App. Div. 187; Kantor Silk Mills, Inc., v. Century Ins. Co., 223 App. Div. 387: Socony Burner

      Corp. v. Gold, 227 App. Div. 369; Klein v. Katz, 200 App. Div. 473; Craig v. Anyon, 212 App. Div. 55; 242 N. Y. 569; Smith v. Western Pacific Ry. Co., 203 N. Y. 499: People v. Dunn, 157 N. Y. 528; Carlin v. N. Y., N. H. & H. R. R. Co., 135 App. Div. 876; Hoey v. Metropolitan St. Ry. Co., 70 App. Div. 60; Walker v. New Mexico & S. P. R. R. Co., 165 U. S. 593.) The trial justice had the right to follow the procedure outlined in section 459 of the Civil Practice Act and properly exercised that right. (Hays v. Moody, 2 N. Y. Supp. 385; Allen v. Fulton Motor Car Co., 71 Misc. Rep. 190; Griffith v. Metropolitan Street R. Co., 32 Misc. Rep. 289; Davis v. Guardian Assur. Co., 87 Hun, 414; 155 N. Y. 682.)
   Crane, J.

As there is some misunderstanding apparently regarding the meaning of section 459 of the Civil Practice Act, and some confusion in its application, we set forth the section in full in order to analyze its provisions:

§ 459. General and special verdict and special findings. In an action to recover a sum of money only, or real property, or a chattel, the jury may render a general or special verdict, in its discretion. In any other action, except where one or more specific questions of fact stated under the direction of the court are tried by a jury, the court may direct the jury to find a special verdict upon all or any of the issues. Where the jury finds a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing; it must be filed with the clerk and entered in the minutes. When a motion is made to nonsuit the plaintiffs or for the direction of a verdict, the court, pending the decision of such motion, may submit any question of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to. Where a special finding is inconsistent with a general verdict, the former controls the latter, and the court must render judgment accordingly.”

The fundamental rule expressive of the common law is that, in an action to recover a sum of money only, the jury may render a general or special verdict in its discretion. (Cooley’s Blackstone [3rd ed.], Book 3, *378; Walker v. New Mexico & So. Pac. R. R. Co., 165 U. S. 593.) This form of procedure is preserved throughout the entire section and is not módified by what comes after. In any action other than one to recover a' sum of money or real property or a chattel the court may direct a jury to find a special verdict upon all or any of the issues. However, where the jury is to find a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. Up to this point the practice is for the jury to find a general verdict in every action to recover a sum of money only. The judge may ask the jury to find a special verdict upon one or more questions of fact along with the general verdict, but a general verdict there must be. In other cases than those above specified, the court may take a special verdict without requiring a general verdict. These are the fundamental principles and practice universally followed in accordance with the past history of litigation and the provisions of our practice act.

We now come to that portion of section 459 of the Civil Practice Act, which touches upon motions for non-suit, or the direction of a verdict, and in considering them we must keep in mind the nature of such a motion. The plaintiff, in an action for a sum of money, can only be nonsuited when he has failed to make out a case; when there is no issue of fact to go to the jury. The same applies to a motion for the direction of a verdict, whether at the end of the plaintiff’s case or at the end of the whole case; if there be disputed questions of fact there can be no direction of a verdict. When, therefore, this section states that, pending the decision of such a motion, the court may submit any question of fact raised by the pleadings to the jury, or require the jury to assess the damage, it does not mean to eliminate the former provisions regarding a general verdict. In other words, in an action for a sum of money where there are disputed questions of fact, the court, on reserving the decision on a motion for a nonsuit, cannot call for a special verdict of a single question of fact and thereafter direct a general verdict on the facts. This practice would do away with the general verdict by the jury altogether should the court so desire; at least, it would render the matter discretionary with the court, whereas the law says it is discretionary with the jury.

What, then, is the meaning of the rest of this section which says that, after the jury shall have rendered a special verdict upon such submission, or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to? We take it to mean this: The judge has got to decide the motion for a nonsuit or for a direction of the verdict in behalf of one side or the other. Either plaintiff or defendant may make a motion for a direction of a verdict, which can be granted, as I have above stated, where there are no questions of fact to be decided. The court, therefore, in granting the motion disposes of the case without the aid of the jury. In one instance he dismisses the complaint on the motion for a nonsuit, or, on the other hand, he directs a verdict — a general verdict — either for the plaintiff or the defendant. He must, however, decide the motion.

Should he deny the motion, can he then direct a general verdict on the special finding of fact which he has submitted to the jury, without submitting the whole case, all questions of fact, to the jury? He cannot. The plaintiff or the defendant in an action for a sum of money is entitled under this section 459 of the Civil Practice Act to have all the questions of fact determined by a jury in a general verdict or a special verdict, according to the discretion of the jury. Where, therefore, the court has denied the motion for a nonsuit or for the direction of a verdict, he must submit to the jury the issues of fact to be decided by a general verdict upon the entire case, even though, pending the decision of the motion, he has called for special findings. In no other way can we preserve to litigants the right to a full jury trial of the issues of fact in actions for a sum of money only. Suppose instead of reserving the motion for a nonsuit or for the direction of a verdict the judge decides the motion on the spot. Could he then submit only one or two special questions and direct a general verdict on the jury’s findings? This would be contrary to the practice in jury trials as they have existed at common law and as prescribed by the section we are considering. (Hoey v. Metropolitan Street Ry. Co., 70 App. Div. 60; Sherman v. Leicht, 238 App. Div. 271; Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79; Greenpoint Nat. Bank v. Gilbert, 237 N. Y. 19; Ketcham Nat. Bank v. Hagen, 164 N. Y. 446, at p. 448.) The most frequent use of the special verdict on the reservation of the motion for a directed verdict is where the court directs a verdict and lets the jury fix the amount. (Carmody’s New York Practice, § 418.) The Legislature has before it a bill to amend section 459 of the Civil Practice Act to allow a general or special verdict in any case (See L. 1934, ch. 522).

No constitutional question is involved, merely the interpretation of section 459 of the Civil Practice Act. Provided the issues of fact are decided by a jury the order in which they are submitted is not material. The error here is that the general issue has never been submitted. (Smith v. Western Pacific Ry. Co., 203 N. Y. 499.)

There is reason for this practice. We are not following the rule blindly. The answer to a single issue of fact left to the good judgment of twelve men may be influenced, and properly so, by the consideration and determination of all the other facts in the case. It is for this reason we preserve jury trials.

Turning now to the case in hand, we have an action on a fire insurance policy to recover for a loss occurring in the plaintiffs’ factory at Walden, Orange county, N. Y. The plaintiffs are partners, doing business under the name and style of Wallkill Valley Pants Company. The judge, at the end of the case, said that he would reserve his decision on the motion for a direction of a verdict and submit to the jury six questions. The questions were the following:

Question 1. Did the plaintiffs make and deliver to the defendant sworn false and fraudulent statements that on April 12, 1928, the actual cash value of the property insured was $14,982.09 and that plaintiffs’ property in said amount had been destroyed?

Question 2. Did the plaintiffs make and deliver to the defendant sworn false and fraudulent statements that the plaintiffs had no knowledge of the origin of the fire?

“ Question 3. Did the plaintiffs upon their examination pursuant to the policy with intent to induce the defendant to pay plaintiffs a greater sum than any damage suffered swear falsely and fraudulently as to the actual cash value of the insured property at the time of the fire, the damage to the property because of the fire and the cost price of that property?

Question 4. Did the plaintiffs upon that examination with the same intent swear falsely and fraudulently as to their knowledge (or lack of it) of the origin of the fire?

Question 5. Did the plaintiffs upon that examination with the same intent swear falsely and fraudulently as to the truth and accuracy of the proofs of loss?

Question 6. Was the fire of incendiary origin, set with the knowledge, privity, procurement or consent of the plaintiffs or one of them and deliberately caused for the purpose of collecting money from the defendant by reason of its policy of insurance?”

The judge told the jury that, dependent upon their answers, there would be three other questions which he would later submit to them. After being out a long time the jury returned and said that they could not agree, and one of the jurors asked the judge if they answered the first question no,” would they get the second paper — meaning the other questions which the judge said he would submit to them. The jury returned, answering the first, third and fifth questions in the affirmative, and the second, fourth and sixth in the negative, whereupon the judge granted a general verdict for the defendant, not upon the motions made at the end of the case, but upon this special verdict of the jury. Over the objections and exceptions of the plaintiffs’ lawyer, he refused to instruct the jury that they in their discretion might find a general verdict.

With the merits of this litigation we are not now concerned. The jury may have answered these questions correctly, and the result reached by the judge may be a just determination, but we are called upon to decide whether the trial has been according to law and in harmony with our jury system as it is preserved to us in our Constitution and Civil Practice Act. Popular notions of the administration of justice may approve any judgment which is considered right, irrespective of the methods by which it was obtained. Experience has taught us, however, that without forms and regulated procedure chaos and confusion soon develop and evils arise which make summary and hasty dispositions more unfair and unjust than the slow but sure methods of the law.

We, therefore, are obliged to reverse this judgment and send the case back for a new trial.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Crouch, J.

(concurring). A brief reference to some historical facts may be of aid in the interpretation of section 459 of the Civil Practice Act.

In the early days of the common law the method of keeping check on the jury was by attaint. Later, in order to permit escape from that hardship, the jury in civil cases was given the privilege of returning a special verdict. That ancient law was incorporated in our Revised Statutes as follows: “No jury shall, in any case, be compelled to give a general verdict, so that they find a special verdict showing the facts, respecting which issue is joined, and therein require the judgment of the court upon such facts.” (2 R. S. 421, § 68.)

“ Attaints upon untrue verdicts are abolished.” (Id. § 69.)

Through successive revisions we thus derive the first sentence of section 459 of the Civil Practice Act.

Another check upon the general verdict of a jury was the old custom of the English judges of quizzing a jury which had returned an unexpected verdict. That custom apparently was adopted early in the judicial history of Massachusetts and extended to other New England States. An analogous method grew up in New York of submitting to the jury special interrogatories, answers to which were to be returned with the general verdict. That practice is referred to and was sanctioned in McMasters v. Westchester Mut. Ins. Co. (25 Wend. 379), decided in 1841. It was carried into the Code of Procedure of 1848 where section 216 provided that the court “ may instruct [the jurors], if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.”

The special verdict which the jury in its discretion may render is one thing, and the special finding upon the direction of the court in connection with the general •verdict is another. The special verdict is in lieu of a general verdict and constitutes the sole basis of judgment. The special findings are merely in aid of a general verdict and a check upon it. If there is any inconsistency between the general verdict and the special finding, the latter is (Civ. Prac. Act, § 459) and since 1848 (Code of Pro. §§ 217, 262; Code Civ. Pro. § 1188) has been con-, trolling. (See, generally, Green, “A New Development in Jury Trial,” 13 American Bar Association Journal, 715, and authorities there cited.)

The portion of section 459 of the Civil Practice Act with which we are here concerned, relating to the submission of special questions pending a motion for non-suit or for a direction of a verdict, came into the statutes in 1895 by amendment (Laws of 1895, ch. 946) to section 1187 of the Code of Civil Procedure. The submission there authorized is not in aid of the motion, which involves questions of law only. Its object, and its only object, like that of section 461 of the Civil Practice Act, is to obviate the necessity of a new trial in a case where the trial court was mistaken as to the law. (Jones v. N. Y. C. & H. R. R. R. Co., 61 Misc. Rep. 139, opinion by Wm. S. Andrews, J.; see, also, 25 Columbia Law Review, 775.)

It is clear that the practice followed at the trial in this case was not within the scope of the statute. To a cause of action upon a fire insurance policy, defendant interposed certain affirmative defenses relating to fraud and to incendiarism by the assured. Plaintiffs moved at the close of the case to dismiss the several defenses, and defendant moved for a nonsuit for failure to prove sufficient facts. The court reserved its decision on the motion for nonsuit, denied the motion to dismiss the defenses and submitted to the jury special questions relating only to the defenses. The jury by its answers to three of the special questions found the plaintiffs guilty of fraud vitiating the policy. Thereupon the court, in view of those answers, directed the jury to find a general verdict in favor of the defendant for no cause of action. There is no authority, statutory or otherwise, for the practice thus pursued, over the plaintiffs’ objection. What may be done by consent under reserved motions is another matter. (See Bail v. N. Y., N. H. & H. R. R. Co., 201 N. Y. 355.)

I, therefore, concur for reversal and for a new trial.

Pound, Ch. J., Lehman, O’Brien and Hubbs, JJ., concur with Crane, J.; Crouch, J., concurs in separate opinion in which all concur; Kellogg, J., not sitting.

Judgments reversed, etc.


author: Hubbs, J.

text:
    In the Matter of Henry D. Holden, as General Guardian of Madeleine de S. Holden, an Infant, Respondent. Hiram E. Meeker, as Receiver of First National Bank in Mamaroneck, Appellant.
    (Argued February 28, 1934;
    decided April 17, 1934.)

      Monroe J. Cahn and Joseph F. Hunter for appellant.
    The order is erroneous because the pleadings do not show that petitioner’s deposit was a special deposit. (Matter of Egan, 258 N. Y. 334; Matter of Bank of United States [Moore], 261 N. Y. 645; Henkel v. Carnegie Trust Co., 213 N. Y. 185; Matter of Forrest, 259 N. Y. 553; Warren v. Union Bank, 157 N. Y. 259; Matter of Kamhi, 147 Misc. Rep. 620; Lent v. Howard, 89 N. Y. 169; Matter of Pinchefski, 179 App. Div. 578; Matter of Kruger, 139 Misc. Rep. 907; Wilmerding v. McKesson, 103 N. Y. 329; Genessee Wesleyan Seminary v. U. S. F. & G. Co., 247 N. Y. 52.)

      Henry D. Holden for respondent, in person.
    The fund involved constituted a bailment by the Surrogate’s Court to the bank, being money in custodia legis. (Trumphour v. Trumphour, 70 Hun, 571; Emigrant Industrial Sav. Bank v. Scotts Bridge Realty Co., 240 App. Div. 779; Matter of Potell, 53 Fed. Rep. [2d] 877; Matter of Weiss & Weiss, 17 Am. Bankruptcy Rep. [N. S.] 647; Matter of Times Square Auto Supply Co., 47 Fed. Rep. [2d] 210; Matter of Kamhi, 147 Misc. Rep. 620; Shawmut Corp. v. Bobrick Sales Corp., 260 N. Y. 499.)
   Hubbs, J.

Henry D. Holden was duly appointed the general guardian of the infant Madeleine de Sylvia Holden by the Surrogate’s Court. The value of her estate being less than $5,000, the Surrogate, pursuant to section 180 of the Surrogate’s Court Act, dispensed with the statutory requirement that he should furnish a bond, and joined with him William O. Clark, clerk of the Surrogate’s Court, as required by the terms of that section. The order making the appointment provided “ That the Clerk of this Court William 0. Clark] be and hereby is designated to collect and receive the moneys of his ward jointly with Henry D. Holden, the said guardian who is hereby directed to deposit the same in First National Bank in Mamaroneck subject to the the further order of the Surrogate.”

Notice was sent to the bank advising it of the terms of the order, the appointment of the guardian, the fact that the clerk of the court was joined with him in the appointment, and the conditions of the account.

Thereafter deposits were made in the bank in the name of the guardian as such in an interest account.

The bank is a national bank, and on January 16, 1933, the Federal Comptroller of the Currency appointed the appellant receiver to take possession of the bank and its assets for the purpose of liquidation.

At the time the receiver took possession there was a balance in the bank standing in the name of the guardian. The guardian made a demand on the receiver that he turn over such balance to him as guardian. The demand was refused. Thereafter this proceeding was commenced to reclaim such balance upon the ground that the bank received the money deposited by the guardian as bailee and that title to the fund never passed to the bank.

Counsel for respondent in his brief states the question involved on this appeal as follows: “It is the sum and substance of our whole contention that there never was anything but a bailment or special deposit of the funds, that therefore the fund never entered into or became part of the assets of the bank and of course, the Receiver can have no higher rights than the bank itself possessed.”

The ordinary deposit in a bank by a fiduciary creates the relationship of debtor and creditor between the fiduciary and the bank. No preference exists under the state Banking Law (Cons. Laws, ch. 2) where a public administrator deposits the funds of the estate in a bank in his name as administrator. (Matter of Egan, 258 N. Y. 334.)

The same is true of a deposit made by a trustee in bankruptcy or by a committee of an incompetent, pursuant to an order of the Supreme Court (Matter of Bank of United States [Boyd], 261 N. Y. 645), or of a deposit by an executor (Matter of Forrest, 259 N. Y. 553), or by a receiver of rents in a foreclosure action where the deposit was made pursuant to an order of the court. (Emigrant Industrial Sav. Bank v. Scott’s Bridge Realty Co., 264 N. Y. 1.)

The basis of those decisions is that the funds deposited were not court funds within the meaning of the applicable statutes. While the funds were moneys in the constructive possession of the court, they were not moneys which had been “ brought into court ” as provided by statute.

It is not contended in the case at bar that the funds in question are moneys brought into court so that a different rule should apply as in the case of Matter of Times Square Trust Co. (264 N. Y. 8).

Here the guardian was directed by the order of the court to deposit the moneys in the bank of which appellant is receiver. The deposits were made in strict accord with the terms of the order. The bank accepted the deposits rightfully in pursuance of the order. Assuming that the moneys were in constructive custody of the court, the bank did nothing wrongfully interfering with such custody. It accepted possession of the moneys as directed by the court to carry out the provisions of its order and not wrongfully to interfere with the court’s custody.

It mingled the moneys deposited with its other funds in the ordinary corase of its business as it had a right to do. The deposits created the conventional relation of debtor and creditor between the guardian as depositor and the bank. It did not receive the deposits either as bailee or trustee. Not only had the guardian the legal right to deposit the money in his name as guardian and thereby create the relationship of debtor and creditor (Swartwout v. Mechanics’ Bank, 5 Den. 555; Bischoff v. Yorkville Bank, 218 N. Y. 106; Emigrant Industrial Sav. Bank v. Scott’s Bridge Realty Co., supra), but in doing so he was obeying the order of the court.

We are unable to distinguish this case from that of Matter of Bank of United States (Boyd) (supra) and the Emigrant Industrial Savings Bank case, in both of which the money was deposited in banks designated by a carat order. As the relationship created by the deposits was that of debtor and creditor, a reclamation proceeding cannot be maintained to recover the money deposited.

The conclusion which we have reached makes it unnecessary to discuss the other questions raised. The orders should be reversed and the motion denied, with costs in all courts and ten dollars costs of motion.

The question certified should be answered in the negative.

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

Ordered accordingly.


author: Crouch, J.

text:
    Margaret McMartin, Respondent, Impleaded with Others, v. The Fidelity and Casualty Company of New York, Appellant.
    (Argued March 19, 1934;
    decided April 17, 1934.)

      Charles B. Sullivan, John T. Connors, Jr., and Warner M. Bouck for appellant.
    The accidental injuries did not result in death directly and independently of all other causes. (Silverstein v. Metropolitan Ins. Co., 254 N. Y. 81; Leland v. United Commercial Travelers, 233 Mass. 558; Smith v. Mass. Bonding & Ins. Co., 207 App. Div. 682; 241 N. Y. 558; Reynell v. Indemnity Ins. Co., 258 N. Y. 572; Smith v. Federal Life Ins. Co., 6 Fed. Rep. [2d] 283; Naseef v. Metropolitan Life Ins. Co., 230 App. Div. 610.)

      Lawrence B. McKelvey, Brenton Taylor and T. Cuthell Calderwood for respondent.
    The plaintiff’s evidence was sufficient to require the submission of the case as an issue of fact. (Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307; Houlihan v. Preferred Acc. Ins. Co., 196 N. Y. 337; Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405; Van Vechten v. American Eagle Fire Ins. Co., 206 App. Div. 39; Schumacher v. G. E. C. & I. Co., 197 N. Y. 58; Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47; Goldstein v. Standard Acc. Ins. Co., 236 N. Y. 178; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Freeman v. Mercantile Acc. Assn., 156 Mass. 351; Bailey v. Interstate Casualty Co., 8 App. Div. 127; Lewis v. Ocean Acc. & G. Co., 224 N. Y. 18; Marchi v. Ætna Life Ins. Co., 140 App. Div. 901; Wehle v. U. S. Mut. Acc. Assn., 11 Misc. Rep. 36; 153 N. Y. 116; Larkin v. Interstate Casualty Co., 43 App. Div. 365.)
   Crouch, J.

The defendant issued a policy of insurance to James McMartin “ against disability or death resulting directly and independently of all other causes, from bodily injuries sustained through external, violent and accidental means.” While the policy was in force the insured, driving his automobile, sustained bodily injuries within the terms of the policy. He was taken to a hospital where, twenty days later and without having left his bed, he died.

Disregarding certain alleged errors in evidential rulings which we deem trivial and insubstantial, the sole question is whether death resulted directly and independently of all other causes from the bodily injuries.

The applicable rule of construction has been so recently and so fully discussed (Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81) and applied (Smith v. Massachusetts Bonding & Ins. Co., 207 App. Div. 682; affd., 241 N. Y. 558; Allendorf v. Fidelity & Casualty Co., 250 N. Y. 529; Reynell v. Indemnity Ins. Co., 258 N. Y. 572) in this court as to make needless anything but a bare statement of it. As a pendant to the opinion in the Silverstein case, it is appropriate to paraphrase as follows a recent statement of the rule by Mr. Justice Caedozo: Under a policy phrased as this one, the insurer may be relieved of liability if an idiosyncratic condition of mind or body predisposing the insured to injury is so acute as to constitute a disease. (Landress v. Phœnix Mut. Life Ins. Co., 291 U. S. 491 [March 5, 1934], dissenting opinion.) The disease or the infirmity must be so considerable or significant that it would be characterized as disease or infirmity in the common speech of men; * * * of such quality or degree that in its natural and probable development it may be expected to be a source of mischief.” (Silverstein v. Metropolitan Life Ins. Co., supra, p. 84.)

In the collision the insured struck his chest against the steering wheel of his automobile. At the hospital he complained of severe pain in his chest and “ would grunt with pain ” in breathing or upon pressure. An X-ray disclosed “ some separation of the third right and left costal cartilages.” The pain gradually cleared up and on the fifth or sixth day he could take a normal breath without much distress. A laceration of the lip substantially healed within the same period. There were no other evidences of injury. The immediate cause of death was nephritis. It is not claimed that.nephritis was caused by the accident. The disease, according to the testimony of one of plaintiff’s witnesses had been chronic and progressive for a period of years — at least three years. The autopsy disclosed other serious chronic conditions — chronic appendicitis, chronic inflammation of the prostate, left coronary artery thickened, narrowed and calcified, certain adhesions about the intestines. Nevertheless, the insured, aged about seventy years, was in seeming.good health and was actively engaged in business. What happened subsequent to the accident was described by a medical witness as follows: “As a result of the injury to his chest there was a resultant shock. Very soon after this shock was present there were increasing evidences of trouble in his intestinal tract and with his urinal tract. The poisons which were absorbed as a result of this failure of elimination produced the poisons in his system, the blood absorbing them and carrying them to all parts of his body. As a result of this poisoning all of the organs in the body, of course, were more or less weakened, their function was lessened and resulted ultimately in his death.”

Upon that testimony it is said that “ the accident killed McMartin because he was unable to withstand the shock which followed it.” Upon that theory plaintiff rests her case. It is not enough. The burden was on plaintiff to show that the idiosyncratic condition of McMartin’s body, upon which the accidental injury impinged ultimately to cause death, was not a disease within the meaning of the established rule. The burden wds not met. Nephritis existent for at least three years, chronic and progressive, may not with any fitness of language or with any sense of reality be described as a mere predisposing tendency. It is a condition which in its natural and probable development may be expected to be a source of mischief, and so a disease; and if it were mentioned as inflammation of the kidneys instead of nephritis, the ordinary man in his common speech would unquestionably call it a disease.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. (See 264 N. Y. 671.)

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

Judgment accordingly.


text:
    John T. Gedney et al., Respondents, v. Marlton Realty Company, Appellant. (Actions 1 and 2.)
    (Argued March 20, 1934;
    decided April 17, 1934.)

      John Vance Hewitt, Gilman L. Sessions and Henry M. Bellinger for appellant.
    The special act (Laws of 1865, ch. 154) was constitutional with respect to the interest of infants. (Gedney v. Marlton Realty Co., 258 N. Y. 355; Cochran v. Van Surlay, 20 Wend. 365; Leggett v. Hunter, 19 N. Y. 445; Brevoort v. Grace, 53 N. Y. 245; Matter of O’Donnell, 221 N. Y. 197; Towle v. Forney, 14 N. Y. 423.)

      Eugene A. Sherpick, Harold R. Medina, Myles B. Amend and John W. Jordan for respondents.
    The effect of the Court of Appeals holding on the prior appeal was to declare the act of 1865 unconstitutional in toto. (Gedney v. Marlton Realty Co., 258 N. Y. 355; Rathbone v. Wirth, 150 N. Y. 459; Matter of Village of Middletown, 82 N. Y. 196; People ex rel. Angerstein v. Kenney, 96 N. Y. 294; Jones v. Jones, 104 N. Y. 234; Lawton v. Steele, 119 N. Y. 226; Skaneateles Water Works Co. v. Village of Skaneateles, 161 N. Y. 154; Hauser v. North British & Mercantile Ins. Co., 206 N. Y. 455.) Whether plaintiffs’ ancestor died testate or intestate makes no difference in the extent of the plaintiffs’ interest. (Matter of Merriam, 136 N. Y. 58; Loeb v. Hasslacher, 209 App. Div. 58; Livingston v. Livingston, 56 App. Div. 484; 166 N. Y. 601.)
   Per Curiam.

The necessary and considered effect of the decision of this court on the prior appeal (Gedney v. Marlton Realty Co., 258 N. Y. 355) was the invalidity of the special act of 1865 (Laws of 1865, ch. 154) as a whole. The act of 1865, however, was enacted for the benefit of the fife tenant, Rebecca T. Rice, and was not an authorization for an infant’s proceeding for the benefit of Eloise Tonnele ” (p. 361). The sale under the statutory proceeding was, therefore, of as little avail against the interest of. Eloise Tonnele as it was against the adult interests. Moreover, the clearly expressed purpose of the statute was to “ authorize the sale in fee simple absolute of the lots and real estate ” therein mentioned. The clear invalidity of the statute as to non-consenting adult remaindermen entirely frustrated its purpose. Under such circumstances there may be no severance.

Whether John Tonnele, II, died testate or intestate as to the premises in question is concededly immaterial in this particular suit. Nor do we see any substantial basis for the application of the doctrine of estoppel.

The judgments should be affirmed, with costs.

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

Judgments affirmed.


text:
    In the Matter of the Probate of the Will of Rosanna Higgins, Deceased. Michael Dooley, Jr., Appellant; Margaret A. Clinton et al., as Executors of Rosanna Higgins, Deceased, Respondents.
    (Argued February 27, 1934;
    decided April 17, 1934.)

      Nathaniel II. Brower and Louis Titlebaum for appellant.
    The joint will is a good, valid and subsisting contract and could not be revoked by testatrix after the death of the joint maker. (Rastetter v. Hoenninger, 214 N. Y. 66; Hermann v. Ludwig, 186 App. Div. 287; 229 N. Y. 544; Blaine v. Richardson, 193 N. Y. Supp. 612; Frazier v. Patterson, 243 Ill. 80; Lewis v. Lewis, 104 Kan. 269; Civ. Prac. Act, § 342; Matter of Decker, 149 Misc. Rep. 364; Phillip v. Phillip, 96 Misc. Rep. 471; Stone v. Hoskins, L. R. 1905 Prob. Div. 194; Campbell v. Dunkelberger, 172 Iowa, 385; Adams v. Swift, 169 App. Div. 802; Edson v. Parsons, 155 N. Y. 555; Parsell v. Stryker, 41 N. Y. 480.) The Surrogate’s Court now has comprehensive equitable powers over decedents’ estates. (Matter of Morris, 134 Misc. Rep. 374; Surr. Ct. Act, § 40; Matter of Raymond v. Davis, 248 N. Y. 67; Matter of Enright, 149 Misc. Rep. 353; Matter of Seaman, 205 App. Div. 681; Matter of Dickman, 142 Misc. Rep. 207; Matter of Pulitzer, 139 Misc. Rep. 575.) The Surrogate’s Court has power to probate the joint will over the alleged last will. (Surr. Ct. Act, § 20, subd. 11; § 144, subd. 1; People v. Ahearn, 196 N. Y. 221; Matter of Moyer, 209 N. Y. 386; Travelers Ins. Co. v. Padula Co., 224 N. Y. 397; Matter of Rouss, 221 N. Y. 81.)

      Frederick L. Kane for Little Sisters of the Assumption, amicus curice.

      Raphael A. Egan, J. Sidney Bernstein and Philip A. Paulson for respondents.
    The will offered for probate herein conforms to the requirements of section 144 of the Surrogate’s Court Act, and must be admitted to probate. (Matter of Davis, 182 N. Y. 468; Matter of

      Hermann, 178 App. Div. 182; 222 N. Y. 564; Matter of Webb, 122 Misc. Rep. 129; 208 App. Div. 793; Matter of Lally, 210 App. Div. 757; Matter of Enright, 138 Misc. Rep. 853; Matter of Hawes, 119 Misc. Rep. 359; 212 App. Div. 861; Matter of Martin, 128 Misc. Rep. 659; 221 App. Div. 773; Schley v. Donlin, 131 Misc. Rep. 208; Rastetter v. Hoenninger, 214 N. Y. 66; Morgan v. Sanborn, 225 N. Y. 454; Matter of Holmes, 147 Misc. Rep. 394.) Admitting the broad equitable powers granted by-section 40 of the Surrogate’s Court Act and the amendment of 1921, the Surrogate has no power, in this proceeding, to give any effect whatever to the joint will. (Matter of Morris [Flanagan], 134 Misc. Rep. 374; Matter of Holmes, 147 Misc. Rep. 394; Matter of Hermann, 178 App. Div. 182; 222 N. Y. 564; Schley v. Donlin, 131 Misc. Rep. 208.)
   Crouch, J.

Thomas F. Higgins and Rosanna Higgins, his wife, executed a joint will dated September 26, 1923, disposing of their property both upon the death of either one of them and upon the death of the survivor. On July 27, 1931, following the death of Thomas F. Higgins, that will was probated as bis last will. Rosanna Higgins subsequently executed a will materially altering the final dispositive provisions of the joint will. This proceeding was brought for the probate of the subsequent will. Michael Dooley, Jr., named as a legatee and an executor in the joint will, filed an answer objecting to its probate, and moved for the probate of the joint will as the last will and testament of Rosanna Higgins, alleging that the joint will was made pursuant to an agreement.

It seems to have been conceded that the later will was duly executed and that the testatrix at the time of executing it was in all respects competent to make a will and was not under restraint.

The motion was denied and the contestants were left to assert their rights, if any, under the joint will in an accounting proceeding, or by such other action as they might be advised. The order was affirmed by the Appellate Division which has certified to this court the following question: “ Had the Surrogate’s Court power to withhold probate of the paper designated as a will executed by Rosanna Higgins in view of the earlier joint will executed by herself and husband and the circumstances disclosed by the record? ”

The answer, upon clear authority, must be in the negative. Section 144 of the Surrogate’s Court Act requires the Surrogate, when satisfied of the genuineness of the will and the validity of its execution, to admit it to probate. The provisions of this section look only to the formal validity of the will’s execution and it is immaterial that the testator may have bound himself to a different disposition of the property by contract, just as it is immaterial that the will, if probated, may be wholly inoperative by reason of the invalidity of its provisions or of subsequent events making it ineffective. (Matter of Davis, 182 N. Y. 468; Matter of Hermann, 178 App. Div. 182; affd., 222 N. Y. 564; Matter of Lally, 210 App. Div. 757.)

The conclusion reached below is required not only by the mandatory language of section 144 of the Surrogate’s Court Act, but also by the fact that the joint will having been revoked by the later will, is no longer a will and cannot be probated as such. “As a will an instrument is revokable at pleasure, but as a contract, if supported by an adequate consideration, it is enforceable in equity.” (Rastetter v. Hoenninger, 214 N. Y. 66, 71.) (See, also, Morgan v. Sanborn, 225 N. Y. 454, 461.)

We see nothing in section 20, subdivision 11, of the Surrogate’s Court Act, or in section 40 of the Surrogate’s Court Act, as amended by chapter 439 of the Laws of 1921, which affects the rule established by the cases above cited. It may very well be that the Surrogate’s Court now has jurisdiction either on the accounting or by a direct proceeding brought for the purpose to determine as a court of equity might the rights of the parties under the alleged contract between the joint testators. (Cf. Matter of Raymond v. Davis, 248 N. Y. 67; Matter of Cook, 244 N. Y. 63.) However that may be, it is clear that the equitable power vested in the Surrogate’s Court by section 40 may not be exercised so as to make a decision which is contrary to an express provision of another section in the same chapter.

The order should be affirmed, with costs. The question certified should be answered in the negative.

Pound, Ch. J., Lehman, O’Brien and Hubbs, JJ., concur; Crane, J., dissents on authority of Matter of Raymond, v. Davis (248 N. Y. 67, 71, 72); Kellogg, J., not sitting.

Ordered accordingly.


author: Lehman, J.

text:
    In the Matter of New York Central Electric Corporation, Appellant, against Public Service Commission of the State of New York et al., Respondents.

      (Argued March 12, 1934;
    decided April 17, 1934.)

      E. B. Naylon, Joseph W. Buck and Jesse J. Holland for appellant.
    The order granting permission to the Southern Tier Gas Corporation to distribute gas in the designated towns was beyond the power and authority of the Commission conferred by law and is illegal.
      (Village of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123; Crowell v. Benson, 285 U. S. 22; People ex rel. Judge v. Pub. Serv. Comm., 192 App. Div. 837; Interstate Commerce Comm. v. Louisville & Nashville R. R. Co., 227 U. S. 88; Philadelphia R. T. Co. v. Pub. Serv. Comm., 78 Pa. Sup. Ct. 593; State of Washington ex rel. Oregon R. R. Co. v. R. R. Commissions, 224 U. S. 510.)

      Charles G. Blakeslee and John T. Ryan for respondent.
    The Public Service Commission has authority to permit a gas corporation to furnish service in a municipality although another corporation may already have the same right. (Cons. Laws, ch. 48, § 68; Matter of Public Serv. Interstate Transp. Co. v. Pub. Serv. Comm., 258 N. Y. 455.) The record supports the Commission’s finding that the construction of a gas transmission and distribution line by Southern Tier Gas Corporation was necessary or convenient for the public service. (Trustees of Union College v. City of New York, 65 App. Div. 553; 173 N. Y. 38.)
   Lehman, J.

In May, 1932, the Southern Tier Gas Corporation applied to the Public Service Commission for its permission to construct and maintain a gas pipe fine from the Rathbone field in the Town of Rathbone, Steuben County, New York, across the Towns of Rathbone, Cameron, Thurston and Bath,” and to distribute natural gas to domestic consumers along said fine. The petition alleged that the four towns of Bath, Thurston, Cameron and Rathbone had granted consent to the petitioner to lay a gas main in, along, through, under or over their public streets and highways, and that the petitioner had entered into a contract with the village of Bath to supply natural gas to the village for a period of ten years for distribution by the village through its municipal system. The “ consents ” of the four towns through which the proposed pipe fine would pass were annexed to the petition. These consents ” were in fact franchises not only for the construction of a pipe line but for the distribution of gas.

The Public Service Commission held hearings upon the application. New York Central Electric Corporation appeared at these hearings to oppose the application. It held franchises for the construction of gas plants and the distribution of gas to the general public in the towns of Bath and Cameron. These franchises had been approved by the Public Service Commission. New York Central 'Electric Corporation also held similar franchises granted by the towns of Rathbone and Thurston, and applications were pending for the approval of the Commission. It held no franchise for the distribution of gas in the village of Bath. Permission granted by the Public Service Commission to another company to distribute gas in the territory in which New York Central Electric Corporation held franchises would directly affect the value of its franchises; permission granted to another company to construct a gas main through that territory for distribution of gas in a village where New York Central Electric Corporation held no franchise would have no such direct result.

The opinion of the Public Service Commission rendered after the hearings sets forth: “ The applicant itself does not desire to distribute gas in any portion of the franchise territory except the village of Bath and has so limited the prayer of its application. The gas is to be distributed and sold by the village of Bath.” The record shows that the application was so limited. No evidence was presented to show that distribution of gas by the applicant in any territory outside of the village of Bath was necessary or convenient for the public service.” (Public Service Law; Cons. Laws, ch. 48, § 68.) Opposition to the application was based upon the claim that permission granted to the applicant, to construct mains for the transmission of gas to the village of Bath and its distribution there, was neither necessary nor convenient. Evideuce upon that point was presented to the Commission. There was no hearing, except upon an application so limited, and there is nothing in the opinion of the Commission which even suggests that it considered or determined any other matter. The order of the Commission goes further. It grants the permission and approval of the Commission to the exercise by Southern Tier Gas Corporation of all the rights and privileges under the franchises granted by the towns of Thurston, Bathbone, Cameron and Bath.

To the extent that these franchises include the right to distribute gas in these towns, the order of the Public Service Commission is invalid. Its invalidity is not due to the fact that the New York Central Electric Corporation has a competing franchise in that territory in the same towns. The law does not prevent these towns from granting similar franchises to several corporations or the Public Service Commission from granting its permission or approval to the exercise by each of these corporations of any of the rights and privileges under the franchises so granted, “ if the circumstances of the situation make it necessary and convenient for the public.” (Public Service Interstate Transportation Co. v. Public Service Comm., 258 N. Y. 455, 461.) The power of the Commission to give such permission and approval is broad but not arbitrary. It may be exercised only where there is a determination after due hearing.” (Public Service Law, § 68.) To the extent that the order exceeds the scope of the hearing upon the application and is not supported by evidence, the order exceeds the jurisdiction of the Commission. There lies its essential vice.

We are told that evidence to support the Commission’s determination that the exercise of a franchise to distribute gas to the towns of Cameron, Thurston and Bathbone is necessary and convenient may be found in the fact that these towns granted such a franchise to the Southern Tier Gas Corporation a few months after they had granted, a similar franchise to the New York Central Electric Corporation. The State prohibits the exercise of a right or privilege under a franchise until there has been an independent determination by the Public Service Commission after due hearing.” The Commission is not permitted to substitute the discretion of the municipal authorities for its own determination.

The determination of the Commission properly arrived at after due hearing that the application of the Southern Tier Gas Corporation for the construction of a gas transmission line is necessary and convenient for the public service is valid. The permission to exercise the privilege under its franchises to distribute gas in the towns of Rathbone, Cameron, Thurston and Bath is invalid. The invalid portions are separable from the valid. If after due hearing ” it shall appear that exercise by the Southern Tier Gas Corporation of all the rights and privileges under its franchises granted by those towns is necessary and convenient, the Commission may hereafter grant its permission or approval. The entire course of the proceedings, including the opinion of the Commission, demonstrates that its approval of the application as limited at the hearings was not conditioned upon any exercise of the wider rights or privileges.

The order should be modified in accordance with this opinion and as so modified affirmed, with costs to the appellant.

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

Ordered accordingly.


text:
    In the Matter of the Accounting of Elsie M. Horst, as Executrix of William P. R. Horst, Deceased, Respondent. Marjorie L. Horst, an Infant, by John K. Gillette, Her Special Guardian, Appellant.
    (Submitted March 16, 1934;
    decided April 17, 1934.)

      John Kindred Gillette for appellant.
    Under section 26 of the Decedent Estate Law (Cons. Laws, ch. 13), the infant appellant, is entitled to the share she would have received had the testator died intestate. (Yung v. Blake, 163 App. Div. 501; Smith v. Robertson, 89 N. Y. 555; Matter of Schuster, 111 Misc. Rep. 534; Greene v. Holbrook, 128 Misc. Rep. 769.) The word “ child ” in section 26 of the Decedent Estate Law includes issue of such child. (Matter of Schuster, 111 Misc. Rep. 534; Matter of Pulis, 220 N. Y. 196; Matter of Montgomery, 177 App. Div. 799; Pimel v. Betjemann, 183 N. Y. 194; Matter of King, 217 N. Y. 358.)

      Thomas J. Towers for respondent.
    A child must survive testator to invoke the beneficial provisions of section 26 of the Decedent Estate Law. (Matter of Tone, 186 App. Div. 361.) A grandchild is not included in the beneficial provisions of section 26 of the Decedent Estate Law. (Pfender v. Depew, 136 App. Div. 636; Matter of Tone, 186 App. Div. 361; Matter of Pulis, 220 N. Y. 196; Matter of Montgomery, 177 App. Div. 799; Pimel v. Betjemann, 183 N. Y. 194; Matter of King, 217 N. Y. 358.)
   Lehman, J.

By his last will and testament, executed in January, 1902, the testator devised and bequeathed all his property to his wife. Three children were thereafter born to them. The testator died in April, 1932. One son died before him. The widow, two children and a grandchild, the daughter of the deceased son, survived. The question to be decided upon this appeal is whether the granddaughter shares in the distribution of the estate.

The Decedent Estate Law (Cons. Laws, ch. 13, § 26) provides: “ Whenever a testator shall have a child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after-born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in such will, every such child shall succeed to the same portion of such parent’s real and personal estate, as would have descended or been distributed to such child, if such parent had died intestate.” All the parties are in accord that the grandchild should take the share which her father would have taken if he had survived the testator. The courts below have refused to sanction the proposed distribution, on the ground that it is not in accordance with the statute. We construe the statute differently.

The testator may, if he chooses, fail to make provision in his will for his children, though they are the natural objects of his bounty. He may, quite reasonably, prefer to leave bis estate to his wife in confidence that she will provide for the children. The statute is not devised to defeat the intention of a testator to exclude any child from sharing in his estate; but where a child is born after the making of a will, and the testator dies leaving such child unprovided for and not in any way mentioned in the will, there is room for doubt whether the testator did intend to exclude such child. Then omission from the will may well be the result of such testamentary thoughtlessness and lack of vision as prevent a testator from contemplating the possibility of after-born children.” In such case the law will provide for them in the distribution of his [the testator’s] estate outside of the terms of his will.” (McLean v. McLean, 207 N. Y. 365, 371.)

All the statutory conditions under which the statute must be applied exist in this case. Three children were born after the making of the will. None were provided for or in any way mentioned in the will, and the testator died leaving them unprovided for by any settlement. The statute does not in express terms provide that the after-born child must survive in order to share in the distribution of the estate by representation, and we find no reason why such a condition should be read into the statute by implication.

The principle of representation is ancient. (Cf. 2 Blackstone, 217.) It is embodied in our statutes as to lineal descendants of a decedent, and even as to some collaterals. A devise or bequest to a child does not lapse by death, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate.” (Decedent Estate Law, § 29.) So, too, in case of intestacy “ such persons as legally represent the children if any of ■ them have died before the deceased ” take the share which a child would have taken if surviving. (§ 83.) Literal construction of the language of section 26 of the statute accords with the policy of the law as embodied in other sections. Wherever a testator or the law makes provision for a child, the descendants of such child take by representation, at least in the absence of clear expression to the contrary by the testator or by the Legislature.

The order should be reversed, with costs to the appellant payable out of the estate, and the proceedings remitted to the Surrogate for entry of a decree in accordance with this opinion.

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

Ordered accordingly.